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Complaint no. LA/EA/690 concerning an alleged contravention of the Councillors’ Code of Conduct by Councillor James B Roberts of East Ayrshire Council

1. Complaint number LA/EA/690 alleged a contravention of the Councillors’ Code of Conduct (“the Code”) by Councillor James B Roberts (“the respondent”).

2. The person complaining, an officer on behalf of the Head Teachers’ Association of Scotland (“the complainant”) alleged that the respondent had contravened the Code, in particular, by breaching the Protocol for Relations between Councillors and Employees referred to in section 3.4 of the Code and set out at Annex C thereof in relation to Respect for Council Employees. The relevant sections of the Code to be considered were paragraphs 3.2 to 3.4 (Relationship with Council Employees) and the Protocol. Paragraph 3.20 of the Code (Dealings with the Council) was also relevant.

3. The complaint related to the involvement of the respondent as a Joint Portfolio Holder for Lifelong Learning, overseeing the Council’s Education Services, whilst, at the same time, being involved in a staffing grievance procedure involving his wife who was employed in that particular department. The complainant considered that these 2 roles were incompatible and that by making critical comment of Council staff members, the respondent was in breach of the Code, in particular the provision of the Protocol for Relations between Councillors and Employee (Annex C).

4. Paragraph 3.2 of the Code (Respecting all Council employees and the role they play) placed 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 dealt with this aspect. I made the general observation that criticism of Council processes involving staff did 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. This particular case was unusual in that it involved a course of conduct by the respondent which commenced some time before his election as a councillor. There was an issue whether in fact his subsequent conduct was undertaken in a private capacity rather than as a councillor. The respondent was acting as his wife’s representative in an employee grievance process she had raised with the Council. The respondent considered that it was his moral and family obligation to support his wife in her case. In addition to providing general support it was clear that the respondent’s professional background in health and safety matters was such that he felt able to deal with the technicalities of what he perceived to be systemic failures in the Councils’ statutory responsibilities in that regard.  He had a number of particular criticisms of Council processes which involved the action of Council staff, including a Head Teacher, in carrying out, or not carrying out, what he assessed as their duties and responsibilities on health and safety matters.  It can be said that as well as being a spokesman and agent for his wife, the respondent felt that he was in the nature of an “expert witness” on the subject matter under dispute. It had to also be emphasised that the Council had, to date, not been accepting of the applicability of the respondent’s technical representations and professional assessments.

6. It had to be said that the actions of the respondent in supporting and representing his wife in the period prior to his election were not matters which fell within the Code for evaluation. The crux of the matter was the action taken by the respondent in the period from the election on 3 May 2007 onwards and whether or not it was of an extent and nature as amounted to a breach of the Code. It was clear from the evidence of the respondent that he, (and indeed his political group leaders) had a clear understanding from the beginning that potential conduct issues in respect of the Code might be an issue. The respondent was clear in his evidence that he was well aware that his conduct as a Joint Portfolio Holder and Councillor would be subject to ongoing scrutiny and he indicated that he considered this and took steps to meet his obligations, as he saw them, to act with propriety and in accordance with the Code.

7. The involvement of councillors in staff grievance and disciplinary matters was an area where particular care was required to ensure that due process was maintained and decision making, which was of a “semi-judicial” nature, was conducted properly. Such proceedings had to be conducted fairly according to the legal principles of natural justice and it was the case, generally, that any immaterial consideration could not be used as a basis for the decision reached or that any bias in the part of the decision-maker(s) be shown. Failures in those aspects could have rendered Council employment decisions invalid and had the potential to be overturned by an Employment Tribunal with adverse financial consequences for the Council and Council taxpayers. It was therefore customary for local authorities to make specific considered delegated arrangements for selecting councillor involvement. In this instance the Council had clear arrangements which specifically excluded appointment of any Portfolio Holder from sitting on such Sub-Committees where the employee in question was employed in the department or service covered by the Portfolio Holder.  Commendably, the Council’s Sub-Committee arrangements also sought to ensure a spectrum of political membership from Administration and opposition councillors. Accordingly, in this instance, if the grievance of the respondent’s wife was to be submitted to the relevant Sub-Committee for ultimate internal adjudication, neither the respondent, nor his colleague, as the two Joint Portfolio Holders for Lifelong Learning would have been eligible for membership.

8. It was the respondent’s assessment that to meet his Code obligations once he became a councillor he could no longer “conduct” his wife’s case. That responsibility was transferred to a representative of her Trade Union who undertook such responsibilities.   I considered that this demonstrated the respondent was properly mindful of his Code obligations and took the correct decision on that aspect. Notwithstanding this, it was clear from the evidence that the respondent felt he had an ongoing personal obligation to continue to support his wife in her case and in particular felt that his health and safety expertise should not be lost to the continuance of her grievance. He sought advice from the Council’s Monitoring Officer on the scope for his possible involvement as a witness in the Grievance Hearing to be held by Head of Resources (Education and Social Services) on 8 November 2007.  The Monitoring Officer gave considered advice that the respondent should confine himself to providing the Trade Union Representative conducting the Hearing with a note of all the necessary technical points on health and safety issues which it was felt supported the grievance. It was my assessment that the Monitoring Officer’s advice represented a constructive and appropriate approach to dealing with the matter.

9. It was clear that the respondent considered the advice and decided not to attend the Hearing in person as a witness.  Again, I considered that this demonstrated the respondent was properly mindful of his Code obligations on that point and took the correct decision not to attend. What he decided, and what I considered was unfortunately not fully in line with the Monitoring Officer’s advice was to submit a written “Witness Testimony”. Particular reference is made to paragraphs 1 and 2 thereof where the respondent declared his position in the matter and referred to his position as a councillor. This action, by the respondent in submitting his Witness Testimony in the manner he did, I found was unnecessary, inappropriate and ill-considered. It had given rise to and formed the basis of this complaint and undermined the stated intention of the respondent to be mindful of his conduct obligations as a councillor. I strongly urged the respondent to be particularly careful when considering taking similar action in the future.  It was my assessment that any such further intervention on his part would be a clear contradiction of the respondent’s stated aspiration to meet appropriate standards of conduct in discharging the political office of Joint Portfolio Holder for Lifelong Learning he sought and accepted.  

10. Another factor to be considered was that the attendance of a councillor as a witness in a Grievance or Disciplinary Hearing was not precluded by the Code. Indeed, there may be 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 be 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. The key element of this complaint was the proposition that the respondent by his criticisms of the Head Teacher had breached the provisions of the Code in relation to failing to respect staff and treat them with courtesy at all times.  In view of the senior position of the respondent and the subject matter involved, it was self-evident why the complainant had legitimate concerns about the matter. As previously indicated, a councillor had a right to criticise Council processes (which may, on occasion, have involved perceived action, (or inaction), by staff with which a councillor might have taken issue). Critically, in this particular instance, it was the Monitoring Officer’s assessment that the comments and assessments of the respondent in his Witness Testimony, and which referred to the Head Teacher were merely a reiteration of the comments and assessments submitted by the respondent in the period prior to his election and which were already known to the Council. (It was also a fact that the Council had not instituted any disciplinary proceedings against the Head Teacher). Essentially, indeed, the respondent was acting in a private capacity whilst representing or speaking for his wife in connection with the proceedings.

12. There were also some additional particular aspects in this case which I assessed as of relevance in assessing whether or not the conduct complained of amounted to a breach of the Code. There was no other evidence before me that the respondent, in his capacity as a councillor, had ever been abusive or personally offensive to the Head Teacher or had sought to use his position as a councillor and Joint Portfolio Holder to advance his stance in relation to the progression of his wife’s grievance in her favour. I considered these to be critical points.  It was a fact that to date, essentially, the grievance had not been upheld.  The evidence of the Council officers involved was clear in their assessment that the respondent had not, to date, abused his position in this matter to affect the decisions reached, despite his criticisms of staff and the Council. For his part the evidence of the respondent made clear that he was well aware his continuing conduct might well have been subject to further ongoing scrutiny by interested parties. Of particular note was the recent decision of all the members of the respondent’s political group not to participate as members of the Grievance Sub-Committee in dealing with a related grievance of the Line Manager of the respondent’s wife in view of the link to the respondent.  It was the respondent’s assessment that members of his political group would similarly not participate in any Grievance Sub-Committee involving his wife. It was my view that such an approach would further support the various efforts made by the respondent to demonstrate that, whilst he was closely involved with pursuing his wife’s grievance before he became a councillor and Joint Portfolio Holder, he had to date taken sufficient steps to distance himself from the current proceedings.

13. Having considered the information that arose from my investigation, I concluded that, Councillor James B Roberts had not contravened the Councillors’ Code of Conduct.

D Stuart Allan

Chief Investigating Officer

Forsyth House

Innova Campus

Rosyth Europarc

Rosyth

KY11 2UU

17 June 2008