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Decision of the Hearing Panel of the Commission following the Hearing held at The Shetland Hotel, Holmesgarth Road, Lerwick, Shetland on 30th November 2005

Panel Members:

Professor Lorne D Crerar, Chairman
Mrs Wendy Goldstraw
Mr Albert Tait

In respect of a Report by D Stuart Allan, Chief Investigating Officer ("the CIO") further to Complaint No. LA/SI/163 ("the Complaint") concerning an alleged contravention of the Councillors' Code of Conduct ("the Code") by Councillor Thomas Stove of Shetland Islands Council ("the Respondent").

The Respondent represented himself. The Office of the CIO was represented by the CIO together with Investigating Officer Mr Jon Miller.

The Complaint

The Complaint relates to an allegation that the Respondent failed to declare an interest and participated in the consideration of a Planning Application relating to land adjacent to a house occupied by the Respondent's brother, and to which his brother had submitted a letter of objection. The CIO's Report ("the Report"), in full in Appendix 1, 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 Report

The Respondent did not contest any of the terms of the CIO's Report. The CIO addressed the Hearing Panel as to the essence of the Complaint made and the conclusions of the Report. The Respondent made representations to the Panel as to the alleged breaches of the Code and matters surrounding the meeting of the Planning Sub-Committee of the Council on 12th January 2005. The Respondent confirmed to the Hearing Panel that it was agreed that he had breached the terms of the Code, as alleged, and as agreed with the content of the CIO's report.

The Decision

The Hearing Panel, having considered all that was said by the CIO and the Respondent, together with a consideration of the terms of the CIO's Report, proceeded to determine as follows:-

1. The Code applied to the Respondent.

2. The Panel agreed that

a. the Respondent had a close family relationship with four objectors to the Planning Application, namely his brother and three nephews;
b. the said objectors interest was material in that the Respondent's brother owned property close to and potentially adversely affected by the proposed development in respect of the said Planning Application;
c. these interests were known to the Respondent;
d. the Respondent should have declared an interest and withdrawn from consideration of the said Planning Application at the meeting of the Planning Sub-Committee on 12th January 2005 as a reasonable member of the public would objectively regard these interests as potentially affecting the Respondent's responsibilities as a Councillor;
e. the Respondent did not declare an interest and participated in consideration of the said Planning Application at the said meeting, including at one stage moving for refusal of the application;
f. there had been a serious breach of paragraph 5.13 of the Councillors' Code which states:- "The interests known to you, both financial and non-financial, of relatives and close friends may have to be declared. The Code does not attempt the task of defining "relative" or "friend". Not only is such a task one fraught with difficulty, but it is also unlikely that such definition would reflect the intention of this part of the Code. The key principle is the need for transparency in respect to any interest which might (regardless of the prescribed description of relationship) be objectively if regarded by a member of the public, acting reasonably, as potentially affecting your responsibilities as a Councillor";
g. the Respondent had also breached the terms of paragraph 7.11 of the Councillors' Code, which states:- "If you have an interest, whether financial, non-financial or personal, in the outcome of a decision on a planning application, or a planning agreement, or in taking enforcement action, you must declare that interest and refrain from taking part in the consideration of the application."

3. That failure by the Respondent to declare such an interest is an extremely serious matter and strikes at the heart of the Code of Conduct. The Respondent is a long-standing and experienced councillor and should have known to adhere to the Code. Certain of the objectors to the planning application were close relatives to the Respondent and there is no doubt that they had a material interest. Any applicant for planning permission has a right to an unbiased and impartial determination of his or her application. The Panel acknowledged that the Respondent by his actings had brought himself and Shetlands Islands Council into disrepute. Further the Panel acknowledged that the Respondent had unreservedly apologised for his behaviour in breaching the Code of Conduct and has not sought to challenge the CIO's Report and its conclusions. The Respondent had also acted in a very positive way following intimation of the Complaint by the CIO to him and these matters are reflected in the sanction imposed by the Panel. All of these matters did, however, lead the Panel to the view that the Respondent's conduct in breaching the Councillors' Code, namely paragraphs 5.13 and 7.11 at the meeting of the Planning Sub-Committee on 12th January 2005 merits the following sanction.

Sanction

The Panel determined that the Respondent be sanctioned as followed:

1. The Respondent is suspended for a period of one month from 11th January 2006 in respect of all meetings of Shetland Islands Council (Section 19(1)(b)(i) of the Act); and

2. The Respondent is suspended for a period of one month from 11th January 2006 for all meetings of all Committees or Sub-Committees of Shetland Islands Council (Section 19(1)(b)(ii) of the Act); and

3. The Respondent is suspended from 11th January 2006 for a period of six months from the Planning Sub-Committee of Shetland Islands Council (Section 19(1)(b)(ii) of the Act).

Conclusion

Further, the Panel drew the Respondent's attention to Section 22 of the Act which details the Right of Appeal in respect of this Decision.

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