Decision of the Hearing Panel of the Commission following the Hearing held at the Melville Castle Hotel, Dalkeith on 8 and 9 October 2008

• Panel Members
• The Complaint
• Joint Statements of Facts
• The Decisions
• Sanctions and Reasons for Sanctions
• Conclusion

Panel Members:

Mrs Wendy Goldstraw, Chairman
Mr Peter Donaldson
Mr Okain McLennan

In respect of a Report by D Stuart Allan, Chief Investigating Officer (“the CIO”) further to Complaints No. LA/Mi/631, LA/Mi/676, and LA/Mi/677 (“the Complaints”) concerning alleged contraventions of the Councillors' Code of Conduct (“the Code”) by Councillor Jack Aitchison (“first Respondent”) and Alex Bennett (“second Respondent”) of Midlothian Council. Mr Allan, CIO, was assisted by Mr David Sillars, Senior Investigating Officer.

The Respondents represented themselves at the hearing.

The Complaint

The Complainants were Councillor Owen Thompson and Councillor Lisa Beattie of Midlothian Council. The Complainants allege that the Respondents breached the provisions of the Councillors' Code of Conduct as set out in paragraphs 5.3 and 5.18 of Section 5 in that, having declared non-financial interests, they failed to withdraw from participating in Council business.

With regard to Declarations of Interests, in respect of non-financial interests, Section 5 of the Code states:

Paragraph 5.3: You may feel able to state truthfully that an interest would not influence your role as a councillor in discussion or decision making. You must, however, keep in mind that the test is whether a member of the public, acting reasonably, would think that a particular interest could influence your role as a councillor.

Paragraph 5.18: In the final analysis the conclusive test is whether, in the particular circumstances of the item of business, and knowing all the relevant facts, a member of the public acting reasonably would consider that you might be influenced by the interest in your role as a councillor and that it would therefore be wrong to take part in any discussion or decision-making. If you are not confident about the application of this objective yardstick, you should play no part in discussion and should leave the meeting until discussion of the particular item is concluded. If you, in conscience, believe that your continued presence would not fall foul of this objective test, then declaring an interest will not preclude your involvement in discussing or voting.

The CIO 's Report (“the Report”) was submitted to the Commission in accordance with Section 14.2 of the Ethical Standards in Public Life etc. (Scotland) Act 2000 ( "the Act"). The Code came into effect on 01 May 2003 and the Commission accordingly had jurisdiction to hear the Complaint, as the alleged breaches of the Code occurred after the Code came into operation.

The CIO's findings that Councillors Aitchison and Bennett contravened the Code relate to their participation, as chair and member respectively, of the Appeals Panel of Midlothian Council . The Appeals Panel was convened to consider the appeal against dismissal by an employee of Midlothian Council (“the appellant”). The CIO concluded that there was a significant political association between the appellant and both Respondents. The CIO found that they, having declared a non-financial interest, failed to address the application of the objective test contained therein and continued to participate in the appeal process. They were therefore in breach of paragraphs 5.3 and 5.18 of Section 5 of the Code.

Joint Statements of Facts

The CIO and Councillor Aitchison lodged as a production a Joint Statement of Facts dated 29 September 2008 which detailed the matters which were not in dispute and matters over which there was no agreement between them.

The CIO and Councillor Bennett lodged as a production a Joint Statement of Facts dated 29 September 2008 which detailed the matters which were not in dispute and matters over which there was no agreement between them.

An Inventory of Productions had also been agreed with both Respondents as an accurate record of the matters they purport to record.

The Decisions

The Hearing Panel considered all the evidence, submissions given in writing and orally at the hearing, and their findings, and reasons for those findings, were as follows:

Councillor Aitchison (first Respondent):

1. The Councillors' Code of Conduct applied to the first Respondent.

2. The actions of the first Respondent constituted serious breaches of the Code, specifically paragraphs 5.3 and 5.18.

3. Councillor Aitchison failed to apply the objective test as described in paragraphs 5.13 and 5.18, or failed to apply it diligently or appropriately. Specifically, he restricted any consideration of the objective test on the basis that there was no close personal relationship / friendship between himself and the appellant.

4. The appellant was chair of the Constituency Labour Party, an observer at Labour Group meetings within Midlothian Council, and chaired the selection panel which vetted potential candidates (including the first Respondent) at the first stage of selection in local government elections. As a consequence, the first Respondent could reasonably be seen by a member of the public, knowing all the relevant facts, as having an interest and could be influenced in the appeal due to his political association with the appellant.

5. The first Respondent restricted his considerations to his own assertions that he was able to deal with the appeal impartially and fairly.

6. The first Respondent's motivation for taking part in the appeal process does not override his responsibilities under the Code.

7. The first Respondent sought minimal advice on the specific situation he faced and relied solely on his own perspective. The advice which was sought and obtained was based on the first Respondent failing to specify fully the significant political role of the appellant.

8. The first Respondent did not re-evaluate appropriately his situation in the light of other members of the Appeals Panel withdrawing because of political associations with the appellant.

9. In the event of the Panel becoming inquorate, it would be the responsibility of the Council to investigate possible alternative ways of ensuring that the appellant was not disadvantaged and it was not the sole responsibility of the Respondents i.e. a corporate responsibility, not an individual one.

10. The importance of high standards of conduct is outlined in the Ethical Standards in Public Life etc. ( Scotland ) Act 2000. The Panel concluded that those serious breaches of the Code brought Midlothian Council, and local government generally, into disrepute.

11. Councillor Aitchison is an experienced councillor and should have been well aware of his responsibilities.

Councillor Bennett (second Respondent):

1. The Councillors' Code of Conduct applied to the second Respondent.

2. The actions of the second Respondent constituted serious breaches of the Code, specifically paragraphs 5.3 and 5.18.

3. Councillor Bennett failed to apply the objective test as described in paragraphs 5.13 and 5.18, or failed to apply it diligently or appropriately. Specifically, he restricted any consideration of the objective test on the basis that there was no close personal relationship / friendship between himself and the appellant.

4. The appellant was chair of the Constituency Labour Party, an observer at Labour Group meetings within Midlothian Council, and chaired the selection panel which vetted potential candidates (including the second Respondent) at the first stage of selection in local government elections. As a consequence, the second Respondent could reasonably be seen by a member of the public, knowing all the relevant facts, as having an interest and could be influenced in the appeal due to his political association with the appellant.

5. The second Respondent restricted his considerations to his own assertions that he was able to deal with the appeal impartially and fairly.

6. The second Respondent claimed in evidence that he was unsure how the objective test could be applied. Paragraph 5.18 of the Code categorically states that “if you are not confident about the application of this objective yardstick, you should take no part in discussion……”

7. The second Respondent's motivation for taking part in the appeal process does not override his responsibilities under the Code.

8. The second Respondent sought no meaningful advice on the specific situation he faced and relied solely on his own perspective. It emerged in evidence that Councillor Bennett had knowledge, prior to his involvement in the appeals process, of an e mail dated 3 rd September 2007 sent by the Labour Group Secretary giving specific advice concerning participation in that process.

9. The second Respondent did not re-evaluate appropriately his situation in the light of other members of the Appeals Panel withdrawing because of political associations with the appellant.

10. In the event of the Panel becoming inquorate, it would be the responsibility of the Council to investigate possible alternative ways of ensuring that the appellant was not disadvantaged and it was not the sole responsibility of the Respondents i.e. a corporate responsibility, not an individual one.

11. The importance of high standards of conduct is outlined in the Ethical Standards in Public Life etc. ( Scotland ) Act 2000. The Panel concluded that those serious breaches of the Code brought Midlothian Council, and local government generally, into disrepute.

Sanctions and Reasons for Sanctions

Councillor Aitchison (first Respondent):

The Panel decided to suspend for four months Councillor Aitchison's entitlement to attend all meetings of Midlothian Council and of any of its committees and sub-committees. This sanction is made under the terms of the Ethical Standards in Public Life etc (Scotland) Act 2000 Section 19 (1) (b) (i) and (ii). The date on which the suspension is imposed and will commence is 27 October 2008.

Reasons for Sanction - Councillor Aitchison

In reaching their decision, the Panel had taken into account:

1. The serious nature of the beaches of the Code.

2. That Councillor Aitchison is an experienced and senior Councillor

3. That he acknowledged that he had failed to apply the objective test as required by the Code.

4. His public assertion that he would champion training for the Appeals Panel on the application of the Code.

5. The Hearing Panel accepts that Councillor Aitchison's decision to participate in the Appeals Panel was well-meaning and well-intentioned.

Councillor Bennett (second Respondent):

The Panel decided to suspend for two months Councillor Bennett's entitlement to attend all meetings of Midlothian Council and of any of its committees and sub-committees. This sanction is made under the terms of the Ethical Standards in Public Life etc (Scotland) Act 2000 Section 19 (1) (b) (i) and (ii). The date on which the suspension is imposed and will commence is 27 October 2008.

Reasons for Sanction - Councillor Bennett

In reaching their decision, the Panel had taken into account:

1. The serious nature of the beaches of the Code.

2. That at the time the beaches of the Code occurred, Councillor Bennett was a recently elected and inexperienced Councillor

3. That he expressed his willingness to accept his need for further training on the application of the Code.

4. The Hearing Panel accepts that Councillor Bennett's decision to participate in the Appeals Panel was well-meaning and well-intentioned.

Conclusion

The attention of the Respondents is drawn to Section 22 of the Ethical Standards in Public Life etc. ( Scotland ) Act 2000 which details the Right of Appeal in respect of this Decision.

The Panel determined that there be no award of expenses under Rule 13(1) of the Commission's Hearing Rules.