Decision

The Monitoring Officer
confirmed that the Council’s procedure for dealing with
complaints against Councillors had been followed fully from the
outset in relation to the complaints under consideration at this
hearing. The Chairman confirmed that Members of the Panel had not
discussed details of the case beforehand and had not pre-empted any
decision.
 
It was confirmed that
Councillor Cunnington had signed the Code of Conduct on becoming a
Councillor in 2023, and had also participated in Code of Conduct
training, which was mandated for all members of the Council. He had
subsequently attended Code of Conduct training after the complaints
had been submitted against him.
 
The Investigating Officer (IO)
introduced Wilkin Chapman’s report, and the supporting
evidence bundle and summarised the three complaints made against
Councillor Cunnington by Councillor Graham Jeal.
 
Complaint 1
 
The liking by Councillor
Cunnington of a member of the public’s comment about
Councillor Green on Facebook on 2 March in which the member of the
public called Councillor Green “a self-promoting
pratt”
 
Complaint 2
 
Councillor Cunnington’s
comments underneath a Facebook post by Councillor Green on 1 May
2024. Councillor Cunnington called Councillor Green a ‘vile
disrespectful piece of garbage” and a “vile
disrespectful fool”.
 
Complaint 3
The liking by Councillor
Cunnington of a comment by a member of the public under the same
post as in Complaint 2. The member of the public called Councillor
Green a ‘disgusting little turd’. Councillor Cunnington
liked the comment and said “Well
said…”
 
Overall, the complainant
alleged breaches of the Nolan Principles (the seven Principles of
Public Life), and that Councillor Cunnington had been disrespectful
towards Councillor Green, had been dishonest and selective with the
truth and had brought the Council into disrepute.
 
The Investigator explained that
the Nolan Principles underpin the Code of Conduct but do not form
part of it. Allegations must relate to behaviours under the Code
and the IO confirmed that they were able to investigate any
behaviours which they felt were relevant. They investigated against
the behaviours of disrespect, bullying and disrepute, under parts
1, 2 and 5 of the Code of Conduct.
 
The IO outlined the principles
of freedom of expression and the relevant legislation; Article 10
of the European Convention on Human Rights (ECHR).
The right to freedom
of expression was enhanced in political commentary, but mere
personal abuse does not attract the higher protection. Freedom of
speech may be curtailed if it was lawful to do so to protect the
rights and freedoms of others; there were several pieces of UK
caselaw which supported this which were referenced in the
IO’s report.
 
In the view of the IO only
Complaint 2 constituted a breach of the Code of Conduct under
‘respect’. This was due to their view that it fell
within the realms of what could be considered personal abuse, did
not attract the higher protection of political commentary and
therefore it was reasonable to find a breach. The IO did not uphold
allegations that Councillor Cunnington breached part 2, Bullying or
part 3, Disrepute, of the Code of Conduct.
 
The IO found that Complaints 1
and 3 were not breaches of the Code of Conduct because Councillor
Cunnington did not make the comments himself and, in the case of
Complaint 1, the comment was very mild. The IO commented that they
found Complaint 3 more difficult to assess because of the phrase
used. However, because Councillor Cunnington had only liked the
comment and said “Well said…”, they did not find
him in breach.
 
As part of the investigation
the IO identified a further breach of the Councillor Code of
Conduct. This was because Councillor Cunnington failed to engage
with the investigation itself. The IO and the Monitoring Officer
had both sent various emails to Councillor Cunnington to encourage
him to engage, provide comments etc, but, other than initial
comments to the Monitoring Officer at the start of the matter,
Councillor Cunnington had not responsed. The IO therefore also
found Councillor Cunnington in breach of part 8 of the Code of
Conduct, failing to cooperate with an investigation.
 
The IO’s report and
evidence bundle included statements submitted by Councillors Graham
Jeal and Ben Green.
 
The Panel was provided with an
opportunity to ask any points of clarification of the IO in
relation to the report and evidence bundle. The IO provided clarity
to the points raised, which covered explanations of the case law
referenced in both documents, use of social media in general as a
tool and the pitfalls associated with it and the difference in
‘liking’ comments as opposed to writing comments in
your own words.
 
Councillor Jeal provided a
written statement to the Panel which supported the investigation
and conclusions carried out by Wilkin Chapman Solicitors. He was
satisfied that a ‘thorough and comprehensive process’
had been undertaken.
 
The Independent Person praised
the thorough and comprehensive report and findings of the IO and
fully endorsed its conclusions. He agreed there had been a failure
to comply with Article 10.1 of the ECHR in respect of complaint 2,
and also agreed there had been no breaches in respect of bullying
or bringing the Council or the Councillor’s office into
disrepute. He concurred with the IO that Councillor Cunnington had
also breached the Code of Conduct by failing to engage with the
investigation.
 
The Panel adjourned to
deliberate and reach a conclusion at 11:11am and reconvened at
11:54am.
 
Conclusion
 
The Panel accepted the report
in its entirety and agreed that whilst Complaints 1 and 3 appeared
to be disrespectful they were within the legal limits of freedom of
expression. The Panel concluded that Complaint 2 veered into
personally abusive commentary and demonstrated unacceptable
behaviour and concurred with the finding that Councillor Cunnington
had failed to co-operative with the investigation.
 
The Hearing Review Panel
therefore AGREED that the following elements of the
Councillor Code of Conduct were breached by Councillor
Cunnington:
 

1.        
Respect

 
As a
Councillor:
 
1.1       I
treat other Councillors and members of the public with
respect
 

8.        
Complying with the Code of Conduct
 
As a
Councillor:
 
8.2       I
cooperate with any Code of Conduct investigation and/or
determination
 
The Panel, having consulted
with the Independent Person, AGREED that the following
sanctions be applied:
 

That Councillor
Steven Cunnington be required to attend training on the appropriate
use of social media whilst acting in an official capacity as a
Councillor.

That Councillor
Steven Cunnington be required to attend further training on the
Councillor Code of Conduct.

That Councillor
Steven Cunnington be required to attend the above training sessions
within six months.

That a Censure Notice
be placed on Councillor Steven Cunnington’s profile on the
Council’s website regarding his failure to co-operate with a
Councillor Code of Conduct investigation, for a period of twelve
months. 

 
In addition, the Panel made the
following recommendation:
 
a.    
That all Councillors be recommended to consider use
of the blocking facility on social media platforms.
 
In reaching these decisions the
Panel acknowledged that Councillor Cunnington had been within his
first year as Councillor at the time of the complaints being
submitted and felt that such actions may have been attributed to
his inexperience as an elected member.
 
Right of Appeal
 
Subject to judicial review,
there was no right of appeal against the decision of the Hearing
Review Panel.
 
The Hearing closed at
12:08pm.