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Complaint no. LA/AB/402 concerning an alleged contravention of the Councillors' Code of Conduct by Councillor Bruce Marshall of Argyll and Bute Council

1. Complaint number LA/AB/402 alleged a contravention of the Councillors' Code of Conduct ("the Code") by Councillor Bruce Marshall ("the respondent").

2. It was alleged that the respondent had contravened the Code, in particular, paragraph 3.15 Confidentiality Requirements, paragraph 7.1 Taking Decisions on Individual Applications and paragraph 7.3 Dealing with Planning Applications.

3. The person complaining ("the complainant"), alleged that the respondent had not kept him, and Sandbank Community Council ("the Community Council") adequately informed of Argyll and Bute Council's ("the Council") proposals for the disposal of the site of the former school/community centre at Sandbank and that he had not adequately represented their concerns regarding the disposal, to the Council. He also alleged that the respondent revealed, to the Community Council, details of the proposed disposal to Fyne Homes Limited ("Fyne Homes"), a Registered Social Landlord, six days before the matter was considered by the Bute and Cowal Area Committee. He also claimed that there was a conflict of interest on the part of the respondent arising from his brother's employment.

4. It had been the Council's intention to market the site in the spring of 2006 but, following an expression of interest by Fyne Homes in acquiring the site the Bute and Cowal Area Committee, at its meeting on 6 December 2005, agreed to sell the site to Fyne Homes on the assumption that it could be developed on a partnership basis to build a mix of housing types for rental, a proportion of which would be available to the Council to allocate to applicants on its mainstream and homeless housing lists.

5. Following a statement by Fyne Homes that they intended to build shared equity housing on the site the Council withdrew its offer to sell the site to Fyne Homes and decided that the site should be advertised for sale on the open market. The complainant lodged his complaint before the Area Committee's decision not to proceed with the sale to Fyne Homes.

6. It was clear from the thrust of the complaint that the complainant, and Sandbank Community Council, were strongly opposed to the Council's original plan to sell the site to Fyne Homes to build special and mixed needs housing for rental. Much of the complaint is about the complainant's and the Community Council's opinion that the respondent was ineffective in representing their concerns to the Council and in keeping them informed about the Council's proposals for disposing of the site. While the complainant and the Community Council are perfectly entitled to form a view about the role played by the respondent in relation to the matter it was pointed out to the complainant that the effectiveness, or otherwise, of a member in discharging his duties as a councillor, is not an issue of misconduct and that this aspect of his complaint did not fall to be assessed under the Code.

7. The complaint included an allegation that the respondent had revealed to the Community Council at its meeting on 30 November 2005, the Council's intention to dispose of the site to Fyne Homes, some six days before the Bute and Cowal Area Committee ("the Area Committee") considered the matter and took a decision thereon. The complainant alleged that, by doing so, the respondent had breached the requirement in paragraph 3.15 of the Code to treat certain information in a confidential manner. The respondent stated that, having received the agenda papers for the Area Committee meeting around the 26 November 2005 he was aware of the recommendation to sell the site to Fyne Homes and that he informed the Community Council, in these terms, at its meeting on 30 November 2005. He admitted that it was a mistake on his part to have passed this information to the Community Council but claimed that he had not realised that the item had been marked on the agenda papers as being for the exclusion of the public. He expressed a degree of surprise that the item was marked in this way, as there was to be no discussion of money or of the value of the site.

8. In determining whether, by disclosing information regarding disposal of the site to the Community Council, the respondent breached the confidentiality requirements contained in paragraph 3.15 of the Code I considered whether he made available, intentionally, information which he knew to be confidential. In assessing the issue I had regard to the fact that, as the local councillor, the respondent would have felt under considerable pressure to keep the Community Council apprised about a matter which had generated much local interest. I also had regard to the fact that, notwithstanding its classification, the information was of a fairly general nature. I also took account of the fact that the respondent indicated that he had disclosed the information due to a genuine failure on his part to realise that the item had been marked as confidential on the agenda papers and that he admitted, readily, to his mistake when the issue was put to him. I was satisfied that the respondent had not intentionally disclosed to the Community Council information which he knew to be confidential and, in the absence of any such intent, I found that he had not contravened paragraph 3.15 of the Code.

9. In a further allegation the complainant claimed that the respondent had a conflict of interest arising from his brother's employment which he had failed to declare and that he had passed information regarding the structural state of the former Sandbank School (which he had obtained as a former member of Sandbank Community Development Trust) to the Council which had influenced the Council in its decision to dispose of the building. The respondent advised that his brother is a director of a local building firm but that his employment did not give rise to any declarable interest and I found nothing in the course of my investigations which indicated the existence of a declarable interest or that the respondent had acted in an improper manner.

10. The final part of the complaint alleged that the respondent had breached paragraph 7.1 of the Code (which advises councillors that, in considering individual applications they may have to take account of different points of view) and paragraph 7.3 (which advises that, to reduce the risk of planning decisions being legally challenged, councillors must not only avoid impropriety but must at all times avoid any occasion for suspicion and any appearance of improper conduct) of the Code. It was not wholly clear as to the relevance of these paragraphs in relation to the matters complained of and I found in these terms in relation to paragraph 7.1. In addition, I found no evidence of improper conduct on the part of the respondent and concluded, therefore, that he had not breached paragraph 7.3 of the Code.

11. Having considered the information that arose from my investigation, I concluded that Councillor Bruce Marshall had not contravened the Councillors' Code of Conduct.

D Stuart Allan,
Chief Investigating Officer.
Forsyth House
Innova Campus
Rosyth Europarc
Rosyth
Fife
KY11 2UU
28 April 2006