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Decision of the Hearing Panel of the Commission following the Hearing held at The Royal George Hotel, Perth, on 28 June 2005

Panel Members:

Mrs Wendy Goldstraw, Chairman
Mr Peter Donaldson
Mr John Dowson

In respect of a Report by D Stuart Allan, Chief Investigating Officer ("the CIO") further to Complaint No. LA/PK/136 ("the Complaint") concerning an alleged contravention of the Councillors' Code of Conduct ("the Code") by Councillor Robert Ellis of Perth and Kinross Council ("the Respondent").

The Respondent represented himself.

The Complaint

The Complainant was Councillor Colin Young. The Complainant alleges that the Respondent breached Section 7 (which deals with "Taking Decisions on Individual Applications") of the Councillors' Code of Conduct, and specifically paragraphs 7.8, 7.9 and 7.10 under the heading "Dealing with Planning applications.
Paragraph 7.8 states:

"You should not organise support or opposition, lobby other Councillors or act as an advocate to promote a particular recommendation on a planning application, on a planning agreement or on taking enforcement action."

Paragraph 7.9 states:
"It is possible that you may receive representations from interested parties in relation to planning applications. If you are a member of the committee which deals with planning applications, or if you are to attend a meeting of the Council to consider planning applications, and you wish to respond to lobbying by constituents or others by openly advocating a particular course of action prior to the meeting, you must declare an interest and not take part in any consideration of the application in question and you must leave the meeting room until consideration of the matter is concluded."

Paragraph 7.10 states:
" If you intend to take part in the consideration of planning applications at a meeting of a committee or the Council, you must not give grounds to doubt your impartiality. You must not make public statements about a pending application, to ensure that you are not seen to be prejudging a decision which will be made at the meeting where all the information required to take a decision will be available. You must not indicate or imply your support or opposition to a proposal, or declare your voting intention, before the meeting. Anyone who may be seeking to influence you must be advised that you will not formulate an opinion on a particular proposal until all available information is to hand and has been duly considered at the relevant meeting."

The CIO's Report ("the Report") (in full at Appendix I) 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 Ellis contravened the provisions of the Code relate to the allegation that Councillor Ellis participated in a meeting of the Development Control Committee of Perth and Kinross Council. The meeting took place on 27 October 2004. He was not a member of the Development Control Committee but had undertaken a few days before the meeting to substitute for another Councillor. He had previously discussed the merits of a planning application with objectors and had previously voiced objections to that application before it was considered by the Committee. At the meeting he did not declare an interest in relation to the planning application, participated in the discussion on the application and moved formally for its refusal.

Joint Statement of Facts

The CIO and the Respondent lodged as a production a Joint Statement of Facts dated 15 June 2005 agreeing matters not in dispute in fact. They had agreed that the entire Report is a true record of fact and that Appendices A to D and Annexes A and B of the Report are accurate records of the matters they purport to record. An Inventory of Productions, also dated 15 June 2005 and which had been agreed by the CIO and the Respondent, was lodged as an accurate record of what they purport to record.

The CIO and the Respondent confirmed during the course of the Hearing that the Statement of Facts was a true reflection of the consensus between them. The Respondent confirmed to the Hearing Panel that he agreed that he had breached the terms of the Code as stated in the Report.

The Decision

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

  1. The Councillors' Code of Conduct applied to the Respondent.
  2. He participated, at the Development Control Meeting on 27 October 2004, in the consideration of a planning application, despite previously having discussed the merits of the application with objectors and previously having voiced objections to that planning application. Councillor Ellis therefore did breach the provisions of Section 7.8 and 7.9 of the Councillors' Code of Conduct.

Sanction

The Panel decided to suspend Councillor Ellis' entitlement to attend all meetings of Perth and Kinross Council and all meetings of committees and sub-committees of the Council for a period of 4 weeks, starting on 15 August 2005. [Ethical Standards in Public Life etc. (Scotland) Act 2000 Section 19 (1) (b) (i) and (ii)].

Reasons for Decision and Sanctions

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

  1. That the actions of the Respondent constituted serious breaches of the Code.
  2. That the entire Report submitted to the Commission and to the Panel by the CIO formed an agreed statement of facts between the CIO and the Respondent. The Respondent also confirmed at the Hearing that he had breached the Councillors Code of Conduct.
  3. The importance of high standards of conduct as outlined in the Ethical Standards in Public Life etc. (Scotland) 2000. The Panel concluded that the Respondent's actions were serious breaches of the Councillors' Code of Conduct and as a consequence bring local government into disrepute.
  4. In particular, the requirement to maintain the integrity of the planning process and public confidence in it. The inclusion of Section 7 in the Councillors' Code of Conduct and the supplementary guidance from the Commission confirms the importance of conduct in this area.
  5. The evidence submitted concerning the rights of an applicant in a planning application and the representative role of Councillors.
  6. That Councillor Ellis submitted a full apology to officers of the Council when it was drawn to his attention that his conduct was contrary to Section 7 of the Code, and that he also apologised subsequently to the CIO and to the Panel at the Hearing.
  7. That he had undertaken to attend training on planning matters and any further training on the application of the Councillors' Code of Conduct.
  8. That letters had been lodged by Councillor Ellis which testify to his public service and character.

Conclusion

The Panel drew the Respondent's attention 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.

Wendy Goldstraw
Chairman of the Hearing Panel
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