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Note Of Decision Web Version

Complaint no. LA/C/923 concerning an alleged contravention of the Councillors’ Code of Conduct by Councillor Janet Cadenhead of Clackmannanshire Council

1. Complaint number LA/C/923 alleged a contravention of the Councillors’ Code of Conduct (“the Code”) by Councillor Janet Cadenhead (“the respondent”).  It was alleged that the respondent had breached the Key Principles of Openness and Leadership in Section 2 of the Code by failing to notify fellow Councillors of a breach of law by the Council and by withholding information regarding a breach of law and failing to bring it to the attention of Councillors and the wider public.

2. The issue which lies at the centre of the complaint is the operation and management of the Alloa Leisure Bowl.  The Leisure Bowl was first opened in 1987 by Clackmannanshire District Council. It was operated and managed for the Council by a private Apex Leisure (Management) Ltd (Apex).  In 2002 the Council decided to transfer the lease to a "not for profit" charitable Leisure Trust.  After a few years, it was decided to transfer the Leisure Bowl and its management back to the Council and the Leisure Trust was dissolved in December 2006.  Apex continued operating as an independent company employing staff under its own terms and conditions and keeping its own accounts. The Council paid Apex an annual sum to manage and operate the facility.  Despite its apparent independence, however, Apex was effectively a subsidiary of the Council and this raised a number of issues which made retention of the arrangements difficult to support. 

3. After the Leisure Trust was dissolved in December 2006, the management and operation of Alloa Leisure Bowl was conducted on a basis which was not in accordance with the European Procurement Directive and the Public Contract (Scotland) Regulations 2006.  Essentially, the contract with Apex was continued without advertising and without inviting other bids from external organisations.  The complainant, Councillor Craig Holden, says that at a briefing meeting for members on 2 September 2009, Councillor Cadenhead confirmed that the former Chief Executive had notified her that the Council had broken European Procurement law and that she had entered into a ' kind of agreement' with the Chief Executive that tenders should be invited for the management of the Leisure Bowl, and she had done this for "legal and reputational" reasons. 

4. The situation relating to the contract was indeed a matter that required to be regularised and this was recognised by the former Monitoring Officer in advice she gave in September 2007.  The available information indicates that the former Chief Executive was dealing with it in tandem with his efforts to secure the introduction of a new, overall leisure strategy.   With the changes there have been in the senior Council officers involved, first hand information has not been available. However, the investigation has established that Consultants were asked to look into the contract for the Alloa Leisure Bowl and they reported to a meeting of the Leisure Strategy Working Group on 2 May 2008.  Councillor Cadenhead, Councillor Holden and other members were thereby provided with information that the Council was in breach of the EU Procurement Directive. The position regarding the Leisure Bowl was also referred to at subsequent meetings of the Apex Board of Directors and of the LSWG in September 2008.  Indeed, it was recorded in minutes of both the Apex Board and the Leisure Strategy Working Group that a report be made to the Council in November 2008, but this did not happen.  The reasons for this have not been firmly established; however it appears that at this point the former Chief Executive decided to exercise his delegated authority to seek tenders.  Whatever the rights and wrongs of the reporting procedure, the former Chief Executive's action undoubtedly put the Council on the right track to regularising a situation which needed to be remedied.

5. In reviewing what occurred, there was no evidence that Councillor Janet Cadenhead was party to any agreement with the former Chief Executive which involved concealing from members of the Council that there was a breach of law relating to the Apex contract.  Nor was it the case that there was a failure of duty on her part to bring the matter before the Council for consideration. Like a number of other members, the information which she received relating to the Alloa Leisure Bowl was discussed at meetings.  She was present when the Apex Board asked in September 2008 that the matter be brought to the Council in November 2008, as indeed did the Leisure Strategy Working Group at their meeting. 

6. The complainant, Councillor Holden was clearly concerned when he and other members heard it stated at the briefing meeting on 2 September 2009 that the Council was breaking the law.  It certainly may not reflect well on the Council that the situation relating to the contract for the management of the Apex Leisure Bowl was allowed to run on as long as it did.  There may be differing views as to whether or when the matter should have been brought to the Council, and indeed whether the Chief Executive properly exercised his delegated authority to seek tenders (which would in most instances be an appropriate thing for him to do).  However, I do not consider that the respondent, Councillor Janet Cadenhead, can be said to have played any part in the matter that would amount to a breach of the Councillors' Code of Conduct.

7. Having considered the information that arose from my investigation, I concluded that Councillor Janet Cadenhead had not contravened the Councillors’ Code of Conduct.

D Stuart Allan

Chief Investigating Officer

44 Drumsheugh Gardens

Edinburgh

EH3 7SW