Complaint no. LA/WD/366 concerning an alleged contravention of the Councillors' Code of Conduct by Councillor Connie O'Sullivan of West Dunbartonshire Council

• Introduction
• Outline of the Complaint and the Response
• The Investigation
• Consideration of the Evidence
• Findings and Conclusion

Introduction

1.1 Complaint number LA/WD/366 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 John Robins ("the complainant") who alleges a contravention of the Code by Councillor Connie O'Sullivan ("the respondent"). The respondent is an elected member of West Dunbartonshire Council ("the Council").

1.3 Sections 4 and 5 of the Code contain rules relating to Registration of Interests and Declaration of Interests by Councillors. Interests may be financial or non-financial. In this case, it is alleged that Councillor O'Sullivan failed to declare a non-financial interest in a zoo licence application and participated in a meeting of West Dunbartonshire Licensing Committee at which the application was approved. The paragraphs of the Code which are relevant to this matter are:

Section 4: Registration of Interests
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.
4.2 Regulations made by Scottish Ministers describe the detail and timescale for registering interests. It is your personal 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 registering your 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 7: Non-Financial Interests
4.21 Councillors may also have significant non-financial interests and it is equally important that relevant interests such as membership or holding office in public bodies, companies, clubs, societies and organisations such as trades unions and voluntary organisations, are registered and described. In this context, non-financial interests are those which members of the public might reasonably think could influence your actions, speeches or votes in the Council.

Section 5: Declaration of Interests

5.1 The key principles of the Code, especially those which specify integrity, honesty and openness are given further practical effect by the requirement for you to declare interests at meetings which you attend. The rules on declaration of interest, along with the rules which require registration of interests, are intended to produce transparency in regard to interests which might influence, or be thought to influence, your actions as a councillor.
5.2 It is your responsibility to make decisions about whether you have to declare an interest or make a judgement as to whether a declared interest prevents you from taking part in any discussions or voting. You are in the best position to assess your personal circumstances and to judge how these circumstances affect your role as a councillor in regard to a particular matter. You can, of course, seek advice from appropriate Council officers or from other sources which may be available to you. In making decisions for which you are personally responsible you are advised to err on the side of caution.
5.3 You may feel able to state truthfully that an interest would not influence your role as a councillor in discussion or decision-making. You must, however, keep in mind that the test is whether a member of the public, acting reasonably, would think that a particular interest could influence your role as a councillor.
5.4 Much of the content of the rules set out in this section of the Code refers to Council or Committee meetings. The principles relating to declaration of interests are not confined to such meetings. You must apply these principles no less scrupulously in your dealings with Council officers, at meetings with other councillors, including party group meetings, meetings of Joint Boards and Joint Committees and any other meeting, formal or informal, where you are representing your Council.
Interests which Require Declaration
5.5 Interests which require to be declared may be financial or non-financial. They may or may not cover interests which are registerable in terms of this Code. Most of the interests to be declared will be your personal interests but, on occasion, you will have to consider whether the interests of other persons require you to make a declaration. The paragraphs which follow deal with (a) your financial interests, (b) your non-financial interests and (c) the interests, financial and non-financial, of other persons.
Your Non-Financial Interests
5.9 If you have registered a non-financial interest under category seven of Section 4 you have recognised that it is a significant non-financial interest. There is, therefore, a very strong presumption that this interest will be the subject of declaration in any context where there is any link between a matter which requires your attention as a councillor and the registered interest.
5.10 As a councillor you will serve on other bodies as a result of express nomination or appointment by your Council or otherwise by virtue of being a councillor. Your membership of statutory Joint Boards or Joint Committees which are composed exclusively of Councillors does not raise any issue of declaration of interest in regard to Council business. In relation to service on the boards and management committees of limited liability companies, public bodies, societies and other organisations, you must decide, in the particular circumstances surrounding any matter, whether to declare a non-financial interest. Only if you believe that, in the particular circumstances, the nature of the interest is irrelevant or without significance, should it not be declared. You must always remember the public interest points towards transparency and, in particular, a possible divergence of interest between the Council and another body. Keep particularly in mind the advice in paragraph 3.19 of this Code about your legal responsibilities to any limited liability company of which you are a director.
Making a Declaration
5.14 You must consider at the earliest stage possible whether you have an interest to declare in relation to any matter which is to be considered. You should consider whether agendas for meetings raise any issue of declaration of interest. Your declaration of interest must be made as soon as practicable at a meeting where that interest arises. If you do identify the need for a declaration of interest only when a particular matter is being discussed you must declare the interest as soon as you realise it is necessary.
5.15 The oral statement of declaration of interest should identify the item or items of business to which it relates. The statement should begin with the words "I declare an interest". The statement must be sufficiently informative to enable those at the meeting to understand the nature of your interest but need not give a detailed description of the interest.
Effect of Declaration
5.17 A declaration of a non-financial interest involves a further exercise of judgement on your part. You must consider the relationship between the interest which has been declared and the particular matter to be considered and relevant individual circumstances surrounding the particular matter.
5.18 In the final analysis the conclusive test is whether, in the particular circumstances of the item of business, and knowing all the relevant facts, a member of the public acting reasonably would consider that you might be influenced by the interest in your role as a councillor and that it would therefore be wrong to take part in any discussion or decision making. If you are not confident about the application of this objective yardstick, you should play no part in discussion and should leave the meeting room until discussion of the particular item is concluded. If you, in conscience, believe that your continued presence would not fall foul of this objective test, then declaring an interest will not preclude your involvement in discussion or voting.
Dispensations
5.20 In some very limited circumstances dispensations may be granted by the Standards Commission in relation to the existence of financial and non-financial interests which in terms of this Code would otherwise prohibit participation in discussion and voting.
5.21 Applications for dispensations will be considered by the Standards Commission which will be able to entertain requests for dispensations which will apply generally to a class or description of councillors who are all affected by a particular category of interest. In situations where general or category dispensations are not granted by the Standards Commission, applications for particular dispensations should be made as soon as possible in advance of any meetings where dispensation is sought. You should take no part in consideration of the matter in question unless, and until, the application for dispensation is granted
DISPENSATIONS NOTE TO LOCAL AUTHORITIES in respect of financial and non-financial interests
On 28 July 2004, the Commission reissued general dispensations (first issued on 31 March 2003 in substantially the same terms) in respect of Councillors who are:
(a) council house tenants, or
(b) members of certain outside bodies,
in order to allow them to participate in Council business dealing with matters relating to council houses or those outside bodies respectively.
Membership of Outside Bodies
10. Councillors are frequently nominated or appointed by their Councils to outside bodies. The contributions which they make are generally much appreciated by the organisations concerned. Moreover, Councils have the benefit of the additional knowledge and expertise which Councillors gain through membership of these organisations in discussing a range of issues within the Council Chamber.
11. Where a Councillor has an interest as a member of an outside body, such a Councillor may be obliged to declare an interest under section 5 of the Code when matters arise concerning the outside body to which he or she has been nominated or appointed and may also be unable to take part in the discussion or voting on that matter.
12. Having given careful consideration to the issues involved, the Commission is of the view that the public interest would be served if - in certain circumstances - Councillors should be allowed to participate in discussion and voting on matters relating to certain outside bodies to which they have been appointed directly by, or on the nomination or with the approval of, their own authority.
13.(i) Accordingly, in terms of paragraphs 5.20 and 5.21 of the Code, the Commission grants a dispensation to any Councillor who has been nominated or appointed or whose appointment has been approved by the Councillor's local authority and who has registered an interest under section 4 of the Code as a member of:-
(a) a devolved public body as defined in schedule 3 to the Act,
(b) a public body established by enactment or in pursuance of statutory powers or by the authority of statute or a statutory scheme,
(c) a body with whom there is in force an agreement which has been made in pursuance of section 19 of the Enterprise and New Towns (Scotland) Act 1990 by Scottish Enterprise or Highlands and Islands Enterprise for the discharge by that body of any of the functions of Scottish Enterprise or, as the case may be, Highlands and Islands Enterprise,
(d) a body being a company -

(i) established wholly or mainly for the purpose of providing services to the Councillor's local authority; and
(ii) which has entered into a contractual arrangement with that local authority for the supply of goods and services (or either of them) to that local authority, so as to enable the Councillor to take part in the consideration and discussion of, and to vote upon, any matter relating to the body in question.
(ii) The dispensation does not apply in respect of any matter of a quasi-judicial or regulatory nature where the body in question is applying to the local authority for a licence, a consent or an approval, is making an objection or representation concerning such a licence, consent or approval or is the subject of a statutory order of a regulatory nature, made, or proposed to be made, by the local authority.
(iii) This dispensation applies to meetings of the Council and of any committee or sub-committee of the Council and to other meetings as referred to in paragraph 5.4 of the Code.
(iv) The Councillor is required to declare his or her interest at all meetings where matters relating to the body in question are to be discussed."

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 Mrs Anne Mahoney, 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 submitted in draft form to the respondent for any representations.

Outline of the Complaints and Response

The Complaint

2.1 The complaint is set out in a letter from the complainant. The complainant states that the respondent is a Councillor with West Dunbartonshire Council and also sits on the Board of Scottish Enterprise Dunbartonshire. He alleges that she failed to declare an interest and took part in a meeting of the Council's Licensing Committee when the Committee met to decide on a zoo licence application by Merlin Entertainments Limited who intend opening an aquatic zoo at Drumkinnon Tower, a visitor attraction at Lomond Shores, Balloch owned by Scottish Enterprise Dunbartonshire.

The Response

2.2 The response is set out in a letter from the respondent. The respondent alleges that she did not believe the nature of the interest to be relevant or significant and therefore did not make a declaration. She has never had any connection with the organisation that made the application that was in front of the Committee.

Background

2.3 Scottish Enterprise is the main economic development agency for Scotland. It consists of Scottish Enterprise and 12 Local Enterprise Companies, one of which is Scottish Enterprise Dunbartonshire whose board is made up of representatives from local businesses, local authorities, the education sector and other partner organisations. Its website states that Scottish Enterprise Dunbartonshire was central to the creation of Loch Lomond Shores, a visitor complex near Balloch, on the southern edge of Loch Lomond, complete with its very own "castle", Drumkinnon Tower.

2.4 In 2004, Scottish Enterprise Dunbartonshire applied for and received planning permission from Loch Lomond and The Trossachs National Park Authority to form an animal enclosure at Drumkinnon Tower. On 15 April 2005 they issued a press release in which they announced plans to enter into a 25 year lease with Merlin Entertainments for the operation of the Drumkinnon Tower Visitor Attraction. The proposals followed a competitive tendering exercise inviting options for the future operation of the Tower. Under the plans, Scottish Enterprise Dunbartonshire will make an initial capital investment to convert the Great Hall and first floor into the Loch Lomond Aquarium, featuring indigenous fresh and salt water species with a strong emphasis on environmental interpretation. Merlin would pay a fully commercial rent for Drumkinnon Tower, managing its operation at their profit and loss risk and taking full responsibility for subsequent investment in product renewal.

2.5 The press release said that Drumkinnon Tower was built at a cost of £15.2 million and was opened in July 2002 at the inauguration of Loch Lomond and the Trossachs National Park. Drumkinnon Tower attracted 487,000 visitors in 2004, but only around 15% paid the full admission price to see the large format film in the cinema. Merlin Attractions Management was introduced in an advisory role by Scottish Enterprise Dunbartonshire in March 2004, and achieved a major improvement in the financial performance of the Tower, reducing previous losses. Merlin now had sufficient confidence in the Tower to take on its operation on a commercial basis from 2006. Scottish Enterprise Dunbartonshire would invest up to £3.4m in construction, fit out and relaunch costs. Planning permission had been received from Loch Lomond and the Trossachs National Park Authority. Merlin would be required to apply for a zoo licence to West Dunbartonshire Council. Building work would be tendered by the end of June 2005, and the new Aquarium ready to open by no later than July 2006.

The Investigation

3.1 To establish the background to the complaint, the Investigating Officer sought and received information from the Council.

Consideration of the Complaints and the Response

4.1 The complainant, Mr John Robins, is the Campaigns Consultant for Animal Concern, which is an animal rights pressure group. He said that the respondent, Councillor Connie O'Sullivan was one of three Councillors who took part in a Special Meeting of West Dunbartonshire Licensing Committee held on 28 September 2005. The meeting was specifically convened to decide on a zoo licence application by Merlin Entertainments Ltd for an aquatic zoo at Drumkinnon Tower, Lomond Shores, Balloch, Dunbartonshire. The complainant said that Scottish Enterprise Dunbartonshire owns Drumkinnon Tower and intends spending £3.5m of public money to convert it to an aquatic zoo, to be operated on a 25 year leasing arrangement with Merlin Entertainments Ltd. He contended that the Drumkinnon Tower project had been a money-eating white elephant and Scottish Enterprise Dunbartonshire wanted to off-load it; however, it would only be of value to Merlin if the zoo licence were granted.

4.2 The complainant stated that, in addition to being a member of West Dunbartonshire Council, Councillor O'Sullivan is also a Board member of Scottish Enterprise Dunbartonshire. He alleged that, at the Licensing Committee meeting on 28 September 2005, Councillor O'Sullivan failed to declare her interest as a Board member of Scottish Enterprise Dunbartonshire and voted in favour of granting the zoo licence. He did not allege that Councillor O'Sullivan had a personal interest in the matter; but it was a very controversial application which was opposed on grounds of animal welfare, environmental damage and use of public funds. He considers that the correct procedure would have been for Councillor O'Sullivan to declare her conflict of interest and ask to be excused from the meeting. By failing to do so, she made a sham of open, democratic government.

4.3 During interview, the complainant said there was a need for transparency in such matters and, in this case, he felt concerned there was a lack of transparency on the part of Councillor O'Sullivan. He was not present at the Licensing Committee meeting although, as an objector, it had been his intention to attend. He said the first arranged meeting was due to be held on 21 September 2005, but was postponed. A new date was set for 28 September, but unfortunately the notice which he received informing him of the amended meeting date did not arrive until 11 October, ie thirteen days after the meeting had taken place. He wrote to the Convener of the Licensing Committee on 25 October 2005 saying, among other things, that nowhere in the minutes of the meeting had he seen a declaration of interest by Councillor O'Sullivan. She was on the Board of Scottish Enterprise Dunbartonshire who had a vested interest in seeing Merlin Entertainments obtain the zoo licence as they were spending £3.5m of public money converting Drumkinnon Tower to an aquatic zoo. He questioned whether the Special Meeting would have been quorate if Councillor O'Sullivan had declined to take part due to her position on the Board of Scottish Enterprise Dunbartonshire.

4.4 The Director of Development and Environmental Services had prepared a report for the Special Meeting of the Licensing Committee. In his report, he said that the Council's Environmental Health section had been consulted on the planning application by Scottish Enterprise Dunbartonshire to Loch Lomond and The Trossachs National Park Authority for consent to form an animal enclosure at Drumkinnon Tower. Planning permission was granted in December 2004. Under the Zoo Licensing Act 1981 (as amended by the Zoo Licensing (Amendment) (Scotland) Regulations 2003), an application for a zoo licence required to be made to West Dunbartonshire Council as licensing authority. The zoo licence application was submitted by Merlin Entertainments Group Ltd who, on 1 June 2005, had publicly advertised their intention to apply for a licence. They formally applied to the Council for a licence on 27 July 2005. Consultations had been held with relevant authorities whose responses were incorporated in the report. In total, 57 letters of objection were submitted in the periods before and after the licence application was advertised. The extent and nature of the objections were set out. The Director recommended approval of the licence with conditions.

4.5 The Licensing Committee has eight members, of which two form a quorum. Three members, Councillors Douglas McAllister, Duncan McDonald and Connie O'Sullivan, sat on the Committee at the Special Meeting on 28 September 2005. Councillor McAllister was in the Chair. There were no declarations of interest by any member. The minutes show that, a presentation was made on behalf of the applicants, Merlin Entertainments Ltd. The Committee heard representations from individuals who wished to address the Committee in support of their objections. The government Zoo Inspector also spoke. Thereafter, on a motion by the Chair, which was seconded by Councillor McDonald, it was unanimously agreed that the application for a zoo licence by Merlin Entertainments be approved.

4.6 The Director of Development and Environmental Services said that, at the Committee meeting, the only reference he recalled being made to the position of Scottish Enterprise Dunbartonshire related to paragraph 2.2 of his report in which he had referred to the planning application made by them to the National Park Authority. He said the background to Drumkinnon Tower was well known, as was the fact that Councillor O'Sullivan is a board member of Scottish Enterprise Dunbartonshire. He provided information which he obtained from Scottish Enterprise Dunbartonshire's Director, Corporate Intelligence & Resources, to the effect that the Loch Lomond Shores site and Drumkinnon Tower is owned by Scottish Enterprise.

4.7 Councillor Douglas McAllister who chaired the Licensing Committee meeting said that he does not remind members at the start of the meeting about declarations of interest. It is expected that members themselves will declare any interest before the relevant item on the agenda. The application for the zoo licence was made by Merlin Entertainments. He was aware that the Loch Lomond Shores project was managed by Scottish Enterprise Dunbartonshire. However, he had no recollection of Scottish Enterprise Dunbartonshire being referred to at the Licensing Committee meeting. As Chair, he decided to take the lead in the meeting and invited the speakers to address the Committee. He did not recall the other two Councillors contributing much during the meeting, except that they may have asked one or two questions.

4.8 Councillor McDonald said that he takes a decision on licence applications based on the merits of the case. He said most people know the background to Drumkinnon Tower, but this was not central to his decision. Councillor McAllister moved approval of the licence application and he seconded it. Councillor McDonald said he was not conscious of any reference being made to the position of Scottish Enterprise Dunbartonshire during the Licensing Committee meeting. He was aware of Scottish Enterprise Dunbartonshire's involvement with Drumkinnon Tower; however, he did not give that any deep consideration and was not aware of any reason for Councillor O'Sullivan to declare an interest.

4.9 Councillors are required to register their financial and non-financial interests in a Register of Interests held by the Council. The Head of Legal and Administrative Services confirmed that, following the local government elections in May 2003, appointments to Outside Bodies were made by the Council. On 24 June 2003 Councillor O'Sullivan was nominated by the Council to sit on the Board of Scottish Enterprise Dunbartonshire. The position is not remunerated. Under the 2003 Register of Interest Regulations, the appointment should have been registered within one month. Councillors are reminded twice yearly of the requirement to update their Register of Interests; this can be done in writing or by downloading a form online and sending it to him by email. A copy of Councillor O'Sullivan's Register of Interests shows that her appointment as a Director of Scottish Enterprise Dunbartonshire was not entered in her Register of Interests in June 2003 when she was appointed. Councillor O'Sullivan consulted the Head of Legal and Administrative Services in December 2005 after receiving notice of this complaint. He checked the Register and advised her to register her appointment as a Director of Scottish Enterprise Dunbartonshire. Councillor O'Sullivan did this on 13 December 2005, and also made entries relating to three other bodies on which she serves. The Head of Legal and Administrative Services confirmed that members have been given training in the Code of Conduct and a further training programme is planned. This will be a general programme and will incorporate training in licensing and new planning legislation.

4.10 Councillor O'Sullivan is Convener of West Dunbartonshire Council's Community Safety and Environmental Services Committee and a member of the Children' Services, Planning and Licensing Committees. In responding to the complaint, Councillor O'Sullivan said she did not believe the nature of the interest to be relevant or significant and therefore did not make a declaration. She had never had any connection with the organisation that made the application that was in front of the Committee. Councillor O'Sullivan said during interview that Scottish Enterprise Dunbartonshire were the main investors in the Lomond Shores (visitor and retail area) and Drumkinnon Tower. Scottish Enterprise Dunbartonshire are also making a £3.4m investment in the zoo, and it is hoped this will improve the Tower. She is appointed by the Council as a Director with Scottish Enterprise Dunbartonshire as her remit within the Council is economic development. She confirmed that she had not registered that appointment and others to which she had been nominated. Having been appointed by the Council, she had assumed this would have been done on her behalf. On receiving details of the complaint in December 2005 and checking the Register, she was surprised to see that these appointments were not registered. Her Register of Interests is now up to date as of 13 December 2005. In further comments which she made after receiving a draft report on the complaint, Councillor O'Sullivan made the point that she did not accept there was a registerable interest in regard to the Scottish Enterprise Dunbartonshire directorship; this was a Council appointment, publicly voted on by the Council and an up-to-date record of all Council appointments is publicly recorded and available.

4.11 With regard to the Licensing Committee meeting on 28 September 2005, Councillor O'Sullivan said she felt she did not need to declare an interest because the licence application was by Merlin Entertainments, not by Scottish Enterprise Dunbartonshire. She would expect to deal with the application on its merits. When asked whether she considered that other people might have a different perception, Councillor O'Sullivan said she was an honest person and based her decision on the information provided about the application. She would have voted to refuse the application if she had felt that was appropriate. She approached the application for the zoo licence on the same basis as other licence applications, namely whether the applicant was a fit and proper person to hold a licence. Councillor O'Sullivan said she accepted some people might not accept the basis for her decision because they have different views about zoos. Councillor O'Sullivan said that the meeting was over relatively quickly. The Chair invited the applicant and objectors to speak, but there was little debate, although she might have asked a question of the Zoo Inspector. The Chair moved approval of the licence and Councillor McDonald seconded. Because Merlin Entertainments were the applicants, she did not consider declaring an interest and not participating in the meeting; but if the applicant had been Scottish Enterprise Dunbartonshire, she would probably have declared an interest. When asked whether she ought not to have erred on the side of caution and declared an interest, Councillor O'Sullivan said she felt she did not have to declare.

4.12 At a meeting on 1 April 2005, Scottish Enterprise gave their approval to the Drumkinnon Tower project. Minutes of the meetings of Scottish Enterprise Dunbartonshire held on 21 October 2004, 24 March, 5 May, 3 and 30 June, 25 August, 29 September and 27 October 2005 record the discussions by the Board relating to the proposals for an aquatic zoo at Drumkinnon Tower, to be operated by Merlin Entertainments. The respondent was not present at the meetings on 24 March, 30 June and 29 September 2005. The minute of the meeting held on 25 August 2005 states that the Board were informed that the application for the zoo licence would be considered by West Dunbartonshire Council's Licensing Committee in September, and that there was some opposition to the application.

Findings and Conclusion

5.1 The complainant alleges that Councillor Connie O'Sullivan contravened the Councillors' Code of Conduct, as outlined in paragraphs 1.4 and 2.1 of this Report.

5.2 The complainant states that Councillor O'Sullivan, who is a Councillor with West Dunbartonshire Council, also sits on the Board of Scottish Enterprise Dunbartonshire. The complaint is to the effect that she failed to declare an interest and took part in a meeting of the Council's Licensing Committee which met to decide on a zoo licence application by Merlin Entertainments Limited who intend opening an aquatic zoo at Drumkinnon Tower, a visitor attraction at Lomond Shores, Balloch owned by Scottish Enterprise. Scottish Enterprise Dunbartonshire, as the local enterprise company, are responsible for the discharge of the functions of Scottish Enterprise in relation to the management of the project.

5.3 Section 4 of the Councillors' Code of Conduct sets out details of interests, financial and non-financial, which must be registered by councillors. Non-financial interests are those which members of the public might reasonably think could influence a councillor's actions, speeches or votes in the Council. It has been confirmed, and I find, that Councillor O'Sullivan is a Director of Scottish Enterprise Dunbartonshire and, as such, she ought to have registered this as a non-financial interest, being such an interest as is covered by paragraph 4.21 of the Code and table A of the schedule to the Regulations, in her Register of Interests within one month of her appointment. However, she failed to do so, either at the time of her appointment in June 2003 or in the ensuing period until 13 December 2005 when she registered the interest. She has indicated that, as she had been nominated to Scottish Enterprise Dunbartonshire by the Council, she thought this would be done on her behalf. However, paragraph 4.2 of the Code clearly states that it is an individual councillor's personal responsibility to comply with the requirement to register relevant interests and to review regularly and at least once a year his or her personal circumstances. Councillors in West Dunbartonshire are reminded of this twice yearly and, had Councillor O'Sullivan taken the step to review her entries in the Register, she would have been aware of the omission. I, therefore, find that there was a breach of sections 4.1, 4.2 and 4.21 of the Code and of the Regulations in that Councillor Connie O'Sullivan failed timeously to register relevant interests, being her Directorship of Scottish Enterprise Dunbartonshire, in her Register of Interests.

5.4 Councillor O'Sullivan's failure to register her non-financial interest as a Director of Scottish Enterprise Dunbartonshire is also relevant to the question whether she should have declared an interest at the meeting of the Licensing Committee meeting on 28 September 2005. In these matters, the fundamental test is whether a member of the public, acting reasonably, would think that a particular interest could influence the role of a councillor. The Code states in paragraph 5.9 that there is a very strong presumption that a non-financial interest registered under section 4 will be the subject of declaration in any context where there is any link between a matter which requires attention as a councillor and the registered interest. Only if a Councillor believes that, in the particular circumstances, the interest is irrelevant or without significance, should it not be declared. The Code also states that councillors must remember the public interest points towards transparency and, in particular, a possible divergence of interest between the Council and another body. The Standards Commission has, in fact, granted a dispensation which allows councillors to participate in discussion and voting on matters relating to certain outside bodies (including Scottish Enterprise Dunbartonshire) to which they have been appointed by their own authority and where they have registered that interest. The respondent was not entitled to the benefit of the dispensation as she had not registered her interest. In any event, the councillor is required to declare his or her interest at all meetings where matters relating to the body in question are to be discussed and in this case the respondent did not do so.

5.5 Councillor O'Sullivan has said she did not declare an interest because Merlin Entertainments was the applicant for a licence, not Scottish Enterprise Dunbartonshire. In my view, Councillor O'Sullivan's position does not meet the test of transparency which councillors should apply in dealing with non- financial interests. Scottish Enterprise Dunbartonshire was central to the creation of Drumkinnon Tower; it proposed to invest £3.4m converting it to an aquatic zoo before arranging to lease it through Scottish Enterprise on a commercial basis to Merlin Entertainments. Although Scottish Enterprise Dunbartonshire was not itself the applicant for a licence, they had a material interest in the funding and future of the proposed aquatic zoo which was the subject of the licence. By reference to her participation in the meetings referred to in paragraph 4.12, the close relationship between Merlin Entertainments and Scottish Enterprise Dunbartonshire in regard to the project which was the subject of the licence, and the extent of Scottish Enterprise Dunbartonshire's investment in the matter, were well known to Councillor O'Sullivan. The position of Scottish Enterprise Dunbartonshire as the body who had obtained planning consent for the conversion of Drumkinnon Tower to form an animal enclosure was also clear. I consider and find that Councillor O'Sullivan should have been aware that her interest as a Director of Scottish Enterprise Dunbartonshire was such as to preclude her taking part, as she had an interest that could reasonably be seen as influencing her role. Instead, she not only participated in the Licensing Committee meeting of 28 August 2005, but did so without declaring the interest. I, therefore, find that Councillor O'Sullivan's failure to declare the interest and her participation in and failing to leave the meeting were in breach of paragraphs 5.1, 5.3, 5.9, 5.17 and 5.18 of the Code.

5.6 It remains a fact that the Committee's decision on the licence application would not have been any different if Councillor O'Sullivan had not participated in the meeting on 28 September 2005. The Licensing Committee meeting would have been quorate without her, and the remaining members of the Committee would have approved the Director of Development and Environmental Services' report which recommended approval of the licence with conditions. This was a regulatory decision which the Committee had a duty to decide in an impartial way. The complaint demonstrates that lack of transparency sometimes leads unnecessarily to suspicion and raises questions in the minds of the public about decisions taken by a Committee, especially where the matter is already one which has attracted a high level of objections.

5.7 In relation to complaint number LA/WD/366, I have come to the conclusion that, having regard to the findings in section 5 and in particular paragraphs 5.3 and 5.5 of this Report, Councillor Connie O'Sullivan has contravened the Councillors' Code of Conduct.

D Stuart Allan
Chief Investigating Officer
Forsyth House
Innova Campus
Rosyth Europarc
Rosyth
KY11 2UU
30 May 2006