Decision Maker: Hearing Review Panel

Outcome: Recommendations Approved

Is Key Decision?: No

Is Callable In?: No

Date of Decision: January 17, 2025

Purpose:

Content: 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.