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Complaint no. LA/As/781 concerning an alleged contravention of the Councillors’ Code of Conduct by Councillor Bryan Stuart of Aberdeenshire Council

1. Complaint number LA/As/781 alleged a contravention of the Councillors’ Code of Conduct (“the Code”) by Councillor Bryan Stuart (“the respondent”).

2. It was alleged that the respondent had contravened the Code, in particular, the key principles of Duty, Leadership and Respect in paragraph 2.1 of the Code and paragraphs 3.2, 3.3 and 3.4 (Relationship with Council Employees).

3. The persons complaining (“the complainants”) Mr Alan Campbell (Chief Executive of Aberdeenshire Council at the time of the complaint, now retired) and Mr Neil McDowall (Director of Law and Administration, Aberdeenshire Council)] alleged that comments made by the respondent in a letter dated 13 June 2008 which he sent to a constituent (which was to be used by the constituent to support his representations to the Council and the Scottish Government against a planning application for a new Medical Centre complex known as the Garioch Life Centre) had brought the Council into disrepute, had been demonstrably disrespectful of the Council and its staff and had cast doubt on the propriety of the work carried out by the Council’s Planning and Property Services Departments and the Garioch Area Manager.

4. It was relevant to point out that there are no provisions in the Councillors’ Code of Conduct for Scotland relating to conduct which could bring a councillor’s authority into disrepute. Accordingly, this aspect of the complaint did not fall to be assessed under the Code.  It was relevant to consider the remaining elements of the complaint in relation to the Code and, in particular, paragraph 3.4 thereof and paragraph 20 of Annex C to the Code (Protocol for Relations between Councillors and Employees).  The latter paragraph stipulates that councillors should not raise matters relating to the conduct or capability of employees in public.

5. The respondent’s comments were made in a letter to one of his constituents.  The respondent made the point that a confidentiality clause which he included in the letter, indicating that the letter had been written in a confidential capacity on the basis that it would not be published, effectively meant that the letter was not in the public domain.  The constituent confirmed that he had used the letter to support his representations to the Council and the Scottish Government but that he had not passed the letter to the media.  However, the act of issuing the letter to the constituent meant that the respondent had commented on the conduct of employees to the constituent.  The inclusion of a confidentiality clause in the letter was of limited relevance as, in fact, the draft letter contained no such clause and, in any event, it was questionable whether the constituent would have been bound by its terms.  Its distribution by the constituent was restricted to the Council and the Scottish Government and was not made more widely available to the public.

6. The comments in the letter could be broadly divided into two categories; there were criticisms directed at the Council as a corporate body or at the Administration and there were a number of critical comments about officers of the Council.  The comments relating to officers were directed at individual officers (either by name or designation) and, in more general terms, at the officers of the Planning Department.  The following are examples of the comments relating to officers.

“The conduct of the Chief Executive’s Department and the Garioch Area Manager, Ian Fowell, is totally unacceptable in my view, and there appears to be good grounds for claiming maladministration.

This is a Trojan Horse to gain access to develop land that would not be accepted under any other circumstances but “community benefit.”  Yet the planning officer making the case for the second application was unable to specify any community benefit from this proposal.

The conduct of the planning department simply reinforces my view, and undoubtedly that of many others, that their procedures and application of policy is without meaningful integrity.”

In addition, the use of terminology such as “culpable, covert, hidden agenda and actions which are an insult to proper procedure and due process,” when used in relation to procedures involving officers of the Council (as in this case), could be construed as inferring some kind of improper conduct by those officers.

7. The comments in the respondent’s letter were based on a wide range of shortcomings which he perceived in the proposals for the GLC, in the actions of officers and in the Council’s processes and procedures.  These included, for example, his disagreement with the concept of the Centre as currently proposed, its location, the alleged pressure on planning officers to support the planning application, the lack of information provided by officers and the Council’s action in consulting with objectors by way of a notice in the press after planning permission had been (conditionally) granted rather than by writing to objectors individually.  The respondent’s perception was that the Council is run by officers and not by councillors.

8. From the information obtained during the course of my investigation from the Chief Executive, the Director of Planning and Environmental Services and the Garioch Area Manager, together with information obtained from the reports of the Planning Officers on the planning application for the GLC, I formed the view that, with the possible exception of his criticism of the delay by the Garioch Area Manager in responding to his email inquiry, the respondent’s comments, generally, were not well-founded and were a reflection of his opposition to the proposal and his disagreement with the Council’s decision to approve the application.  It was relevant to point out that, even if the respondent’s comments about officers had been fully justified, he would not have been permitted, in terms of the provisions of paragraph 20 of Annex C, to have raised matters relating to their conduct or capability in public.

9. The respondent wrote to the Chief Executive on 12 February 2008 outlining a range of concerns about the project.  The Chief Executive replied to the respondent on 3 April 2008 explaining the origins of the project, how it had evolved, the key role played by NHS Grampian in the current proposals and assuring him that the Council had acted entirely properly and professionally throughout this time.  The respondent was not satisfied with the Chief Executive’s response and he subsequently sent the letter dated 13 June 2008 to his constituent.

10. The respondent did not, at any time, seek to discuss his concerns with the Chief Executive, the Director of Planning and Environmental Services or the Garioch Area Manager.  To have done so would not only have been a courtesy to the officers concerned, it would also have given them the opportunity to explain the position to the respondent and may have enabled him to have formed a more balanced view and allayed at least some of his concerns.  I did not regard the respondent’s explanation that he was under other pressures at the time as sufficient reason for not discussing his concerns with the Chief Executive.

11. In assessing the respondent’s conduct it was necessary to have regard to the right to freedom of expression which is enshrined in Article 10 of the European Convention of Human Rights.  The exercise of that right is afforded a high level of protection particularly in relation to public services and public expenditure.  To the extent that the respondent’s comments were directed at the Council’s policies or the Administration of the Council I considered that his conduct was not constrained by the provisions of the Code.

12. The respondent’s comments in relation to the conduct of officers were, however, covered by paragraph 20 of Annex C to the Code which makes it clear that such comments should not be made in public.  I did not share the respondent’s view that the inclusion of a confidentiality clause in his letter (which the constituent was under no obligation to observe) was an effective safeguard to ensure that his comments were not in the public domain.  The very act of writing to the constituent meant that the comments could have been given wider public circulation and the fact that they were not circulated more widely or released to the media was due to the voluntary constraint exercised by the constituent.

13. In assessing whether the respondent’s action represented a breach of paragraph 20 of Annex C to the Code I took account of the fact that he is a relatively new councillor, that the officers at whom his comments were directed are senior officers, that at interview he acknowledged that his remarks were intemperate and, in particular, of the fact that the circulation of his comments appeared to have been restricted to, at most, the constituent and his wife.  Having regard to these factors I did not consider that it would be reasonable to regard his conduct as constituting a breach of paragraphs 3.2 to 3.4 or paragraph 20 of Annex C of the Code and I found accordingly.

14. The key principles of Duty, Leadership and Respect which the complainants also alleged had been breached are not substantive provisions but need to be read in conjunction with the specific rules of conduct in sections 3 to 7 and Annex C of the Code.  The part of the key principle of Duty which was most relevant to the complaint was the requirement to act in the interests of the Council as a whole.  This should not be construed as constraining councillors from commenting on Council policy or on the performance of the Administration, or from acting in support of a particular group of constituents.  Accordingly, I did not consider that the respondent’s comments on these issues constituted a breach of the key principle of Duty.

15. The key principle of Leadership requires councillors to maintain and strengthen the public’s trust and confidence in the integrity of the Council and its councillors in conducting public business.  The use of terminology such as “culpable, covert, hidden agenda and maladministration,” when used in relation to the Council’s processes and procedures, was unlikely to enhance the public’s trust in the integrity of the Council.  However, as the respondent’s comments did not appear to have received any exposure in the press or the media generally they had no impact on the public’s perception of the Council (apart, possibly, from the recipient of the letter) and, for this reason, I did not consider that they constituted a breach of the key principle of Leadership.

16. The key principle of Respect requires councillors, inter alia, to respect all Council employees and the role they play and is linked to the provisions of paragraphs 3.2 to 3.4 and Annex C to the Code.  However, for the reasons outlined in paragraph 13 above, in relation to those provisions, I did not consider that it would be reasonable to regard the respondent’s conduct as constituting a breach of the key principle of Respect.

17. I did, however, observe that the respondent’s letter contained terms that were ill-advised, inaccurate and inappropriate, particularly in relation to his comments regarding officers.  Moreover, he should have made more diligent enquiry regarding the processing by the Council of the application prior to writing as he did. I did, therefore, urge the respondent to learn the lessons from this case.

18. Having considered the information that arose from my investigation, I concluded that Councillor Bryan Stuart had not contravened the Councillors’ Code of Conduct.

D Stuart Allan

Chief Investigating Officer

Forsyth House

Innova Campus

Rosyth Europarc

Rosyth

KY11 2UU

18 December 2008