and FORMAL COMPLAINT [Borough Solicitor David P KITSON]

Nigel Ward made this Rhyddid Gwybodaeth request to Scarborough Borough Council

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

Yn disgwyl am adolygiad mewnol gan Scarborough Borough Council o'u triniaeth o'r cais hwn.

Ms Lisa DIXON – Monitoring Officer – Scarborough Borough Council


I wish to lodge a Freedom of Information request.

The information I am requesting is this:

Please provide a copy of the written instruction/authorisation to Scarborough Borough Council Solicitor David P. KITSON, under which he wrote to the Clerk of Whitby Town (Parish) Council on 15th April 2013 suggesting that all of the elected members may have breached the Councillors’ Code of Conduct and seeking to interfere with the business of the Council in respect of such Resolutions as may be, or may have been, critical of elected members(s) of Scarborough Borough Council.

Furthermore, I wish to register a Formal Complaint against the Borough Solicitor, Mr David P KITSON.

In his letter (referred to in my FOIA request, above) dated 15th April 2013 to the Town Clerk of Whitby Town (Parish) Council Mrs Pam DOBSON, David P KITSON made a number of statements that, in my view, constitute clear breaches of the Code of Conduct based on the seven Nolan Principles, as determined under the Localism Act 2011.

In particular;

In the second paragraph, aspersions were cast that are clearly disrespectful in nature, imputing improper conduct to the Town Council by use of the phrase “Town Council meetings are not talking shops”. The term “talking shop” is disparaging in nature. It is defined, by The Free Dictionary, as “a group or committee that has discussions that never result in action”. This is irrefutably disrespectful, and highly inappropriate coming, as it does, from a paid public servant whose duty is to provide advice to elected members – not lampoon them. This same paragraph also implies that the Town Council ought to adopt a higher standard of conduct in the presence of press and public than it would otherwise be free to do in their absence. This is also disrespectful, since it imputes to the Town Council an unsubstantiated willingness to embrace a double standard demanded by the accused.

In the third paragraph, the writer assumes the role of speaking on behalf of Scarborough Borough Council, stating that that Council considers debate by Whitby Town (Parish) Councillors regarding the performance of an elected member of Scarborough Borough Council to be inappropriate. Since Scarborough Borough Council has no recorded opinion on that matter, the writer has arrogated unto himself an authority which he claims to hold, but may not - my FOIA request is intended to clarify this point. Again, there is a clear implication that the Town Council is expected to embrace a double standard in respect of its conduct in the presence/absence of press and public.

The fourth paragraph, intimates that all of the elected members of Whitby Town Council may have breached the following terms of the Code of Conduct:

1. He/she shall behave in such a way that a reasonable person would regard as respectful.

2. He/she shall not act in a way which a reasonable person would regard as bullying or intimidatory.

4. He/ she shall use the resources of the Council in accordance with its requirements.

The fifth paragraph draws attention to the Town Council’s own Code of Conduct, pointing out its basis in the Localism Act 2011:

“This Code of Conduct is based on the Nolan Principles of selflessness, integrity, objectivity, accountability, openness, honesty, and leadership.”

The sixth paragraph refers to a URL where the revised Nolan Principles may be viewed:

The seventh paragraph makes the observation that the Town Council, in passing a resolution in the terms “that this Council requests that Borough Councillor Cockerill employs a more informed, resourceful and diplomatic response to the many critical issues which confront him in our Town in his dual role as Portfolio Holder for Harbours, Assets, Coast and Flood Protection and Chairman of Whitby Harbour Board” [ten votes for, one vote against and two abstentions], may have acted contrary to the Nolan Principles. Whitby Town (Parish) Council is body corporate - a person (distinct from its members) - authorised under the local Government Act 1972, and amendments thereto, and debating and making decisions on parochial affairs is entirely within its remit in making a request to SBC Councillor Mike COCKERILL step up his performance. Contrary to David P KITSON's assertions, a Formal Complaint to the Monitoring Officer is not the only or proper avenue through which to lodge a request.

The final paragraph instructs the Town Council that the appropriate manner in which the Town Council addresses such matters in the future is via a Formal Complaint to the Monitoring Officer.

It is my contention the Borough Solicitor has himself departed from the requirements of the Code of Conduct (and thereby, from the Nolan Principles) in that he has:

1. Treated the Town Council without respect, insofar as he has likened the Council to a “talking shop” – i.e. “a group or committee that has discussions that never result in action”. (Article 1).

2. Treated the Town Council without respect, insofar as he has imputed a disingenuous capacity on the part of the Council to embrace a double standard in respect of its conduct in the presence or absence of press and public – thus imputing breaches of at least six of the seven Nolan Principles of integrity, objectivity, accountability, openness, honesty and leadership. (Article 1).

3. Acted in such a way as a reasonable person (such as any one of the elected members of Whitby Town Council) would regard as bullying, by using his position to attempt to coerce the Town Council into acting, in future, in a way contrary to its good faith deliberations, in favour of a course of action determined by the Borough Solicitor himself, with no specific authorisation by Scarborough Borough Council. (Article 2).

4. Abused the resources of the Borough Council (his own time, stationery, postage) by acting beyond his authority (ultra vires) in an effort to subvert the integrity of the Town Council. (Article 4).

Thus, the Borough Solicitor has breached the very articles of the Code of Conduct that he himself has sought to brandish at the Town Council by way of an implied threat.

Please confirm, by return, that this Formal Complaint (entirely consonant with Scarborough Borough Council Complaints Procedure – the avenue of redress indicated by the Borough Solicitor himself) has been formally logged and is now in process.

Yours, with kind regards,


Dear Scarborough Borough Council,

Having been prompted by, I note that you have offered neither acknowledgement nor response to my request.

SBC has a legal duty to have responded by 6th June 2013, and has failed to do so.

I am now requesting that SBC reviews my request and provides a response in accordance with the Act.

In the event that SBC fails to respond by Friday 14th June 2013 it will be necessary to refer the matter to the ICO and the press.

Please fulfil my request forthwith.

Yours etc,



I have received no acknowledgement from you in respect of my request for Internal Review dated 7th June 2013, in respect of my original FOIA request of 8th May 2013.

Would you please progress my FOIA as soon as possible? Thank you.

Yours sincerely,



The Council remains non-responsive regarding an Internal Review of the Council's failure to comply with the Act in regard to my request.

Would you please ensure that the Council complies with the Act not later than Friday 30th May 2014.

Failure to do so will result in an immediate complaint to the ICO.

It will also result in me passing my entire dossier of the
Council's non-responsiveness and apparent contempt for the Freedom
of Information Act to my colleagues in national media.

Kindest regards,