SIX MONTHS’ RULE - continuation of bad advice from the Town Clerk. Stop digging Richard...
From Richard White Town Clerk 20th May 2010
Confused? You will be after you read the Town Clerk’s gobbledegook:
“You will note that there is a slight change in the wording regarding apologies for absence. I was made aware following my absence from work that there was some confusion regarding the so called “6 month rule”. (sic) The relevant section 85 of the Local Government Act 1972 states that an apology must be approved in order for the 6 month period for a member’s non-attendance to restart. However, the Council has always used thee term “to accept apologies for absence”. (sic)
Although I do not believe that there is any difference between the two words in this context this is now corrected in order to comply with the wording used in Section 85. Paradoxically, there is no statutory requirement to provide a reason for non-attendance at a meeting but it is my view that it is impossible to approve an apology if the reason is not known. The Council may, therefore, wish to consider how it handles apologies in the future. In particular the reason for non-attendance may be one of some sensitivity that the member does not wish to be in the public domain but has to be known to members in order that they can approve the reason.
Section 85 also states that if a member attends a meeting of another body to which he is the Council’s appointed representative then that counts as attendance of a meeting of the Council and therefore the six month period restarts.
This is sheer unadulterated gobbledegook.
Clear advice from Geoffrey Pook, RCC Legal Department, states:
I do not know the circumstances of how the Town Council has dealt with them, but the procedure relating to long-term absences is governed by the six months’ rule: “if a councillor fails to attend any meeting of the Council or one of its committees or other bodies upon which the councillor represents the Council without the Council having given its authorisation for a longer absence before the end of the six months, then the seat becomes vacant.”
On the advice of the Town Clerk Oakham Town Council gave a written and erroneous answer that, provided apologies are sent to the Council, rCouncil representatives may stay away from meetings indefinitely.
My questions on the six months’ rule were not properly answered at a Council meeting on 12 May.
1. Why did the Council mislead Councillor Brookes regarding the vacancy of Cllr Swiffin’s seat which the reply from democratic services confirms is now vacant?
(It is now claimed George Swiffin attended a Council meeting on 16th December 2009. However his signature does not appear in the register of members attending that meeting. Neither does the signature of the then Mayor, Jan Fillingham, appear in the same attendance register of the meeting, though it is claimed that she, Jan Fillingham. also attended. This was explained as ‘an oversight.’ Which is really odd because three names appear in the right hand column, where the Chairman and Vice Chairman sign. None of the three signatures corresponds to previous signatures made by Jan Fillingham.)
2. Can the Council tell me who advised them that the seat was not vacant?
3. Will the Council take action to ensure they do not give misleading answers to written questions in the future and that they will take adequate steps to ensure they act on the best advice and adhere to best practice in the future?
4. What action is to be taken against the Town Clerk for failing to advise me correctly on this matter? I was informed that a Councillor may give their apologies continually provided apologies are given to each meeting. This is clearly not correct and misleading.
5. Was it a deliberate lie or is the Town Clerk not sufficiently trained? If he is sufficiently trained is he able to assimilate the training he has undertaken?
6. Are Officers and Councillors aware that tampering with Council documents carries severe penalties? (The minutes of 16 December were not available for scrutiny and I was assured that that meeting had been cancelled. Yet the minutes reappeared by 11th May 2010!)
What the Act actually says:
LOCAL GOVERNMENT ACT 1972 – Section 85 in full:
85 Vacation of office by failure to attend meetings.
(1)Subject to subsections (2) and (3) below, if a member of a local authority fails throughout a period of six consecutive months from the date of his last attendance to attend any meeting of the authority, he shall, unless the failure was due to some reason approved by the authority before the expiry of that period, cease to be a member of the authority.
(2)Attendance as a member at a meeting of any committee or sub-committee of the authority, or at a meeting of any joint committee, joint board or other body by whom for the time being any of the functions of the authority are being discharged, or who were appointed to advise the authority on any matter relating to the discharge of their functions, and attendance as representative of the authority at a meeting of any body of persons, shall be deemed for the purposes of subsection (1) above to be attendance at a meeting of the authority.
[F1(2A)Subject to subsections (2B) and (3), if a member of a local authority which are operating executive arrangements, who is also a member of the executive of that local authority, fails throughout a period of six consecutive months from the date of his last attendance to attend any meeting of the executive, he shall, unless the failure was due to some reason approved by the local authority before the expiry of that period, cease to be a member of the local authority.
(2B)For the purposes of this section—
(a)the discharge by a member, acting alone, of any function which is the responsibility of the executive; and
(b)in respect of a mayor and cabinet executive or leader and cabinet executive, attendance as a member at a meeting of a committee of the executive,
shall each be deemed to be attendance at a meeting of the executive.]
(3)A member of any branch of Her Majesty’s naval, military or air forces when employed during war or any emergency on any naval, military or air force service, and a person whose employment in the service of Her Majesty in connection with war or any emergency is such as, in the opinion of the Secretary of State, to entitle him to relief from disqualification on account of absence, shall not cease to be a member of a local authority by reason only of a failure to attend meetings of the local authority [F2or of a failure to attend meetings of the executive] if the failure is due to that employment.
[F3(3A)Any period during which a member of a local authority is suspended or partially suspended under section 66, [F466A, 73, 78, 78A] or 79 of the Local Government Act 2000 shall be disregarded for the purpose of calculating the period of six consecutive months under subsection (1) [F5or (2A)] above (and, accordingly, a period during which a member fails to attend meetings of the authority [F6or, as the case may be, meetings of the executive] that falls immediately before, and another such period that falls immediately after, a period of suspension or partial suspension shall be treated as consecutive).]
[F7(4)In this section “local authority” includes a joint authority [F8and a joint waste authority]F9. . .]