This is the second joint communication from, Perry Holmes, Director of Legal and Governance at Wiltshire Council, in collaboration with Ian Nockolds of the Wiltshire Association of Local Councils (WALC). We are trialling an email every month on a topic of interest to enable continuous improvement in governance. The coming months, as thoughts turn to the elections in 2025, can give rise to heightened emotions and conflict. We want to remind you of the tools at your disposal to navigate through that period.
This month we wanted to focus on the sometimes tricky issue of when you are acting in your capacity as a councillor.
What capacity are you acting in?
A couple of recent Code of Conduct cases have raised the question of councillors acting in their official capacity. It is a frequent theme of complaints that we consider.
Under the Localism Act 2011, Codes of Conduct are only enforceable when councillors are acting in their official capacity. This may include when:
- A councillor misuses their position as a councillor
- A councillor’s actions would give the impression to a reasonable member of the public with knowledge of all the facts that they are acting as a councillor.
Codes of Conduct apply to all forms of communication and interaction, including face-to-face and online meetings, telephone calls, written communication, verbal communication, non-verbal communication and in electronic and social media communication.
Wiltshire Council sometimes receives Code of Conduct complaints where a councillor appears not to have considered which role they were acting in – or might be viewed as acting in. This can lead to investigations into their conduct, findings that the Code has been breached and, ultimately, sanctions.
We advise all councillors to consider the following measures to minimise confusion regarding the capacity that they are acting in:
- Have separate email and social media accounts for your private and official capacities to help clarify for you and others what role you are acting in. (However, even when using a non-council account, you can sometimes still be viewed as acting in your official capacity if you are discussing or dealing with council business – the content and context of the communication are important).
- When speaking to others make it clear whether you are engaging with them in your capacity as a councillor or, for example, as a concerned local resident i.e. in your private capacity. Again context and content are important and if the discussion is about council business or parish matters you may be acting in capacity even though not speaking in a formal council meeting.
- When attending a non-council meeting, such as a community group meeting or annual parish meeting make it clear whether you are speaking in your capacity as a councillor or in your private capacity, e.g. as a resident or member of a local interest group.
In addition, consider whether your actions might exceed the roles and responsibilities of a councillor, for example, if you are undertaking of your own volition local maintenance work which should more properly be carried out by employees/contractors engaged by the council and insured to undertake such work. We are aware that in our most rural communities Councillor are acting as Flood Wardens, Play Park Inspectors and Footpath Inspectors. That is entirely understandable and hopefully in accordance with prior council decisions and within the terms of your insurance policies.
We wanted to remind you that in the normal course of events we would expect parish councils to make decisions about activities needed in their parish or town through agenda items at parish meetings, and then commission the Clerk to activate the works needed or in some cases (as above) Councillors. Problems have arisen when councillors have taken it upon themselves to carry out activities, without necessary authority. We would strongly discourage this practice.
If you have any thoughts or ideas about councillor conduct, or other topic areas you would like us to cover please do get in touch at monitoringofficer@wiltshire.gov.uk we would love to hear from you.
Next month we will remind you of the Positive Conduct, Positive Democracy campaign we launched in 2022 and the tools it provides you to improve governance in your council.
