Protocol on Member/Officer involvement in Partnerships involving the Borough Council

Introduction

This proposal is designed to support Members and Officers and provide advice and help to them in the work they do with partnerships and voluntary groups.

Members and officers should be aware that by law, the Council can only carry out activities for which it is given a statutory power to undertake. Members and officers becoming involved in partnership work which is outside of these statutory powers could encounter difficulties. Such work could be "ultra vires" and consequently the District Auditor may investigate such situations which could result in their being subject to legal challenge.

Members and officers are therefore advised to seek legal advice if they have any doubt regarding the partnership working, or any part thereof, in which they are likely to become involved.

Generally, there is no restriction on a member or officer becoming involved in any partnership or group as a private individual. However, there is always the risk of the individual’s position with the Council being used, even if inadvertently. Members and officers are therefore still advised to seek legal advice before taking on private commitments of this type.

Any matters contained in this protocol which members or officers do not understand or which require clarification should be discussed with the Chief Executive, the appropriate Corporate Director or the Assistant Chief Executive (Legal).

1. The Protocol

1.1 A "partnership" is defined as a joint working arrangement were the partners:

- are otherwise independent bodies;

- agree to co-operate to achieve a common goal;

- and, to achieve it, create an organisational structure or process and agreed programme;

- and share information, risks and rewards.

Such joint working arrangements will include town-wide or strategic partnerships, locality partnerships, constituted voluntary groups and smaller community groups.

1.2 The Council may from time to time become involved in partnership working and it seeks to ensure that any member, officer and the Council itself is not exposed to any unidentified and unexpected liabilities or risks.

1.3 Authority to become involved with a partnership

• Any member who is approached or wishes to become involved in a partnership should discuss the matter and the extent of their involvement with their Political Group Leader and/or the Chief Executive before taking the matter further.

• The member should only accept or become involved in a partnership after receiving approval from their Political Group Leader and the Chief Executive, the appropriate Corporate Director or the Assistant Chief Executive (Legal). The member should have this approval in writing.

• It is the responsibility of the Assistant Chief Executive (Legal) during discussions on the member’s involvement within a partnership to determine what the role of the member will be in the partnership and if he/she is representing the Council. The member and the Assistant Chief Executive (Legal) shall also discuss and agree if any support and/or training are required.

• It is the responsibility of the Assistant Chief Executive (Legal) to ensure that the Chief Executive, the relevant Corporate Director and Financial Services are aware of the Council’s involvement in any partnership.

• Any officer who is approached or wishes to become involved in a partnership should discuss the matter and the extent of their involvement with their Manager and/or Head of Service. The officer should only accept after receiving approval in writing from his/her Manager and/or Head of Service.

• It is the responsibility of the Manager, whilst discussing the officers’ involvement within the partnership, to be clear as to the role and whether the officer approached is the most appropriate representative to the partnership.

• Once the most appropriate officer representation is determined, it is the responsibility of the Manager to ascertain whether additional support and training is needed, and to make arrangements for the same.

• It is the Manager’s responsibility to ensure that the relevant Head of Service, the Assistant Chief Executive (Legal) and Financial Services are aware of the Council’s involvement in any partnership.

• The Head of Service should inform his/her Corporate Director of the new partnership involvement and activities of the officer concerned.

2. Duties

2.1 Members must remember that if they act as a Trustee for a charitable partnership or body, then their first duty whilst acting as a trustee is to the charity. However, Members, when working within a partnership remain members of Shrewsbury and Atcham Borough Council and are still bound by the relevant legal requirements including the Code of Conduct for Members and any local protocols.

2.2 Members working in or associated with a partnership are still bound by the Council’s constitution, its policies and procedures, and its financial regulations. They should immediately report to the Chief Executive when they feel that the partnership is not acting in a manner acceptable to the Council or in the public interest.

2.3 Officers must remember that if they act as a trustee of a charitable partnership or body, then their first duty whilst acting as a trustee is to the charity. However, all officers when working within a partnership remain employees of Shrewsbury and Atcham Borough Council and are bound by their contract of employment, the Council’s constitution, policies and procedures, the protocol on member/officer relationships, financial regulations and any local protocols.

2.4 Officers must immediately report to their line Manager (or to the next level of management above if the line Manager is absent) when they feel that the partnership is not acting in a manner acceptable to the Council or in the public interest.

3. Signing Contracts

3.1 Members working for a partnership should not sign any contracts or legally binding documentation on behalf of the partnership or the Council. Only authorised officers have power to sign documents of this nature.

3.2 Officers working for a partnership should not sign any contracts or legally binding documentation on behalf of the partnership unless written confirmation of legal advice that it is acceptable can be provided.

4. Conflicts of Interest

4.1 A member when working in a partnership should immediately declare any conflicts of interest or potential conflicts of interest that he/she may have or that may be perceived and request the partnership to record them formally in the minutes of the partnership meeting. The member should then agree formally with the partnership as to his/her involvement with matters associated with the declared interest.

4.2 If the interest inhibits the member’s reasonable contribution for one meeting then he/she should not take part in that meeting.

4.3 If the interest inhibits the member’s reasonable contribution in the longer term then he/she should withdraw from the partnership and should immediately advise his/her Political Group leader and the relevant Corporate Director. Another member should then be chosen to represent the Council on the partnership

4.4 Members must report any changes in personal circumstances that create a new or perceived conflict of interest to their Political Group Leader and the relevant Corporate Director.

4.5 Members must also discuss with the partnership any new issues of potential conflicts of interest or issues which impact on their role as a member of Shrewsbury and Atcham Borough Council. This is most likely to arise as a result of changes to the aims, constitution or position of the partnership that could be contrary to the public or the Council’s interest.

4.6 An officer when working in a partnership should immediately declare any conflicts of interest or potential conflicts of interest that he/she may have or that may be perceived and request the partnership to record them formally in the minutes of the partnership meeting. The officer should then agree formally with the partnership as to his/her involvement with matters associated with the declared interest.

4.7 If the interest inhibits the officer’s reasonable contribution for one meeting then he/she should not take part in that meeting.

4.8  If the interest inhibits the officer’s reasonable contribution in the longer term then he/she should withdraw from the partnership and should immediately advise his/her line manager. Another officer should then be chosen to represent the Council on the partnership.

5. Provision of financial, technical or legal advice

5.1 Members should not provide financial, technical or legal advice to a partnership. Members should, however, satisfy themselves that such advice is available and is taken when necessary. They must ensure that the partnership arranges indemnity insurance as appropriate, details of which should be provided to Financial Services.

5.2 An officer will only provide advice to a partnership in those areas in which he/she has recognised expertise. Where there is uncertainty, the officer will check, in the first instance, with his/her line manager.

5.3 When an officer does provide financial, technical, legal or other advice to a partnership, a written copy of the advice should be made and a copy provided to his/her line Manager.

5.4  The Head of Finance, after being informed of a partnership involving members and/or officers, should raise relevant issues such as budgetary control and financial monitoring procedures and whether there are any VAT implications. Any agreement with a partnership to provide financial advice and support must be made after approval has been obtained from the Head of Finance.

Annex (I)

General guidance and advice about types of partnerships

The structure of partnerships in which Members and officers become involved may differ from those described below, or it may change at different stages of evolvement or development. Members and officers may, however, observe common themes in each and if they are in any doubt should seek legal advice from the Assistant Chief Executive (Legal).

Types of Partnerships

(a) Town wide or strategic partnerships with no legal identity of their own.

These are partnerships only to the extent that a particular objective is given a project name and key organisations get together to agree a co-ordinated approach to achieve the objective and provided the working arrangement satisfies the criteria of paragraph 1.1. It will however be necessary to have a written agreement about whom "the partners" are and what they are going to contribute to the project. The Memorandum of Agreement between the partners will probably deal with the following issues:

• The name of the partnership
• Who the partners are
• The purpose/objective of the partnership
• What is to be contributed by each partner?
• The voting rights of members, chairmanship etc.,
• What administrative arrangements are agreed?
• What if any, financial arrangements are agreed?
• Legal liabilities of the partnership and individual partners
• Conflicts of interest
• How long the agreement is to last for?
• Are any insurance policies needed?

If the partnership enters into arrangements with third parties then vigilance must be exercised, e.g. when buying or entering into a building contract, or taking on staff.

Clarity is the key to avoiding disputes or unexpected liabilities so ask who is signing the building contract? The "partnership" has no legal identity of its own and so one or more of the partners must be prepared to put its name on the agreement and assume responsibility.

(b)  Locality partnerships which want an identity of their own, and constituted voluntary groups and smaller community groups.

When forming this kind of group, there are six basic choices:

1. An unincorporated and loosely constituted association

2. An unincorporated but formally constituted association

3. A registered Charity

4. A charitable trust

5. A limited company

6. An Industrial and Provident Society

Legal advice should be sought before deciding which structure is most appropriate for your partnership. 215.48

1. An unincorporated and loosely constituted association needing only a very basic set of rules which may be entitled "constitution" to be adopted by all partners. These rules would often be limited to identifying little more than who the partners are and the aims and an outline of how the Association will manage itself.

Much care is needed when becoming involved with this type of partnership body. As the rules laid down are very basic the risks of disagreement and differing interpretations are ever present.

An unincorporated association of this type does not have a legal identity of its own. It cannot acquire property in its own name and individual members of the Management Committee can be held personally liable for the partnership’s obligations and debt.

2. An unincorporated but formally constituted association needing a more comprehensive set of rules laid down as a formal "constitution" to be adopted by all partners. This should include who the partners are, aims, powers and the voting/management procedures.

A formal and detailed constitution minimises the risk of differing interpretation and so minimises the scope for procedural disagreements.

An unincorporated association of this type does not have a legal identity if its own. It cannot acquire property in its own name and individual members of the Management Committee can be held personally liable for the partnership’s obligations and debt.

3. A Registered Charity needs a formal constitution that must meet the demanding minimum criteria laid down by the Charities Commission. Establishing a body as a Registered Charity is not a simple task and takes a significant amount of time; not all bodies will be deemed to qualify.

Registered Charities are administered by Trustees. Each Trustee must sign an undertaking to uphold the Charity’s objects (aims and objectives) above all else. Being a Trustee is a legally binding commitment and there is always the possibility that a person’s role as a Trustee may conflict with their role as a member or officer of a Local Authority. Do not accept the role of Trustee of a Charity without first discussing the personal implications with the Assistant Chief Executive (Legal).

Before taking on the role of Trustee the individual will normally be required to sign some form of undertaking to confirm they accept their responsibilities and duties. It is strongly recommended that all potential Trustees read the Charity Commission’s booklet CC3 "Responsibilities of Charity Trustees" before accepting this responsibility.

A registered Charity is a legal entity and may enter into a wide variety of contracts. The Trustees are responsible for the administration and execution of any contracts. Provided Trustees act within the guidance of the Charities Commission they are unlikely to be at personal risk but the Charity should, nevertheless, protect its Trustees with Professional Indemnity Insurance. Any Trustee who conducts themselves contrary to the requirements of the various elements of legislation covering charities, whether deliberately or inadvertently, could be liable financially and/or criminally. Being a Trustee is a

4. A charitable trust may be formed where an individual or organisation wishes to donate money or property to be used for a specific charitable purpose into the future.

Such Trusts are established in the same way as outlined for registered Charities in 3. above and the responsibilities of Trustees are also the same. However, the constitution for the Trust must also include a section dedicated to detailing what funds will be used for and the manner in which the dispersal will be determined and managed.

Before taking on the role of Trustee the individual will normally be required to sign some form of undertaking to confirm they accept their responsibilities and duties. It is strongly recommended that all potential Trustees read the Charity Commission’s booklet CC3 "Responsibilities of Charity Trustees" before accepting this responsibility.

If a member/officer is considering becoming a Trustee of a Charitable Trust first seek the guidance of the Assistant Chief Executive (Legal).

5. Limited companies - Community or public body initiatives are sometimes formed as companies limited by guarantee. A limited company does have a legal identity of its own. It can buy or lease property in its own name. All members (usually termed "Directors") must guarantee to pay a nominal sum (usually £1) if the organisation runs into debt or has to be wound up.

There are strict rules for limited companies laid down by Companies House. If a member/officer is considering becoming a director of a limited company they should first seek the guidance of the Assistant Chief Executive (Legal).

6. Industrial and Provident Societies (IPSs) are incorporated and have a legal identity of their own. IPSs can buy or lease property in their own name. Registration is with the Registrar of Friendly Societies, but this can be a drawn out process. ISPs cannot register with the Charities Commission which can be disadvantageous, particularly in relation to tax.

If a member/officer is considering becoming involved with an IPS they should first seek the guidance of the Assistant Chief Executive (Legal).

Relationship with the Local Authority

All funding provided by Central Government or the European Union has to be administered by a statutory body such as a Local Authority. Even if the partnership has an identity of its own, it may still have some sort of relationship with the Council. For instance, the Council may be the accountable body and may hold some funding, such as ERDF monies. In this situation it is advisable to have a Memorandum of Agreement with the Council setting out the terms of the relationship, who is to do what and when, and what the expectations are.

If staff have been recruited to help with the work of the partnership, care must be taken to think through who will be the legal employer of the member of staff. Amongst other things this can have a direct relevance to pension rights.

If there is any doubt consult the Assistant Chief Executive (Legal). The advice is there to assist everyone connected with the Council. It rests with the individual to seek that advice.

Officers and members must always have at the back of their minds insurance, and whether the partnership needs it for its intended purposes.

To reiterate the foregoing, all officers and members are advised in all cases, to seek the advice of the Assistant Chief Executive (Legal) before embarking upon work with partnerships.

 

LOCAL WARD MEMBERS - PROTOCOL

Scope

1. The following protocol sets out a framework of rights or practices, which are to be applied to local ward members. The protocol cannot be comprehensive and its provisions must be interpreted flexibly and with regard to any special circumstances, which may apply in any particular case. They represent a base line from which any departure should be capable of justification. Except where impractical any departure from this protocol should be approved by either the Chief Executive, Corporate Directors or Service Managers.

Definitions

2. In this protocol "local ward member" shall mean the member(s) for a Ward to which a matter relates exclusively or which relates solely to an elector of that Ward and "local matter" shall be interpreted accordingly.

3. Where a single matter contains a series of discrete items each of which relates exclusively to the Ward of a member(s) then each item shall be treated as a "local matter".

4. Where a single matter applies to not more than three Wards the Chief Executive or Corporate Director shall give consideration to treating the matter as a "local matter" for each of the relevant members and shall apply the spirit of this protocol accordingly.

Cabinet

5. The Chief Executive, Corporate Directors or relevant Service Manager should normally ensure that local matters being reported to Cabinet should be marked accordingly in the report. The Chief Executive should ensure that a copy of the agenda and papers are supplied by electronic means to the local ward member(s) at the same time as the Cabinet papers are despatched.

6. Local ward members shall have the right to attend and speak on a local matter at Cabinet for a maximum of 3 minutes before the debate on the matter begins subject to the giving of prior notice to the Leader or Chief Executive. A local ward member who has exercised a right to speak on a local matter, may speak again prior to any summing up on the matter by the Leader/Portfolio Holder and the vote being taken on the matter, to clarify any issues that have arisen in the debate. This second speech to be no longer than 2 minutes.

Expedited Procedures - Consultation

7. Where an officer makes a decision in accordance with the Cabinet’s expedited procedure rules on a local matter, the relevant Corporate Director or Service Manager as appropriate should normally send by electronic means to the local ward member(s) for information, a copy of the letter to the Leader and Portfolio Holder which sets out the details of the matter and the course of action, he/she proposes to take in the form of a report setting out the options and giving reasons for making the decision.

Local Meetings

8. Where any public meeting to be held in a member’s ward is arranged by the Borough Council, then the local ward member(s) for the ward in which the public meeting takes place will be informed of the event by the relevant Corporate Director or Service Manager. This provision shall not attach to public meetings to be held at either The Music Hall or The Guildhall, Frankwell Quay, Shrewsbury.

9. While Portfolio Holders have the right to pursue matters, relating to their Portfolio functions wheresoever in the Borough area they arise, the Portfolio Holder should normally, as a matter of courtesy, seek to inform the local ward member(s) and consider involving the local member(s) if appropriate.

10. Local ward members will be invited to the opening of any Council buildings/projects or launches of services in their ward though if present the Mayor/Deputy Mayor, Leader/Deputy Leader and Portfolio Holder shall take precedence unless otherwise agreed.

11. A copy of the Mayoral Engagement List shall be sent by electronic means to all Councillors in order that they are kept informed of the Mayor/Deputy Mayor’s attendance at any occasion in their ward.

12. Where a local liaison or local consultation group is established by the Borough Council, then consideration should be given as to whether the local ward member(s) should be invited to attend as a observer if not appointed as a member of the group.

Publicity

13. Any publicity activity organised by Council officers in a member’s Ward whether of a local nature or borough wise nature will seek to involve the relevant local ward member(s) except for events held at either The Music Hall or The Guildhall or publicised solely by way of press release or broadcast.

Officer Meetings and Correspondence

14. The nature and extent of correspondence between the Council’s Directorates on the one hand and the public or specific clients or recipients of services including their representatives on the other is such that it is neither always appropriate or practical for local ward members to be advised of all such matters.

15. Where any officer is invited to attend a parish council meeting they shall inform by electronic means all Borough Councillors whose wards include all or part of the Parish Council areas. Further where senior officers are invited to attend a meeting with a public body in relation to a local matter, the local ward member(s) should normally be made aware by electronic means of the general circumstances.

16. Any information communicated to the local ward member(s) shall be without prejudice to the right of an officer to communicate with any relevant Portfolio Holder, Committee Chairman, Group Leader or other Councillor as appropriate in the circumstances.

Action by Non Local Ward Member

17. Where a member wishes to propose a motion or seek a debate or otherwise speak in a meeting of the full Council or a Committee in relation to a local matter in another member’s Ward they should seek, as a matter of courtesy, to give prior warning to the local ward member(s).

18. All members who involve themselves in matters relating to the Council or its functions in Wards other than their own should seek, as a matter of courtesy, to advise the local ward members of those actions and should do so in advance if circumstances permit. (This shall not apply to canvassing or other party political activity.)

Confidentiality

19. The local ward member(s) under this protocol must not make public nor make personal use of any information or material supplied to them where the supplier of the information has indicated that it is of a confidential nature.

Commitments

20. Local ward members are reminded that they do not have the right to commit the Council or its officers to any particular course of action and should ensure that they do not convey to the public any false impression of commitment or give any undertaking which they are not in a position to personally fulfil.

Freedom of Information Requests

21. Local Ward Members will be advised of any Freedom of Information requests which affect their wards.

 

WARD MEMBER PROTOCOL

ADDENDUM - OFFICER CHECKLIST

• Cabinet reports to be marked in top right hand corner with names of any affected Wards.

• Leader to permit ward member(s) to speak for up to 3 minutes at Cabinet prior to debate on item affecting that member’s ward. Leader to permit ward member to speak for up to 2 minutes prior to summing up.

• Officer seeking delegated powers to send report by email to ward member(s)

• Officers organising any public meetings must tell local ward member.

N.B. Does not apply to meetings in Music Hall or Guildhall.

• Portfolio Holders to tell local ward member when pursuing matter within his/her portfolio in that ward.

• Officers to invite local ward member to opening of any Council building or facility.

• Officers/members setting up a local consultation group to consider inviting local ward member to attend as observer or sit on group.

• Publicity events should include local ward member. N.B. Not at Music Hall or Guildhall.

• Officers to e-mail local ward member if they are attending a Parish Council or public meeting in their ward.

• Members should give notice to local ward member before submitting a notice of motion requesting that an item be debated or getting involved in an issue in the other member’s ward.

• Members to keep confidential any information supplied under this protocol unless approval given to publicise it.
• Members to be advised of any Freedom of Information requests which affect their ward.