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Decision of the Hearing Panel of the Commission following the Hearing held at the Glynhill Hotel, Renfrew on the 10th November 2004
Panel Members:
Professor Lorne D Crerar, Chairman
Mrs Elinor Smith
Mr Peter Donaldson
In respect of Report of D Stuart Allan, Chief Investigating Officer ("the CIO") further to Complaints No. LA/R/46, 47, 52, 53 & 54 ("the Complaints") concerning an alleged contravention of the Councillors' Code of Conduct ("the Code") by Councillor Terry Kelly of Renfrewshire Council ("the Respondent").
The Respondent was represented by Mr Gordon Dalyell ("the Respondent's Representative").
The Complaint
The Complaint relates to a meeting of Renfrewshire Council ("the Council") on 29th January 2004. The Complainants were Mr John Patrick, Mr Michael Daly, Councillor Bill Martin, Mrs Caroline Martin, and Councillor David Mylet. The Complainants allege that the Respondent breached the Key Principle of Leadership (Section 2.1 of the Code) and the provisions as to General Conduct relating to Conduct in the Chamber or in Committee (Section 3.14 of the Code). The CIO's Report ("the Report") (in full 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 1st 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 in respect of the allegations of breach of the Code relate to an incident following the Council meeting on 29th January 2004 involving Councillor Terry Kelly and the first Complainant, Mr Patrick. Full details of the alleged incident are narrated in Clause 2.2 of the Report.
Joint Statement of Facts
The CIO together with the Respondent lodged as a production a Joint Statement of Facts ("the Statement") dated 27th October and 2nd November 2004. The Statement at paragraph 5 confirms that "subject to paragraph 6, Part 5 of the CIO's Report is agreed". Importantly, the said Paragraph 6 states "Paragraph 5.13 of the CIO's report is agreed as amended in the following terms:- "In relation to these complaints I have found that the meeting of Renfrewshire Council on 29th January 2004 had been rowdy and unruly and there had been noisy and provocative interruptions from the public gallery generally and from Mr Patrick specifically during the contentious items of business and at the end of the meeting; that, at the end of the meeting, Councillor Kelly approached the principal complainant, Mr Patrick, in a threatening and intimidating manner; and that his conduct, including language, towards Mr Patrick was inappropriate, improper and unacceptable;" and, accordingly, I have concluded that Councillor Kelly failed to show leadership and example or to maintain and strengthen public trust and confidence in the integrity of the Council and its councillors in conducting business and failed to respect a member of the public present within the chamber, and that, in so doing, he has breached the Councillors' Code of Conduct as set out in paragraph 5.3 above."
Further the CIO, the Respondent's Representative together with the Respondent confirmed during the Hearing that the Statement was a true reflection of the consensus between them. The Respondent's Representative confirmed to the Hearing Panel that it was agreed the Respondent had breached the terms of the Code, as alleged and agreed with the CIO.
The Decision
The Hearing Panel, having considered all the evidence, the submissions made by the CIO and the Respondent's Representative, together with a consideration of the written testaments of good character supplied by the Respondent's Representative proceeded to determine as follows:
1. The Code applied to the Respondent.
2. The Panel agreed with the recommendations of the CIO as supported by the Respondent's Representative that in consideration of an appropriate sanction in relation to the accepted breaches of the Code by the Respondent, it would not be appropriate to take into account the findings and sanction of the Hearing Panel (convened on 2nd November 2004) that considered Councillor Kelly's conduct in relation to another matter which occurred on 4th December 2003. The Hearing Panel so concluded because the Respondent did not have notice of the Complaints at the time of the other breach of the Code by him (4th December 2003) which was the subject of the Hearing Panel deliberations on 2nd November 2004.
3. The Panel acknowledged and had regard to the representations of the CIO, namely that the Respondent had afforded a timeous apology for his conduct to the CIO, had afforded a full apology to the Council at a meeting on 22nd April 2004, had expressed regrets as to his actions and accepts his conduct was inappropriate and a breach of the Code and, further, that the Respondent felt provoked following a "rowdy and unruly" meeting of Renfrewshire Council.
4. The Panel acknowledged and had regard to the representations made by the Respondent's Representative, namely that the Council meeting in question was noisy and rowdy, and that the breaches of the Code took place after conclusion of the Council meeting, with the consequence that there was no disruption to Council business, that the Respondent acknowledged that he should not have approached a member of the public and apologised for doing so, and further that the Respondent accepted the manner of his approach to the member of the public was unacceptable.
5. The Panel received, considered, and took account of the testimonials provided by the Provost of the Council; Mr Craig, a Director of Ferguslie Housing Association Ltd.; and the Reverend Douglas N Alexander, which attest that the Respondent is well respected, of integrity and generally of good character.
6. The Hearing Panel considered that further to the accepted breaches of the Councillors' Code of Conduct by the Respondent that:-
i. It is wholly inappropriate for any Councillor to approach any member of the public in a "threatening and intimidating manner" - regardless of the provocation;
ii. That the Respondent's conduct was, as narrated in the joint Statement of Facts, "inappropriate, improper and unacceptable";
iii. That the Respondent's conduct has adversely affected the good standing of Local Government and Renfrewshire Council in particular; and
iv. that the actions of the Respondent, as accepted by him, strikes at the root of the obligation of leadership of any Councillor, and further that the Respondent's behaviour was wholly inappropriate and contrary to the behaviour that the Chair, fellow Councillors, Council Employees and any members of the public are entitled to expect in the Council Chamber.
Sanctions
The Panel did not agree with the submissions of the CIO and the Respondent's Representative that censuring, but otherwise taking no action against the Respondent, was appropriate (the sanction of Section 19(1)(a) of the Act) because of the serious nature and context of the accepted breaches of the Code as established above. The Panel determined that, in accordance with Section 19(1)(b) of the Act the Respondent be suspended for a period of 6 calendar weeks from and including 1st December 2004 from being entitled to attend:-
1. All meetings of the Council; and
2. All meetings of all Committees or Sub-Committees of the Council.
Conclusion
Further, the Panel drew the Respondent's attention to Section 22 of the 2000 Act which details the right of appeal in respect of this Decision.
The Panel determined that there should be no award of expenses under Rule 13(1) of the Commission's Hearing Rules.
Professor Lorne D Crerar (Chairman)
12 November 2004
Addendum
The Hearing Panel considered it appropriate to advise the Respondent, that if these further breaches of the Code by the Respondent in respect of the Complaints had taken place:-
a) after the Respondent received notification
of the Complaint which was the subject of a Hearing Panel determination
on 2nd November 2004;
and/or
b) after the publication of the Decision of the Commission further
to a Hearing Panel held on 10th and 18th March 2004 in respect of Complaint
No LA/R/02;
then the suspension period imposed upon the Respondent would have been considerably longer.
© Standards Commission for Scotland 2002-08