(Reproduced from notes for Councillors published in the
Local Council Review by John Clark.)
The Town Clerk is an employee of the Town Council and head
of the Council's staff. The Town Council is a body corporate so that in the
last resort, a majority of Councillors acting correctly at a duly convened
meeting can require the Town Clerk to carry out any lawful instruction within
the scope of his/her employment. Although it is often a usual and acceptable
practice that the Town Mayor, or indeed the Chairman of a Committee, can give
necessary directions to a Town Clerk, they have no right by law to give any
binding instructions other than those agreed by the Town Council and, in
particular, have no power to suspend or dismiss the Town Clerk.
The Town Clerk is the "proper officer" of the Town
Council (Section 270 of the Local Government Act 1972) i.e. the person
responsible for formal acts, as set out in the Standing Orders.
The Town Clerk, as an employee, is covered by all the
legislation relating to employment and the "Town Council" is in no
special position as compared with other employers. In legal terminology, the
Town Clerk is "the servant of the Council", but this carries no
implication of civility or any legal relationship other than employer/employee.
The post of Town Clerk can be seen as analogous to that of
the Chief Executive in a county or Borough. A local authority operation
consists of policy-making and decisions, and administration. The Town Clerk is
head of the administration and therefore responsible for the whole of that side
of the work. The role is not that of a secretarial employee but that of a
hands-on administrator. Neither Councillors nor the Town Mayor should take any
responsibility for administrative, managerial or supervisory tasks, as they
should correctly be discharged by the Town Clerk.
In some authorities, it has been known for Members to try to
take over the role of the Town Clerk as, for example, where the Chairman drafts
the minutes or Councillors write Council letters on the justification that the
Town Clerk or Parish Clerk cannot be left to do it. If the justification is
correct, the Council concerned has not appointed a suitable person; if the
justification is a cover for Councillors to "do it their way" it
should be rejected as a wrong attitude.
Since the Town Clerk is responsible for administration, he
has the practical function of advising the Council, advising the Chairman of
the Council or Town Mayor and Chairmen of Committees on procedural issues, and
ensuring that the Council business is conducted according to the rules of law
and procedure. More especially, the Town Clerk is expected to be suitably
qualified both through experience and through formal training and Councillors
(even if it be inconvenient or contrary to their expectations) should accept
the guidance as to the existence and applicability of relevant facts of law and
content themselves with making policy decisions using such guidance.
It is always right to record the advice of the Town Clerk if
it has not been followed.
As part of his role as an employee of the Town Council, it
is possible for the Town Clerk to take actions which are necessary to continue
the running of the Council, where no decisions between alternative courses of action
are needed, without reference to a Council meeting. For example, if a Member
resigns his seat, this happens as soon as the written notice reaches the Town
Council; the Council is required by Section 87 of the Act of 1972 to give
public notice as soon as practicable thereafter. The Town Clerk does not need
to get approval of a meeting for posting a notice because this is an automatic
administrative consequence. Of course, the Town Clerk will report to the Town
Council that he has posted the notice.
The Town Clerk is in the dual position of
"independent" administrator but also of employee. He has to carry
through adequately decisions of the Town Council which the Town Council has
probably arrived at even though they are decisions which the Town Clerk would
not have made. Councils, like any deliberative body, benefit from suggestions
and the Town Clerk is particularly well placed because of the information
regularly available to suggest lines of action; yet the Town Clerk must be
careful to see these as suggestions which the Town Council may reject, whilst
Councillors must see them as helpful, not an interference in their own duties.
As in all public life, the conduct of local Council affairs
cannot be reduced to a precise set of rules. The component parts of any
activity have to accept that the other parts have a proper role and must be
allowed to get on with it.
Issues of dispute must be argued without malice and with
deference to the view of the person who has principal responsibility. Without
the very best of reasons, a Member will not challenge a Chairman's
interpretation of procedures nor a Chairman reject the Town Clerk's guidance on
a legal point. It is equally valid that the Town Clerk should not try to argue
the Members into changing their minds.
"The Council is only as good as its Clerk."
"A Council is only as good as its Councillors"
"A Council is only good if well led by its
Chairman."
All these are true; the truly good Council is the one which
accommodates all three sayings at once. A truly good Council is an active,
effective, resourceful Council quietly administered by its Clerk whilst the
Members press on with the local public issues.
