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Complaint no. LA/DG/35 & 36 concerning an alleged contravention of the Councillors' Code of Conduct by Councillor Thomas Sloan and Councillor George McBurnie of Dumfries & Galloway Council

1. Complaint numbers LA/DG/35 & 36 alleged a contravention of the Councillors' Code of Conduct ("the Code") by Councillors Thomas Sloan and George McBurnie ("the respondents").

2. It was alleged that the respondents had contravened the Code, in particular, the key principles of Accountability and Stewardship, Objectivity, and Leadership set out in section 2, and the provisions on Declaration of Interests contained in section 5.

3. The person complaining ("the complainants") alleged that during the consideration of school closures within Dumfries & Galloway both respondents publicly stated their opposition to closures and thus adopted a position which prejudiced their objective consideration of the issue as members of the Education and Community Services Committee.

4. In regard to Councillor McBurnie it was also alleged that having publicly declared his support for the retention of St Teresa's Primary School, Dumfries prior to the meeting of the Council on 11 December 2003 when voting took place on the school closure programme, he failed to declare an interest and participated in the meeting.

5. In regard to Councillor Sloan it was alleged that having made press comments that predated the meeting of the Council on 11 December 2003 when voting took place on the proposed school closure programme, he failed to declare an interest and participated in the meeting.

6. In 2001 Dumfries & Galloway Council began a review of their schools estate. Councillor Sloan chaired the then Education Committee and was intimately involved in the review process until the change of Administration following the May 2003 elections.

7. On 25 January 2002 the Education Committee adopted a preferred position on the closure or merger of several schools as a basis for further planning and consultation. The meeting was chaired by Councillor Sloan, and Councillor McBurnie attended as a committee member. At this stage no schools had been identified for closure.

8. To provide an objective basis for the review, the Council engaged consultants who initially recommended that as many as 40 schools should be considered for closure. This list was later substantially reduced. Prior to finalising the closure decision the Council was required to undertake a statutory consultation process. The consultation meetings were deferred until after the 2003 local government election as members did not wish the closure programme to become an election issue.

9. Elected members were permitted to attend the consultation meetings as observers but advised by the Director of Education not to state their own views to avoid pre-empting their judgement of the closure issue when it came before the Council.

10. On 6 November 2003 the outcome of the statutory consultation was reported to a special meeting of the Education & Community Services Committee. It was at this meeting that the decision was taken as to which schools would close or merge. All councillors were free to attend and speak, but only members of the Committee were entitled to vote. Councillor McBurnie did not attend the meeting as he was abroad. Councillor Sloan attended in his capacity as a member of the Education and Community Services Committee.

11. At the outset of the meeting Councillor Sloan proposed a motion which sought to extend the scope of the discussion and in particular stated that several schools had now been excluded from the closure list following discussions on the formation of the current Administration. Councillor Sloan went on to state that these talks had dented the public's confidence in the school closure consultation process. He expressed a view that confidence would be restored by the Committee giving a commitment that no schools would close unless this was the preferred choice of the parents. In taking this stance Councillor Sloan did not declare an interest and continued to take part in the debate. A number of other members declared interests as the debate turned to consider specific schools and left the room for that part of the meeting.

12. The complainant had been following the school closure debate in Dumfries & Galloway and was also a member of a school board. As such he was aware from an early stage that although the review process was intended to be objective any proposals to close or amalgamate schools could be particularly sensitive and potentially opposed by the local communities concerned. He was particularly interested in St Teresa's Primary School as its closure and possible merger with St Andrew's Primary School might have implications for the education of his own children. He was aware of Councillor McBurnie's support for the St Teresa's School Board in their opposition to closure.

13. The complainant had followed press reports of the school closure debate and became concerned that the decision-making process applied by councillors might not be solely based on objective criteria. On reading a press report on the day following the meeting of the Education and Community Services Committee when the school closure decisions were made, he formed the view that Councillor Sloan had adopted a political stance against closures and could not therefore have considered the issues with the necessary degree of openness.

14. The complainant also refers to Councillor Sloan's apparent support for the review of the schools estate during his period of office as Chair of the Education Committee, and contrasted that with his attitude towards the review when he was no longer part of the Administration after the May 2003 elections.

15. The Education and Community Services Committee met on 6 November 2003 in special session to consider the closure proposals. The committee members were charged with making their decisions on the basis of the information contained in the report laid before them by the Director for Education and Community Services.

16. The issue was whether the respondents were required to consider whether a) their interest was such as to require its declaration; and whether b) the nature of that interest would preclude their continued involvement in the debate and decisions to be made.

17. The issues being decided by the Council were ones of major policy that would have a very significant effect on local communities and difficult decisions had to be taken. It must be noted, however, that these decisions were policy and administrative in nature and not judicial or quasi-judicial. The Council did have to decide which schools should be proposed for closure and judgement had to be exercised by elected members. Thereafter, the proposed closures were subject to a statutory consultation exercise which would afford the Council an opportunity of reflecting on their proposed closures in light of representations received. No evidence was adduced that any elected member had failed to have regard to any of these representations.

18. Essentially, the actions taken by the respondents to oppose the closure of St. Teresa's Primary School (and others) were reasonably and properly taken, consistent with the key principles of general conduct set out in the Code.

19. The issue of declaration of interest does not apply to Councillor McBurnie, as he did not attend the meeting on 6 November 2003 due to absence abroad. His subsequent actions in seeking a meeting of the full Council to review the closure decision clearly indicated support for St Teresa's School but this did not itself raise any question of failure to comply with the Code as there were clear and well articulated reasons for opposing the closure.

20. In regard to Councillor Sloan it was suggested that the comments attributed to him in the Dumfries & Galloway Standard published on 7 November 2003 indicated that he had adopted a stance on the closure issue which should have been declared at the meeting of the Education and Community Services Committee on the previous day. The newspaper report in fact summarised the motion proposed by Councillor Sloan at the commencement of that meeting when he had sought to extend the scope of the debate.

21. In proposing his motion opposed to school closures at the outset of the meeting of the Education and Community Services Committee on 6 November 2003 Councillor Sloan sought to use a political mechanism to oppose a decision-making process which he believed was flawed. The motion itself was framed in reasoned terms and sought to retain the status quo on closure-threatened schools.

22. While elements of the motion criticised the Administration, who were of a different political persuasion from Councillor Sloan, the motion was rational and reasoned and could not be construed as in any way a breach of the Code. Councillor Sloan's approach to the closure issue was patent from the start of the meeting and was further highlighted in his various motions in regard to specific schools as the meeting progressed. The decisions on these schools were subject to an open voting procedure and thus democratically accountable.

23. At the meeting of the full Council on 11 December 2003, the matter was finally debated and voted upon. None of the members declared an interest as none had an interest in terms of the Code to declare. There was a reasoned debate on the issue of the closure of St. Teresa's Primary School following which the Council divided with 18 councillors voting to keep the school open and 20 voting to re-affirm the decision of the Education and Community Services Committee to close the school. There is no evidence to suggest that the respondents' position in this debate was adopted other than on a reasoned basis and I therefore found there had been no breach of the Code.

24. In regard to the letter written by Councillor Sloan and published on 12 December 2003 the content of the letter could not be taken to be in any way a breach of the Code; in any event by this date his approach to the closure issue was already in the public domain following the meeting of the Education and Community Services Committee on 6 November.

25. Having considered the information arising from my investigation, I concluded that Councillors Thomas Sloan and George McBurnie had not contravened the Councillors' Code of Conduct.

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