Investigation Guidelines

What Happens When We Receive a Complaint?

This guide outlines the steps which the CIO or any appointed staff will normally take. In terms of the ethical standards legislation it is a matter for the discretion of the CIO to decide whether, when and how to carry out an investigation.

Unless there are unusual circumstances, when the CIO receives a complaint the councillor or member against whom the complaint has been made will normally be told:

that a complaint has been made;
the substance of the complaint;
the name of the complainant.

In most cases, the CIO will ask senior officers of the council or public body, or any other person who can help, to provide further information or documents. At any stage of the process the CIO may request the complainant to clarify or provide further information about the complaint.

Initial Screening

At this stage the CIO will decide if the complaint is relevant and admissible.
A complaint will normally be relevant if:

the complaint describes conduct, behaviour or other circumstances which (if established on the balance of probabilities) would amount to a breach of the applicable Code.

A complaint will normally be admissible if it:

contains the information sought in the complaint leaflet ("What your complaint should include");
is generally made within 12 months from the date on which the complainant could reasonably have become aware of the matters complained about; and
relates to conduct, behaviour or other circumstances occurring after the relevant Code of Conduct came into force.

Having completed the initial screening process the CIO may find:

that the complaint is irrelevant or inadmissible; or
that the allegation is of such a nature and extent that, in all the circumstances, including the proper use of public funds or the public interest, no further enquiry is appropriate or required.

In these circumstances the CIO may decide not to pursue further enquiries on the complaint and will normally make no report to the Commission. The CIO will inform the complainant, the councillor or member, the council or public body and any other person whom the CIO considers appropriate, of the decision and the supporting reasons, by letter.

Further Enquiries

Having completed the initial screening the CIO may consider that the complaint is relevant, admissible and warrants further enquiries. Further enquiries are made to determine whether there is a sufficient factual basis to justify the submission of a report to the Commission. The CIO may make findings of fact provided that he is satisfied that following the investigation, on the balance of probabilities, the facts are established.

The CIO may require any person to provide relevant information in writing or produce relevant documents.

It may also be necessary for the CIO to interview relevant persons. So far as reasonable and practicable, the CIO will conduct these interviews locally, give five working days notice of the time, date and location of the interview, and ensure that a written record is kept of the interview. Witnesses may be accompanied at interview unless the CIO takes the view that this would prejudice the investigation.

Obstruction of the CIO in the course of an investigation may be treated as contempt of court and dealt with by the Court of Session. If without reasonable excuse, any person obstructs the CIO in the performance of his functions or does anything in relation to an investigation which, had that investigation been proceedings in the Court of Session, would be contempt of court, the CIO may certify that conduct to the Court of Session. The Court of Session may then deal with the person as if any such conduct as occurred had taken place in relation to that Court.

Withdrawal of a Complaint

If at any point during the process, a complainant wishes to withdraw a complaint, it will be for the CIO to decide whether to terminate or complete the investigation.

Investigation Timescale

The CIO will try to complete the investigation within three months of the start of the investigation. However, this will depend on the complexity of the complaint and the need to obtain information from all parties involved. If it is not possible to complete the investigation within three months the CIO will advise the Commission, the council and the councillor or member. Overall, investigations will be completed as soon as possible consistent with a full and proper evaluation of all the relevant circumstances and facts of the complaint.

Investigation outcome: Finding of No Breach or No Further Action

Having completed enquiries the CIO may find:

that there has been no breach of the Code, or
there may have been a failure to comply with the Code but the allegation is of such a nature and extent that, in all the circumstances, the complaint should not be further pursued.

The CIO will normally record findings and conclusions in a Note of Decision and will inform the Commission, the complainant, the councillor or member, the council or public body and any other person whom the CIO considers appropriate.

Investigation outcome: Finding of Breach

Where the CIO finds that a councillor or member has contravened the Code they will be given a copy of the draft Report and an opportunity to comment. A copy will also be given to the council or public body for information.

The draft Report will incorporate the details of the complaint, the parts of the Code to which the complaint refers, a summary of the relevant evidence and an assessment by the CIO on whether the councillor or member has contravened the Code. The draft Report may include appendices showing details of those interviewed and key documents relied upon.

Final Report

After receiving comments from the councillor or member, the CIO will complete the Report and submit it to the Commission. The CIO will also give the final Report to the councillor or member and the council or public body. The complainant will be advised that a Report has been submitted to the Commission.

The Next Step

At this point the investigation is completed and it is a matter for the Commission to decide whether to:

direct the CIO to carry out further investigation;
hold a Hearing; or
take no action.

Further information about the Commission and its hearings procedures is available from the Commission's website (www.standardscommissionscotland.org.uk).