Standard Monitoring Officer’s Annual Guidance on Elections

sent to Members & Officers of Birmingham City Council

 

 

December 2009

 

Dear Members & colleagues,



As per my normal practice on the build up to elections, I set out below - as a reminder - my 'standard' guidance around the 'elections purdah period'.   I have decided to send this guidance a month in advance as there will be General Election, next year; although the timing of it is, as yet, unknown. Furthermore, as there will also be local elections in Birmingham, next year, there is 'a chance' that the General Election may be combined with local elections.


In the event of a General Election being called, therefore, I may have to re-issue this guidance, suitably amended, as the timetable for the General Election differs from the local elections timetable; i.e. the General Election Polling Day will be Day 17 from Day 0 (the Proclamation of the dissolution of Parliament and the issue of the writ) and the Public Notice for the General Election will be on Day 3. In the meantime, the elections purdah period for the local elections commences from 29 March 2010 and concludes on 6th May 2010  (Polling Day).


The relevant provisions of the Local Government Act 1986 and relevant extracts from the general guidance contained in the City Council's Member / Officer Relations Protocol  are set out for your ease of reference.

Members and officers must ensure they:-

i)     avoid - or do not give the impression of - breaching any such guidance, as to do so could have electoral and reputational implications for any member standing for election (or re-election) and the City Council;
and

ii)      if at all possible, improve the Council's standing and reputation in terms of electoral matters.


The key guiding principle remains: if anyone is unsure, members / officers should seek early advice from me (on 303 9991).


The Local Government Act 1986 imposes :-

(a)     a prohibition on local authorities publishing " any material which, in whole or in part, appears to be designed to affect public support for a political party "; and

(b)     a Code of Practice (issued by the Secretary of State under the Act and currently the subject of a national consultation) to which local authorities must have regard to in coming to any decision on publicity.

" Publicity " is defined by the 1986 Act as being " any communication, in whatever form, addressed to the public at large or to a section of the public ."


In determining whether any material contravenes the prohibition mentioned in (a) above, the Act provides that regard shall be had to a number of matters including " the time and other circumstances of publication ".  It is possible, therefore, that material published by the City Council could fall foul of the prohibition and be unlawful - especially on account of its timing (i.e. in the run up to an election). Accordingly, as per normal practice, if there is a Proclamation of the dissolution of Parliament, officers will immediately remove the contact details/photos of all current Members of Parliament for Birmingham & Sutton Coldfield from relevant public places - such as Council libraries / offices / noticeboards and from the Council's website.


What is also clear and paramount from case law, is that no elected member - whether a Member of the Executive, Chairman of a Committee or any other member  -  or Officer will be permitted to use any  Council resources for private or party political purposes. To do so would be a breach of the Act and the Code of Conduct for Members. A reference to Standards Committee - or the Standards for England - will be made if there is sufficient evidence of the Code or a breach of the Member / Officer Relations Protocol.


In terms of Officers, appropriate disciplinary action will be taken if there is sufficient evidence of a breach of the law or the Constitutional arrangements of the Council - for example, Standing Orders, Financial Regulations, Access to Information Procedure Rules, Scheme of Delegations to Officers and the Member / Officer Relations Protocol.


One recognises that Council business has, of course, to continue and must continue during an election period. Publicity around normal Council business / events must also continue, but it must be thoroughly thought through so as to ensure the Council 'machinery' is not used or allowed to be used / manipulated by anyone for private or party political purposes. If
in doubt, please see assistance.


It is also worth noting, for the avoidance of doubt, that Councillors who hold positions of special responsibility within the Council (i.e. Cabinet Members and  Committee Chairmen), and who would normally be expected to make some public comment (on the Council's behalf and with the use of Council resources) on "issues of the day", will be permitted to do so.
However, such occasions should sensibly be kept to a minimum during the election purdah period.


Particularly sensitive or controversial matters will, therefore, need careful handling around any election period as they may have an impact on public opinion, for or against any candidate or Political Party. The Chief Executive, as Head of Paid Service, and/or I, as Monitoring Officer, will certainly have to be consulted over such matters and may, in appropriate cases, have to intervene. Hopefully, if prior consultation has taken place - i.e. well in advance of any such Council business/events – such interventions should be kept to an absolute minimum and/or avoided all together. I thank you for your co-operation in this regard.

David Tatlow, Director of Legal Services, is the Council's Deputy Monitoring Officer and, as such, he can be contacted - if I am not available - to advise on any urgent matters. In his absence, Jane Robson and John Wynn can, of course, also be called upon to advise on such matters.


Chief Officers: Please cascade this information to relevant staff.


Dr Mirza Ahmad, LLD (Hon), LLM, MBA, Barrister
Corporate Director of Governance (& Monitoring Officer)


~~~~~~~~~~~~~~
Relevant extracts from Member / Officer Relations Protocol:-
(The full version is available on the City Council's website)



G     ELECTIONS PERIOD AND SPECIAL RESPONSIBILITY POSTS

27.     During the election period, special rules apply with regard to local authority publicity. For ease of reference, an extract from "The Code of Recommended Practice on Local Authority Publicity" appears at Annex B to this Protocol.

28.     In terms of any serving Councillor who may be standing for re-election, it is imperative that s/he maintains a clear distinction between his/her private wish to stand for re-election and his/her official duties as a serving Councillor.  S/he should, therefore, be particularly careful to guard against giving any impression that Council resources are being or could have been used for his/her re-election and/or private purposes.  To do so, could amount, in serious cases, to a breach of the Code of Conduct for Members and a written complaint could be made to the Standards for England.

29.     On 8 April 2004, the Standards Committee gave further thought to information contained in Member leaflets and its General Guidance is attached at Annex C  to this Protocol. [...].

30.     Members who are elected to special responsibility posts, including Cabinet Members, Overview and Scrutiny and Regulatory Committee Chairmen, are provided with a more dedicated officer support to assist them with the discharge of their higher level duties for the Council.    For the avoidance of doubt:-

(a)     this dedicated support is to allow relevant Members to carry out the duties of that Council post.   Their wider representative work will only be dealt with by the supporting officers if time permits; and

(b)     as with all support services, such staff should never be asked or used to carry out Party political or private purposes.

31.     "Private purposes", for the purpose of paragraph 30, also includes undertaking domestic support tasks (i.e. looking after any Member's children) to enable the relevant Member to attend Council meetings and undertaking work in connection with public duties which that Member may undertake for bodies other than the City Council."


- Annex B -
Relevant extracts from the
CODE OF RECOMMENDED
PRACTICE ON LOCAL AUTHORITY PUBLICITY


"Elections, referendums and petitions

41.     The period between the notice of an election and the election itself should preclude proactive publicity in all its forms of candidates and other politicians involved directly in the election.  Publicity should not deal with controversial issues or report views, proposals or recommendations in such a way that identifies them with individual Members or groups of Members.  However, it is acceptable for the authority to respond in appropriate circumstances to events and legitimate service enquiries provided that their answers are factual and not party political. Members holding key political or civic positions should be able to comment in an emergency or where there is a genuine need for a member level response to an important event outside the authority's control.  Proactive events arranged in this period should not involve Members likely to be standing for election.

42.     The Local Authorities (Referendums) (Petitions and Directions) (England) Regulations 2000 (which apply under the Local Government Act 2000 to county councils, district councils and London borough councils) prohibit an authority from incurring any expenditure to:
(i)     publish material which appears designed to influence local people in deciding whether or not to sign a petition requesting a referendum on proposals for an elected major;

(ii)     assist anyone else in publishing such material; or

(iii)     influence or assist others to influence local people in deciding whether or not to sign a petition.

Publicity in these circumstances should, therefore, be restricted to the publication of factual details, which are presented fairly about the petition proposition and to explaining the council's existing arrangements. Local authorities should not mount publicity campaigns whose primary purpose is to persuade the public to hold a particular view in relation to petitions generally or on a specific proposal.

43.     County councils, district councils and London borough councils should ensure that any publicity about a referendum under Part II of the Local Government Act 2000 (the 2000 Act) either prior to or during the referendum period is factually accurate and objective.  The referendum period means the period beginning with the date on which proposals under Part II of the 2000 Act are sent to the Secretary of State and ending with the date of the referendum.  The publicity should not be capable of being perceived as seeking to influence public support for, or opposition to, the referendum proposals and should not associate support for, or opposition to, the proposals with any individual or group.  Local authorities must
conform with any specific restrictions on publicity activities which are required by Regulations under section 45 of the 2000 Act."


- Annex C -
STANDARDS COMMITTEE GENERAL GUIDANCE ON:
PUBLICITY AND COUNCIL DECISIONS - updated May 2008


The purpose of this General Guidance is to inform all Councillors of the obligations with regard to publicity of Council decisions in the build-up to local elections (i.e. from Notice of Elections to Polling Day).  This General Guidance:-

(a)     builds on the General Guidance issued by the Monitoring Officer, on 10th December 2003, to the Chairmen of Ward Committee and which was endorsed by the Standards Committee on 8th April 2004; and

(b)     has proved necessary in order to ensure clarity in the arrangements and so as to avoid any unnecessary complaints being made against Councillors for using Council resources for Party Political or other unauthorised purposes.   As Councillors know, a breach of  the Code of Conduct for Members can be the subject of a written complaint to the
Standards Committee and, ultimately to the  Standards for
England and/or to the Adjudication Panel for England.

During 2003/4, leaflets have been referred to the Council's Monitoring Officer highlighting that certain Councillors were portraying Ward Committee decisions as their own decisions - without reference to the Ward Committee - and ignoring the fact that Councillors from other political parties may also have agreed with the decision taken by the Ward Committee.
These issues have been particularly acute in Wards that consist of two or three political parties.

The Standards Committee has, therefore, reinforced the Monitoring Officer's General Guidance that Executive and Committee decisions - including Ward Committee decisions - are the decisions of the City Council and should be portrayed in such a manner.   It is wrong, therefore, for a Councillor to give the impression that s/he, for whatever reasons, was the sole
determinant of decision(s) unless, of course, as a matter of recognized fact, that was the case.

The fact that a Councillor is a serving Councillor can, of course, be stated on any elections material.  Councillors must, however, be careful to ensure that:-


(a)     All Council business reported in any Party Political leaflet(s) or other publication(s) produced by or for them or their Political Groups are factually correct and must not mislead or be intended to mislead members of the public; and

(b)     When Council telephone / fax numbers and/or e-mail addresses are printed in Councillor leaflets or other publications from the Political Group, it must be made clear to the reader that such numbers and addresses can only be used for contacting the Councillor in relation to Council business .  For all other non-Council / Party Political business, separate telephone / fax numbers and /or e-mail addresses must be given in the same leaflet/publication.

With specific reference to grant-aided projects, the Executive/Committees should not approve any projects during the build-up of any elections or delay approving / implementing any projects until such time if those projects are likely to be interpreted as effecting or likely to effect the outcome of any elections.  In order to protect and safeguard Councillors, therefore, if there are exceptional circumstances that require projects to be approved during the build up to the elections, the Monitoring Officer should be consulted well before the appropriate time.

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