Decision of the Hearing Panel of the Commission following the Hearing held at the Shetland Hotel, Lerwick on 1 August 2007

• Panel Members
• The Complaint
• Joint Statement of Facts
• The Decision
• Sanction
• Reason for Sanction
• Conclusion

Panel Members:

Mrs Wendy Goldstraw, Chairman
Mr John Dowson
Mr Okain McLennan

In respect of a Report by D Stuart Allan, Chief Investigating Officer ("the CIO") further to Complaint No. LA/SI/490 ("the Complaint") concerning an alleged contravention of the Councillors' Code of Conduct ("the Code") by Councillor Alexander Cluness of Shetland Island Council ("the Respondent"). The CIO was accompanied by Jon Miller, Investigating Officer.

The Respondent was present at the Hearing. He was represented by Mr Murray McCall.

The Complaint

The Complainant was Mr Michael Peterson. The Complainant alleged, as part of a wider complaint, that the Respondent breached the provisions of the Councillors' Code of Conduct by failing to register interests in companies or other bodies from which he received remuneration as a nominee director or trustee. Particular reference was made to the Respondent's directorship of Smyril Line p/f and the complaint contained a specific request that there should be an investigation of any remuneration or additional payments made to the Respondent in respect of all undertakings of which he was a director or trustee. Accordingly, it was alleged that the Respondent breached paragraphs 4.1, 4.2, 4.3 and 4.10, which are contained in Section 4 of the Code and which deal with Registration of Interests, including financial interests.

Registration of Interests

Para 4.1 The following paragraphs set out the categories of interests, financial and otherwise, which you have to register. These are "Registerable Interests", and you must ensure that they are registered, when you are elected and whenever your circumstances change.

Para 4.2 Regulations made by Scottish Ministers describe the detail and timescale for registering interests. It is your responsibility to comply with these regulations and you should review regularly and at least once a year your personal circumstances. Annex B contains key definitions and explanatory notes to help you decide what is required when you register yours interests under any particular category. The interests which require to be registered are those set out in the following paragraphs and relate to you. It is not necessary to register the interests of your spouse, or cohabitee.

Category One - Remuneration

Para 4.3 You have a registerable interest where you receive remuneration by virtue of being:

• employed
• self-employed
• the holder of an office
• a director or an undertaking
• a partner in a firm; or
• undertaking of a trade, profession or vocation, or any other work

Para 4.10 When registering a directorship, it is necessary to provide the registered name of the undertaking in which the directorship is held and detail the nature of its business

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 were that Councillor Cluness contravened the provisions of the Code by:

• failing to register properly the category of his directorship of Smyril Line p/f by not specifying that it was remunerated nor the nature of the company's business
• failing to register timeously his directorship of Smyril Line p/f
• failing to register his chairmanship of the Shetland Fisheries Training Centre Trust (SFTCT) as Category One ( remunerated) interest
• failing to register timeously his chairmanship of SFTCT.

Joint Statement of Facts

The Chief Investigating Officer and the Respondent's Representative lodged as a production a Joint Statement of Facts signed on 28 and 29 June 2007 respectively. In the agreed Joint Statement of Facts, the totality of the CIO's report was accepted as not being in dispute, subject to some matters being noted on behalf of the Respondent. An Inventory of Productions had also been agreed as an accurate record of the matters they purport to record.

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. That the report and evidence presented by the CIO, and accepted unreservedly by the Respondent, established that Councillor Cluness had failed to register properly and timeously his remunerated interests in Smyril Line p/f and SFTCT.
3. That the actions of the Respondent, in failing to register properly and timeously his remunerated interests in Smyril Line p/f and SFTCT, constituted clear breaches of Section 4.1, 4.2, 4.3 and 4.10 of the Code.

Sanction

The Panel decided to censure Councillor Cluness under the terms of the Ethical Standards in Public Life etc (Scotland) Act 2000 Section 19 (1) (a).

Reason for Sanction

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

1. In failing to register properly and timeously the remunerated appointments with Smyril Line p/f and SFTCT, Councillor Cluness did not demonstrate the openness and transparency required by the Code and as such did not adhere to key principles of ethical standards.
2. Councillor Cluness made full and early admissions of, and apologies for, his failures. He has accepted sole personal responsibility for his actions.
3. Although Councillor Cluness failed to register those interests properly and timeously, he did make the appropriate declarations of interest and correctly withdrew from Council meetings on occasions when matters relating to both Smyril Line p/f and SFTCT were being discussed.
4. Councillor Cluness has been re-elected as a Councillor and Convener of Shetland Islands Council.
5. Their (the Panel's) conclusion that his actions were due to carelessness and negligence rather than being wilful or deliberate, and as such his personal integrity was not put in question.
6. Their (the Panel's) recognition that Councillor Cluness has subsequently taken a lead in ensuring that the recommendations of the CIO contained in his report are being taken forward within Shetland Islands Council and the Code of Conduct being given the importance it requires.

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.