CAIRNGORMS NATION­AL PARK AUTHORITY

Audit & Risk Com­mit­tee Paper ?? 03/02/21

CAIRNGORMS NATION­AL PARK AUTHORITY

AUDIT & RISK COMMITTEE

FOR DECISION

Title: GOV­ERNANCE: HAND­LING BOARD MEM­BER COM­PLAINTS – LES­SONS LEARNED REVIEW

Pre­pared by: Dav­id Camer­on, Dir­ect­or of Cor­por­ate Services

Pur­pose

This paper presents a review of les­sons learned on the hand­ling of com­plaints against Board mem­bers, fol­low­ing the hand­ling and con­sid­er­a­tion of such com­plaints in July and August 2020. The paper seeks decisions on the Authority’s future approach to hand­ling com­plaints received by the organ­isa­tion against board members.

Recom­mend­a­tions

The Audit & Risk Com­mit­tee is asked to:

a) Agree the Authority’s com­plaints hand­ling pro­ced­ure con­tin­ues to cov­er com­plaints made against board mem­bers; b) Agree the scope of amend­ments required to the Com­plaints Policy for hand­ling com­plaints against board mem­bers as set out in para­graph 12; c) Agree the Authority’s Code of Con­duct should be amended to include a per­cep­tion test sim­il­ar to that of the Coun­cil­lors’ Code of Con­duct; d) Agree changes to the Authority’s Code of Con­duct should be made to include a ​“per­cep­tion test” adopt­ing sim­il­ar word­ing to that already in place in the Coun­cil­lors’ Mod­el Code; e) Con­sider any fur­ther changes which may be required to the Authority’s Code of Conduct.

Back­ground

1. The Dir­ect­or of Cor­por­ate Ser­vices, work­ing with the Con­vener and Audit and Risk Com­mit­tee (ARC), handled a num­ber of com­plaints about a Board member’s com­ments on social media dur­ing late July and August 2020. The pro­cesses employed fol­lowed the com­plaints pro­ced­ure and oth­er gov­ernance struc­tures in place at the time of the com­plaint hand­ling. The com­plaints were all dealt with at the time and this report does not reopen those com­plaints in any way. The Audit and Risk Com­mit­tee agreed at the time of determ­in­ing action on the com­plaints that the pro­cess of hand­ling Board com­plaints, togeth­er with asso­ci­ated sup­port­ing policies, should be reviewed to determ­ine wheth­er les­sons may be learned from the pro­cesses deployed.

2. This paper presents the out­come of a review of the pro­ced­ures deployed togeth­er with pro­posed actions for con­sid­er­a­tion by the Com­mit­tee with­in its remit on governance.

3. Advice was sought from On Board Train­ing, who have been involved in Board train­ing on the Code of Con­duct, in devel­op­ing this les­sons learned review of hand­ling com­plaints against board mem­bers. Their advice is referred to in the rel­ev­ant sec­tions of this paper.

4. This review is con­duc­ted in the con­text of the Authority’s approved and adop­ted organ­isa­tion­al val­ues: ​“the CNPA is an open, inclus­ive, innov­at­ive and pro­fes­sion­al organ­isa­tion that behaves with integ­rity.” The aim of the review is to arrive at any changes needed in our cur­rent hand­ling of com­plaints against Board mem­bers which fur­ther enhances our organ­isa­tion­al demon­stra­tion of those val­ues and con­trib­utes to our cor­por­ate aim of being the best small pub­lic body in Scotland.

Author­ity Role in Hand­ling Com­plaints about Board Members

1. The first key point to con­sider is wheth­er it is appro­pri­ate for the Author­ity to include the hand­ling of com­plaints on board mem­bers with­in our intern­al com­plaints procedures.

2. In sub­mit­ting the com­plaint to the Eth­ic­al Stand­ards Com­mis­sion (ESC), I note a ques­tion is asked by the ESC on wheth­er the com­plain­ant has already com­pleted the pub­lic body’s com­plaints pro­cess. There seems to be at least some expect­a­tion in this regard on the part of the ESC that pub­lic bod­ies will have some role in hand­ling com­plaints made on the actions of the mem­bers of boards of pub­lic bodies.

3. Advice on this mat­ter from Dav­id Nich­ol of On Board Train­ing con­firms a gen­er­al expect­a­tion that pub­lic bod­ies will have a first point of response for com­plaints made about board mem­bers. The view of this expert in the field is that there is an expect­a­tion on the part of the Scot­tish Gov­ern­ment, the Min­is­ter and the pub­lic that poor beha­viours and actions on the part of Board Mem­bers will be dealt with by the Authority.

4. In con­duct­ing this review I have also con­sidered the approach taken by oth­er organ­isa­tions. Doc­u­ment­a­tion on this mat­ter has ten­ded to be more read­ily avail­able on loc­al author­ity web­sites than NDPBs, which would give a more rel­ev­ant com­par­is­on. How­ever, the key con­sid­er­a­tion around a pub­lic body’s role in hand­ling com­plaints against coun­cil­lors and mem­bers of pub­lic bod­ies is con­sidered rel­at­ively trans­fer­rable between these sec­tors. There are a range of approaches taken by loc­al author­it­ies in Scot­land on hand­ling com­plaints against coun­cil­lors, with some deploy­ing their own intern­al com­plaints hand­ling pro­ced­ures for such com­plaints while oth­ers do not have such a pro­cess. The approach in one Coun­cil con­sidered is to assess the com­plaint and sup­port the com­plain­ant to make a com­plaint to the ESC where the Mon­it­or­ing Officer (Stand­ards Officer) believes there may be grounds to sup­port the com­plaint. Where it appears the com­plain­ant does not intend to take the mat­ter fur­ther by com­plain­ing dir­ectly to the ESC, and where the Mon­it­or­ing Officer believes there are grounds to do so, they may make a report to the Chief Exec­ut­ive for con­sid­er­a­tion of wheth­er the organ­isa­tion should itself make a refer­ral / com­plaint to the ESC.

5. Over­all, my recom­mend­a­tion is that the Author­ity should con­tin­ue to deal with com­plaints against Board mem­bers received by the Author­ity. This seems a key mech­an­ism by which we uphold our organ­isa­tion­al val­ues, mon­it­or pub­lic per­cep­tion, and a first point of intern­ally hand­ling such cor­res­pond­ence. On the basis of advice received, the ESC would not expect all such com­plaints to be dir­ectly referred to them. The example the Coun­cil presen­ted here also has some degree of intern­al hand­ling and review, with poten­tial for refer­ral of com­plaints by the organ­isa­tion to the ESC. Oth­er loc­al author­it­ies do have a fuller intern­al com­plaints hand­ling procedure.

Com­plaints Policy

1. The com­plaints policy does cov­er com­plaints about Board mem­bers at para 90; ​“A com­plaint about a Board mem­ber should be referred to the Cor­por­ate Ser­vices Dir­ect­or, who is the Stand­ards Officer.”

2. How­ever, there is no doc­u­mented pro­cesses by which such com­plaints will be handled bey­ond this. As such, my recom­mend­a­tion is that a fuller pro­ced­ure for hand­ling com­plaints made against board mem­bers should be developed and added to a revised com­plaints hand­ling policy and procedure.

3. The sug­ges­ted hand­ling of com­plaints against board mem­bers should cov­er the fol­low­ing processes:

a. Refer to Dir­ect­or of Cor­por­ate Ser­vices with poten­tial outcomes:

i. Invalid - dismiss;
ii. Valid - no immediate grounds for support / ‘not upheld';
iii. Valid - evidence of grounds for complaint – investigate;

b. Fol­low­ing Dir­ect­or of Cor­por­ate Ser­vices investigation:

i. No grounds for complaint – letter ‘not upholding' complaint with potential for complainant to take matter up with ESC;
ii. Some grounds to support complaint around expected standards of behaviour and Cairngorms NPA values – report to Convener recommending internal communication to highlight grounds for complaint to member and expected improvements;
iii. Significant grounds to support potential breach of Code – referral to an appropriate member Committee or group with relevant experience to determine outcome.

c. With regard to b.ii, the Con­vener may:

i. Not agree with report recommendation and take no action – complaint closed;
ii. Agree with report and write to member with improvement actions – complainant notified of outcome in general terms and complaint closed;
iii. Consider the matter to be more serious than suggested and invoke b.iii - complaint remains open.

d. With regard to b.iii, the appro­pri­ate mem­ber Com­mit­tee or group will take final decision on any com­plaint escal­ated to it and:

i. Dismiss the complaint giving reasons for doing so, with complainant notified of outcome to close complaint;
ii. Agree that internal notification of improvement actions by the member in question are adequate, with action taken forward by Convener and complainant notified in general terms of outcome to close complaint;
iii. Agree the complaint may have more significant implications as regards the Code of Conduct and refer the matter to the ESC.

1. A key pro­posed change to pro­cesses above is a ​“middle ground” course of action for intern­al action which focuses on the Con­vener act­ing to raise the mat­ter with the board mem­ber in ques­tion and remind them of their expec­ted levels and stand­ards of beha­viour as a Cairngorms NPA Board mem­ber. This is not an action in terms of any breach of the Code of Con­duct. The Stand­ards Com­mis­sion is the only body to exer­cise judge­ment on mem­bers’ poten­tial breaches of the Code of Con­duct. How­ever, intern­al pro­cesses of action appear to be a key mech­an­ism for uphold­ing the val­ues of the organ­isa­tion and being able to close intern­al com­plaints to the poten­tial sat­is­fac­tion of com­plain­ants where there are grounds to do so.

2. Ref­er­ence is made here to poten­tial involve­ment of an appro­pri­ate mem­ber Com­mit­tee or group in the com­plaint res­ol­u­tion pro­cess. The ARC handled the com­plaint in sum­mer 2020 under the respons­ib­il­ity for over­see­ing gov­ernance with­in its terms of ref­er­ence. Board Com­mit­tee struc­tures and terms of ref­er­ence are cur­rently under review and the appro­pri­ate inter­ac­tion of these pro­posed com­plaints res­ol­u­tion pro­cesses will be con­sidered with­in that revised structure.

3. It may also be appro­pri­ate to con­sider with­in the final­isa­tion of the pro­cess that a sub­set of a Com­mit­tee mem­ber­ship may con­sider such com­plaints rather than the full com­mit­tee mem­ber­ship, in order to con­tain the flow of con­fid­en­tial information.

4. I there­fore recom­mend the actions set out here are incor­por­ated into amend­ments to the Com­plaints Policy, to include a flow dia­gram of routes com­plaints may take, for sub­sequent approv­al by the Committee.

The Code of Conduct

1. A key out­come of the pro­cess under­taken in July and August was a real­isa­tion, fol­low­ing help­ful dis­cus­sion with the Stand­ards Com­mis­sion, that unlike the Coun­cil­lors’ Code of Con­duct, the Mod­el Code of Con­duct for mem­bers of Non Depart­ment­al Pub­lic Bod­ies (NDPBs) does not include a ​“per­cep­tion test”. This is a test of wheth­er a mem­ber of the pub­lic, act­ing reas­on­ably, might per­ceive the action of a mem­ber of a pub­lic body to be under­taken in their role as a mem­ber of the body rather than anoth­er role or act­ing in a private capa­city. The Coun­cil­lors’ Code includes a state­ment that the Code applies to ​“all situ­ations where you act as a Coun­cil­lor or are per­ceived as act­ing as a Coun­cil­lor” and this per­cep­tion test was not included in the mod­el Code on which the Authority’s adop­ted code is based.

2. As Stand­ards Officer, I sug­gest this is a key gap in the Authority’s Code which, hav­ing recog­nised it, I recom­mend should be addressed through a revi­sion to the Authority’s adop­ted Code of Conduct.

3. More gen­er­ally, and not linked to the spe­cif­ics of the com­plaints con­sidered in 2020, there are a range of beha­viours and actions gen­er­ally con­sidered to be unac­cept­able with­in pub­lic organ­isa­tion gov­ernance that are not cur­rently well covered by pro­vi­sions of the Mod­el Code for NDPBs. For com­plete­ness while review­ing the adequacy of the Authority’s Code of Con­duct at this time, these areas include:

a. Refus­al to accept col­lect­ive respons­ib­il­ity for Board decisions; b. Pre­vent­ing act­ing as a rep­res­ent­at­ive or del­eg­ate of groups or organ­isa­tions who may have elec­ted or nom­in­ated a mem­ber; c. Mak­ing pub­lic com­ment not in line with the body’s policies or strategy; d. Inap­pro­pri­ate rep­res­ent­a­tion on social media; e. Poor attend­ance, pre­pared­ness or con­tri­bu­tion at Board and Com­mit­tee meetings.

1. The Com­mit­tee may wish to con­sider at this point wheth­er the Authority’s val­ues would be bet­ter upheld by the inclu­sion of a gen­er­al require­ment in our Code of Con­duct to:

a. pre­vent bring­ing the Author­ity into dis­rep­ute and /​or b. uphold the decisions, strategies and policies of the Author­ity at all times.

Next Steps

1. Tak­ing any agreed work for­ward on the Code of Con­duct will require inter­ac­tion with the Scot­tish Gov­ern­ment Spon­sor Hub and Pub­lic Bod­ies Team.

2. Mem­bers will be aware that a con­sulta­tion on changes to the NDPB Mod­el Code recently closed and there may be action over the course of the year to instig­ate a review by all NDPBs of their Code of Con­duct against a new Mod­el Code fol­low­ing com­ple­tion of any revi­sions in light of input to the con­sulta­tion exer­cise. Some of the above issues may be resolved through that pro­cess. How­ever, it could be a year or more before any review of the Authority’s Code of Con­duct which is depend­ent on the issue of a revised Mod­el Code is taken forward.

3. The Com­mit­tee may there­fore wish to con­sider which steps should be taken regard­ing a more urgent and wider review of the Code of Conduct.

Dav­id Camer­on 26 Feb­ru­ary 2021 davidcameron@​cairngorms.​co.​uk