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Complaint no. LA/DG/838 concerning an alleged contravention of the Councillors’ Code of Conduct by Councillor Ian Blake of Dumfries and Galloway Council

1. Complaint number LA/DG/838 alleged a contravention of the Councillors’ Code of Conduct (“the Code”) by Councillor Ian Blake (“the respondent”).

2. It was alleged that the respondent had contravened the Code by breaching section 2 (Key Principles), namely Selflessness, Honesty and Respect; section 3 (General Conduct), specifically paragraphs 3.2, 3.3 3.4 and 3.15; section 5 (Declarations of Interest), specifically paragraph 5.11.  (The complainant also considered the respondent was in breach of various provisions of the Dumfries and Galloway Council Member and Officer Protocol relative the Roles and Responsibilities of Members and Officers and also Members’ Rights of Access to Information/Freedom of Information.)

3. The complaint related to the repeated representations made by the respondent to senior officials within the Council in relation to the day to day operations of the Council Service for which the complainant had management responsibility. Essentially, the very detailed complaint alleged attempts at interference in her operational management of a key Council service, an undermining of her position and an abuse of power by the respondent in this matter because of his previous employment in the service and his current position of power and influence as an elected member. The complainant considered that, by involving himself in the matter and to the extent he did, the respondent was in breach of a number of sections of the Code.

4. The central issue of this complaint was the Code’s regulation of conduct in the councillor/employee relationship. The respondent felt he had legitimate concerns about a particular issue involving a Council Service. The question to be considered was whether or not the respondent’s actions in all the circumstances were of a nature and extent that he did not meet the relevant requirements and obligations contained in the Code. Paragraph 3.2 of the Code (Respecting all Council employees and the role they play) which places an obligation on councillors to respect all Council employees and the role they play and to treat them with courtesy at all times. Paragraph 20 of the Protocol also deals with that aspect. I made the general observation that criticism of Council processes involving staff does not automatically equate to a breach of the Code on this point. It would always be a matter of manner and degree of such criticism which required to be evaluated in the individual circumstances of each case. There were competing principles involved which had to be evaluated and judgment had to be exercised. Respect for individuals and their reputational rights, including questions of defamation and employment protection rights, had to be weighed against the principle of freedom of expression (particularly political comment), questions of qualified privilege (involving the right and duty to report matters of concern and criticism), and public interest.

5. Paragraph 3.3 of the Code confirms that a councillor and a council employee have separate roles. The role of the councillor is to determine policy and participate in decisions on matters placed before him or her and not to engage in direct operational management of the council's services, which is the responsibility of the employee. In any conclusion reached of "operational interference", consideration had to be given to the ultimate effect of any action taken by a councillor in that connection. A clear example of such interference is where a councillor instructed a member of staff to stop, amend, add or substitute any task or duty he or she was then involved in discharging, as part of their job responsibility to deliver council services, and the employee complies with that instruction, which had not been approved by the council line manager involved.

6. There could be no doubt that councillors had a widely recognised role to seek information, to scrutinise actions taken by officers, and to request that matters of council business be reviewed or investigated in the light of new information. It was then for the council manager responsible to consider what action, if any, to take in the light of such an approach. In relation to the mutual respect between a councillor and employee and the different roles to be played by each, as required by the Code, it might have been necessary, (particularly in the case of an inexperienced councillor), for a council manager to provide further guidance and advice to an elected member that the individual decision in question was one for the manager to determine, having regard to approved council policy and procedures which had placed that professional responsibility on the manager so to do. I considered that a "request" or "demand" from any councillor to take any particular action was not, of itself, an interference in operational management. It was incumbent on any council manager in receipt of such an approach to take his or her own professional decision on the matter and act as he or she considered appropriate in discharge of their employee responsibilities to the council.

7. It was not in dispute that the respondent commenced a line of inquiry and complaint on the behalf of a former colleague. The representational role, in drawing matters to the attention of council officers for any required action, (which I consider should be a key task of any councillor), was developed by him in this instance to such a stage that it could be said that he had put himself in the position of an advocate acting on behalf of that interest. It was clear from the evidence of the respondent that he felt the need to put in writing his position to senior management as he was of the view that this was the most appropriate way of taking the complaint forward in the light of his historic direct involvement in the matter as an employee.  (I considered this was the appropriate course of conduct to take if the matter was to be raised, as it placed on record his representations.) It was clear that the respondent’s prior experience and knowledge gained as an employee was such that he felt able to deal with (and go into very significant detail) about what he perceived to be an ongoing failure in the Council’s responsibility to treat an employee fairly.  He had a number of specific criticisms of Council processes which involved the Council Service of which the complainant was the Head.

8. It was clear from the evidence that the respondent felt he had an ongoing obligation to continue to support his former colleague in her case and in particular felt that his employee knowledge of the service should not be lost to her case.  Eventually, he sought advice from the Monitoring Officer on the continuing scope for his involvement in taking the matter forward. It was unfortunate that the respondent did not seek advice at an earlier stage during his ongoing correspondence.  The Monitoring Officer had given considered advice that it was inappropriate for the respondent to take this matter further.

9. It was my assessment that the Monitoring Officer’s advice was wholly appropriate in the circumstances and it seemed clear from the evidence that the respondent himself had by that time reached the same conclusion. In my assessment, any such further intervention on his part would have been a clear contradiction of the respondent’s stated aspiration to meet appropriate standards of conduct in discharging his responsibilities as a councillor.  I noted the respondent’s assessment that he could not take part in any Council decision regarding the individual position of the complainant and I considered that an appropriate judgment to have reached. 

10. I made the general observation that the attendance of a councillor as a witness in a grievance or disciplinary hearing was not precluded by the Code. Indeed, there were occasions when a councillor had a direct personal interest in, or had been a spectator to, an event which formed the basis of the proceedings and needed to attend to give evidence. In such circumstances it would have been improper for that “witness” also to be a member of the Sub-Committee reaching the decision or using his position as a councillor to bring about a particular conclusion to the proceedings.

11. I noted that the respondent was only first elected to the Council in May 2007 and so could not therefore be assessed as being greatly experienced in operating in the capacity of a councillor with the particular responsibilities that that entailed. Soon afterwards he commenced his correspondence about the issue in question. In my view a more experienced councillor would have known not to have pursued such a matter in respect of a Council service where he had been recently employed and, especially, about his former colleague with individual interests he had been so directly linked to.  I considered the correct course of action would have been to pass such a constituency matter to another councillor colleague to take forward and action to the extent considered appropriate by that councillor colleague.

12. I also considered the respondent’s course of conduct in this matter against the other relevant provisions of the Code. I considered the respondent was clear and open about his interest in the matter when he raised the case. He had dealt with the appropriate officers on a private basis. In relation to the Council’s own Member and Officer Protocol, I noted that the status of that document was that it was subsidiary to the Code. 

13. In assessing whether or not the conduct complained of amounted to a breach of the Code, I considered the particular determining factors were that the respondent was a relatively inexperienced councillor who had felt he had a legitimate concern and consulted senior officers as he was entitled to do. He had come to recognise that he had taken matters as far as he could, having consulted with the Monitoring Officer on the matter. (There was no evidence of prior advice having been given by any senior officer with whom he had engaged in the process that they were concerned his conduct had the potential to amount to a breach of the Code.) It was also clear from the evidence before me that, critically, notwithstanding the respondent’s detailed representations, senior management exercised their professional judgment and discharged their responsibility to the Council to continue to manage the issue as they thought appropriate (which was contrary to the respondent’s views). For his part, the evidence of the respondent made clear that he was also well aware his continuing conduct might well be subject to further ongoing scrutiny by interested parties.  Having regard to the whole circumstances in this case, I did not consider the conduct of the respondent could reasonably have been taken to amount to a breach of the Code.

14. For the sake of completeness, I also commented on a related aspect of the Monitoring Officer’s assessment regarding the making of complaints to me from Council staff.  He was correct in his view that it was not for a Monitoring Officer to seek to influence any member of staff about whether or not to submit a complaint for investigation. That said, it was clear that the complainant would have welcomed a meeting with the Monitoring Officer who was not, in my view, precluded from providing contextual information regarding the Code and its application and operation in such circumstances.  

15. Lastly, having considered the information that arose from my investigation, I concluded that Councillor Ian Blake had not contravened the Councillors’ Code of Conduct.

D Stuart Allan

Chief Investigating Officer

Forsyth House

Innova Campus

Rosyth Europarc

Rosyth

KY11 2UU

25 August 2009