Decision of the Hearing Panel of the Commission following the Hearing held at the Beardmore Hotel, Clydebank, on 12th and 13th February 2007

• Panel Members
• The Complaint
• Joint Statement of Facts
• Preliminary Issue
• Hearing Panel's Response to the Preliminary Issue
• The Decision
• Reasons for Decision
• Sanction
• Reasons for Sanction
• Conclusion

Panel Members

Mrs Wendy Goldstraw, Chairman
Mr Peter Donaldson
Mr John Dowson

In respect of a Report ("the Report") by D Stuart Allan, Chief Investigating Officer ("the CIO") further to Complaint No. LA/WD/425 ("the Complaint") concerning an alleged contravention of the Councillors' Code of Conduct ("the Code") by Councillor James Bollan of West Dunbartonshire Council ("the Respondent"). The CIO was represented by David Sillars, Senior Investigating Officer, who was accompanied by Harris Wells, Investigating Officer.

The Complaint

The Complainant was Mr Tim Huntington, former Chief Executive of West Dunbartonshire Council. The Complainant alleges that the Respondent breached the provisions of the Councillors' Code of Conduct set out in section 2, which defines the key principle of Respect, paragraphs 3.2 and 3.4 on Relationship with Council Employees and paragraph 2 of Annex C on Protocol for Relations between Councillors and Employees.

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

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

Para 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.

Protocol for Relations between Councillors and Employees - Annex C
Para 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.

The CIO's 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.

Joint Statement of Facts

The Senior Investigating Officer and the Respondent lodged as a production a Joint Statement of Facts dated 7 February 2007 which detailed the matters which were not in dispute and matters over which there was no agreement between them. The Joint Statement of Facts is detailed in full at Appendix 2. An Inventory of Productions had also been agreed as an accurate record of the matters they purport to record.

Preliminary Issue

The Respondent raised at the Hearing, as a preliminary issue, an allegation that he had been denied access by the Acting Director of Social Work, West Dunbartonshire Council, to information and to witnesses and that had impeded his ability to form his response to the complaint.

Hearing Panel's Response to the Preliminary Issue

The Hearing Panel confirmed that the Respondent had not applied to the Commission to require any witness(es) to attend the Hearing or produce any documents as provided for under paragraph 6.1 of its Hearing Rules, which had been sent to the Respondent by the Secretary to the Commission on 20 December 2006. The Hearing Panel determined that, as the Respondent had had sufficient opportunity to make such application and had not done so, his complaint in this regard would not be upheld.

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. The Respondent's language and demeanour towards Mrs Westwood were discourteous, derogatory, disrespectful, threatening and intimidating.
3. The Respondent did therefore contravene the Councillors' Code of Conduct as set out in Section 2 (Respect), paragraphs 3.2 and 3.4 (Relationship with Council Employees), and paragraphs 2 of Annex C (Protocol for Relations between Councillors and Employees).

Reasons for decision

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

1. That the actions of the Respondent constituted serious breaches of the Code.
2. That Mrs Westwood described the incident with the Respondent in great detail and the Hearing Panel found her evidence entirely credible.
3. That the Respondent's version of events was reported in the CIO's report and reinforced by the Joint Statement of Facts and by his own evidence at the Hearing. According to his own statement of what took place, he conceded that:
   • He shouted at Mrs Westwood
   • He pointed at her
   • He told her to "get out"
   • He told her she was in the "wrong profession"
   • He called her a "liar"
   • He told her to "f off" (Note: for the avoidance of any doubt, his evidence was that he used the abbreviated version and not the full word )
   The Hearing Panel considered that, even on his version of events, his actions and words went beyond acceptable behaviour.
4. That Mrs Westwood gave evidence that she was left feeling degraded, devastated and intimidated as a result of the Respondent's conduct. That she appeared frightened was corroborated by an independent witness during the investigation conducted by the CIO. The Hearing Panel concluded that she was justified in her feelings.
5. The Hearing Panel acknowledged that the Respondent held sincere views concerning the closure of Leven Cottage Residential Home and that he felt he was acting in the best interest of his constituents (two residents at the Home) during the entire period of the protest against the closure. The Hearing Panel considered that the ongoing highly charged situation possibly contributed to his conduct during the incident on 22 March 2006, but did not justify it.
6. As a result of a complaint by the Respondent relating to an earlier situation, the Care Commission had concluded that service users should have been offered the opportunity to have a representative present when signing documents. One of the residents of Leven Cottage Residential Home (a constituent of the Respondent) was not given that opportunity in respect of a meeting for that purpose on 22 March 2006. The incident between Councillor Bollan and Mrs Westwood occurred following that meeting. The Respondent's evidence was that he was angry that he had not been asked to that meeting as an agreed representative in the absence of resident's niece. The Hearing Panel concluded that his anger might explain his conduct in relation to Mrs Westwood but did not justify it.
7. The importance of high standards of conduct as outlined in the Ethical Standards in Public Life etc. (Scotland) Act 2000. The Panel concluded that those serious breaches of the Code brought West Dunbartonshire Council and local government generally, into disrepute.

Sanction

The Panel decided to suspend for six months Councillor Bollan's entitlement to attend all meetings of West Dunbartonshire Council and of any of its committees and sub-committees. This sanction is made under the terms of the Ethical Standards in Public Life etc (Scotland) Act 2000 Section 19 (1) (b) (i) and (ii). The date on which the suspension is imposed and will commence is 26 February 2007.

In imposing this sanction, the Hearing Panel took cognisance of Section 19(2) of the Act which states that:

"A period of suspension imposed under subsection 1 (b) or (c) above which would continue until or after the day of the next following ordinary election of councillors shall end at the beginning of that day."

The Hearing Panel nevertheless considered that the length of the sanction should reflect the seriousness of the breaches even it did not run its full course.

Reasons for Sanction

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

1. The serious nature of the beaches of the Code.
2. The strongly held views of Councillor Bollan concerning the closure of Leven Cottage Residential Home and his belief that he was acting in the best interests of his constituents.

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.