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(a) that there is no evidence of any failure to
comply with the code of conduct of the relevant authority and that
therefore no action needs to be taken in respect of the matters
which are the subject of the investigation;
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(b) that a member or co-opted member (or former
member or co-opted member) of a relevant authority has failed to
comply with the relevant authority’s code of conduct but that
no action needs to be taken in respect of that failure;
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(c) that a member or co-opted member (or former
member or co-opted member) of the relevant authority has failed to
comply with the authority’s code of conduct and should be
censured.”
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If the Committee decided not to uphold the complaint that
would be the end of the matter. If, however, the Committee
decided to uphold the complaint, that decision, and the reasons for
it, would be announced. It would then ask for any matters to
be submitted in mitigation with regard to any possible
sanction.
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The Chair noted that the Solicitor to the Monitoring
Officer was presenting the Ombudsman’s report to the
Committee and that Mr Colin Crawford (acting on the instructions of
the Deputy Monitoring Officer) was advising the Committee during
the course of the hearing. It was noted that Mr Dafydd
Roberts (Counsel for Mr Durkin) and Mr Guto Aaron (Solicitor) were
representing Mr Durkin.
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As part of the papers submitted to the Committee with the
Agenda, the following had been included :-
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Statutory Instruments 2001 No. 2281 (W.171);
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Code of Conduct for the Members of the Llanfair Mathafarn
Eithaf Community Council;
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Report of the Ombudsman dated the 20th July,
2006;
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Report of the Ombudsman dated 8th December, 2005 (referred
to in paragraph 18 of Enclosure 3 above);
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Letter Ombudsman to the Monitoring Officer and Mr
Durkin’s Solicitors dated the 18th January, 2007;
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Letter Ombudsman to Mr Durkin dated 18th January,
2005;
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Letter Ombudsman to the Monitoring Officer and Mr
Durkin’s Solicitors dated 4th April, 2007;
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Minutes of the Standards Committee for the 9th November,
2006.
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Mr Dafydd Roberts announced that he would refer to the
following documents contained in the bundle of documents submitted
on behalf of Mr Durkin :-
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Report of the Ombudsman dated 20 July, 2006;
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Report of the Ombudsman dated 8 December, 2005 and 8
August, 2006 (relating to findings of similar complaints against Mr
Durkin. The findings, he suggested, had inconsistencies in
them);
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Code of Conduct for Members of the Llanfair Mathafarn
Eithaf Community Council;
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Document ‘Nice Work if you can get
it’;
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Letters of 21 and 26 April, 2006 by Mr Durkin (Pages 67
and 68 of the bundle);
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Document ‘In touch special’ (subject of
Ombudsman report December 2005) (Page 85 of the bundle);
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Copy from the County Council’s Constitution relating
to Policy for the Prevention of Fraud and Corruption.
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The Committee retired into private session to
consider the request by Mr Durkin’s representative with
respect to these documents.
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On the Committee’s return, the Chair announced that
they were prepared to take account of the documents’ except
that the letters of 21 and 26 April, 2006 and the document,
‘In touch special’, could be read out only should the
Committee decide to go into private session. Mr Roberts then
invited the Committee to consider and read through these documents
when it had retired.
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The Chair invited the Solicitor to the Monitoring Officer
to present the Ombudsman’s report dated 20 July, 2006.
Mr Jones referred to the relevant issues in that report and
its conclusions, that is, that Mr Durkin had behaved in a manner
which was in breach of both paragraphs 4(a) and 6(1)(b) of the Code
of Conduct of Llanfair Mathafarn Eithaf Community Council.
The investigation had been referred to the Monitoring Officer
of the Isle of Anglesey County Council, for consideration by the
Council’s Standards Committee.
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On Mr Durkin’s behalf, Mr Roberts asked the
Committee to consider the reasons behind Mr Durkin’s
publication of the relevant documents which were to rid Anglesey of
bad practices. The documents had very limited circulation.
Also, complaints on this matter by Councillor Lewis-Roberts
to the police and the Electoral Commission had been rejected.
The complaint on 8 March, 2006 had stated that Mr Durkin was
in breach of the Isle of Anglesey’s Code of Conduct, whereas,
Mr Durkin was bound by the Code of Conduct of the Llanfair
Mathafarn Eithaf Community Council. In any case, Part 2 of
that Code limited its application to the activities of Councillors
while acting in their official capacity and para. 4 of the Code
which referred to ‘showing respect and consideration for
others’ applied only to actions of a member when acting in an
official capacity. Mr Roberts referred also to Paragraph 6 of
the Code of Conduct and the Ombudsman’s report of 20 July,
2006 at para. 15 that : “the Clerk to the Council told me that her
council did not wish to comment on the matter as Councillor Durkin
was not considered to be acting in his official capacity as
community councillor”. However, the Ombudsman had concluded that,
notwithstanding the remarks of the Clerk to the Council, Mr Durkin
had been acting in his official capacity, so that para. 4 was
engaged. Mr Roberts asked the Committee to compare and
contrast this very carefully with the findings of the Ombudsman in
his Report of the 8 August, 2006 which was a straight-forward
decision. The Ombudsman had received information from the
Clerk that Mr Durkin was not acting in his official capacity and,
on that occasion, the Ombudsman had found that para.4 was not
engaged. Simply signing the document as a Community
Councillor, did not mean that Mr Durkin was acting in an official
capacity. In the report of August, 2006, the Ombudsman had,
once again, found that Mr Durkin was not acting in his official
capacity. Para. 4 was, therefore, not engaged. Mr Roberts
also invited the Committee to place no weight on the paragraph
where the Ombudsman formed a view that the document was libellous.
Mr Durkin was said to have failed to heed the warning in the
Ombudsman’s earlier report. This was arguable. In
any event, the determination had been that no action was necessary.
The Committee was asked to compare the language of the
relevant documents issued by Mr Durkin. Mr Durkin chosen the
word “corruption” specifically, having regard to the
Section 5.6 of the Constitution of the Isle of Anglesey County
Council, and to what he believed was occurring.
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Mr Roberts referred to the Human Rights Act, Article 10
and the issue of proportionality in relation to the limited
circulation of the relevant document. The Committee had to
decide whether the document constituted a breach of the Code of
Conduct, having regard to Article 10, and the fact that Mr Durkin
was free, subject to primary legislation, to say and do what he
wished in relation to certain matters. Mr Roberts ended his
presentation by inviting the Committee to find, having regard to
para. 4 and all the matters referred to, and the reasons behind Mr
Durkin’s disclosures and his intentions, that Mr Durkin was
not in breach of the Code simply by signing the document.
Sufficient weight should be attached to the views of the
Clerk of the Community Council that Mr Durkin was not acting in his
official capacity. In relation to para. 6(1) he had not
over-stepped the mark, but has raised matters of concern to him.
He had curtailed distribution of the document to a limited
circulation. Mr Roberts again invited this Committee to find
that there was no evidence that Mr Durkin had breached that
paragraph.
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On the invitation of the Chair, members of the Committee
then raised a number of issues with Mr Roberts for
clarification.
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The Chair then invited Mr Roberts to make any further
representations, if he so wished. Mr Roberts had no further
comments to make.
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The Committee retired into private session to consider its
decision.
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The decision of the Committee was as follows
:-
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In reaching its decision as to whether, when a
Community Council, Mr Durkin breached the Llanfair Mathafarn Eithaf
Code of Conduct, the Committee took into account both the report of
the Ombudsman and the additional documents submitted to us by Mr
Durkin’s representative. On the basis of these, it has
concluded that Mr Durkin was in breach of Paragraphs 4(a) and
6(1)(b) of the relevant Code.
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In relation to a breach of Paragraph 4(a), the
Committee reached its decision on the basis that, when issuing the
document ‘Nice Work if you Can Get It’, Mr Durkin was
acting in an official capacity. The Committee took into
account the view of the Clerk to Llanfair Mathafarn Eithaf
Community Council that Councillor Durkin was not acting in an
official capacity when issuing the relevant document.
However, we are of the opinion that the view of the Clerk was
not determinative in this respect, although it had been expressed
on three separate occasions. I had been the opinion of the
Ombudsman that Mr Durkin, on two separate occasions, had been
acting in an official capacity. By signing the document as a
Community Councillor, he had brought himself within the Code of
Conduct. In relation to the third document, he had not signed
it as a Community Councillor and this, together with its limited
circulation, made it an exception.
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The Committee was of the opinion that the choice of
language, and the manner in which Mr Durkin had expressed himself,
constituted a breach of that part of the Code which refers to
‘showing respect and consideration for others’.
We also heard what was said about the issue of corruption but
felt that the fact that the word is referred to in the Isle of
Anglesey’s Constitution does not justify its use in this
context.
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We are also of the opinion that Mr Durkin is in
breach of Paragraph 6(1)(b) of the Code of Conduct. That is
‘that Councillors must not in their official capacity or
otherwise behave in a manner which could be reasonably regard as
bringing the office of member or the authority into
disrepute’. In this respect, it is not necessary to
show that a Councillor is or is not acting in an official capacity.
In any case, we have already found that Mr Durkin was in
breach of Paragraph 4(a) of the Code. We find that Mr Durkin
brought the authority into disrepute by expressing himself in the
way he did. Even if Mr Durkin held such views, he could have
expressed himself in a way which did not breach the
Code.
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The Committee heard submissions concerning other
sub-paragraphs of Paragraph 6 of the Code of Conduct but did not
make a finding on any of these and so did not consider them
further.
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In relation to the other submissions made on Mr
Durkin’s behalf, we were asked to compare this report with
other reports of the Ombudsman. We would wish to state that
our primary concern was with the particular report of the Ombudsman
that was before the Committee on this occasion. In relation
to this, the Ombudsman had upheld the complaint. It was not a
matter for us to consider whether the other reports were correct or
incorrect.
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We heard also the submission on the relevance of the
law of libel, and whether or not the Ombudsman’s first report
constituted a warning to Councillor Durkin. However neither
of these has been an essential part of our reasoning and while we
heard the further submissions made to use, we did not need to
consider them further in detail at this stage.
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We were also asked to consider the application to
this case of Article 10 of the Human Rights Act 1989 and, in
particular, the need to reach a proportionate decision. Mr
Durkin’s right to the freedom of speech under Article 10 is a
qualified right and it has been held in Sanders v. Kingston that
the Code itself is a proportionate response if properly applied.
In this case, we are of the opinion that the Code has been
properly applied for the reasons given above.
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The issue of proportionality also extends to the
question of sanction under Paragraph 9(1) of the
Regulations.
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Mr. Durkin and his representatives then left the
Chamber to consider the submissions by the Standards
Committee.
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On the return of Mr Durkin and his representatives, the
Chair announced that a letter had been received from Councillor
Lewis-Roberts which was only then made known to the Committee
members. The Chair gave her assurance that the Committee would
apply the same rigour in looking at this document as they had with
regard to all other document at the hearing.
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Mr Roberts submitted that the contents of the letter were
not accepted by Mr Durkin and were not relevant to the issue of
sanction. It’s assertions were emphatically denied and
if they were to be considered, Mr Durkin wished for an opportunity
to raise rebuttals in relation to them. Mr Roberts
respectfully suggested that the Committee should say: ‘Let
sleeping dogs lie’. This matter was over. The
Councillor was no longer bound by the Code. The Committee was
not now the appropriate venue to take any action. Mr Roberts
invited the Committee to take no further action in respect of this
matter.
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The Chair announced that the Committee would retire
to consider the above submissions.
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The Committee returned to public session and the Chair
announced its decision based on the findings of facts :-
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In reaching its conclusions in relation to the issue
of sanction, the Committee took into account a letter submitted by
Councillor D. Lewis-Roberts but determined not to give it
particular weight, being of the opinion that most of the matters to
which it refers were not relevant to reaching a decision on the
question of sanction. The Committee did, however, take into
account the submissions made on Mr Durkin’s
behalf.
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Within the powers available to the Committee, it had
the choice of two possibilities. It chose to impose a
sanction on the grounds that the Committee considered it to be not
disproportionate in relation to a person who did not recognise
their breach of the Code.
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The Committee recognised that Mr Durkin may be
well-intentioned in his actions, but it was also of the opinion
that, as a former council member, he should be censured under
Paragraph 9(1)(c) of the Regulations, which is the minimum
necessary to register the seriousness of the breach.
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In reaching that conclusion, the Committee took into
account the issue of proportionality, but was of the opinion that
the fact the Ombudsman’s report had been sent for
determination by the Standards Committee with its more limited
range of sanctions, indicated that the issue of proportionality had
already been taken into account.
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