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Complaint no. LA/AB/18

Concerning an alleged contravention of The Councillors' Code of Conduct by Councillor Dick Walsh of Argyll and Bute Council

1. The person complaining ("the complainant") in complaint number LA/AB/18 alleges that Councillor Dick Walsh breached the Councillors' Code of Conduct by involving himself in the termination of the appointment of a person to a Council post, and in so doing demonstrated a lack of objectivity and openness.

2. Councillor Walsh ("the respondent") is an elected member of Argyll and Bute Council who have their principal offices at Lochgilphead, Argyll. He 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 undertook to meet the requirements of the Code.

3. The Code was issued by the Scottish Ministers in terms of Section 1 of the Ethical Standards in Public Life etc (Scotland) Act 2000, and came into effect on 1 May 2003. The general principles set out in Section 2 of the Code include the following -

"Objectivity

You must make decisions solely on merit when carrying out public business including making appointments, awarding contracts or recommending individuals for rewards and benefits."

"Openness

You have a duty to be as open as possible about your decisions and actions, giving reasons for your decisions and restricting information only when the wider interest clearly demands."

4. Paragraphs 3.2 to 3.4 of the Code detail the principles of good conduct to be observed by Councillors in their relationship with Council employees. Paragraph 3.3 includes the following:

"You must also respect the different roles that you and an employee play. Your role is to determine policy and to participate in decisions on matters placed before you, not to engage in direct operational management of the Council's services; that is the responsibility of the Council's employees."

Paragraph 3.4 states:

"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."

5. Annex C provides guidance on dealing with employment issues in which Councillors may become involved. Paragraph 18, dealing with appointments, states:

"Where councillors are involved in the appointment of employees they must act fairly and openly and judge candidates solely on merit."

6. The recruitment procedures adopted are broadly consistent with the guidance given in the Council's recruitment manual and were undertaken by Council officers without involvement or intervention by elected representatives. The documentation detailing the performance of the candidates selected for interview shows a logical process which led to the complainant being identified as the most suitable applicant.

7. The complainant declared the liquidation of his building firm, on his application form and actually raised it himself during the interview, asking if this would cause any difficulty. The selection panel, the Area Housing Manager and the Housing Maintenance Manager considered that it would have no serious bearing on the suitability of the complainant due to the passage of time since October 1988 and the candidate's record of employment thereafter. The suggestion that the complainant concealed this aspect of his career history which was raised in the letter from Councillor Walsh responding to the complaint is therefore inaccurate and misleading.

8. It is evident that the appointment process was undertaken with a degree of haste and only one referee was contacted prior to the post being offered to the complainant. The referee was supportive of the applicant and no further background enquiries were made. The absence of written references is not in accordance with the guidance given in the Council's recruitment manual but the practice appears to be accepted at the discretion of the appointing department. The only reservations expressed by the selection panel were a concern as to the respondent's age, and a weakness in his knowledge of health and safety.

9. The selection process and offer of employment at this stage were entirely within the hands of the Council officers and no Councillors were involved.

10. I now come to the events of 1 July 2003 when the respondent states that he was contacted by a local tradesman who is one of the current housing maintenance contractors and received calls from Councillors McQueen and McKinven. Councillor Walsh states that he merely listened to these representations and agreed to pass them on to the relevant Director. He did not apparently consider it appropriate to advise the informant to speak directly to the Director and in effect volunteered to pass the information on without further enquiry to gauge its accuracy or relevance. In this context it might reasonably be judged that to have made such enquiries himself could have been interpreted as taking a personal involvement in the appointment, and the respondent has consistently stated that he merely felt it his duty to pass the matter on for enquiry by the relevant Director.

11. On 2 July the respondent e-mailed the (then) Director of Housing & Social Work.

12. The style of the e-mail is informal and the tenor is brisk. Both the respondent and the recipient of the message, Director of Housing & Social Work refer to the informality as a characteristic of e-mail communication. The content of this e-mail forms the crux of the complaint however and it is therefore appropriate to consider it in some detail.

13. The first paragraph refers to a 'furore' having been created by the appointment. Councillor Walsh accepts that in hindsight this was too strong and it would have been more appropriate to refer to a 'concern'. The reference to 'all local members' is also an exaggeration in that only two Councillors had contacted the respondent.

14. The second paragraph is prefaced by the words 'I understand...' which is consistent with the respondent's assertion that he was merely passing on information which he felt relevant. However it goes on to refer to the fact that the complainant would have to work with local suppliers and contactors to whom he owed money as a consequence of his firm having gone into liquidation. The respondent uses the term 'bankrupt' which does not accurately reflect the true situation of voluntary liquidation.

15. The second paragraph concludes with a reference to a friendship between one of the selection panel, the Area Housing Manager and the complainant's partner - the implication possibly being that this may have influenced the appointment. This issue was not taken into consideration by the Council officers in deciding to terminate the appointment and is mentioned here only in that it may explain the use of the word 'cronyism' by the respondent. The truth of the matter as elicited by the investigation is that the Area Housing Manager and the complainant's partner are mere acquaintances through working in the same Council offices, but this does not extend to friendship or social activities. It should be noted that this inclusion within the e-mail sent by Councillor Walsh was excluded from the copy originally supplied to the complainant, apparently over concerns relating to data protection, and the full wording was only revealed during the course of this investigation.

16. The third paragraph contains the operative wording in that it goes beyond merely passing on information to make a judgement and require action 'to rectify matters'. The respondent asserts that he was simply asking the Director to carry out some form of investigation, but when read as a whole it could be read as the Councillor suggesting the possibility of the appointment being withdrawn.

17. The terms of the response to this e-mail by the Director of Housing & Social Work to Councillor Walsh, are relevant in considering the influence on subsequent events. This e-mail was sent on the afternoon of 2 July.

18. The reference to 'information' provided by Councillor Walsh tends to support the respondent's stance, and there is no direct indication that a specific course of action was contemplated by either the respondent or the Director of Housing & Social Work at his instigation. It is however noteworthy that further discussion between Council officers and the respondent 'to agree a way forward' was proposed, and this does imply further involvement by Councillor Walsh as distinct from him being notified of the result of enquiries arising from his e-mail. On being questioned on this point Mr Hendry was unable to recall precisely what he intended, but he stated that he was clear as to the role of Councillors in relation to appointments. He would not have permitted the officers to consult Councillor Walsh on their intended actions. Both the Director of Housing & Social Work and Councillor Walsh draw a distinction between involvement in matters of housing maintenance policy and the appointment itself, but the balance is delicate and the meaning of these e-mails remains open to differing interpretation.

19. The Head of Housing Management, clarifies the issue of further contact with the respondent. His recollection of a telephone conversation with Councillor Walsh on 2 or 3 July is that the respondent was merely passing on information and it was for the officers to look into the matter.

20. While the respondent remains adamant that his intention was solely to pass on information, the subsequent actions which led to the withdrawal of the offer of employment (or more correctly the termination of employment) flowed directly from this exchange of e-mails.

21. The extent to which the actions of Councillor Walsh in drawing concerns to the attention of the Director of Housing & Social Work can be regarded as interference in the appointment of an employee is uncertain.

22. The sequence of events which ensued and led to the termination of the complainant's appointment was undoubtedly triggered by the respondent's action in e-mailing the Director of Housing & Social Work. Thereafter the decision-making process lay with the Head of Housing Management and I have found that it was he who took the decision to end the appointment. Advice was sought by him from the Director of Personnel as to the means of terminating the appointment, and consideration was given but dismissed to interviewing the complainant and local contractors. It is surprising however that the termination went ahead without any preliminary enquiry to confirm the information passed on by Councillor Walsh, and the Council have as a result been left vulnerable to criticism.

23. In reaching his decision the Head of Housing Management was influenced by the critical importance of maintaining a positive working relationship between the postholder and local contractors. In so doing the necessary investigative stage was omitted and the decision to terminate the complainant's appointment went ahead in a rather peremptory manner. The explanation of 'operational reasons' can only be explained as an administrative convenience. It may be noted that the complainant has submitted letters of support from several local contractors who express no difficulty in working with him should he be appointed to the post which he sought. It is of particular concern that the Council did not afford the complainant (who they have acknowledged at least as an appointee) an opportunity to respond to the issues raised.

24. The terms which Councillor Walsh employed in his communication with the Director of Housing & Social Work displayed a less than appropriate element of balance and objectivity. In particular the language employed went beyond a simple relaying of factual information by the use of descriptive terms and overstatement.

25. The complainant also experienced difficulties in attempting to ascertain the true reason for the termination of his employment. Faced with the vague and euphemistic term 'operational reasons' which was given as the reasons for terminating the appointment he commenced his own enquiries and it was only through his persistence that he succeeded in obtaining a partial copy of the e-mail sent by Councillor Walsh to the Director of Housing & Social Work. The chronology of the complainant's contacts with the Council extends from 8 July to 11 September 2003, during which period he was attempting to ascertain the factual basis for the termination of his appointment, and exercise a right of appeal or opportunity to respond to the information which had prompted the decision.

26. In the course of his enquiries the complainant contacted the respondent by telephone on 9 July, and subsequently met with him at the Council Offices in Hill Street, Dunoon on 3 September 2003.

27. Councillor Walsh recalls that the complainant asked if he knew that the appointment had been withdrawn and that he had replied in the negative. When asked by the complainant to confirm that he had been approached he had replied that he was not prepared to comment further. When questioned on this point in the course of this enquiry Councillor Walsh stated that he felt it would have been inappropriate for him to comment as he had not at that stage heard back from the Director of Housing & Social Work.

28. When he met with the respondent on 3 September the complainant quoted from the e-mail which he believed had been sent by Councillor Walsh. The respondent did not agree or disagree that he was the author, although he did confirm that if he received information which he considered relevant to an appointment he would pass it on to the relevant Council officers.

29. Councillor Walsh states that at the meeting, and in several e-mails, the complainant asked him to intervene in the matter. Councillor Walsh had stressed that it was not his role to become involved in appointments at that level.

30. I consider that the respondent was less than candid with the complainant. The position of the Councillor was difficult however in that he was quite rightly maintaining a position of non-involvement in appointments, and in addition might reasonably have wished to protect the sources of his information. The judgement exercised by Councillor Walsh was a fine one and it is clear that he felt that his duty lay in passing on the information to the appropriate Director.

31. Councillor Walsh is adamant that his role in the issue of the appointment was merely to act as the conduit for information which he felt relevant. Asked specifically by the Investigating Officers as to his personal view of the suitability of the complainant for the post he replied:

" I have no view on it at all. I expected it to be fully investigated and acted upon, in particular the allegation against the officer. I raised the matter with the Strategic Director and had no reason to doubt that it would be investigated."

32. In relation to the issue of involvement in the appointment of a Council employee I have found that the complainant acted appropriately in passing on information which he considered to be relevant to the Director of Housing & Social Work. No evidence has been adduced to suggest that he was involved in the subsequent decision-making process which led to the termination of the appointment, and he consistently declined to intervene on behalf of the complainant as this was outwith his role. I was therefore unable to determine to what extent if at all the effect of the e-mail sent by Councillor Walsh directly influenced the termination of the appointment.

33. Accordingly I have concluded that (i) whilst the e-mail communication of 2nd July 2003 between Councillor Walsh and the Director of Housing & Social Work was badly phrased such that it could be read as more than simply inviting the Director to investigate the appointment, the decision taken to terminate the appointment was taken by the Head of Housing Management who did not consult with the respondent before making his decision and accordingly (ii) that the respondent's conduct could not therefore be reasonably taken to have involved a breach of the Councillors' Code of Conduct.

34. I do however have concerns as to a number of points which have arisen from this enquiry:

a) The lack of discipline and formality in the use of e-mail communication between Councillors and officers, which as illustrated by this complaint can lead to imprecise expression and the use of terminology which is capable of differing interpretation;

b) The absence of any meaningful enquiry to ascertain the truth of the information passed on by Councillor Walsh, or to assess its actual impact on the suitability of the complainant to perform the duties of the post;

c) The failure by the Council to afford the complainant an opportunity to discuss or respond to the concerns raised by Councillor Walsh;

d) The lack of clarity displayed by senior Council officers in explaining the reasons for the termination of the complainant's appointment. The use of the term 'operational reasons' was vague to the point of meaningless, and did not contribute to the complainant's understanding of the matter;

e) The absence of any documentation recording the internal discussions within the Council which led to the decision to terminate the appointment of the complainant.

While the concerns raised by Councillor Walsh in regard to the relationship between the postholder and contractors may well have been relevant to the suitability of the complainant, the manner in which the issue has been dealt with by Argyll & Bute Council is less than satisfactory and does not reflect well on its recruitment procedures. Perhaps more importantly the complainant has not been well served in terms of the response he could reasonably expect from the Council as his prospective employers particularly as he was forced to engage in unnecessarily protracted enquiries merely to learn the facts on which to base his complaint.

These matters require to be addressed and considered by the Argyll and Bute Council.

35. Finally, I have concluded that Councillor Walsh has not contravened the Councillors' Code of Conduct in terms of this complaint and I find accordingly.

D Stuart Allan,
Chief Investigating Officer.
Forsyth House
Innova Campus
Rosyth Europarc
Rosyth
Fife
KY11 2UU
7 May 2004