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Complaint no. LA/EL/582 concerning an alleged contravention of the Councillors' Code of Conduct by Councillor David S Berry of East Lothian Council

1. Complaint number LA/EL/582 alleged a contravention of the Councillors' Code of Conduct ("the Code") by Councillor David Berry ("the respondent").

2. It was alleged that the respondent had contravened the Code, in particular, section 2 in relation to the key principles of Openness, Honesty, Leadership and Respect, section 3 on General Conduct: Relationship with Council Employees and Conduct in the Chamber or in Committee and Annex C relating to Public comment.

3. The person complaining ("the complainant") was former Councillor Gilbert Meikle. The complaint related to the Special East Lothian Council Budget Meeting held on 8 February 2007 and the involvement of the respondent in those proceedings and his subsequent alleged actions. The matter at issue was the decision of the Council taken at that meeting to create a Spend to Save Efficiency Fund involving savings from a Departmental Merger. This involved the Council's Chief Executive taking early retirement and receiving a redundancy payment of some £149,000. The matter had been investigated by the Controller of Audit under Section 102(1) of the Local Government (Scotland) Act 1973 and she had published her report. It was alleged that the respondent made false claims to the Accounts Commission about his participation in the Council meeting; made false claims to the press about his position on the budget; put improper pressure on a Council official to amend the subsequent Minute of the meeting; was instrumental in the publication of certain press articles which it was considered called the integrity of the Chief Executive into question; breached confidentiality of the Selection Panel's subsequent decision to appoint a new Chief Executive and brought East Lothian Council into disrepute by all of the foregoing actions.

4. It was my assessment that the matters complained of had to be considered within the context of the sequence of events described in the report by the Controller of Audit. That report highlighted clear and fundamental deficiencies in the Council's decision-making processes relative to the Council's budget involving the proposals for management re-structuring and the proposed redundancy payment to the Chief Executive. The Monitoring Officer had confirmed the local practice of only issuing budget papers on the morning of the Council meeting to members of the Council, who were charged with the proper stewardship of the Council's multi-million pound budget resources.

5. For some considerable time, Local Government legislation had prescribed the arrangements for the convening and public notification of meetings and the business able to be transacted at such meetings. In addition, the Local Government (Access to Information) Act 1985 amended the Local Government (Scotland) Act 1973 and dealt with the legal requirement to make meeting reports and papers publicly available prior to any meeting. The purpose of that step was to enable interested parties to note the terms of agenda items and to have the opportunity to lobby or inform members about the subject matter to be discussed. (One statutory exception to this requirement was that there was no such requirement to make reports public prior to a meeting until they had been made actually available to members of the Council). I considered that in a matter so fundamental as the setting of a Council's multi-million pound budget for the ensuing year, all members of the Council who were charged with that responsibility should have had an appropriate opportunity to consider fully the detailed budget proposals in advance of the meeting and for the budget papers also to be available publicly. The failure on the part of the Council to do so played a major part in the sequence of events about which this complaint was concerned.

6. The budget papers as identified on the published Agenda contained significant proposals to restructure the top management arrangements of the Council (which were not clear on the face of the Agenda). It was noted the Council had undertaken a prior public consultation exercise, over several months, on draft budgetary proposals. The Monitoring Officer confirmed that the restructuring proposal, (and the redundancy payment), did not feature in that exercise. He had also confirmed that the budget which was set at that meeting was, in effect, an agreed position of the Labour and Conservative Party groupings on the Council on the re-structuring, involving some 20 out of the 23 members of the Council. (The respondent was not a member of either such grouping.)

7. The Committee and Administration Services Manager had confirmed that the Leader of the Labour Group presented the Administration's budget as a whole for approval, including the Spend to Save Efficiency Fund item and that in the complainant's budget submission on behalf of the main Opposition, the complainant requested that the restructuring item be discussed after the other budget proposals. At one level this was entirely appropriate but it also could be said to have had the effect of confusing the budget setting process. The Committee and Administration Services Manager confirmed that the respondent recorded his dissent to the setting of whole budget as initially submitted, but did not record a separate note of dissent to the extracted section regarding the proposed arrangements for restructuring the existing Directorate of the Council, under which the proposed retirement/redundancy of the Chief Executive was explained.

8. The complainant also made reference to a number of remarks reported in the press that the respondent was alleged to have made subsequently in public criticism of the Council's proposals which were adopted. I considered these comments had to be seen within the very particular circumstances of some "Opposition" members not having an appropriate opportunity to consider the budget proposals in advance of the meeting, coupled with the systemic failure of the Council to engage in proper decision-making processes for the re-organisation of its senior management and was something the respondent was generally entitled to do, having regard to the well recognised concept of freedom of expression. It had also to be said that if the public remarks by the respondent were considered unreasonable in some quarters, the whole method and manner of the Council's decision-making process militated against more measured public comment from those parties who had been unaware of the matters to be determined.

9. As regards the very serious allegation that the respondent put pressure on a Council official, the Committee and Administration Services Manager was particularly helpful in explaining the sequence of events relative to the respondent's inquiries to her about how the Council's decision of 8 February 2007 was to be recorded. In particular, she had stressed that at no time did she feel that undue or improper pressure had been placed on her by the respondent. She had confirmed that she had not had any such approach before from any councillor and confined herself to providing her recollection of the meeting from her notes. She had confirmed that the respondent in his dealings with her was professional and courteous throughout.

10. As regards the allegation that the respondent had breached confidentiality, the Minute of the Council Meeting of 17 April 2007 confirmed that the respondent did not take part in the Selection Panel which dealt with the appointment of the new Chief Executive Designate. I considered that questions of confidentiality around the work of that Panel was, primarily, a matter for those councillors who were members of the Panel.

11. As regards the suggestion that, overall, the respondent had brought East Lothian Council into disrepute, I confirmed that, contrary to the terms of the Model Code of Conduct in England, the Councillors' Code in Scotland contained no such specific provision.

12. I endorsed and concurred with the findings of the Controller of Audit in her Report of 15 June 2007. The Council's decision making processes in this matter were patently flawed and this failure had been a fundamental factor in how the sequence of events involving the respondent had developed. Reference had been made in the complaint to the provisions of the Code in relation to "Respect" issues on how councillors could or could not comment about employees of a Council. 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 which required to be evaluated in the individual circumstances of each case. The findings of the Controller of Audit were clear in confirming that there was a failure in Council processes in which staff, as professional advisers to the Council, were involved. The issue in point related to changes in the top management structure of the Council and the payment of public monies to the chief adviser to the Council, (the Chief Executive). These were matters of clear public interest about which any member of the Council was entitled to make public political comment. Due to the Council's own processes, the opportunity for the respondent, (and other Council members not part of the Administration or main Opposition) to make measured comment at the Council meeting of 8 February 2007 was, to say the least, limited. I considered the respondent was entitled to air such matters publicly.

13. In its deliberations about this matter, the Accounts Commission made specific, and timely, reference to the importance of the Protocol between Councillors and staff which formed Annex C to the Code. The Code placed much stress on how the relationship between employees and Councillors in the "political group" setting should operate in a clear situation of separated roles, (and the need for equity), having regard to the fact that employees were employed by the Council as a whole. Section 12 of the Protocol confirmed that "Certain matters must, however, be clearly understood by all those participating in this type of process, councillors and employees alike." These included:

"where employees provide information and advice to a party group meeting in relation to a matter of Council business, this cannot act as a substitute for providing all necessary information and advice to the relevant committee or sub-committee when the matter in question is considered;

"political groups need to recognise that information and advice given by employees should be used to enhance discussion and debate at Council and committee meetings. If such information is used for political advantage, for example media briefings beforehand, then the process could become devalued and place employees in a difficult position in giving information and advice."

14. Having regard to the Protocol, the Controller of Audit's report made clear that the proposals regarding the management re-structuring which were submitted to the special budget meeting of the Council did not form part of any of the recognised policy development processes set up by the Council for such important matters. They became the policy of the Administration and the main Opposition as submitted to the budget meeting of the Council, and were supported by a written report from the Chief Executive (per Head of Personnel Services) and the Director of Corporate Finance and IT (per Head of Corporate Finance). Such advice and information was not the subject of advance prior circulation to all members of the Council. I considered that, in the particular circumstances of this matter, insufficient attention was paid to the terms of the Protocol on the matter of political advantage in relation to prior advice given by Council employees to only certain members of the Council.

Recommendation to the Council

15. One of the particular aspects of this matter was the circulation to members of the Council, some 90 or less minutes before the start of the budget meeting to decide the proposals, details of the suggested multi-million pound expenditure plans of the Council's Administration, as supported and advised by senior employees of the Council. The Council's decision to undertake a prior public consultation exercise on draft budgetary proposals was to be commended, but it could not be said that the subsequent issue of the final papers to persons charged withdetermining the Budget, (which contained a critical Council re-structuring proposal, which had not been the subject of the same consultation or prior notification to all Council members) met the same standard. I recommended that the Council closely and critically reviewed its arrangements for the formulation and issue of its budgetary proposals for the future. I considered that particular regard should be paid to the terms of the Protocol regarding advice given to political groupings.

Conclusion

16. Having considered the information that arose from my investigation, I concluded that, Councillor David S Berry had not contravened the Councillors' Code of Conduct.

D Stuart Allan,
Chief Investigating Officer.
Forsyth House
Innova Campus
Rosyth Europarc
Rosyth
Fife
KY11 2UU
17 July 2007