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Complaint no. LA/As/764 and LA/As/780 concerning an alleged contravention of the Councillors’ Code of Conduct by Councillor Paul Johnston of Aberdeenshire Council

1. Complaint numbers LA/As/764 and LA/As/780 alleged contraventions of the Councillors’ Code of Conduct (“the Code”) by Councillor Paul Johnston (“the respondent”).

2. It was alleged that the respondent had contravened the Code, in particular, the provisions of section 3 as they relate to the Relationship with Council Employees, of Annex C in regard to Public Comment, and the key principles of Duty, Leadership and Respect set out in section 2.

3. The background to the complaint was a controversial planning application to construct a golf course, hotel, and housing development at Menie Estate, Aberdeenshire.  In compliance with Council policy and national guidance negotiations were entered into with the developer with a view to obtaining an element of community benefit through a planning agreement under section 75 of the Town and Country Planning (Scotland) Act 1997.  In relation to the application the developer was asked to provide roads, educational, employment, and affordable housing infrastructure.  The Council proposed that the affordable housing element should be provided at Balmedie, a village within the respondent’s ward which is detached from the application site, and it was in this connection that the respondent was quoted in a newspaper article. 

4. The persons complaining (“the complainants”) alleged that by making critical and inaccurate comments to the press, which were published by the Sunday Herald newspaper on 29 June 2008, about the Council’s negotiations with an applicant for planning permission, the respondent  a) brought the Council into disrepute, and b) cast doubt on the propriety of the work carried out by the Council’s Planning Co-ordinator in exercise of delegated powers to negotiate and conclude agreements made under section 75 of the Town and Country Planning (Scotland) Act 1997. The respondent sought a review of his conduct by means of self-referral.

5. Article 10 of the European Convention of Human Rights applied by the Human Rights Act 1998 and the Scotland Act 1998 provide the right to freedom of expression.  Only in exceptional circumstances can this be restricted.

6. In this case the respondent acceded to an interview in response to a request from a press reporter.  The issues raised were within the public domain having been considered during an open session of a Public Local Inquiry held to determine a planning application.  The press reporter was aware of the respondent’s position as an opponent of the application and the concerns which he had expressed in evidence to the Inquiry about the proposed planning agreement which contemplated a significant development of affordable housing within his ward.

7. The complainants averred that those parts of the press article which relied on direct quotes, or were otherwise derived from comments made by the respondent, were damaging to the reputation of the Council, implied an element of impropriety in the Council’s planning gain procedure, and by extension criticised the Planning Gain Co-ordinator as the senior officer of the Council charged with negotiating the agreement with the developer.  The respondent denied any such intent.

8. In assessing this complaint I examined the article itself, identified those parts which were attributable to the respondent, and scrutinised their accuracy, interpretation, and intent. 

9. The context was relevant in that the respondent’s actions in speaking to the press could not be divorced from his opposition to the application and his participation in the Public Inquiry.  While the application itself had been called-in by Scottish Ministers and was thus taken outwith the Council’s decision-making role as a planning authority, the Council was minded to support the application and gave evidence to that effect at the Inquiry.  The controversy that had surrounded the Council’s initial approval of the application at the Area Committee stage, the narrow decision by the Infrastructure Services Committee to overturn that decision, and the subsequent resolution in Full Council in favour of the application, together with the scale and nature of the development proposals, had combined to create considerable media publicity and exposed the Council to public scrutiny of its planning procedures. Those Councillors who were opposed to the application, including the respondent, became the subject of personal criticism, particularly as their stance conflicted with the majority view of their own Liberal-Democrat Group which had expressed support for the development.

10. In the course of considering the application the Council sought an element of community benefit from the developer.  Negotiations on this issue were conducted by the Planning Gain Co-ordinator in isolation from the consideration of the application by Councillors, the purpose being to ensure that their decision was not influenced by detailed knowledge of the potential planning-gain which might arise.  This procedure was in accordance with agreed Council policy, and had been endorsed by a scrutiny undertaken by the Scrutiny and Audit Committee.

11. The respondent stated that he was in agreement with this policy but that in this case the provision of affordable housing within his ward at a location remote from the application site gave him particular concern which he wished to air in evidence to the Public Inquiry.  He felt justified in further highlighting his concerns when invited to speak to the press.  In so doing he also provided a copy of the draft Heads of Terms document (which had formed the basis for the still-pending planning agreement) to the reporter, a document that would normally have been regarded as confidential and would not have been put before members but which had entered the public domain when considered as part of the evidence at the Inquiry.

12. The substantive provisions of the Code which it was alleged that the respondent has breached are section 3 and Annex C. Paragraph 3.2 of the Code requires Councillors to respect Council employees and the role that they play, treating them with consideration at all times.  Paragraph 3.3 makes it clear that the role of Councillors is to determine policy and not engage in direct operational management of the Council’s services.  Annex C bars councillors from publicly raising matters relating to the conduct or capability of Council officers. 

13. The officer most directly involved in the planning-gain negotiations was the Planning Gain Co-ordinator.   Although he was not named or identified by his designation in the article giving rise to this complaint, and had not himself raised a complaint, the complainants expressed a view that the Co-ordinator’s leading role was evident, at least to the applicant and other  parties with whom planning gain negotiations are conducted.  The use of emotive language in the article could have been interpreted as impugning the Co-ordinator’s integrity with consequent adverse impact on his future role as a negotiator.  The Co-ordinator himself described his reaction on reading the article as ‘incandescent’ but he accepted that there had been no apparent impact on his relationship with the developer involved in the specific application, or more generally in relation to negotiations with other parties.  I had no doubt however that there were elements in the article that could have impacted on the negotiating function which relies on the confidence of all parties in the process.

14. As the complaint relies on the article itself it was essential to establish the degree to which the report accurately reflected the comments made by Councillor Johnston to the reporter.  The respondent accepted that he did not deny the quotes attributed to him during his meeting with the Monitoring Officer on 8 July 2008.  He expressed a view however that he was not questioned on a word-by-word basis and that his failure to deny the authenticity of the quotes in general terms should not have been taken as a definitive acceptance of complete accuracy.  In particular he averred that he did not use the term ‘sweetener’ which appeared both in the headline and text of the article, and opined that this had been taken out of context as a corruption of the phrase ‘a sweet deal’ which he had not intended to be interpreted as a pejorative comment.  The interview with the Sunday Herald reporter was undertaken by telephone and given that it took place over a period estimated as lasting some ninety minutes it was clear that the report itself was an edited précis of the discussion.  Nevertheless the reporter verified his article with the respondent prior to publication and if the latter had any serious concerns as to the content he had not felt the need to amend the article as read to him at that stage. 

15. The complainants took particular exception to the paragraphs which read:

“We are giving land worth millions without any councillor approving it,” said Johnston.  “Is this the best value for the electorate?  Councillors cannot stop this happening.  To me, this looks pretty much like a sweetener.  Openness and transparency are needed in this sort of process.  The Council has the power to do what it is doing, but whether it is the right thing to do is a completely different matter.

“Is this the right thing to do to hand Donald Trump a public subsidy to add to his profit?  No. it is not.  It is shocking.  Council officials are dispensing assets worth millions.  There is something wrong here.  I think this is a pact with the devil.”

16. The generality of the assertion contained in these paragraphs was to the effect that public land was being provided to the developer free of charge, that it was being offered to encourage the development, that it did not provide best value and that no elected member approval has been sought.  It was important to be clear on the key facts behind the draft Heads of agreement.

17. Firstly the Agreement itself was drafted under section 75 of the Town and Country Planning (Scotland) Act 1997 and in terms of Circular 12/1996 which states, at paragraph 4, that “the Government believes that planning agreements have a limited but useful role to play in the development control process but they should only be sought where they are required to make a proposal acceptable in land use planning terms.”  In this case the Government finally decided to grant outline planning permission provided the Agreement was signed.  Secondly, the Agreement related to land at Balmedie that belonged to the Castlehill Housing Association which the Council had sold to the Association with entry in February 2008.  Thirdly, the Agreement required the developer to provide (among other things including education and community facilities and road improvements) 98 affordable house units which would be owned (when completed) by the Association (or as a fallback to pay the Council £7.35 millions for them to construct the units).  Fourthly, part of the land would be used by the developer to build and sell 52 open market housing units, with the developer receiving the proceeds of each sale at settlement of each transaction.  The developer was also required to pay a capital sum (finally agreed at £500,000) for community facilities relating to the new housing.  Fifthly, no purchase price was payable by the developer for the land.  Sixthly, the draft Agreement was negotiated by officials (acting under delegated powers) and the draft Heads of Agreement was at no time (even in a summarised form) laid before elected members when considering the planning application, notwithstanding that any grant of planning permission would have been subject to and determinant on the Agreement being finalised.

18. While it is true that no charge was being levied for the land the statement did not explain that the counterpart of the arrangement was that the developer was required to provide a considerable amount of housing on that land which would be made over to public ownership; equally it did not refer specifically to the fact that the developer would receive the sale prices relating to the private housing development.  The word ‘sweetener’ in association with this transfer could have been interpreted as suggesting no more than the Council was encouraging the development but it could also have been seen as emotive in its impact and suggestive of malpractice.  The respondent stated that he did not use that term but instead referred to ‘a sweet deal’.  I found it difficult to reconcile that wording with the context in which ‘sweetener’ had been used.  The editor of the Sunday Herald insisted that the word ‘sweetener’ was used by Councillor Johnston as quoted in the article, and I noted that quotes attributed to the respondent in a follow-up article also made use of this word.   Councillor Johnston’s version was less pejorative in its impact but still carried an implication of encouragement, if not indeed partiality, being shown towards, the developer.

19. The reference to ‘a pact with the devil’ was also unfortunate in that its meaning was capable of differing interpretation.  It could have been interpreted as a straightforward criticism of the deal or, particularly in the context of a negotiation between the Council and a developer, it might well have been viewed as suggesting impropriety.  The respondent denied this and stated that he used the phrase to indicate his view that by entering into the agreement over the Balmedie site the Council would fetter its subsequent freedom to consider impartially the necessary planning application. 

20. While the structure of the article was not in the respondent’s hands his approval of it before publication showed a lack of appreciation of its potential impact on the Council and Council officials.  The use of emotive language, and the lack of clarity regarding the main terms of the Agreement were unhelpful and misleading.  This might have been prevented by a more thoughtful approach and prior discussion with senior officers to ascertain the precise terms of the land transfer and the calculations on the community benefit to be derived.

21. The comments by Councillor Johnston were not overtly disrespectful and indeed he acknowledged that officers were acting within their powers.  However the manner in which he expressed himself (or in which his remarks were reported) showed a lack of consideration for their personal or professional impact.  While I took the view that the general tenor of the comments attributed, or attributable, to the respondent referred in parts to the role played by officers, this required to be set against the main thrust of his comments which were directed at the overall process which is guided by policy approved by the Council and endorsed by its Scrutiny and Audit Committee.

22. Paragraph 20 of Annex C bars Councillors from publicly raising matters relating to the conduct or capability of employees.  It does not require that employees referred to by Councillors must be specifically named but it is evident that the officer or officers must be identifiable.  A general criticism of a department might be too wide to fall within the scope of the provision, but where it is directed at a small and clearly identifiable unit, or indeed an individual officer who carries out a specific function, the bar on public comment may well apply.  In this case the Planning Gain Co-ordinator, was the principal official involved in the negotiations.  That officer certainly interpreted the article as applying to his function and took the view that elements in the article went to the heart of his role.  In particular he cited the use of the words ‘sweetener’, ‘demanding’, ‘gift’, ‘free’, and ‘backroom deals’ as having the potential to damage his own relationship with other parties in a confidential process of negotiation.  The Planning Gain Co-ordinator was not, however, referred to specifically by the respondent and I did not consider that an ordinary reader of the article would have interpreted the remarks as being critical of that officer.

23. There was no doubt that the direct quotes attributed to the respondent, and those elements of the article that appeared to be derived from his interview with the reporter, revealed a stance that was opposed to the inclusion of the Balmedie land transfer within the planning agreement negotiations.  The whole context of the article implied that the degree of autonomy given to the Council officers charged with conducting such negotiations, and the absence of scrutiny and ultimate approval by elected members, was inappropriate when the agreements could have aroused considerable public interest and concern.

24. The key principles contained in section 2 are not in themselves substantive terms of the Code but stand to be read in conjunction with the overall interpretation of the substantive provisions contained in sections 3 to 7 and Annex C.  I nevertheless considered the application of the principles of Duty and Leadership cited by the complainants (the issue of Respect having already been considered above). 

25. The key principle of Duty requires inter alia that Councillors should act in the interests of the Council as a whole.  While the comments attributed to the respondent expressed concern and criticized in emotive terms the policy applied by the Council in relation to the negotiation of planning agreements, it would be improper to interpret this as restricting elected members from voicing any criticism of Council policy.  Indeed it is a role of Councillors to scrutinize how effectively the Council is performing and whether it is achieving best value.  I did not consider that  the voicing of concerns which the respondent had already aired at the Public Inquiry, and which clearly affected the electorate within his ward, conflicted with the terms of the Code.

26. The key principle of Leadership requires councillors to show 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 overall tenor of the press article carried an implication that the Council’s policy in conducting planning-gain negotiations without any involvement of elected members was flawed.  I considered that in this case the respondent’s remarks were made in relation to a matter of significant public interest and, although he could have expressed himself more circumspectly and accurately, he was entitled as an elected member to express criticism of the process, particularly bearing in mind the draft Agreement had never (albeit intentionally) been put before elected members.

27. Criticism of Council processes does not automatically equate to a breach of the Code.  There are competing principles involved which require the conduct complained of to be weighed against freedom of expression and public interest.  Councillors are entitled to make public statements on matters of concern and are given protection by Article 10 of the European Convention on Human Rights which raises a presumption in favour of freedom of expression. 

28. In the whole circumstances of this case, the comments made by the respondent relating to the proposed Agreement were critical in nature but they were substantially fair comment on a matter of considerable public interest and he was entitled to make them.  In coming to this conclusion I had regard to the fact that, whilst the negotiations of planning agreements should be undertaken by officials and may require to be carried out on a confidential basis, at no time was the Agreement relating to the Menie Estate development put before elected members notwithstanding that it contained substantial provisions (including significant financial provisions) and that planning permission was subject to its being approved and signed by the Council and the developer.  In so far as the comments could be seen as disrespectful to officials, I considered that they were made in the context of general criticism of the process behind the Agreement and could not reasonably have been taken to be personal criticism of any individual officers.  I therefore concluded that the respondent had not breached the terms of the Councillors’ Code of Conduct.

29. Having said that, I observed that, whilst not wishing to take away from the right of any councillor properly to express criticism of Council policy or practice, the respondent would have done well to obtain clarity from Council officials on issues of such importance before committing himself to public comment; that was a responsibility he reasonably owed to his Council.

30. I also observed that whilst – as already indicated – the negotiations for planning agreements should be undertaken by officials, in the interests of openness and accountability the Council might consider how the terms of planning agreements might be imported to elected members where such agreements are a pre-requisite to the granting of planning permission.

31. Having considered the information that arose from my investigation, I concluded that, Councillor Paul Johnston had not contravened the Councillors’ Code of Conduct.

D Stuart Allan

Chief Investigating Officer

Forsyth House

Innova Campus

Rosyth Europarc

Rosyth

KY11 2UU

7 January 2009