Helpful Hints for the Chair of the Council

 Helpful hints for the Chair of the Council

  

Congratulations on your election as Chair of your Council - or Mayor, if you serve on a Town Council. (There are no differences in law between a Chair and a Mayor).

 

Perhaps you are reading this Note because you are trying to make your mind up whether to put your name forward for Chair. Or maybe you are wondering what, now that you have been elected, you have let yourself in for. Or maybe you are wishing that you hadn't!

 

The Association recognises that many new Chair approach their role with a mixture of keen anticipation and trepidation, and we have put this Guidance Note together to try and answer some of the questions that you may have in your mind. Although most of our one-to-one advice work to councils is delivered via the Clerk, who is the Council's permanent representative - in the sense that he or she does not need to seek re-election every four years - we do give advice to Chair on the performance of their role, and, in particular, on employment matters relating to the Clerk. As resources permit, we run training seminars for Chair. We are, therefore, here to help. However, countless Chair, particularly new ones, rely very heavily on the advice and guidance of the Council's Clerk, particularly if s/he is an experienced one, and you should not underestimate the help that a good Clerk can give you.

 

Much of what you need to know and do requires no more than common sense, with a well-developed degree of fair play and a sense of humour thrown in. What we will endeavour to cover in this Note is the law as it affects Chair, and some guidance on handling situations which crop up, based on our postbag over the years. Do however remember that local government law is continually changing, and so you need to keep updated. The Association will normally advise Councils of changes in the law via its quarterly LALC News or via the LALC e-groups.

 

 

                                                                  

The role of Chair

 

The Chair must be elected each year and this must be the first item on the agenda of the Annual Meeting of the Council. He/she may stand for re-election any number of times, but an actual election must take place each year, even when a council has an informal rule for determining in advance who will be Chair (e.g. by seniority).  Each year he/she must sign an additional Declaration of Acceptance of Office (forms available from Lincolnshire Association of Local Councils) in relation to the position of Chair, immediately after election to the position.

 

In law, there is no requirement to have a Vice-Chair, but most councils choose to exercise the power to appoint one. If the Chair is absent from a meeting, the Vice-Chair must preside. If the Vice-Chair is also absent, then the meeting must elect a temporary Chair for the duration of that meeting only. A meeting cannot take place if there is no-one to chair the proceedings.

 

A Chair remains in office until he resigns, dies, or his successor is appointed. This can lead to one strange quirk in the law: in an election year, if the Chair does not stand for re-election as a councillor, or is defeated at the polls, he still remains Chair until his successor is appointed. This can mean that, at the Annual Meeting of the Council which must follow within 14 days of the newly-elected Council coming into office, the old Chair takes the chair for the first item on the agenda, namely the election of a (new) Chair for the coming year. Because the old Chair is no longer a councillor, he cannot vote in the election for his successor, but if the votes are tied, he has a casting vote because he is presiding for this item.

 

 

 

There is no such thing as ‘Chair’s action’ - i.e. a Chair cannot decide anything between meetings on his own.  The reason for this caution is that in local government law, decisions must be made by:

 

·              the whole council – not a single member, or

·              a committee (or sub-committee), under a scheme of delegation from the council (or a committee), or

·              the Clerk or another officer, with or without consultation with the Chair or other councillor(s), under a scheme of delegation agreed and resolved by the council.

 

The council can pay its Chair an allowance to cover any additional costs caused by the holding of this office.

 

A query that we often receive concerns “votes of no confidence” in a Chair (or other councillor). Because the law says that a Chair is elected for the council year (and councillors for a 4-year term), a council vote cannot be used to override the law. Thus a vote of no confidence cannot be binding, and cannot require the resignation of the person concerned. However, this should not be used by a Chair to ride roughshod over their council, nor by a councillor to behave in such a way as to alienate all the other councillors. Such behaviour very quickly gets local government a very bad name.

 

The three key relationships within a council are:

 

·        the Chair/Clerk relationship

·        the relationship between Clerk and councillors

·        the relationships between councillors

 

There are bound to be disagreements within each of these relationships, but a good council will seek to ensure that they are dealt with honestly and courteously, within an atmosphere of trust. A good Chair can do a great deal towards building such relationships and creating such an atmosphere.

 

 

Councillors

 

Councillors are elected for a 4-year term. Elections have been held in 2011, the next ones will be in 2015. 

 

As soon after their election as possible, and in any event before they undertake any duties at all as a councillor, all new councillors must sign a Declaration of Acceptance of Office (forms available from Lincolnshire Association of Local Councils). This also applies to mid-term election, or co-option to a seat on the council.

 

In order to stand for election as a councillor, a person must be a British national or a qualifying citizen of the Commonwealth or the European Community. In addition, he/she must be qualified by at least one category from the following:

 

·        be on the current electoral roll for the parish

·        have lived in the parish for the whole of the 12 months preceding nomination date

·        have had his/her main or only place of work within the parish during the 12 months preceding nomination date

·        have owned land or premises in the parish for the whole of the 12 months preceding nomination date

 

As well as the above, a person wishing to stand as a councillor must not be disqualified, for example by being the subject of a bankruptcy order or by having been convicted of an illegal election offence. The law on this is detailed – further information can be found in a Legal Topic Note on elections (available free of charge from the Lincolnshire Association of Local Councils) or from the Electoral Registration Officer at your local district council.

 

 

 

 

The law on meetings –a summary

 

 

 

Every council must hold a minimum of 4 meetings per year.

 

One of these must be the Annual Meeting of the Council, which must be held on any day in May (or, in an election year, within 14 days from the day when the new councillors take up office – four days after the elections).

 

All meetings must be publicly advertised a minimum of 3 clear days in advance (i.e. not counting the day the notice is put up, nor the day of the meeting itself, and allowing 3 clear days in between). More notice is better, and it is safer if you can achieve three clear working days’ notice, rather than just three clear days. (Sundays cannot be counted, neither can Bank Holidays, a day of the Christmas or Easter break or any national days of thanksgiving or mourning).

 

All councillors must receive a copy of the agenda, as a minimum, also 3 clear days in advance. The agenda does not have to be publicly displayed but it is good practice to do so.

 

Meetings may not be held on licensed premises unless no other room is available free or at a reasonable rate.

 

The press and public have a right to attend meetings but not to speak. They may be excluded from all or part of a meeting if the council decides that “publicity could prejudice the public interest”. This exclusion should be used very sparingly and only for very good reason (see below).

 

In addition, you need to be aware that there is a separate meeting that needs to take place once a year; this is the annual meeting for all the electors in the town or parish. It is usually called the Annual Parish Meeting but in some places it may be referred to as the AGM. It is, in legal terms, quite separate from the parish council meeting. Its decisions (other than a formal request for the prevision of allotments) are not binding on the council and there is no set format for the meeting. It is a relic from the Middle Ages when decisions were taken by meetings of local inhabitants, in the church vestry.

 

A council is required in law to arrange this meeting, and if the Chair of the Council is present, he or she must chair it. The minimum notice for this meeting is seven clear days and it must not begin before 6pm.  As it is a meeting of electors, if the Chair/Vice-Chair cannot be present, those at the meeting can choose anyone present to take the chair. 

 

The legal requirement in parishes with a separate parish council is a minimum of this one annual parish meeting, but one can be convened whenever the council considers it necessary, or advantageous, to discuss something of major importance with the electorate.  A parish meeting may be requested by the Chair, any two councillors, or in writing by 6 electors.

 

Note: In parishes without a separate council, the minimum legal requirement is for one further meeting of electors in addition to the Annual Parish Meeting. 

 

 

Before, during and after meetings – what the Clerk and Chair need to do. (Items involving the Chair are in Bold - the remaining duties are normally carried out by the Clerk)

 

Before:

·          Book venue

·          Check minutes are done, action points done, replies received to letters written

·          Draw up agenda, discuss clarity of agenda items, timings, etc.

·          Put up public notice of meeting

·          Send or deliver agendas, minutes, supporting papers to all councillors and also to members of the press, if adopted policy, or if requested to supply the agenda and supporting paperwork

·          Chase up late replies to correspondence

·          Clerk/Chair to discuss any potential minefields on the agenda

·          Make out any cheques ready for signing

 

During

·          Notes taken of discussion on agenda items for minutes to be written (note: minutes are not a verbatim record)

·          The Clerk advises Chair and Council where necessary on legal, procedural, financial, technical aspects  - the Clerk should check any uncertain points before the meeting but if points arise during the meeting, it is wise to defer further discussion until correct information is to hand)

·          Clerk/Chair to take note of members waiting to speak

·          The Clerk’s role - a fine line between providing advice, which is a vital part of the role, and taking part in the debate, which is not acceptable

·          The Clerk/Chair to ensure the council makes decisions which conform to the law

·          The Clerk/Chair to ensure that all resolutions are clear and recorded correctly

·          Cheques for signing to be properly authorised, signed and counterfoils initialled

·          Clarify who is going to take responsibility for action and follow up the various agenda items

·          Any dates for meetings, etc., arranged during the course of debate set and agreed before the end of the meeting

·          Councillors informed of the date of the next meeting

 

After

·          Any follow-up points agreed between Clerk/Chair/councillors before leaving the meeting

·          Make sure someone clears the venue

·          Clerk prepares notes of the meeting – some councils agree that the Clerk should check draft with Chair prior to finalizing and distributing, for the avoidance of errors/disputes

·          The Clerk send any necessary letters (in consultation with the Chair if necessary – but not usually standard practice) and makes phone calls, etc.

·          The Clerk deals with matters that come in between meetings and depending on agreed council procedures, consults with Chair as necessary

·          Chair to be informed of urgent or controversial matters that arise between meetings – and to decide whether to call an extraordinary meeting if delegated powers of the Clerk cannot be used

 

The Council needs set guidelines for (amongst other matters):

 

·          How do items get out on the agenda which belongs to ‘the council’ - who has a right to put them there, who ‘controls’ the agenda, what timescales are involved?

·          Dealing with correspondence

·          Managing any public forum – and avoiding unwanted conflict

·          The level of consultation and information the Chair and councillors expect from the Clerk

·          How it deal with planning applications  - a committee, full council, circulating applications round the councillors between meetings and using agreed delegated powers for the clerk to respond after collating information?

 

Press and Public

 

The press and public are entitled to attend all meetings of a council and its committees (if any). This right does not entitle them to speak at meetings.  The press and public may, however, be excluded from the meeting if, in the opinion of the council, ‘publicity would be prejudicial to the public interest’. This right must in these days of open government be exercised with great caution – exclusion must be very much the exception, not the rule. You cannot exclude the press but not the public, nor vice versa, but may resolve to invite individuals to remain in the meeting if they are able to assist with information or advice for the members.

 

The three main situations where it is standard practice to exclude the press and public are:

 

·          When dealing with the employment affairs of named council employees - e.g. Clerk’s salary and associated matters – the council must be aware of its responsibilities in relation to Data Protection

·          In the early stages of putting out a tender for the supply of goods or services (because it may not be helpful for the Council if potential contractors know the amount which the council might be prepared to spend up to)

·          In the early stages of a legal dispute (so as to avoid ‘showing the council’s hand’)

 

If the council wishes to exclude the press and public, it must be the subject of a vote and resolution, and the exclusion should be recorded in the minutes – even if no press and public are actually present (to protection the confidentiality of any associated paperwork if necessary).  It is good practice to leave consideration of confidential items to the end of the meeting.

 

Minutes

 

There is a legal requirement to keep minutes, but there is no legal formula as to how they should be written!

 

Proposers and seconders of motions do not need to be recorded unless the council wants it. Nor is it a good idea to record exactly who said what – that way there will be endless queries about accuracy when the minutes go to the next meeting for signing.  Minutes are not required to be a verbatim record – but to record the formal resolutions of the council.

 

They should show the attendance details, and clearly record any declarations of interest made by the councillors.

 

The bare minimum for the rest of the business is to simply record the decisions taken at the meeting. However, for future reference and indeed for the benefit of local history, you will want to give an outline of the key points of the debate, on both sides of the argument. A typical formula might be: “The council discussed the making of a grant to the Village Hall. Some councillors felt that this was setting a dangerous precedent; others felt that the Hall was an essential local facility which the council should support. Following discussion, it was resolved to make a grant of £2500 for the financial year 2011 – 2012”.

 

The minutes must be signed at their end, at the next meeting, by the Chair, or, if he/she is absent, by whoever is chairing the meeting. The Chair must initial all other pages as well.

 

The minutes of the Council’s Annual Meeting, in May, are no different from any other minutes and simply go to the next meeting. (Minutes of the Annual Parish Meeting – see above – do not belong to the council and must be signed at the next Annual Parish Meeting, i.e. the following year. It is, however, common sense as well as good practice for the council to see the draft version, for information, and in case there are items that they want to progress, but they cannot be signed by the council.)

 

The minutes of both parish council meetings, and of the Annual Parish Meeting, are open to public inspection by electors. This right was granted before the advent of photocopiers and merely says that they can ‘make copies’. It is sensible to be as helpful as local conditions permit – if the council has a copier, then it is wise to keep goodwill by taking a copy if required. The Clerk should not let anyone take the Minute Book away to peruse it or make copies. There is a great deal of additional information that must be made public anyway, under the rights granted by the Freedom of Information regime, unless the council can justify withholding access.

 

These days, some Clerks working from home have concerns as to who they let into their home. This is understandable, but this concern cannot be used to deny access to the minutes to a local elector. Instead, the Clerk could arrange an appointment at, say, the Village Hall, at a mutually convenient time, with someone else present if s/he feels more comfortable. Equally, if the Clerk is content for the minutes to be inspected at home, s/he does not have to give access 24 hours a day, 7 days a week – the elector can still be asked to come by appointment at a mutually convenient time.  The council must, as a responsible employer, ensure that it makes arrangements which safeguard the employee’s welfare in such matters. 

 

The notes may be amended until such time as they are signed, at which point they become the formal legal record of the council’s proceedings. It is helpful to the public, and probably wise as well, to give access as soon as possible after the notes have been prepared but if this is done, it should be made clear to electors that they have not yet been confirmed by the council.

 

Minutes are legal documents and the council’s prime record. It is sensible to lodge very old Minute Books in the County Archives for safety, though you will want to keep locally anything that you are likely to need to refer to.  Risk management should identify safe storage options.

 

 

EMPLOYMENT ISSUES

 

Councils irrespective of their size must be aware of the key aspects of employment legislation, and should take their role as employer very seriously, as potential penalties for getting it wrong are severe.

 

(Note: if your council is one where a councillor carries out the Clerk’s duties temporarily, that councillor must not be paid for the work though they may, and indeed should, be reimbursed out-of-pocket expenses. In such a situation, please also be aware that the councillor serves in a specially created unpaid role such as ‘Acting Clerk’ and cannot be designated the Clerk or Proper Officer – these are regarded as paid positions in law, even if no money is actually offered.)

 

Particularly in a small council with only one employee – the Clerk – it will normally be the Chair who is first contact on employment matters. This cannot in any sense be as the employee’s ‘line manager’ but only as a liaison between the employee and the council. ‘The council’ as a corporate body is the employer of any staff, and staffing matters must be dealt with either by full council, or a committee with delegated responsibility. 

 

Be aware that:

·          The Clerk (and any other employees) serves the council as a whole, not the Chair, a single councillor or group of councillors. Employees should not be required to do anything that has not been agreed by ‘The council’.

·          The Clerk must have a written contract. A legally enforceable contract exists even when matters are dealt with entirely verbally, but a written contract ensures both parties know what is expected of them. Furthermore, employees are legally entitled to receive, within eight weeks of commencement of employment, a written Statement of Terms and Conditions which sets out the main points governing their work, such as provisions for holiday and sick pay, hours to be worked, grievance and disciplinary procedures and so on – these can be incorporated into the Contract of Employment. (The Association has a model contract which can be adapted to fit your council’s particular circumstances and you are strongly advised to adopt either this or a similar contract.)

·          For existing Clerks without a written contract, we would suggest that the council should negotiate such an agreement with the Clerk as soon as possible. This needs to reflect his/her current working arrangements, as unreasonable changes cannot be forced on an existing employee, but only made by agreement. If you have concerns over this, the Association will be happy to advise further.

 

·          The council should ensure there is provision for (a) the council to discuss with the Clerk any problems it perceives over his/her work, and (b) for the Clerk to raise any concerns s/he may have about the work. We are finding these days that an increasing number of councils are experiencing problems with the whole area of performance, and particularly with disciplinary/grievance issues.  These problems are invariably made worse if there is no clear established mechanism, as required by law, whereby they can be addressed. Sensitivity is needed by all involved if working relationships - particularly in a small community where everyone knows each other - are not to be damaged or destroyed. It is best to set up a small committee of councillors with responsibility for personnel matters.

 

·          All councillors need to be aware they should not indulge in public criticism of the Clerk or other employees. It is very difficult for employees to respond in a public forum and it is even possible that the Human Rights Act, which provides for privacy in many areas of life, or Data Protection law, could be invoked. Again, the availability of a Personnel/HR Committee (in a large council), an Appeals Committee, or an established arrangement involving just a small number of councillors, will be helpful if there are genuine concerns and criticisms to be dealt with.

 

·          Arrangements for the Clerk’s salary are, unfortunately, often a bone of contention, whether it is the rate to be paid, hours to be worked, or the manner in which it is to be reviewed. A great many Clerks find this issue very embarrassing, and one of the most difficult with which they have to deal. You are probably aware that the Association publishes the latest recommendations from the National Joint Council (National Association of Local Councils (NALC) and Society of Local Council Clerks (SLCC) each year. These are linked to the annual negotiations for other local government workers and finalised by NALC (on behalf of local councils as employers) and SLCC (on behalf of Clerks as employees). Salaries are expressed in terms of an annual salary for a full-time working week of 37 hours. This can be calculated as an hourly rate (by dividing by 37) for the majority of Clerks who work part-time.

·          It is for each individual council to determine, having regard to its own pattern of work, the actual working hours. For smaller councils, the work pattern may be very uneven and you may need to calculate the hours over say a month or even longer, then work out how many hours per week this is equivalent to.

 

·          In making the above calculation you will be well-advised to involve the Clerk. Many councillors seem to believe that all the Clerk does is attend the monthly meetings, take the minutes and write a couple of letters. Nowadays, for the vast majority of councils, this is simply not true. Most Clerks will have post to deal with several times per week, can expect to receive telephone or other communications from official bodies on a regular basis and increasingly, be contacted by members of the public as well as councillors, often in the evenings and at weekends. All this must be taken into account when working out the paid employment hours.

 

·          In addition to a salary, the Clerk must be reimbursed for out-of-pocket expenses. It is not permissible to expect these to be taken from the salary. There is a maximum permitted rate for necessary travelling expenses (such as visiting district or county offices on council business, travelling round the parish or to the bank on council business etc.) which, again, is published annually in the Association’s LALC News, or the council can set its own lower rate.

 

·          If the Clerk has a computer which is used for council work, it is normal for the council to pay for a proportion of consumables such as printer cartridges, etc. When such equipment needs renewal the council should at least give consideration to paying at least part of the cost. The ideal scenario is for all councils to have their own PC, or laptop, and perhaps a ‘pay as you go’ phone for council work – both of which can be easily transferred if there is a change of Clerk at some point and ensure continuity and security of data. Some councils pay an allowance for use of part of the Clerk’s home as the office, and a certain proportion can be negotiated as tax-free – you should contact your local tax office for further details and information. However, HM Revenue and Customs expect this to be linked to demonstrable costs such as wear and tear, additional heat and light, etc. Alternatively, a council may prefer to reflect such costs in the total salary offered.

 

·          The Council as employer is responsible for ensuring that if the Clerk’s earnings with the council are such that PAYE/National Insurance are due, these are deducted at source and sent to HMRC. If these deductions are not made, then it is the council, as the employer, which will be responsible for repaying not only the employer’s contributions, but also, if so required, the employee’s as well. If contributions are missed for any length of time, the repayment can be a surprisingly large amount. 

 

And, finally:

As Chair, it is your responsibility to do all that you can to ensure the smooth running of the Council and to give leadership to your fellow councillors. Even though you are probably a very busy person, try to keep up-to-date with any changes that affect local councils – there is so much going on in the local council world right now. Try to ensure that other councillors play their full part and recognise their statutory responsibilities.

 

LALC provides many training sessions for both councillors and the clerk, and it is important that the council sets aside a training budget each year and encourages everyone to attend training wherever possible, in order to maintain a good working knowledge of all current and forthcoming legislation and best practice.

 

In addition, legal and especially audit procedures expect that the Chair and councillors are aware of the council’s administrative and financial position and that they have taken steps to ensure that its records – minutes, accounts and other paperwork – are accurate, up-to-date and valid. If your paperwork and procedures reflect good practice, and you work closely with your local community, you should have nothing to worry about.

 

However, being Chair is not a licence to go power-crazy. Each year we receive a clutch of complaints either from councillors or from members of the public that a Chair has decided they can take matters into their own hands, and run the council as a one-man band. You simply cannot do this: in the long run, it will cause problems both for you and for the council! 

 

Treading carefully and wisely will ensure harmony between all parties involved.

 

Good luck!