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Complaint no. LA/EL/38 and LA/EL/39 concerning an alleged contravention of the Councillors' Code of Conduct by Councillor Norman Murray, Councillor Patrick O'Brien and Councillor William Innes of East Lothian Council

1. Complaint numbers LA/EL/38 and LA/EL/39 alleged contraventions of the Councillors' Code of Conduct ("the Code") by Councillors Norman Murray, Patrick O'Brien and William Innes ("the respondents").

2. It was alleged that the respondents had contravened the Code, in particular, the key principles of Leadership and Respect set out in section 2.

3. The person complaining ("the complainants") alleged that at the meeting of East Lothian Council Joint Consultative Committee held on 10 December 2003, the respondents referred to the actions of the complainants in making press statements and putting forward a motion to the Scottish Council of UNISON in relation to the schools refurbishment contract entered into by East Lothian Council. The complainants allege that the respondents criticised them in an aggressive and intimidatory manner.

4. The issues arising from the PPP contract and the withdrawal of the original contractor had put considerable pressure on the Council and its officers over a period of several months. While the officers were seeking to engage another contractor and keep the work on schedule, the affected employees and their representatives were seeking information and assurances as to their future status under the stalled contract. The Council were constrained in giving staff information due to commercial confidentiality issues during the sensitive negotiations to appoint the replacement main contractor. The complainants, in their role as trade union representatives, had made statements which were critical of the Council in this respect. The respondents had in turn responded to this criticism at a meeting of the Joint Consultative Committee.

5. The key principle of Leadership in the Councillors' Code of Conduct refers primarily to showing leadership and example in a public context. The Joint Consultative Committee meeting is an internal forum which is not attended by, or reported to, the general public. As such, any departure from the appropriate standard of debate or conduct takes place in private session and forthright debate may be anticipated.

6. The key principle of Respect in the Code demands an appropriate standard of courtesy in relation to Council employees, and does not distinguish between conduct in private or public forum. While the topic under discussion had put considerable pressure on the Council which had been exacerbated by the press statements attributed to UNISON, and the motion put to UNISON's Scottish Council, this did not excuse a departure from proper and reasonable behaviour at meetings.

7. The respondents were entitled to address the criticisms levelled at the Council by UNISON, but to utilise the Joint Consultative Committee for this purpose may be regarded as inappropriate. The agenda item was intended to provide an opportunity to give a factual update on the progress of the school refurbishment contract in East Lothian, and not to facilitate a wider discussion on the merits of PPP. As the issue related to UNISON alone it would have been more appropriate to address their concerns, and the Council's response, in private session. To do so at the Joint Consultative Committee might have been seen (as it was) as confrontational by other trade union representatives present in addition to the complainants.

8. The question as to whether the principle had been breached was one of fact and degree. The language employed, so far as it was reported or recalled, appeared not to have been intemperate. Rather it was the manner of its expression, and the construction which could be put upon the words, which gave rise to the complaint. Clearly the debate was robust, and influenced by the fact that the meeting of the Joint Consultative Committee followed so closely upon the press report and conference motion. In effect it provided a platform for the respondents to reply to the criticism levelled at the Council, but to do so in the heat of the moment was not a sound basis for balanced debate. While the effect of the words used by the respondents clearly caused offence I took the view that the tenor of the language used was forceful rather than abusive.

9. It is unrealistic to expect that all discussion at the Joint Consultative Committee will take place in a spirit of mutual agreement, and this being so an element of differing opinion must inevitably occur from time to time. On this occasion the respondents did give an impression, rightly or wrongly, of a concerted attack on the complainants and this perception was also evident to other trade union representatives who were present. The agenda item chosen to respond to the UNISON criticism might have been less than appropriate, and the vehemence and manner of the respondents' approach was influenced by the fact that the criticism levelled in the press report and conference motion had been made only a few days before. In effect they spoke in the heat of the moment and without giving sufficient time to consider a more balanced approach.

10. In relation to the contributions of the individual respondents it is apparent that the first respondent's comments set the tone. As Chair of the meeting he was in a privileged position and had a particular responsibility to address his responsibility in a balanced manner rather than pursuing a personal argument. Councillor Murray's acknowledgement that he spoke in anger is itself an indication which might have signalled to him the need for caution. The manner of his speech was forceful, targeted at the UNISON representatives without prior notice, and was perceived by the complainants and other employee representatives as confrontational. His brusque curtailment of further discussion further added to the impression of a one-sided statement from the Chair. On a balance of the evidence the language used was not, however, intemperate. Furthermore, there is no question of any bad language being involved.

11. The second respondent, Councillor O'Brien, made reference to the possibility of legal action. This possibility had in fact been raised at the pre-meeting and was therefore an accurate statement, however by raising it at the Joint Consultative Committee it was interpreted by the complainants as a threat. His manner of speech was again forceful and displayed a degree of emotion, but on a balance of the evidence does not appear to have been pointedly rude.

12. The third respondent, Councillor Innes, appears to have confined himself to suggesting that the complainants were 'making mischief'. This was interpreted by the complainants as being sarcastic and demeaning, and in the context of the input by the first and second respondents gave an impression of a concerted attack. The remark was clearly directed at the complainants as individuals but their impact relied upon the listeners' perception rather than actual meaning.

13. It is accepted by all three respondents that they felt strongly about the issue, and they agreed that anger and frustration were factors which influenced their approach. They did however indicate a willingness to apologise in an appropriate manner. Councillor Murray, at the meeting of the Joint Consultative Committee held on 3 June 2004, expressed regret over the manner in which the PPP item was handled at the previous meeting, and sought to move ahead in a spirit of mutual respect.

14. Having considered the information arising from my investigation, I concluded that Councillors Norman Murray, Patrick O'Brien, and William Innes had not contravened the Councillors' Code of Conduct.

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