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Complaint no. LA/As/137 concerning an alleged contravention of the Councillors' Code of Conduct by Councillor David Smith of Aberdeenshire Council

1. Complaint number LA/As/137 alleged a contravention of the Councillors' Code of Conduct ("the Code") by Councillor David Smith ("the respondent").

2. It was alleged that the respondent had contravened the Code, in particular, the key principles of Accountability and Stewardship, Openness, and Leadership contained in Section 2 of the Code.

3. The persons complaining ("the complainants") alleged that during a telephone conversation with the respondent he used language which was inappropriate to a professional discussion, and that the respondent displayed a reluctance to consider the views of local residents to a proposed water treatment plant. The respondent is their local ward councillor.

4. The complainants took occupancy of their house early in 2004. Shortly afterwards they became aware of a proposal to construct a water treatment plant in the vicinity of their house. The complainants were concerned that as neighbouring proprietors, neither they, nor their immediate neighbours, had received notification of the proposal. The first complainant became further concerned when he read a newspaper report of a public meeting in which it was reported that the respondent had welcomed the proposal.

5. The first complainant telephoned the respondent at his home address and, during the conversation, the respondent used inappropriate language.

6. The first complainant expressed his concerns over the siting of the proposed water treatment plant and that he had not known of this when he took occupancy of his house. The respondent asked when the first complainant had moved in and on being told it was a few months ago it is alleged that he told the complainant that he was "too new". The first complainant then referred to his neighbour also having no knowledge of the development, and it is alleged that the respondent made an off-hand comment about the neighbour.

7. The conversation, which lasted about ten minutes, concluded with the respondent stating that he would ascertain the current position regarding the treatment plant. The following day he contacted Scottish Water and established that several sites were under consideration but that no decision had been made, and no planning application. The respondent telephoned the complainants and left a message to this effect.

8. Following this contact with the respondent the complainants contacted their local newspaper. The report which subsequently appeared centred on the words used by the respondent during his conversation with the first complainant. The newspaper sought a comment from the respondent and quoted him as saying that his use of an expletive was "fair comment after a long day on the go", and that the references to the complainant's neighbour were "just a jocular way down the coast..." A letter was subsequently published in which the respondent apologised and gave an assurance that he listened to and understood the complainants' concerns. He later sent a letter of apology to the complainants.

9. The key principle of Leadership requires councillors to promote and support the key principles by leadership and example, and to maintain and strengthen the public's trust and confidence in the integrity of the Council and its councillors in conducting public business. There is no doubt that the contact made by the complainants with the respondent in this case was by way of public business, and that their expectation of an appropriate response to their concerns was not met. The language used by the respondent was unprofessional and showed a lack of consideration or judgement of the situation. While it would be wrong to condone the use of expletives in this context I accepted that no malice was intended by the respondent who was using a vernacular turn of phrase. The comment about the complainant's neighbour was inappropriate however and while it did not extend beyond a careless remark it did nothing to cure the impression of unhelpfulness given to the first complainant. I did not however consider that the remarks complained of were to the extent that they could reasonably be taken to be a breach of the Leadership principle and I found accordingly.

10. There was disagreement as to the interpretation to be placed upon the suggestion by the respondent that the complainants had not been long enough in their house to have been fully aware of the water treatment plant proposal. The first complainant stated that he interpreted this as meaning that being a relatively recent incomer to the area his views were of lesser importance than long-term residents. The respondent stated that the remark should be interpreted as meaning that the complainants had not been there over the lengthy period during which the proposal had been developed. While the first complainant's perception was valid I did not accept that this was the only interpretation that could be put on this statement and I did not view this remark as having been made in a discriminatory manner. I therefore found that in regard to the key principles of Accountability and Stewardship, and Openness, the respondent had not contravened the Code.

11. Turning now to the view taken by the complainants that the respondent's attitude implied support for the treatment plant it is relevant to note that the respondent was aware of the statutory requirement for the facility. Until such provision for the treatment of waste water is made the development of additional housing within the communities to be served by it will be severely constrained. The respondent stated at interview that as the plant was inevitable he had no interest in supporting or opposing it, his real interest being confined to the planning issue of its precise location. He intimated however that in view of the current complaint he might declare an interest when the matter comes before the Planning Committee.

12. As Scottish Water had not submitted a planning application to Aberdeenshire Council the matter of prior statements made by an elected member might be viewed as irrelevant. In this case however the placing of a water treatment plant in the area, and its statutory requirement, was a matter of public record and a planning application was probable. A councillor who is likely to be involved in the consideration of that application is required by the Code not only to be impartial, but also to give no grounds for doubting his impartiality. A distinction can however be drawn between the general principle of a particular development and the precise identification of a proposed site, and I was satisfied that the actings of the respondent in this case could not reasonably be taken as implying he would have a prejudiced view in his consideration of any subsequent application.

13. Having considered the information arising from my investigation, I concluded that Councillor David Smith had not contravened the Councillors' Code of Conduct.

D Stuart Allan,
Chief Investigating Officer.
Forsyth House
Innova Campus
Rosyth Europarc
Rosyth
Fife
KY11 2UU
3 March 2005