Decision of the Hearing Panel of the Commission following the Hearing held at the Thainstone House Hotel, Inverurie on 6 April 2006

• Panel Members
• The Complaint
• Joint Statement of Facts
• The Decision
• Sanction
• Reasons for Decisions and Sanction
• Conclusion

Panel Members

Mrs Wendy Goldstraw, Chairman
Mr Okain McLennan
Mr Albert Tait

In respect of a Report by D Stuart Allan, Chief Investigating Officer ("the CIO") further to Complaint No. LA/As/220 ("the Complaint") concerning an alleged contravention of the Councillors' Code of Conduct ("the Code") by Councillor Mark Cullen of Aberdeenshire Council ("the Respondent").

The Respondent attended the hearing and represented himself.

The Complaint

The Complainant was Mr Torquil Macleod, who is employed as a planning inspector with Aberdeenshire Council. The Complainant alleges that the Respondent breached the provisions of the Councillors' Code of Conduct set out in paragraphs 3.2. and 3.3 of section 3 relating to General Conduct, paragraph 7.7 of Section 7 of the Code relating to Dealing with Planning Application and the provisions of paragraph 20 of Annex C on the Protocol for Relations between Councillors and Employees. The relevant provisions are:

Section 3 General Conduct

Para 3.1: The principles of good conduct in this section must be observed in all situations where you act as a councillor, including representing the Council on official business.

Relationship with Council Employees

Para 3.2: You must respect all Council employees and the role they play and treat them with courtesy at all times. It is expected that employees will show the same consideration in return.
Para 3.3: Whilst both you and Council employees are servants of the public, you have separate responsibilities: you are responsible to the electorate but the employee is responsible to the Council as his or her employer. You must also respect the different roles that you and an employee play. Your role is to determine policy and to participate in decisions on matters placed before you
Para 3.4: You must follow the Protocol for Relations between Councillors and Employees attached at Annex C. A breach of the Protocol will be considered a breach of this Code.

Dealing with Planning Applications

Para 7.7: You must never seek to pressure planning officers to provide a particular recommendation on any planning application, planning agreement or taking enforcement action.

Protocol for Relations between Councillors and Employees
Annex C

Principles:

Para 1: This protocol sets out the way in which Councils and employees of Councils should behave towards one another. It does not cover all the variety of circumstances which can arise, but the approach which it adopts will serve as a guide to dealing with other issues as they come up.

Para 2: Councillors and employees should work in an atmosphere of mutual trust and respect, with neither party seeking to take an unfair advantage of their position.

Public Comment:

Para 20: Councillors should not raise matters relating to the conduct or capability of employees in public. Employees must accord to councillors the respect and courtesy due to them in their various roles. There are provisions in the Code of Conduct for Employees about speaking in public and employees should observe them.

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 Councillor Cullen contravened the provisions of the Code relate to the allegation that he (Councillor Cullen) sent Mr Macleod an e mail on 16 June 2005 the terms of which were bullying, intimidating and insulting. Mr Macleod says that they (the terms) constituted an attempt to defame and discredit him, and were circulated to a member of the public. He also says that the councillor sought to issue instructions and engage in the operational management of the Planning Service. The complainant considers that Councillor Cullen's conduct breached the provisions of the Code of conduct.

Joint Statement of Facts

The CIO and the Respondent lodged as a production a Joint Statement, agreed on 5 April, in respect of facts which were agreed and facts which were in dispute between the parties in relation to documents already submitted to the Commission:

Parts 1-4 of the CIO's report dated 14 December were agreed.

Part 5 of the CIO's report dated 14 December was agreed subject to the following:

i. In relation to paragraph 5.3, the Respondent does not accept (a) that he overstepped the mark and attempted to influence or direct the operation of the Planning Service or (b) that the agreed findings of fact could amount to a contravention of the Code of Conduct.

ii. In relation to paragraph 5.5, the Respondent does not accept (a) that his statements (in the e mail of 16 June 2005 reinforced by his emails sent the following day) went beyond the bounds of courtesy and respect which should be expected between members and officers, (b) that the Complainant was entitled to be upset and regard the communications from the Respondent as intimidating or threatening disciplinary action or (c) that the agreed findings of fact could amount to a contravention of the Code.

Appendices A-C of the CIO's report dated 14 December were agreed as what they bear to be and as evidence of their contents.

The productions set out in the inventory of productions were agreed as what they bear to be and as evidence of their contents.

The Decision

The Hearing Panel considered all the evidence, submissions given in writing and orally at the hearing, and found as follows:

1. The Councillors' Code of Conduct applied to the Respondent.
2. The terms of the e mail sent on 16 June by Councillor Cullen to Mr Macleod did fail to show the level of respect and courtesy expected between a Councillor and an officer of the Council. In that e mail, he made open criticism of Mr Macleod and copied it to members of the public. The contents of the e mails sent by Councillor Cullen on 16 and 17 June (the latter timed at 23:41) were intimidating and threatening.
3. Accordingly, the Respondent did contravene the Councillors' Code of Conduct as set out in paragraphs 3.2 and 3.4 (Relationship with Council Employees), and paragraph 20 of Annex C to the Code (Protocol for Relations between Councillors and Employees).
4. In his e mails of 16 June and 17 June (the latter timed at 08:31), Councillor Cullen did seek to pressure Mr Macleod to issue a stop notice.
5. Accordingly, the Respondent did contravene the Councillors' Code of Conduct as set out in paragraph 7.7, which is included in the Section covering dealing with taking decisions on planning applications.
6. The evidence that Councillor Cullen, sought to engage in direct operational management of the Council's services, particularly in relation to the issue of a stop notice, was not convincing.
7. Accordingly, the Respondent did not breach paragraph 3.3 of the Councillors' Code of Conduct and paragraph 5 of Annex C to the Code. Both those paragraphs are contained in Sections dealing with the respective roles and responsibilities of councillors and employees.

Sanction

The Panel decided to suspend for five months Councillor Cullen's entitlement to attend meetings of Aberdeenshire Council and of any committee and sub-committee thereof and of any other body of which he is a representative or nominee of the Council. This sanction is made under the terms of the Ethical Standards in Public Life etc (Scotland) Act 2000 Section 19 (1) (c). The date on which the period of suspension will commence will be 10 April 2006.

Reasons for Decisions and Sanction

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

1. That the actions of the Respondent constituted serious breaches of the Code.
2. The importance of high standards of conduct as outlined in the Ethical Standards in Public Life etc. (Scotland) Act 2000. The Panel concluded that those serious breaches of the Code brought Aberdeenshire Council, and in particular the planning process, into disrepute.
3. The terms of the various e mails sent by Councillor Cullen did not comply with the acceptable standards of courtesy and respect and damaged, or had the potential to damage, the reputation of Mr Macleod.
4. The fact that those e mails were copied to members of the public caused distress to Mr Macleod. Similarly, the fact that they were copied to members of the public also brought Aberdeenshire Council into disrepute.
5. While the Panel concluded from the terms of the e mails he sent that Councillor Cullen was attempting to put pressure on Mr Macleod to act in a particular way, the terminology used represented requests to do so rather than direct instruction.
6. The report submitted by the CIO was corroborated by the witnesses who gave evidence to the Panel.
7. In the joint statement of facts, his written statement and his evidence before the hearing, Councillor Cullen did not acknowledge that his conduct constituted a breach, or breaches, nor did he show any apparent contrition/ apology for his conduct, either at or prior to the Hearing.
8. While the e mails were sent by Councillor Cullen over a span of two days, they may be regarded as part of a one-off episode.
9. Councillor Cullen has comparatively short experience as a councillor and, as an independent councillor, does not have the benefit of a party support group from which to seek advice.
10. Councillor Cullen was working offshore whilst trying to deal with the issues of planning consent for the replacement works at the concrete batching plant. Immediately prior to the sending of the e mail on the morning of 16 June, a colleague suffered a bad accident during Councillor Cullen's shift.

Conclusion

The attention of the Respondent 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.