Complaint number LA/R/44 concerning an alleged contravention of the Councillors' Code of Conduct by Councillor Iain Nicolson of Renfrewshire Council.

1.0 Introduction
2.0 Outline of the Complaint and the Response
3.0 The Investigation
4.0 Consideration of the Evidence
5.0 Findings and Conclusion

1.0 Introduction

1.1 Complaint number LA/R/44 alleges a contravention of the Councillors' Code of Conduct ("the Code"). The Code was issued by the Scottish Ministers in terms of section 1 of the Ethical Standards in Public Life etc. (Scotland) Act 2000 ("the 2000 Act") and came into effect on 1 May 2003.

1.2 The complaint has been lodged by Mr Tom Scholes ("the complainant") who alleges a contravention of the Code by Councillor Iain Nicolson ("the respondent"). The respondent is an elected member of Renfrewshire Council ("the Council").

1.3 It is alleged that the respondent has contravened the Councillors' Code of Conduct, and, in particular, paragraphs 3.2 and 3.4 (Relationship with Council Employees) and paragraphs 2 and 20 of Annex C (Protocol for Relations between Councillors and Employees) of the Code by making derogatory remarks about the complainant, who is the Chief Executive of the Council, and certain other employees.

With regard to the key principles of Leadership and Respect, section 2 provides:

Leadership

"You have a duty to promote and support these principles by leadership and example, and to maintain and strengthen the public's trust and confidence in the integrity of the Council and its councillors in conducting public business."

Respect

"You must respect all other councillors and all Council employees and the role they play, treating them with courtesy at all times."

With regard to Relationship with Council Employees section 3 of the Code inter alia states:

" 3.2 You must respect all Council employees and the role they play and treat them with courtesy ay all times. It is expected that employees will show the same consideration in return."

" 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."

With regard to Protocol for Relations between Councillors and Employees Annex C inter alia states:

" 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."

" 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."

1.4 The respondent has signed a declaration of acceptance of the office of councillor under the Local Authorities (Councillors) (Declaration of Acceptance of Office) (Scotland) Order 1990, as amended, in terms of which the respondent has undertaken to meet the requirements of the Councillors' Code of Conduct.

1.5 For the purpose of this investigation, I was assisted by Mr Howard Llewellyn, Investigating Officer.

1.6 This report has been prepared for submission to the Standards Commission for Scotland in terms of section 14(2) of the 2000 Act. The report was sent on 28 April 2005 in draft form to the respondent for any representations, followed by a reminder sent on 19 May 2005; no reply or representations have been received from the respondent.

2.0 Outline of the Complaint and the Response

The Complaint

The complaint is set out in the complainant's letter. The complainant alleges that following the appointment by open competition of two candidates to the posts of Research Officer, the respondent breached the Code by making derogatory statements in public about the complainant and other Council employees by speaking to newspapers which reported his statements.

The Response

2.2 The response is set out in a letter from the respondent. The respondent alleges that the complainant had no right to complain, that I had no right to question him and that my approach to him was an attempt to interfere with his right to political expression which is protected under the European Convention on Human Rights. He said he was entitled to give his views in a matter of public importance through public expression.

3.0 The Investigation

To establish the background to the complaint, I sought and received information from the Council.

3.2 I considered the documentary evidence and identified relevant interviewees. Unfortunately shortly thereafter the respondent suffered a family bereavement when his teenage daughter died suddenly. As a result I suspended my investigation pending a suitable time at which it could be resumed.

3.3 By late 2004 and early 2005 I had obtained (a) information regarding the respondent's taking up again of Council duties and (b) the complainant's views on the resumption of the investigation. As a result I resumed the investigation. I re-considered the documentary evidence I had obtained and proceeded to interview the complainant and relevant witnesses. The interviews took place on 9 February 2005.

3.4 The respondent was invited to an interview but did not attend. Mr Llewellyn contacted him by telephone and by letter before the interview date. Despite calling and leaving messages at both the Members' Office at the Council and his home, Councillor Nicolson did not respond. I wrote to him again giving him a further opportunity to be interviewed as I considered that an interview was the best method by which he could be sure I had all the relevant information, including his full response. I also asked him to say whether the press reports did quote him and, if so, whether they reported him accurately. The respondent replied that he appreciated my writing adding that he noted the contents of the letters and saying that he had already commented on the situation.

4.0 Consideration of the Evidence

4.1 Councillor Nicolson has been a member of the Council since 1995 and prior to that he was a member of the Renfrew District Council. He is a member of the Council Appeals Board, the Commercial Operations Policy Board, the General Management Policy Board, the Lifelong Learning and Work Policy Board, the Planning and Development Policy Board and the Riverside Local Grant Board. He was the Leader of the SNP Group on the Council until 6 September 2004 when he stood down.

4.2 The political make-up of the Council comprises 21 Labour members (who form the Administration), 15 SNP members, 3 Liberal Democrat members and 1 Conservative member.

4.3 The background to this complaint relates to the decision by the Council to approve the establishment of two Research Officer posts within the Corporate Policy section of the Chief Executive's department in 2003.

4.4 At a meeting of the Council on 4 September 2003, the Administration submitted a notice of motion that two full-time posts of Research Officer should be established to provide a research service and contribute to the collection and management of information for the purpose of assisting members of the Administration fulfil their responsibilities. The respondent, seconded by Councillor B Lawson (SNP), moved as a first amendment that the request from the Labour Group be rejected as a blatant attempt to politicise Council staff at the expense of Council taxpayers. Councillor McCartin (Liberal Democrats), seconded by Councillor Macgregor (Liberal Democrats) moved as a second amendment that the two posts be graded at a lower salary level to match the posts of clerical/research workers newly appointed to the opposition groups. On a vote being taken between the motion and the first amendment 12 members voted for the first amendment and 21 members voted for the motion. A vote was then taken between the motion and the second amendment, and 3 members voted for the second amendment and 21 members voted for the motion. The Council, accordingly, approved the proposals of the Administration for the two new posts.

4.5 The Director of Corporate Services then submitted a report to the meeting of the Council's General Management Policy Board on 17 September 2003 setting out proposals for the job description and other post requirements of the two posts of Research Officer. The report notes that the postholders would provide a research service and other assistance to the Leader of the Council, Conveners and other members of the Administration. They would be employed within the Corporate Policy section of the Chief Executive's department and would report to the Principal Officer and Head of Corporate Policy, as appropriate, as their line managers. The report also noted that, as the Council had adopted COSLA's Code on recruitment and selection of employees, in line with this the shortleeting, interview and appointment in relation to the posts would be carried out by officers. While the two post holders would provide assistance to particular members of the Administration it was noted that they were not political appointments and the normal Council terms and conditions of employment would apply to the postholders as they did to other employees. The Council's own code of conduct for employees and the Protocol for Relations between Councillors and Employees in Scottish Councils would both apply. Specifically the post holders would assist elected members to the extent that the activities that they undertook would directly relate to the Council's functions and would not extend to political parties more generally. Like all Council employees they would require to carry out their duties in a politically neutral way. In terms of section 7 of the Local Government and Housing Act 1989, all local government staff have to be appointed on merit.

4.6 The report was then moved by the Administration for approval and an amendment was made that the report should not be approved. The respondent formally seconded the amendment. On a vote being taken 6 members voted for the amendment and 7 members voted for the motion. The report, therefore, was duly approved by the Board.

4.7 The posts were advertised in October 2003. 90 applications were received 8 candidates were shortlisted for interview and 6 of the shortlisted candidates duly attended for interview.

4.8 The interview panel comprised Ron Morrison, Head of Corporate Policy (who acted as Chairman), Oliver Reid, Principal Officer, Corporate Policy (both of the Chief Executive's department) and Denis McCann, Senior Personnel Officer, Department of Corporate Services. They had full authority to make the appointment in accordance with the Council's normal recruitment procedures. The interview panel completed an assessment record in respect of each of the interviewed candidates which covered attainments, relevant experience, knowledge/skills/abilities, personal features and qualities, quality of responses to questions and general comments. A specific line of questioning was included in the interview process to test the candidates' understanding that the posts were not political appointments and how they would require to act in discharging their duties to the Council as a whole. The assessment concluded with a scoring for each candidate and a recommendation whether the candidate was suitable or not suitable for appointment.

4.9 Following the interviews, the panel agreed that three candidates were suitable for appointment and, following consideration, they agreed to offer the posts to Ms E C MacDonald and Mr G J Cockburn. Mr Cockburn declined to accept the offer and the panel therefore offered the post to Mr P Liddell. Both Ms MacDonald and Mr Liddell accepted the offers and they both took up their posts on 6 January 2004. They are both still in these posts with the Council.

4.10 During the investigation, all of the panel stated that none of the candidates had been asked about their party political affiliations prior to or during the interview process as they considered it would have been wholly inappropriate to have done so. Ms MacDonald and Mr Liddell also confirmed they had not been asked about this at interview. Ms MacDonald has also stated that she had been a member of the Labour Party but had resigned her membership immediately following being offered the post. Mr Liddell has also stated that he had been a member of the Labour Party for one year but he is not - and was not at the time of the interviews - a member of any political party.

4.11 The Principal Officer, Corporate Policy, said at interview that, some time after the two employees had taken up their posts but before the newspaper articles in question were published, he received a telephone call from the respondent. The respondent asked him if there had been "any political motivation" behind the two appointments. He replied by explaining the mechanics and integrity of the process which had been used. He told the respondent that, as a result of following the process referred to, the appointments were clearly made on merit. He further reminded the respondent that the functions of the two posts were to serve the Council Administration not a political party. The staff in question were to report to him as their line manager. The respondent, he said, "scoffed" at this.

4.12 On 26 January 2004, the Paisley Daily Express and the Evening Times both carried articles on the appointments. They were as follows:-

The Paisley Daily Express - 26 January 2004

FURY AS LIDDELL'S SON
GETS COUNCIL JOB By Katrine Bussey
SNP slams 'deep-seated cronyism' over new post

A FURIOUS row has erupted after the son of a former Government Minister was appointed to a new job with Renfrewshire Council.

Paul Liddell, whose mother is former Secretary of State for Scotland Helen Liddell, has been made a researcher at the council.

But the appointment has sparked an angry response from opposition politicians.

Councillor Iain Nicolson, leader of the SNP group, branded the move as an "example of deep-seated and cronyism" and called on the council's chief executive, Tom Scholes, to resign.

It is believed the council also took on another researcher who it's understood had previously worked for a Labour MSP at the Scottish Parliament.

The two new researchers were chosen from some 90 people who applied for the posts. Interviews were then conducted by staff from the chief executive's department.

But a furious Councillor Nicolson hit out: "We believe this was a blatant attempt to politicise council staff."

"Although the two researchers' salaries are paid for by the council, they will only be reporting to the Labour group. No other elected member is to benefit from their services."

And he added: "Are we to believe that it is sheer coincidence that these two people successfully fought their way through a tough selection process to secure the jobs?"

"This is an example of the deep-seated cronyism that has marked Renfrewshire Council out for many years and it shows no sign of stopping.

"Tom Scholes should resign from his post. It has finally been proven what we suspected all along - that this department is in fact a branch of the Labour Party within the council."

However, a council spokeswoman said that all their normal recruitment procedures had been followed. She said:

"The council recently approved the establishment of two posts of research officer to support the leader and senior policy board conveners.

"The recruitment and selection process was carried out by officers in line with the council's normal procedures and which are based on COSLA's best practice guidelines."

The Evening Times - 26 January 2004

Opposition's anger at council appointments
Bias protest over job for Liddell's son
By Stewart Paterson

A SCOTS council is at the centre of a "cronyism" row after appointing the son of Labour MP Helen Liddell to an independent research post.

Despite more than 90 applicants for two £23,000-a-year posts at the Renfrewshire Council headquarters in Paisley, both people hired are understood to have been employed previously as researchers to Labour politicians.

One is Paul Liddell, son of former Scottish Secretary and Labour MP Helen Liddell.

He has been appointed as a research officer for the council along with Liz MacDonald.

Opposition councillors have accused the Labour administration of "corruption and cronyism" and have demanded the resignation of chief executive Tom Scholes.

The SNP also claims the posts are not impartial and that they are political appointments as they will be used exclusively by Labour councillors.

Mr Liddell and Ms MacDonald will work for the council administration.

But opponents point out that since all 21 Labour councillors are either conveners or deputy conveners of committees they will have exclusive use of the researchers.

Iain Nicolson, leader of the SNP group, said: "We understand both these employees worked as researchers for Labour MSPs.

"We believe this is a blatant attempt to politicise council staff. Although their salaries are paid for by the council they will only be reporting to the Labour group."

"This is a sign of the deep rooted corruption and cronyism that has marked Renfrewshire Council out for many years."

Renfrewshire Council confirmed the appointments but refused to reveal any previous employment history of either employee on confidentiality grounds.

When contacted by the Evening Times, Mr Liddell declined to comment.

A spokeswoman for Renfrewshire Council said: "The council recently approved the establishment of two posts of research officer to support the leader and senior policy board conveners.

"The recruitment and selection process was carried out by officers in line with the council's normal procedures, which are based on COSLA's best practice guidelines."

4.13 The Editor of the Evening Times, on behalf of the reporter concerned Stewart Paterson who spoke with Councillor Nicolson, and the Editor of the Paisley Daily Express have both confirmed that the statements reported in the articles published by the Evening Times and the Paisley Daily Express respectively and attributed to Councillor Iain Nicolson were (a) made by him and (b) reported accurately.

4.14 The complainant says that the inferences in the articles are not true. No political bias was exerted by officers or members in relation to the two appointments of researcher. Neither he (the complainant) nor any councillor was aware of who the applicants were and the Leader of the Council was only informed of who the appointees were after they had been appointed.

Prior to advertising and before shortlisting and interviewing the applicants and knowing the potential sensitivity of the issue he (the complainant) stressed to his Head of Corporate Policy, as the Chair of the Interview Panel and the officer to whom the successful candidates would report, that these appointments must be made solely on merit and in accordance with the Council's proper procedures.

He also says he had no doubt that this was adhered to and both appointments were made on a proper basis. Both officers understand that they are not to act politically and that they must observe the Code of Conduct for Employees.

In the complainant's view Councillor Nicolson has therefore breached the Councillors' Code of Conduct (as set out in paragraph 1.3 above).

4.15 Having had the conversation with the respondent referred to in paragraph 4.11 above, the Principal Officer, Corporate Policy, said he was "disappointed and angry" and felt "disrespected" by the respondent when he read the respondent's comments as reported in the newspapers.
Given that he had responded professionally to the respondent's enquiry and had taken time to explain the process, this had "added to his sense of disrespect".

4.16 The candidates appointed, Mr Liddell and Ms MacDonald, both confirmed the appointment process and that they took up their posts on 6 January 2004 following which they each saw the newspaper articles complained of published on 26 January 2004.

Mr Liddell said that he had been contacted by a journalist who asked him to comment on the respondent's reported comments but he declined. He said that the publication of the comments attributed to the respondent left him feeling "victimised" and "smeared from the start". He also said that his mother is Mrs Helen Liddell, former Labour Secretary of State for Scotland and that he had previously periodically helped out in her constituency office.

Ms MacDonald said that she had been "annoyed at the press reports" which were "not fair". She considered that the comments implied that she had not been appointed on merit. She said that she had worked as a researcher for Lewis Macdonald (Labour) MSP from February 2001 to May 2002.

4.17 As referred to in paragraph 3.4 above, before concluding my investigation, I wrote to the respondent again inviting him to reconsider his position and to agree to be interviewed. He replied noting the letters and saying he had already commented on the situation.

5.0 Findings and Conclusion

5.1 This is a complaint by Mr Tom Scholes, Chief Executive of Renfrewshire Council, alleging that Councillor Iain Nicolson, an elected member of the Council, breached the Councillors' Code of Conduct. The complaint alleges that following the appointment of two Council employees by open competition the respondent breached the Code by making derogatory statements, reported in public by two newspapers, about the complainant and the Council employees who had conducted the recruitment, selection and appointment process and about the new employees.

5.2 The respondent has signed a declaration of acceptance of the office of councillor under the Local Authorities (Councillors) (Declaration of Acceptance of Office) (Scotland) Order 1990, as amended, in terms of which the respondent has undertaken to meet the requirements of the Councillors' Code of Conduct.

5.3 The Code was issued by the Scottish Ministers in terms of section 1 of the Ethical Standards in Public Life etc. Scotland Act 2000 and came into effect on 1 May 2003. The complaint alleges that the respondent has contravened the Code and, in particular paragraphs 3.2 and 3.4 (Relationship with Council Employees) and paragraphs 2 and 20 of Annex C (Protocol for Relations between Councillors and Employees) of the Code. These provisions are set out fully in paragraph 1.3 above.

5.4 Councillor Nicolson has been a member of the Council since 1995 and is a member of a number of Boards (that is, Committees) of the Council. At the time of the appointments and the press articles, he was Leader of the Opposition on the Council, although he has since resigned as Leader.

5.5 The political make-up of the Council comprises 21 Labour members (who form the Administration), 15 SNP members (including the respondent), 3 Liberal Democrat members and 1 Conservative member.

5.6 The background to this complaint relates to the decision by the Council to approve the establishment of two Research Officer posts within the Corporate Policy section of the Chief Executive's department in 2003. The steps taken by the Council to approve these posts involved some political controversy and details are set out in paragraphs 4.3 to 4.6 above. I have found that the Council were entitled to and did properly approve the establishment of these posts.

5.7 The posts were then duly advertised and in due course interviews were carried out and two appointments were made. In terms of section 7 of the Local Government and Housing Act 1989 all local government staff appointments have to be made on merit. I have found that the appointment process, as set out in paragraphs 4.7 to 4.10 above, was undertaken with due propriety and that both Ms MacDonald and Mr Liddell were appointed on merit. I also found no credible evidence to suggest otherwise.

5.8 Shortly after Ms MacDonald and Mr Liddell had taken up their posts the respondent raised with the Principal Officer, Corporate Policy, questions relating to the integrity of the appointment process. I have found that the respondent was given a reasonable explanation regarding the appointment process, as set out in paragraph 4.11 above.

5.9 Two separate articles appeared in the Paisley Daily Express and the Evening Times, both on 26 January 2004, as set out in paragraph 4.12 above. Having regard to the correspondence with the respondent and to confirmation which I received from the Editor of the Evening Times, I have found that the statements reported in these articles and attributed to the respondent were made by him knowing they would probably be published and that the statements were reported accurately, or substantially accurately, in the articles.

5.10 The complainant has said that the inferences in the articles are not true, that no political bias was exerted by either officers or members in relation to the two appointments, that neither he nor any councillor was aware of who the applicants were and that the Leader of the Council was only informed of who the appointees were after they had been appointed. He remains entirely satisfied that the appointments were made on a proper basis. The Principal Officer, Corporate Policy, was disappointed at the terms of the articles, having regard to the fact that he had given the respondent a full and reasonable explanation to the effect that the appointments had been properly made. Ms MacDonald and Mr Liddell were also concerned at the terms of the articles and the comments made by the respondent. They felt that they had done nothing themselves to warrant the attention given and that the remarks by the respondent were unfair and coloured or tainted their position as new employees.

5.11 For the purposes of this complaint, the key principles of the Code which are relevant are those dealing with Leadership and Respect. Councillors have a duty to promote and support these principles by leadership and example, and to maintain and strengthen the public's trust and confidence in the integrity of the Council and its Councillors in conducting public business. Members must also respect all other Councillors and all Council employees and the role they play, treating them with courtesy at all times. The Code also includes a Protocol for Relations between Councillors and Employees, one of the principles of which provides that Councillors and employees should work in an atmosphere of mutual trust and respect with neither party seeking to take unfair advantage of their position. With regard to public comment, the Protocol also provides that Councillors should not raise matters relating to the conduct or capability of employees in public.

5.12 In this case, I have found that the respondent has made statements in public, by making them to the press knowing that they would probably be published, about the complainant, as Chief Executive, and the officers who were responsible for carrying out the interview and appointment process and about Ms MacDonald and Mr Liddell, as newly-appointed officers of the Council.

5.13 In the case of the Chief Executive, the respondent accused him of acting on a party political basis, inferred that he had acted improperly and called upon him, for these reasons, to resign. In local government in Scotland, the Chief Executive is the head of the paid service and he is responsible to the whole Council. In practice many Councils will be run by political administrations and, although the chief executive will assume responsibility for appropriately implementing the policies of the administration, his or her duty will still be to meet the interests of the Council as a whole in a professional and politically neutral way. To have inferred or suggested that Mr Scholes had been moved by party political considerations or affiliations was entirely reprehensible, impugned his integrity and showed a complete disrespect for the Chief Executive as an officer of the Council. If the complainant continued to have genuine concerns or had any evidence about the propriety of the appointment process then he could have raised the matter with the Chief Executive - or other senior officers - and invited the Council to have undertaken an investigation of the process. That would have been a proper approach to raising his concerns; however he neither spoke to the Chief Executive nor raised the matter within the Council itself. All he did was speak to the Principal Officer, Corporate Policy, about his concerns and in that case he received a constructive response in answer. In the case of the officers responsible for making the appointments, the press comments infer that they too have acted improperly motivated by party political considerations. I have found that the respondent had no evidence whatsoever to justify these views and, therefore, that he acted with disrespect and discourtesy and evinced a lack of trust to the complainant and the appointing officers by making the public statements about them amounting to a contravention of the Code.

5.14 In the case of Ms MacDonald and Mr Liddell both were competently and properly appointed to the posts of Research Officer. Within weeks of taking up their positions they were at the centre of press articles written as a result of the respondent's comments to the press. The only evidence which I found was to the effect that they had both been properly appointed on merit. For the respondent to have suggested otherwise was wholly unfair and showed a blatant disregard for the officers' own feelings and reputations (they having just started new jobs), aggravated by the fact that his comments had no foundation. I have, therefore, found that the respondent acted with disrespect and discourtesy and evinced a lack of trust to the appointees by making the public statements about them amounting to a contravention of the Code.

5.15 In Councillor Nicolson's response he states that he does not believe that Mr Scholes has a right to make a complaint nor that I have the right to question him. He adds that he is entitled under article 10 of the European Convention on Human Rights to give his views on what he says is a matter of public importance through political expression. Article 10 of the Convention deals with freedom of expression; it provides that everyone has the right to freedom of expression including freedom to hold opinions and to receive and impart information and ideas without interference by public authority. Article 10, however, further provides that the exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society...(among others)... for the protection of the reputation or rights of others. The respondent is misconceived in his understanding of the application of article 10 in relation to the Councillors' Code of Conduct. The Code is compliant, compatible and consistent with the provisions of the Convention and the respondent is therefore under a duty to comply with the provisions of the Code which he has failed to do. It should also be observed at this point that, as the respondent has declined to be interviewed in respect of this complaint, it has not been possible to obtain any further explanation or reasons for his making the press statements in question.

5.16 In relation to this complaint, I have found that the Council properly and competently agreed the establishment of two Research Officer posts, that the interview and appointment process which followed was conducted with due propriety and that the appointments were made on merit, that the respondent made statements to the press which appeared in articles published in the Paisley Daily Express and the Evening Times on 26 January 2004, that the statements made in relation to the Chief Executive, the officers responsible for making the appointments and the officers appointed to the posts were inaccurate, without foundation and reprehensible and evinced a lack of trust, courtesy and respect to all the officers concerned and that he therefore contravened the provisions of the Councillors' Code of Conduct set out in section 2 on Leadership and Respect, paragraphs 3.2 and 3.4 on Relationship with Council Employees and paragraphs 2 and 20 of Annex C on Protocol for Relations between Councillors and Employees.

5.17 In relation to complaint number LA/R/44 I have concluded that, having regard to the findings in section 5 of this Report, Councillor Iain Nicolson has contravened the Councillors' Code of Conduct.

D Stuart Allan
Chief Investigating Officer
Forsyth House
Innova Campus
Rosyth Europarc
Rosyth
KY11 2UU
2 June 1005