Complaint no. LA/WD/425 concerning an alleged contravention of the Councillors' Code of Conduct by Councillor James Bollan 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/425 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 Tim Huntingford ("the complainant") who alleges a contravention of the Code by Councillor James Bollan ("the respondent"). The complainant is the Chief Executive of West Dunbartonshire Council. The respondent is an elected member of West Dunbartonshire Council ("the Council").

1.3 It is alleged that the respondent has contravened the Councillors' Code of Conduct, and, in particular, paragraphs 2.1 and 3.2 Respect for Council Employees.

With regard to Respect paragraph 2.1 of the Code states:
You must respect all other councillors and all Council employees and the role they play, treating them with courtesy at all times.

Paragraph 3.2 of the Code states:
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.

It is also relevant to refer to Annex C of the Code which sets out in greater detail the requirements on councillors when dealing with Council employees.

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 Harris Wells, 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 letters from the complainant. The complainant alleges that, in the course of occupying the Council's Leven Cottage Residential Home at Alexandria ("Leven Cottage") in an attempt to prevent its closure, the respondent prevented the removal of furniture from the Home and that he acted in a confrontational manner towards three Council employees and prevented them from performing their duties. He also alleges that the respondent shouted and acted aggressively towards the three employees and that, by so doing, intimidated them.

The Response

2.2 The response is set out in a letter from the respondent. The respondent alleges that the Council's decision to close Leven Cottage in his ward was taken without consultation with any of the residents or with himself as the local councillor. He states that it was not himself who decided to have a sit in, it was his constituent, Mr Toole, who was a resident in the Home. He decided to support Mr Toole and Mr Toole then invited him into his home.

The Investigation

3.1 To establish the background to the complaint, the Investigating Officer sought and received additional information from the complainant, the respondent, the Acting Director of Social Work and the Head of Social Work (Operations).

Consideration of the Evidence

4.1 Councillor James Bollan represents the Renton/Alexandria South ward on West Dunbartonshire Council and is a member of the Scottish Socialist Party. He has been a Councillor for 20 years, apart from a two year break. He serves on the Corporate Services and Social Justice Committees of the Council.

4.2 The complainant was the previous Chief Executive of the Council. In his complaint he alleges that, during the respondent's occupation of Leven Cottage, Councillor Bollan prevented staff from legitimately performing their duties and acted in a confrontational manner. He refers to an occasion when Councillor Bollan prevented the removal of furniture from the Home and identifies, specifically, incidents between Councillor Bollan and Mrs Theresa Westwood (Unit Manager, Leven Cottage), Mrs Kathleen McCurdie (Care Worker, Langcraigs Home) and Ms Agnes Trotter (Assistant Principal Officer, Social Work) on four separate occasions between December 2005 and March 2006. He alleges that Councillor Bollan's conduct in relation to these four incidents represents a breach of paragraphs 2.1 and 3.2 of the Code. All three employees indicated that they are in agreement with the Chief Executive's action in lodging a formal complaint and with the accuracy of his account of the respective incidents, as described in his letter of complaint.

4.3 The context in which the alleged incidents took place arose from the decision of the Health Improvement and Social Justice Partnership Committee of the Council on 24 August 2005 to close Leven Cottage. The Home was considered by the Council to be unsuitable for the longer term care of older people. The Home was de-registered with effect from 12 April 2006 following approval by the Care Commission. At the time of the decision to close the Home there were 12 residents in the Home and alternative placements had been successfully completed for all but two residents (Mrs Cardiff and Mr Toole). These two residents had remained in the Home and had refused the Council's offer of alternative accommodation. They had selected the respondent to look after their interests while their future care arrangements were being resolved. Social Work staff were aware that the respondent was acting in this capacity.

4.4 According to the Chief Executive the respondent opposed the Council's decision to close the Home from the outset and attempted to prevent its closure. He began a sit-in on 28 November 2005 and, thereafter, remained more or less permanently in the Home, including on an overnight basis. He remained in occupation of the Home until April 2006 when the Home was sold to Cordle Housing Association ("the Association") under terms which transferred responsibility for the care of Mrs Cardiff and Mr Toole to the Association. During his period of occupancy the respondent refused requests to remove himself and was effectively squatting in the premises. During this time the respondent was active in persuading the remaining residents to resist attempts to secure alternative accommodation and, instead, to remain in Leven Cottage. He was frequently confrontational and prevented staff from legitimately performing their duties. On one occasion the respondent prevented staff from removing surplus furniture from Leven Cottage to other care establishments.

4.5 The Chief Executive refutes the respondent's allegation that he was not consulted about the closure of Leven Cottage. He explains that the Council set up a Forum on the Review of Care Provision for Older People which first met in March 2001. The respondent attended meetings of the Forum from November 2001 onwards. The Forum discussed the position of Leven Cottage at a meeting on 25 April 2002 which the respondent attended. The respondent was not a member of the Health Improvement and Social Justice Partnership, to which the Council had delegated its duties and powers in respect of the local authority functions relating to community care and which took the decision to close Leven Cottage, but he was heard by the Partnership in August 2005 when a report concerning the future of Leven Cottage was considered and when he spoke against the closure of the Home.

4.6 In order to protect the Council's interests, to control the entry of persons to the Home and try and ensure that the staff of the Home were able to carry out their duties without interference, the Council employed a 24 hour security guard service at the Home for part of the period of the respondent's occupation. The cost of this service to the Council was £12,400.

First Incident

4.7 The first incident arose when a member of staff from Langcraigs Home ("Langcraigs") was sent to speak to Mrs Cardiff at Leven Cottage. Mrs Cardiff had relocated to Langcraigs Home towards the end of November 2005 and had been there for a few weeks. According to Social Work staff she had settled in well. On 15 December 2005 Mrs Cardiff returned to Leven Cottage, accompanied by her niece, apparently to visit Mr Toole and the staff. While she was there she became reluctant to return to Langcraigs. Ms Agnes Trotter (Assistant Principal Officer, Community Care) was contacted by staff and made aware of this and she asked Ms Kathleen McCurdie, a skilled care worker based at Langcraigs, with 16 years care experience, to visit Leven Cottage and speak to Mrs Cardiff to ascertain her wishes.

4.8 When interviewed in the course of investigating this complaint, Ms McCurdie stated that she went to Leven Cottage on the evening of 15 December, as requested. Mrs Cardiff was in the conservatory and she began to talk to her to establish her wishes and how she felt. Councillor Bollan appeared and stood in front of Ms McCurdie, approximately 4 feet away. He made it clear that he was there to represent Mrs Cardiff. Referring to Mrs Cardiff, he said to Ms McCurdie "Do you not hear the woman." A colleague of Ms McCurdie's (Ms May Cairns) who had accompanied Ms McCurdie and who was present at the time, intervened and said to Councillor Bollan "She's only here to do her job". Ms McCurdie was concerned that Mrs Cardiff was scared by Councillor Bollan's conduct.

4.9 Ms McCurdie stated that she did not put any pressure on Mrs Cardiff to leave Leven Cottage. She said that she had been prevented by Councillor Bollan from talking freely to Mrs Cardiff and had been unable fully to establish Mrs Cardiff's wishes. She considered that she had been prevented by Councillor Bollan from doing her job and felt that he had shown no respect for her role. She considered Councillor Bollan's demeanour to be intimidating and had felt threatened by his conduct. She said that Councillor Bollan later apologised to her for having spoken to her in the manner he had done. Ms McCurdie reported the incident verbally to her team leader on 15 December 2005 and, subsequently, to Ms Trotter. She declined to make a formal complaint at the time but later agreed to the matter being treated as a formal complaint.

4.10 At interview Ms Cairns stated that when Ms McCurdie began to speak to Mrs Cardiff the respondent came into the room and spoke loudly to Ms McCurdie. Ms Cairns could not recall the respondent's actual words but she told him not to shout as Ms McCurdie was only doing her job. She regarded the respondent's demeanour as overpowering and threatening and said that Ms McCurdie seemed taken aback by his conduct.

4.11 Councillor Craig McLaughlin, a SNP member of the Council, was present in Leven Cottage on 15 December 2005 in support of the respondent's action to prevent its closure. At interview he stated that he had not witnessed the exchange between the respondent and Ms McCurdie.

4.12 In his written response the respondent states that, at the time of his occupation of Leven Cottage, he was acting as Mr Toole's representative and also, when her niece was not available and with her niece's consent, as Mrs Cardiff's representative. It is accepted by Social Work management staff that the respondent was entitled to be present at meetings when substantive issues about the care of these residents were being discussed and decided. In relation to the incident involving Ms McCurdie the respondent states that when Mrs Cardiff visited Leven Cottage on 15 December 2005 she approached him and told him that she did not want to return to Langcraigs but wanted to stay in Leven Cottage. She asked him if that was alright and he said that it was. He suggested to her that she should remain at Leven Cottage that night and the matter could be discussed the next day. He then advised the duty staff member that Mrs Cardiff would be staying at Leven Cottage, as it was getting late, and asked her to make up a room for Mrs Cardiff.

4.13 The respondent alleges that Mrs McCurdie asked Mrs Cardiff three times if she wanted to return to Langcraigs and, on each occasion, she indicated that she wished to remain in Leven Cottage. On the third occasion he intervened and advised Ms McCurdie that Mrs Cardiff had already said twice that she wished to remain in Leven Cottage and that it was unreasonable to continue posing the same question as Mrs Cardiff was very tired and was becoming upset.

4.14 At interview the respondent acknowledged that he had intervened when Ms McCurdie was speaking to Mrs Cardiff but denied that he had been aggressive or that he had prevented her from doing her job. He accepted that, a short time later, he said to Ms McCurdie that he was sorry she had got caught up in the exchange and realised that she was only doing her job.

Second Incident

4.15 The second incident relates to a visit to Leven Cottage by Ms Agnes Trotter (Assistant Principal Officer, Social Work) on 22 February 2006. The complaint alleges that, when Ms Trotter was speaking to Mr Toole, (one of the 2 remaining residents) she was interrupted by the respondent and, as she was leaving the lounge area, the respondent shouted across the room to her "Did you sleep well in your bed last night, Agnes?" At interview Ms Trotter stated that she took the respondent's comments to be a reference to a review meeting for Mr Toole which she had attended the previous evening. She was not physically threatened by Councillor Bollan but she felt that the manner in which he made the comment was intended to make her feel guilty. She replied by saying that she had a social and moral conscience.

4.16 At interview the respondent acknowledged that he made the comment attributed to him and explained that he was referring to the pressure which Ms Trotter was putting on Mr Toole and Mrs Cardiff to leave their home.

Third Incident

4.17 The third incident occurred during a visit by Ms Trotter to Leven Cottage on 27 February 2006. The complaint alleges that on that occasion a large number of protesters (estimated to be at least 16 people) had been admitted to the Home by someone other than a member of staff. Ms Trotter was concerned, from a health and safety aspect, about the number of persons in the Home and she approached the respondent to express her concern and to ask him to limit the number of people coming into the Home. She had only begun to speak to him when she was cut off as he brushed past her saying in a loud and aggressive manner "They're Robert's (Mr Toole's) visitors". At interview Ms Trotter described the respondent's demeanour as dismissive and aggressive and said that she felt demeaned by his reaction.

4.18 Councillor Craig McLaughlin (a SNP member of the Council) was also present in the Home on this occasion. At interview he agreed with the nature of the verbal exchange which took place between the respondent and Ms Trotter, as described in the complaint, but stated that the respondent had not shouted at Ms Trotter.

Fourth Incident

4.20 The fourth incident involved the respondent and Mrs Theresa Westwood who was the Unit Manager of Leven Cottage at the time the incident took place on 22 March 2006. Mrs Westwood has 27 years' experience of working in care. To understand the context in which this incident took place it is relevant to refer to a meeting which took place on 23 February 2006 and to a further meeting on 22 March 2006.

4.21 On 23 February 2006 a Home Help Organiser (Mrs Sandra Scott) met with Mrs Cardiff. The meeting was also attended by the Unit Manager and the respondent. Mrs Cardiff had indicated that she was happy for the respondent to be present. The purpose of the meeting was to complete an assessment form to enable Social Work staff to determine the nature and extent of home help care which Mrs Cardiff would require when her care regime changed from residential care to home help care, which change would occur when Leven Cottage ceased to operate as a residential home and if Mrs Cardiff refused the Council's offer of residential care at another residential home. On completion of the assessment it is normal practice to get the person being assessed to sign the assessment form but because of the somewhat unusual circumstances of the case (reverting from residential care to home help care) and the need to obtain additional information from other sources the Home Help Organiser decided to defer the signing to a subsequent meeting.

4.23 The respondent states that Mrs Cardiff's niece had formally advised the SWD management that in her absence he would be Annie's advocate for any matters relating to her care package or her occupancy of Leven Cottage. He alleges that, at the end of the meeting, he asked for a copy of the assessment form to be sent to Mrs Cardiff's niece so that she could review the form before Mrs Cardiff signed it. He states that the Home Help Organiser and the Unit Manager agreed to this proposal and said that a copy of the form would be sent to Mrs Cardiff's niece so that she could discuss it with Mrs Cardiff before she signed it. He subsequently learned from Mrs Cardiff's niece that she had not received a copy of the form. On 22 March 2006 he was advised by Mrs Cardiff that she had signed the assessment form at the meeting which took place that morning. On learning that a meeting had taken place without him being present he was angry and approached the Unit Manager for an explanation. It was at this point that the incident with the Unit Manager occurred.

4.24 The Unit Manager states that she advised the Home Help Organiser that the respondent should be present at the meeting on 22 March 2006. She says that the Home Help Organiser contacted her manager and was advised that the respondent did not need to be present at the meeting.

4.25 The Home Help Organiser states that, at the meeting on 23 February 2006, the respondent did not ask for a copy of the form to be sent to Mrs Cardiff's niece. If he had done so she would not have agreed as this in not the normal procedure; a form is never sent to a relative unless the client specifically requests this. She says that Mrs Cardiff's niece telephoned her the following day. She advised her that there was a copy of the form in Leven Cottage and that she could see it there. Mrs Cardiff's niece indicated that she was not unduly concerned but that the respondent was more interested.

4.26 The Home Help Organiser also states that Mrs Cardiff did not request the respondent's presence at the meeting on 22 March 2006 and she cannot recall the Unit Manager suggesting that he should be present. She subsequently learned from the Unit Manager that, during the incident with the respondent on 22 March 2006, he had said that he was going to get her mate. She took this to be a reference to her but, although she felt uncomfortable about the remark, she did not pursue the matter.

4.27 The complaint alleges that, when the respondent was told by Mrs Cardiff that she had been asked and had signed the assessment form at the meeting on 22 March 2006, he approached the Unit Manager and questioned her about the form. She tried to explain the purpose of the form but the respondent interrupted her by shouting and pointing his finger close to her face. He shouted "I've looked into your family background and you're out of here". The Unit Manager was extremely upset by the incident and said "Please stop shouting at me and please don't point your finger at me it only shows your upbringing." She then walked away but the respondent shouted after her "Aye, you can fuck off".

4.28 A few minutes later the Unit Manager met the respondent in the corridor and he said to her "You realise that you are abusing Mrs Cardiff; you promised you wouldn't get her to sign anything unless Maureen (her niece) was there". The Unit Manager indicated that she had made no such promise and the respondent then called her a liar and shouted at her "Your number is up. I'll pin you to the wall." Once again the respondent was pointing at her face. She asked him not to point at her face and he replied "Some face".

4.29 The Unit Manager felt extremely intimidated by the incident and was especially concerned that her family had been mentioned. She decided to speak to the respondent about this and returned to the lounge. She calmly asked the respondent not to bring her family into the situation as this was her place of work. He responded by shouting at her and ordering her out of the lounge. He shouted "Go, get out of here. Go away. I'll get your mate as well." The Unit Manager understood this to be a reference to the Home Help Organiser who had attended the meetings with Mrs Cardiff.

4.30 At interview the Unit Manager confirmed the substance of the complaint and said that she felt extremely intimidated and upset by the incident. She said that the respondent was very angry and described his demeanour as evil. A short time later she completed a Violent Incident Report Form, in accordance with the Council's approved procedures, and obtained counselling and support from other members of staff. More generally, the Unit Manager said that the respondent frequently admitted persons to the Home without recording their presence (which is contrary to required practice) with the result that she did not know who was in the Home and why they were there. During the period of the sit-in a protest demonstration against the closure of the Home had taken place outside at lunch time every Friday and, afterwards, the protesters had been admitted to the Home. The Unit Manager stated that the respondent had said that he was in charge of the Unit and that his presence had been disruptive to the running of the Home.

4.31 The respondent states that Mrs Cardiff had approached him and told him that she had been asked to sign a form which would lead to her care being cut from 24 hours residential care to 4 hours home care per day, without having had the form read out to her. She told him that the Unit Manager had advised her that she was too busy to read it to her, just to sign it and she would read it to her the next day when she had more time. He then phoned Mrs Cardiff's niece who advised him that she had not received a copy of the assessment form, as promised, and that she had not been advised that Mrs Cardiff was being asked to sign the form.

4.32 In his written response the respondent states that on learning that Mrs Cardiff had been duped into signing the form he had a heated conversation with the Unit Manager. He denies that he swore at her or that he referred to her family. He acknowledges that his voice was raised, that it was quite a heated exchange and that he referred to the Unit Manager's supposedly caring position in Leven Cottage. He refers to a complaint which he had made to the Care Commission in January 2006 about procedures in Leven Cottage which the Care Commission had upheld. After carrying out an investigation the Care Commission had concluded that two service users had been given short notice of their move to another care home and that they should have been offered the opportunity to have a representative present whilst signing documents.

4.33 At interview the respondent said he was angry when he discovered that Mrs Cardiff had been asked to sign a form without him being present and without the original form having been sent to her niece, as promised. He denied that he said anything to the Unit Manager about her family but acknowledged that he had told her that she would be hearing more about the incident. He accepted that he may have said that he knew about her background (as an employee). He also acknowledged that he pointed at her (but that he was not close to her) that he told her to "f off" and that he said she was a liar and that her number was up, meaning that the matter would have serious consequences for her. He also told her to get out and that her colleague was in trouble as well. He denied that he threatened her or that he said he would pin her to the wall. The respondent claims that the Unit Manager swore at him several times, shouted at the top of her voice and generally conducted herself in an inappropriate manner for a unit manager in an elderly care home.

4.34 A security officer (Mr Peter Brown) employed by the external firm appointed by the Council, was in Leven Cottage on the morning of the incident between the respondent and the Unit Manager. At interview he said that he had known the respondent from his school days but that they had not kept in touch. He estimated that, on some days, as many as 30 visitors came into the Home. On the morning of the incident he was in a small room opposite the lounge when he heard the respondent's raised voice and saw him pointing at the Unit Manager. The respondent appeared to be angry because something had been done without consulting him. There was a heated exchange which lasted a couple of minutes. He did not hear clearly what was said and he did not hear the respondent swear. He said that the Unit Manager looked frightened when the exchange was taking place.

4.35 Mr Thomas Heaney was present in Leven Cottage on the morning of 22 March 2006. Mr Heaney had supported the respondent in his opposition to the closure of Leven Cottage by sleeping overnight on the premises for six to seven weeks and attending the Friday protest demonstrations. At interview he stated that he had witnessed words being exchanged between the respondent and the Unit Manager but he had not heard what was said because of the noise of the television. He said that he was a friend of the respondent and that he had never heard him raise his voice.

4.36 The Acting Director of Social Work (Mr William Clark) who was closely involved with the closure of Leven Cottage, wrote to Mrs Cardiff on 13 February and 10 April 2006 explaining the reality of Leven Cottage's closure as a residential unit and the need for her to re-assess her care and support needs to prepare for her effective discharge from residential care (if she continued to refuse the offer of such care at another Council residential home). The letters were copied to the respondent and to Mrs Cardiff's relatives. The Acting Director states that, during the early phase of this period, the respondent obstructed efforts to prepare for this eventuality by not allowing Welfare Rights staff to do benefits checks because this would have meant a concession that the residents would be deemed to have left care. The Acting Director also wrote to the respondent, on 13 February 2006, requesting him to vacate the premises without delay. He wrote to him again after the incident on 7 April 2006, advising him that he considered that he had acted in an aggressive and threatening manner towards the Unit Manager.

4.37 Leven Cottage was deregulated on 12 April 2006 and ceased to operate as a residential unit. It was acquired from the Council by Cordale Housing Association for use as Sheltered Housing. Both Mr Toole and Mrs Cardiff elected to remain in Leven Cottage after the transfer to Cordale Housing Association and continued to be cared for by the Council under home care arrangements.

Findings and Conclusion

5.1 The complainant alleges that Councillor James Bollan contravened the Councillors' Code of Conduct, as outlined in paragraphs 1.3 and 2.1 of this Report. Councillor Bollan is an elected member of West Dunbartonshire Council and 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 he has undertaken to meet the requirements of the Code of Conduct.

5.2 The complaint alleges that the respondent acted in a confrontational manner towards three Council employees in the course of their employment at the Council's residential care home at Leven Cottage, Alexandria and that he prevented them from doing their duties. The complainant also alleges that the respondent shouted and acted aggressively towards the three employees and that, by doing so, intimidated them.

5.3 The key principle of Respect, which is set out in paragraph 3.2 of the Code, requires councillors to respect Council employees and the role they play and to treat them with courtesy at all times. Paragraph 3.3 of the Code requires councillors to respect the different roles between officers and councillors and makes it clear that it is the responsibility of officers to ensure that the policies of the Council are implemented and that councillors should not engage in direct operational management of the Council's services.

5.4 Annex C of the Code also refers to the way in which councillors and employees should behave towards one another. While it does not cover every situation which can arise, it does stipulate that councillors and officers should work in an atmosphere of mutual trust and respect, with neither party seeking to take unfair advantage of their position.

5.5 The Council also has two internal Policy documents which refer to officers and members. The first paper is entitled "Policy on Dignity at Work" and includes the following statements:

"As an Equal Opportunities employer the Council is committed to ensuring that no employees are subjected to any type of offensive behaviour such as harassment, discrimination, victimisation or bullying."

"In recognition of both its managerial and legal responsibilities, the Council is committed to the achievement of a working environment in which all employees are treated with fairness, respect and dignity."

The policy is directed primarily at conduct between employees but it recognises that, in some instances, the prospective offender may not be an employee of the Council. The policy provides for complaints to be reported in writing to an employee's Head of Service.

5.6 The second policy paper is entitled "An Approved Protocol for Member/ Officer Relations". A revised version of this paper was approved on 31 March 2004, to take account of the Ethical Standards in Public Life etc. (Scotland) Act 2000 and The Councillors' Code of Conduct. The protocol lists, as one of its guiding principles for officers and members, the need to behave with mutual courtesy. The document sets out the respective roles of officers and members and makes it clear that officers have an obligation to implement the decisions of the Council. The document states that members must not apply pressure to an officer to act against the instructions of management. In addition, it advises members that they should not bring undue influence to bear on an officer to take any action which is contrary to law or against the Council's approved procedures. There is provision for employees to raise concerns or complaints with their departmental Director or with the Chief Executive.

5.7 It is clear from these policy documents that the Council recognises the need for councillors to treat officers with respect and to differentiate between councillors' responsibility for determining policy and officers' responsibility for operational management and the implementation of policy. Together with the Councillors' Code of Conduct the two internal policy documents set out these respective roles and responsibilities clearly.

5.8 In all the incidents, the respondent was acting in his capacity as a councillor on behalf of constituents, Mr Toole and Mrs Cardiff.

First Incident

5.9 This part of the complaint relates to the exchange which took place between the respondent and Ms Kathleen McCurdie when Ms McCurdie was sent to Leven Cottage to establish whether Mrs Cardiff wished to return to Langcraigs or remain in Leven Cottage. Ms McCurdie alleges that, as she attempted to speak to Mrs Cardiff, the respondent intervened and said to her "Do you not hear the woman" (referring to Mrs Cardiff). Ms McCurdie considered the respondent's demeanour to be intimidating and felt threatened by his conduct; she considers that he prevented her from doing her job.

5.10 This incident was witnessed by Ms May Cairns, a colleague of Ms McCurdie's. Although she could not hear what the respondent had actually said to Ms McCurdie she was concerned by his conduct and said to him "She's only here to do her job". She regards the respondent's conduct as over powering and threatening and said that Ms McCurdie was taken aback by his conduct.

5.11 The respondent acknowledges that he intervened when Ms McCurdie was speaking to Mrs Cardiff but denies that he was aggressive or that he prevented her from doing her job. A short time later he apologised for the exchange and said that he realised she was only doing her job.

5.12 Based on the evidence available I find that the respondent intervened when Ms McCurdie was attempting to speak to Mrs Cardiff to ascertain her wishes. I also find that, while he did so in what could be regarded as an offensive manner, his conduct was not of a degree which could reasonably be taken to amount to a contravention of the Code.

Second Incident

5.13 The second incident relates to a visit to Leven Cottage by Ms Agnes Trotter (Assistant Principal Officer, Social Work) on 22 February 2006 when it is alleged that the respondent interrupted Ms Trotter when she was speaking to Mr Toole and said "Did you sleep well in your bed last night, Agnes"? Ms Trotter states that she was not physically threatened by the respondent but feels that the comment was intended to make her feel guilty.

5.14 There are no witnesses to this incident but the respondent acknowledges that he made the comment attributed to him. Accordingly, I find that the complainant spoke to Ms Trotter in the terms complained of but, while his comments were gratuitous and could be regarded as offensive I do not consider that his conduct could reasonably be taken to amount to a contravention of the Code.

Third Incident

5.15 The third incident is similar in nature to the second incident and occurred when Ms Trotter visited Leven Cottage on 27 February 2006. Ms Trotter alleges that, on that occasion, she was concerned from a health and safety aspect about the number of visitors in the Home. When she asked the respondent to limit the number of people coming into the Home she alleges that he said to her in a loud and aggressive manner "They're Robert's visitors". She considers that his demeanour was dismissive and aggressive and she felt demeaned by the remark.

5.16 The respondent accepts that he spoke to Ms Trotter in the terms complained of but claims that it was necessary to speak in a loud voice to make himself heard. He denies that he was aggressive.

5.17 Councillor Craig McLaughlin, who supported the respondent in his protest against the closure of Leven Cottage, witnessed the exchange between the respondent and Ms Trotter. He does not consider that the respondent shouted at Ms Trotter.

5.18 In relation to this aspect of the complaint I find that the respondent spoke to Ms Trotter in the terms complained of but while I consider that he displayed a degree of rudeness towards Ms Trotter I find that his conduct could not reasonably be taken to amount to a contravention of the Code.

Fourth Incident

5.19 The fourth incident involved the exchange with the Unit Manager, following the meeting which took place with Mrs Cardiff on 22 March 2006. The details of the incident are as set out in paragraphs 4.20 to 4.35 above.

5.20 The respondent's explanation for his conduct is that he was angry on learning that a meeting had taken place with Mrs Cardiff to which he had not been invited. In this connection the respondent makes two allegations. His first allegation is that Social Work staff did not comply with an undertaking they had given, following the meeting with Mrs Cardiff on 23 February 2006, to send a copy of her assessment form to her niece. There is a conflict of evidence between the respondent and Social Work staff as to whether any such undertaking was given and, in the absence of independent evidence, I am unable to determine the facts of this matter and accordingly make no finding.

5.21 The respondent's second allegation is that, as Mrs Cardiff's representative, he was entitled to be present at the meeting on 22 March 2006 which was for the purpose of securing her signature on the assessment form. The Unit Manager stated that she had suggested to the Home Help Organiser that the respondent should be invited to the meeting but that, after contacting a more senior officer, it had been decided that this was not necessary. At interview the Home Help Organiser said she could not recall the Unit Manager having suggested that the respondent should attend the interview and that, in any event, the securing of the client's signature on the form was not a significant event as the care plan which would flow from it was flexible and could be modified in the future, if this was necessary to meet Mrs Cardiff's needs.

5.22 In adjudicating on this issue it is relevant to point out that as a result of complaints which the respondent had previously made to the Care Commission, regarding the notice given to clients moving to another Home and the absence of representatives when clients were being asked to sign documents, the Care Commission had concluded, among other things, that the clients had been given short notice of their move and that clients should have been offered the opportunity to have a representative present when signing documents. In view of these conclusions I consider that it would have been prudent for Social Work staff to have offered the respondent the opportunity of being present at the meeting with Mrs Cardiff on 22 March 2006. I do not consider, however, that the respondent's alleged anger arising from his absence from the meeting can be used as justification for his conduct in the exchange which took place with the Unit Manager.

5.23 Paragraphs 5.19 to 5.22 describe the events leading up to the exchange between the respondent and the Unit Manager which forms the substance of this part of the complaint. It is now necessary to examine and form a view on the complaint itself.

5.24 There were two potential witnesses to the incident involving the respondent and the Unit Manager. At interview they were able to confirm that an incident had taken place but neither was able to provide meaningful evidence as to what the respondent had actually said to the Unit Manager. It is necessary, therefore, to examine the Unit Manager's individual allegations and the respondent's responses thereto in order to form a conclusion about the complaint.

5.25 The Unit Manager alleges that the respondent interrupted her by shouting at her and pointing his finger close to her face. The respondent accepts that the exchange which took place was heated, that he raised his voice and that he pointed at the Unit Manager, but states that he was not close to her. The Unit Manager also alleges that the respondent said "I've looked into your family background and you're out of here". The respondent denies that he mentioned her family but accepts that he may have said that he knew about her background as an employee and that he told her she was in the wrong profession.

5.26 The Unit Manager further alleges that the respondent told her to "fuck off" and, a few minutes later, called her a liar and shouted "Your number is up, I'll pin you to the wall". The respondent accepts that he told the Unit Manager to "f off" and that she was a liar. He also accepts that he told her that her number was up but denies that he threatened to pin her to the wall.

5.27 The Unit Manager's final allegation is that the respondent ordered her out of the lounge saying "Go, get out of here. Go away. I'll get your mate as well". The respondent accepts that he told her to get out and said that her colleague was in trouble as well. At the concluding stage of the investigation the respondent intimated that, if the Unit Manager or any other member of staff felt threatened or intimidated by his behaviour over his six month occupation of Leven Cottage, he would assure them that it was unintentional and he unreservedly apologises.

5.28 The Councillors' Code of Conduct does not exclude robust discussion or the forthright expression of views. However there is scope for comment, and conduct generally, to cross the boundary of acceptability. In assessing the respondent's conduct in the incidents involving Ms McCurdie and Ms Trotter I concluded that, while his comments were offensive, his conduct did not amount to a contravention of the Code. I am of the view, however, that his conduct in these instances is indicative of an attitude that, when dealing with Council employees, the normal courtesies which comprise acceptable behaviour do not need to be observed.

5.29 The Unit Manager described her exchange with the respondent in some detail. I regard her evidence of the incident as entirely credible and I am reinforced in this view by the respondent's own admissions, at interview, which confirm, in large measure, the Unit Manager's account of the respondent's conduct. Based on the Unit Manager's evidence and the respondent's own admissions I find that the respondent shouted at the Unit Manager (she being an officer and employee of the Council), pointed at her, told her to "get out" and that her "number was up", told her that she was in the wrong profession, called her a liar and told her to "f off." Based on the Unit Manager's evidence that she felt extremely intimidated by the respondent's conduct, as supported by the evidence of one of the witnesses (Mr Peter Brown) that the Unit Manager looked frightened, I find that the respondent's language and demeanour towards the Unit Manager were threatening and intimidating. Accordingly, I find that the respondent's language, demeanour and conduct to the Unit Manager were discourteous, derogatory, disrespectful, threatening and intimidating and, therefore, that he breached paragraphs 3.2 and 3.4 of, and paragraph 2 of Annex C of, the Code and failed to comply with the key principle of Respect set out in section 2 of the Code.

5.30 In relation to complaint number LA/WD/425 I have come to the conclusion that, having regard to the findings in section 5 of this Report, Councillor James Bollan has contravened the Councillors' Code of Conduct.

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