Members and officers – key to a successful relationship?

Ben Standing, Browne Jacobson

The traditional description of the roles of members and officers is that members are responsible for determining policy while officers are responsible and accountable for providing advice, for implementing policy and managing the local authority as an organisation. Notwithstanding legal changes such as ‘cabinet government’ and the advent of executive members with delegated powers, it remains the case that members should not become involved in operational detail while officers must demonstrate commitment to properly adopted policies of the authority and to giving effect to those policies regardless of personal politics. Mutual respect between members and officers is essential to good local government. It is important that members and officers should observe reasonable standards of courtesy to each other.

Key to creating a successful relationship between officers and members is the understanding by each party of their respective roles. This article takes a further look at the roles and responsibilities of officers and members.

The responsibilities and liabilities of members

Case law establishes that members of a local authority occupy a position of trust. They are sometimes referred to as ‘quasi trustees’.

Members have a general duty to ensure that their personal interests are not brought into conflict with those of their authority and must act in the best interests of the authority if a conflict arises.

A member of a local authority is not free to act in his/her own interest. Such a member occupies a position of trust. As a person holding such a position of public trust, a member of a local authority has an obligation to act lawfully, honestly, carefully, reasonably and with a due regard to the interests of those required to fund the authority’s activities.

That trust imposes a duty on a member to ensure that the local authority of which he/she is an elected member complies with the law and does not act unlawfully as far as he/she reasonably can. That duty is not confined to occasions on which a member may attend a meeting of the local authority, its cabinet or at any of its committees or sub committees. For example it would be wrong for a member at a meeting with officers, with other members or at a party meeting or on other occasions, to support or promote a proposal which would involve the local authority of which he/she is a member acting unlawfully. To do so would be misconduct.

A member’s duty is personal. But it does not follow that he/she has no responsibility for decisions which may be taken collectively. If a member fails to discharge his/her duty he/she could be liable for any resulting loss. Moreover, although mere knowledge of the misconduct of others may not of itself constitute misconduct on his/her part, a member is under a duty to do what he/she reasonably can to ensure that such misconduct of which he/she is aware is ineffective.

In general, members may discharge their responsibilities by:

  • establishing an appropriate decision making structure with appropriate delegation
  • establishing appropriate arrangements for members to be provided with information sufficient to enable them to satisfy themselves as to the manner in which their authority’s functions are being discharged
  • establishing financial, procurement and other controls, with appropriate checks and balances, including the appointment of a ‘chief finance officer’, an adequate and effective system of internal audit, the appointment of a head of paid service and the appointment of a monitoring officer. The appointment of a chief finance officer, a head of paid service and a monitoring officer is required by statute 1 2
  • establishing appropriate arrangements for securing economy, efficiency and effectiveness in the authority’s use of resources, including a system of monitoring and performance review
  • making appropriate arrangements for the appointment on merit of suitable qualified and competent officers; but see section 9 of the Local Government and Housing Act 1989 for the position in respect of assistants for political groups.

A member should not do anything (in terms of personal conduct) which he/she could not objectively justify to the public. It is not enough to avoid actual impropriety. Members should at all times avoid any occasion for suspicion and any appearance of improper conduct, for example, the acceptance of gifts, favours or excessive hospitality. Members should not allow the impression to be created that they are or may be using their position to promote a personal or private interest, whether direct or indirect and whether pecuniary or not, rather than acting in the public interest.

The responsibilities of officers

In general, officers are engaged under section 112 of the Local Government Act 1972 for the “proper discharge” by a local authority of its functions. Officers are appointed to serve the authority as a whole and their contracts of employment are with the authority.

A local authority may arrange for the delegated discharge of its functions, including by officers. In discharging delegated functions, officers3 are subject to public law principles.

Where senior officers are discharging an authority’s functions pursuant to delegation arrangements or have specific statutory tasks to perform, their position is analogous to that of Members. When acting in that capacity, officers have what is sometimes referred to as a ‘fiduciary duty’. Such officers occupy a position of trust and are under an obligation to act lawfully, honestly, carefully, reasonably and with due regard to the interests of those who may benefit from, or be affected by, discharge of the authority’s functions and the interests of those required to fund the authority’s activities.

Officers are responsible for ensuring that the authority, its cabinet, committees and sub committees are informed of the facts, the law and all other relevant considerations, before they make decisions. Officers are also responsible for proposing, and advising on, policy options. Officers called upon to provide information, to advise or to help formulate advice owe a duty to discharge that responsibility with reasonable care. This is a duty which they owe to the authority as a whole, not to any political group which may for the time being constitute a majority. An officer’s duty to provide information and advice is to be exercised impartially, independently of any member’s preference and in the interests of the authority. Failure to discharge that duty, for example by withholding or misrepresenting material information is misconduct: see Re Hurle-Hobbs ex parte Riley, 20 November 1944, where the Town Clerk, when threatened with dismissal, placed his personal interests above his duty. As in ex parte Riley, duress provides no defence to an allegation of breach of duty; obedience to (unlawful) orders likewise provides no defence; see Attorney General v De Winton [1906] Ch 106 and R v Saunders (1855) 24 LJMC 45 at page 48.

Officers may properly be called upon to advise or report on proposals which may emanate from particular members. But it is no part of the responsibility of any officer to seek to persuade members to do that which a majority or any other group of members or any individual member may prefer the authority to do or to frame any information or advice that the officer may provide to Members to facilitate the achievement of any such preference. He/she is not the servant or agent of such a group of members or of an individual member.

An officer’s duties are not merely to refrain from doing those things which may not be done in the proper discharge of the authority’s functions. Officers are engaged to help ensure that those functions are properly discharged. An officer also has a duty to ensure, so far as he/she reasonably can, that the authority complies with the law and does not act unlawfully. That duty is not necessarily discharged merely by giving information and advice when expressly called upon to do so. As Re Hurle-Hobbs ex parte Riley indicates, it may require disclosure when the circumstances call for it. That duty may require the disclosure by an officer of the misconduct or suspected misconduct on the part of his/her superior officer or any other employee of the authority or on the part of a member. What an officer should reasonably do to ensure that an authority complies with the law will depend on the circumstances. But, it would be wrong for a responsible officer of a local authority to do less than that which he/she can reasonably do to ensure that his/her employing authority complies with the law.

Conclusion

The working relationships between members and officers are integral to the successful operation of an effective local authority. Mutual respect and good communication based on high standards of conduct are central to establishing positive member/officer relationships. Members and officers need to be aware of their separate but complementary functions and take care to ensure that their authority is not exceeded. Both parties should be prepared to engage constructively with each other, and to put politics to one side.


1 Section 151 Local Government Act 1972 and sections 114 Local Government Finance Act 1988, section 4 Local Government and Housing Act 1989 and section 5 of the 1989 Act respectively.

2 In Wales an additional statutory officer (Head of Democratic Services) must be appointed: see section 8 of the Local Government (Wales) Measure 2011.

3 and members.

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