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Concerning an alleged contravention of The Councillors' Code of Conduct by Councillors Andrew Campbell, Robert Higgins and Joan Mitchell of Dumfries & Galloway Council

1. Complaint number LA/DG/84 alleged a contravention of the Councillors' Code of Conduct ("the Code") by Councillors Andrew Campbell, Robert Higgins and Joan Mitchell ("the respondents").

2. It was alleged that the respondents had contravened the Code, in particular, the key principles relating to Duty, Accountability and Stewardship, and Leadership set out in section 2.

3. The person complaining ("the complainant") Councillor Thomas Sloan, alleged that following the local government election on 1 May 2003, the respondents, who were leaders of the political groups forming the Administration, agreed not to close certain schools which were situated in the wards of Administration members. The complainant also expressed concern that political influence may have been applied to alter the recommendations on school closures put to the meeting of the Education and Community Services Committee on 6 November 2003, with the intention of keeping open certain schools within the wards of Administration members.

4. In 2001 Dumfries & Galloway Council began a review of their schools estate. The aim was to assess future educational requirements which would in turn allow the Council to develop a programme of new construction, refurbishment, amalgamation or closure of existing schools. The complainant chaired the Education Committee and took a major role in the review process until the change of Administration following the May 2003 local government elections.

5. On 25 January 2002 the Education Committee of Dumfries & Galloway Council adopted a preferred position on the closure or merger of several schools as a basis for further planning and consultation.

6. During the period preceding the local government elections in May 2003 the school review was a matter of public interest. Within the wards affected by potential closure or amalgamation of their schools this was a particular issue and one which some candidates addressed in their election canvassing.

7. Following the election a meeting was convened involving the respondents, who are respectively the leaders of the Independent, SNP, and Liberal Democrat groups, and the complainant with other Labour group office bearers. The discussion was opened by the first respondent, Councillor Campbell, who stated that the Liberal Democrat, Independent, and SNP groups had agreed to form a coalition Administration. The complainant states that the first respondent invited the Labour group to join the coalition Administration. The complainant's recollection is that the first respondent then referred to the proposed closure of Brownhall school, implying that its retention would be a condition of the Labour group joining the Administration.

8. The complainant states that he objected to this condition and declined to negotiate on that basis as this would negate the non-political stance which the former Labour Administration had taken in regard to the school review process. The issue was not raised again and neither of the other two respondents made any reference to school closures.

9. By the late autumn of 2003 the school review and consultation process was almost complete and it was thought appropriate to give the elected members an appreciation of the factors involved in the review and the proposals being considered. Accordingly a briefing meeting for the political group leaders was arranged on 20 October 2003, followed by a seminar on 27 October 2003 to which all councillors were invited. These meetings were not part of the decision-making process and no votes were taken at these sessions which were essentially informative. To inform of these meetings the Director of Education & Community Services produced two papers in which he outlined the background to the schools review, the process, and the major proposals. The paper presented to the members seminar was a development of the document provided to the group leaders but there was no significant change to the proposals affecting individual schools.

10. On Thursday 6 November 2003 the Education & Community Services Committee met in special session to consider the school review proposals. A report was presented to the meeting which detailed recommendations for retention, amalgamation or closure. While the majority of this report echoed the proposals contained in the papers presented to the meetings of 20 October and 27 October, there were several changes.

11. The complainant proposed a motion which claimed that the failure of the Convener, Councillor Campbell, to deny that discussion had taken place regarding the future of certain schools during talks to form the Administration had dented public confidence in the school closure consultation process. He proposed that a commitment should be given that no schools should close unless this was the preferred choice of the parents.

12. The first respondent countered with an amendment that the Committee should proceed to consider the recommendations detailed in the report prepared by the Director of Education & Community Services. On a division a clear majority voted in favour of this amendment. The Committee then proceeded to consider each recommendation in turn, voting where unanimous agreement was not reached.

13. On 6 April 2004 the complainant requested that a governance audit be undertaken in relation to the papers produced by the Director of Education & Community Services. The implication drawn by the complainant was that the differences between the proposals raised in his preliminary papers, and the substantive recommendations contained within the report to the Education & Community Services Committee, were suggestive of political pressure having been applied. The audit found that the process of informing group leaders and members had been open and transparent, and that no breach of procedure or propriety had occurred.

14. The Director of Education & Community Services has stated that no political pressure or influence was placed on him to alter the recommendations on school closure contained in his final report. The recommendations put to the Education & Community Services Committee were the product of his judgement as to what might be desirable in terms of financial savings through closures to support investment in the re-build programme, what might be acceptable in terms of the Council's commitment to maintain and support communities, and what was manageable in terms of delivery through public consultation. He had also taken account of discussions with members at the seminar on 27 October 2003. No evidence has been found to suggest that he was influenced by political pressure.

15. The allegation is dependent on the recollection of those participating in the meeting. The complainant was clear as to his recollection, and this was reflected with less certainty by his Labour colleagues. The respondents stated that they could not recall any reference to school closures. The complainant agreed that the reference, if made, was brief and following his refusal to negotiate on that basis it was not raised again. In the absence of an agreed minute I was unable to determine whether, or in what context, any such reference was made.

16. The wording recalled by the complainant is open to interpretation and an alternative view might be that a potential difficulty was being signalled, rather than a condition for inclusion in the coalition Administration. In any event the complainant states that Councillor Higgins and Councillor Mitchell made no reference to the closure issue.

17. Having said that, taking into account all the circumstances and background to this contentious matter and having regard to the fact that - at the end of the day - decisions whether or not to close (or keep open) schools is, subject to the relevant statutory provisions on consultation, a policy issue to be determined by the Council, I have concluded the decisions were properly taken and there was no contravention of the Code by any of the respondents.

18. Having regard to the second strand of the complaint, its lack of specification and the outcome of the Council's own governance audit, I do not consider that this is a matter which falls within the scope of the Code. I am satisfied that the recommendation on each school was exposed to the democratic process and that no conclusion can be drawn from the voting to indicate impropriety in the decision-making.

19. The complainant has also alleged, without specifying individual respondents, that the provisions of section 6 of the Code dealing with Lobbying and Access to Councillors have been breached as result of the alleged agreement as regards school closures to facilitate the formation of the coalition Administration. No such agreement has been adduced by the complainant or established by this investigation, and the application of the democratic process to the decisions taken tends to negate the suggestion of impropriety. The school closure process was not a quasi-judicial matter and paragraph 6.4 which bars the use of political group meetings to decide such matters is not applicable.

20. The complainant's suggestion that the Local Government (Scotland) Act 1973 has been breached, thus giving rise to a possible breach of the Code, is misplaced. The briefing given to the political group leaders on 20 October 2003, and the members seminar on 27 October 2003, were clearly not meetings of the Council or a committee of the Council. The meetings had no status other than informative briefings with no invitation was extended to the public. They were unminuted and the papers circulated by the Director of Education & Community Services were clearly identified as early drafts. There was no requirement for a governance scrutiny of these papers.

21. Having considered the information arising from my investigation, I concluded that Councillors Andrew Campbell, Robert Higgins, and Joan Mitchell had not contravened the Councillors' Code of Conduct.

D Stuart Allan,
Chief Investigating Officer.
Forsyth House
Innova Campus
Rosyth Europarc
Rosyth
Fife
KY11 2UU
06 June 2005