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Complaint no. LA/D/193 concerning an alleged contravention of the Councillors' Code of Conduct by Lord Provost John Letford of Dundee City Council

1. Complaint number LA/D/193 alleged a contravention of the Councillors' Code of Conduct ("the Code") by Lord Provost John Letford ("the respondent").

2. It was alleged that the respondent had contravened the Code and, in particular, section 3 of the Code which deals with General Conduct and Annex C to the Code which is a Protocol for Relations between Councillors and Employees in Scottish Councils.

3. The person complaining ("the complainant") alleged that at a meeting of the Joint Committee of Tayside Contracts which was held on 31 January 2005, the respondent, who at that time was the Vice Convener Elect of the Joint Committee, tendered a paper in opposition to a proposal to re-grade the complainant's post (Tayside Contracts is a joint direct labour and service organisation which was set up in 1995 by Minute of Agreement among Angus Council, Dundee City Council and Perthshire and Kinross Council, now known as Perth and Kinross Council). It was alleged that the paper was highly critical of the proposal and indeed questioned the conduct and capability of the complainant. It was further alleged that when a motion moved by the respondent in support of his opposition to the proposal was defeated, he resigned from the Joint Committee and forwarded the confidential papers which he had prepared to the local press, thus breaching the provisions of the Code.

4. The respondent alleged that he arranged for the re-grading exercise, and the paper recommending its approval, to be suspended after he came into possession of an email in which he alleged that the complainant was "influencing her own re-grading for financial gain." He wrote that he prepared a document and a motion for the meeting on 31 January 2005, as he "wished the three Chief Executives of the three constituent Authorities (Angus, Dundee and Perth and Kinross) to meet and discuss all the circumstances surrounding the intended re-grading issue." He claimed that when his motion was defeated he resigned immediately as Vice Convener Elect and a Board Member of the Joint Committee, and thereafter "shared with the press the details of the Committee report excluding the email." He concluded his response by writing "I was left with absolutely no option to do anything other than I did. I had tried every internal avenue to have this sorted out and was forced to become a whistle blower in the public interest."

5. There were essentially two elements to this complaint. The first was that the respondent was highly critical of a proposal to re-grade the complainant, questioned the conduct and capability of the complainant, and by so doing, did not treat the complainant with the respect and courtesy which she was entitled to expect from an elected member. The second aspect was that the respondent - in advising the press of his views on the re-grading proposals and the conduct of the complainant - breached the confidentiality requirements of the Code.

6. The background was that the complainant was appointed as a Head of a Section of Tayside Contracts ("Head of Section") with effect from 1 November 2000. The post was not at Chief Officer status but it was, nonetheless, at a senior level. She reported to the Managing Director and was a member of the Corporate Management Team. The complainant's post was subsequently re-graded in two phases by the Managing Director, acting under his delegated powers, and in September 2004 the Managing Director prepared a report which was intended to be submitted to the Joint Committee recommending that the complainant's post be re-designated as Head of Support Services (with certain additional responsibilities), that the post be re-graded to 70% of the Managing Director's salary, and that the new post be of Chief Officer status.

7. The Managing Director sent the complainant a draft of his report on 18 October 2004 and the complainant replied by email on 19 October 2004. Although other events interceded the Managing Director duly replied to the complainant on 7 December 2004. The complainant's email was written somewhat injudiciously and some of her comments were inappropriate. She criticised the views of two senior officers to the Joint Committee, and she also suggested that the respondent could be persuaded of the merit of the case by other elected members.

8. The respondent was inadvertently handed a copy of the complainant's email by the Managing Director at a meeting on 28 October 2004, but the respondent did not read the email on that occasion. At that meeting it was agreed by the Convener, the Vice Convener and the respondent that the Managing Director's report would go forward for consideration by the Joint Committee at its meeting on 8 November 2004. Shortly before that meeting the respondent read the email from the complainant and was seriously concerned that she was indirectly lobbying to have her salary increased. The respondent approached the Convener about his concerns, as a result of which the report was withdrawn by the Convener from the agenda for the meeting of 8 November 2004. At a meeting on 15 November 2004 attended by the Convener, the Vice Convener, the respondent, the Proper Officer, the Clerk and the Managing Director, it was agreed that the Proper Officer and the Clerk would prepare a paper setting out the issues which required further examination relating to the grading of the post of the Head of Section and to her email, and that these matters would be discussed further at a meeting on 23 November 2004.

9. In the meanwhile, the Convener took advice from other members and other senior council officers (including those who were not directly responsible to the Joint Committee) and he formed the view that the complainant had not breached the Employee Code of Conduct and that the appropriate way of dealing with the matter was to instruct the Managing Director to write to her pointing out that the content of her email was inappropriate. (The Managing Director wrote to her on 7 December 2004.) The meeting called for 23 November was cancelled by the Convener and later he indicated that the re-grading of the post would now go to the Joint Committee although, at the time of writing, that had not happened. I considered that it was inappropriate of the Convener - it having been decided that a paper should be prepared on the issues by the Clerk and the Proper Officer - to consult unofficially on a matter that was being regarded by the respondent as a serious issue of propriety. Furthermore, in attempting to draw a line under the matter the Convener did not accord the respondent the opportunity of having his concerns properly addressed and effectively precluded the possibility of any investigation or disciplinary action.

10. As the respondent was dissatisfied with the manner in which his concerns had been discounted he decided to put forward a motion to the meeting of the Joint Committee on 31 January 2005 to the effect that the Joint Committee's business plan should review the existing management structure, and the grade of the Head of Section, with the Chief Executives of the 3 constituent authorities being fully involved. The motion proposed by the respondent was included on the agenda for the meeting and its terms were available to the public. I considered that there was nothing in the terms of the motion which could, in any way, be taken to be disrespectful of any member or officer, including the Head of Section. The item was included in that part of the agenda where it was indicated that it was likely that the Joint Committee would consider the business in private with the public and press excluded from the meeting. The Joint Committee could by resolution exclude the public if exempt information, as defined in section 50J of the Local Government (Scotland) Act 1973, would be disclosed to them.

11. The respondent's background paper was not circulated with the agenda but was made available to members immediately prior to the Joint Committee's consideration of the motion. For the large part the background paper provided information on the grading and re-grading of Tayside Contracts Management Team in recent years. This included details of the salary grades for these posts and the complainant was concerned that the paper includes details of her salary grades. Whilst it was ultimately a matter for the Joint Committee itself to decide upon, I considered that the Committee could not reasonably have declined to make information about the salary grades for chief and senior officials available to the public for any years for which the information was actually held. In this connection it should be pointed out that the provisions of the Freedom of Information (Scotland) Act 2002 came into effect, for this purpose, on 1 January 2005. Indeed, if the Managing Director's report had been put before the Joint Committee and approved, it is reasonably likely that the Committee would have acceded to - or been required to accede to - any request from a member of the public to provide details of the salary grades involved.

12. In the last page of his background paper, the respondent set out his concerns about what he saw as the impropriety of the Head of Section lobbying elected members and Chief Officers regarding her post and salary grade. The respondent made it clear that the reasons for submitting the motion, including the background paper, were driven more by the perceived failure of the Convener to allow the matter to be properly addressed and dealt with. This latter concern was compounded by the manner in which the respondent's motion was dealt with at the Joint Committee. Whereas normally the mover of a motion would be the first speaker, on this occasion the Convener himself spoke at some length in the first instance and he was followed by the Managing Director. Given all the circumstances, I found that it was not unreasonable for the respondent to have formed the view that his concerns about this matter were proper concerns and that these concerns were not being appropriately addressed. That view was formed based on his extensive experience as a Personnel Convener and not because of any personal or party political interest.

13. After the vote, the respondent resigned from the Joint Committee and was subsequently approached by the press for an explanation which, given the inevitable likely interest, he gave. In this connection, I found that the respondent explained to the reporter that he was concerned at the way the re-designation and re-grading of the post of Head of Section was being handled by the Convener of the Joint Committee and the Managing Director, advised that, due to his concerns, he was intending to refer the matter to Audit Scotland, and made available to the reporter his background paper, excluding the email, on the understanding that the complainant would not be personally mentioned in any press report. I also found that two newspaper articles on the subject appeared in the Evening Telegraph on 3 February 2005 and in the Courier on 4 February 2005. The articles in question set out that the respondent's concerns and reasons for his resignation were in relation to the manner in which the proposed re-designation and re-grading of the post of Head of Section had been handled by the Convener and the Managing Director. There was nothing in the articles that could reasonably have been taken as a criticism of the conduct or performance of the complainant.

14. On 8 February 2005, the respondent wrote to Audit Scotland asking them to investigate the manner in which the previous and proposed re-gradings of the post of Head of Section had been carried out, and the manner in which the Convener and certain members of the Joint Committee had dealt with his concerns. (It is understood that Audit Scotland has been looking at this matter as part of their general audit of the Joint Committee's accounts for the year 2004/05.)

15. As already indicated the first issue was whether the respondent, being critical of the re-grading proposals, questioned the conduct and capability of the complainant and, by so doing, did not treat her with respect or courtesy. On this aspect, I concluded - with little hesitation - that the respondent did not fail to treat the complainant with respect or courtesy. At a meeting with the Convener (and others) on 28 October 2004, the respondent was satisfied that the Managing Director's report on re-grading should go forward to the Joint Committee for decision. Afterwards he became aware of the terms of the email from the complainant to the Managing Director and of the previous re-gradings of the post agreed by the Managing Director under delegated powers, and was apprehensive that the arrangements to address and resolve his concerns had not been taken forward. At the meeting of the Joint Committee he did raise his concerns about the conduct of the complainant but he was perfectly entitled, given the terms of the email, to do so. His views on the complainant's conduct may have been regarded as hard, but they were not wholly unreasonable. Regarding the capability of the complaint, I found no evidence to the effect that the respondent raised or questioned this.

16. The second issue was whether the respondent - in advising the press of his views on the re-grading proposals and the conduct of the complainant - breached the confidentiality requirements set out in paragraph 3.16 of the Code. The key questions were (i) was there confidential or exempt information involved (ii) if so, was there an obligation to keep it private and (iii) if so, was such an obligation - in all the circumstances - reasonable and necessary having regard to the right of freedom of expression in article 10 of the European Convention of Human Rights.

17. The Human Rights Act 1998 applies the Convention within the UK and legislation (including, for the purpose, the Ethical Standards in Public Life etc. (Scotland) Act 2000 and the Code of Conduct) must be compliant with the Convention's provisions. Article 10 is in the following terms:-

ARTICLE 10

FREEDOM OF EXPRESSION

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers…
The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society … for the protection of the reputation or rights of others, or for preventing the disclosure of information received in confidence...

18. The information in the Managing Director's report on the proposed re-designation and re-grading would probably have been deemed to include exempt information on the grounds that it contained information about an individual (for example, the complainant's salary) and would have been debated in private if it had been submitted to the Joint Committee before the end of 2004. With the coming into effect on 1 January 2005 of rights to information under the Freedom of Information (Scotland) Act 2002, the report might not so readily have been deemed to include exempt information. Even if it had, it was most likely that - after the Joint Committee had decided on the report - they would have made the information available to the public if requested to do so. It was also most likely that the information relating to the earlier gradings of the Head of Section's post (as set out in the respondent's background paper) would have been made publicly available on request.

19. The background paper - which the respondent made available to the press and which included information about the email of 19 October (although the email itself was not made available to the press) - and the respondent's comment on impropriety should, in my view, have been redacted (in relation to the information and comment) before being made available, rather than relying on the understanding reached with the reporter that the complainant would not be named. However the articles that appeared in both newspapers were clear and articulate and, equally importantly, fair and well balanced. The articles made it clear that the respondent was critical of the Convener and the Managing Director and made no reference to the complainant which could reasonably have been taken as reflecting adversely on her.

20. This case had, at its centre, the funding of public posts (and one post in particular) where concerns had - in good faith and with some apparent justification - been raised. The concerns articulated by the respondent to the press were articulated in the public interest. The principle of freedom of expression is of fundamental importance in matters of public expenditure and any restrictions - as in this case due to confidentiality - must be narrowly interpreted and applied only where it is necessary to do so. In the whole circumstances of this case, the information made available by the respondent to the press was either information that would, in any event, have been available to the public, or was restricted to the extent necessary to explain the genuine concerns of the respondent in raising matters of public interest.

21. Having considered all information, I concluded that Lord Provost John Letford had not contravened the Councillors' Code of Conduct.

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