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Complaint no. LA/EL/584 concerning an alleged contravention of the Councillors' Code of Conduct by Councillor David S Berry of East Lothian Council

1. Complaint number LA/EL/584 alleged a contravention of the Councillors' Code of Conduct ("the Code") by Councillor David Berry ("the respondent").

2. The person complaining ("the complainant") complained about the conduct of the respondent in connection with the arrangements for 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 in criticising the Council's Chief Executive. (A particular factor 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 the Controller had subsequently published a report. It was alleged that the respondent had not treated the Chief Executive, with courtesy and respect. The complainant considered that the respondent's actions amounted to an unacceptable smear against the Chief Executive to the extent that it constituted a breach of Clause 20 of the Protocol.

3. 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.

4. 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 actually made 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.

5. 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 restructuring issue, involving some 20 out of the 23 members of the Council. (The respondent was not a member of either such grouping.)

6. 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 subsequent budget submission by the Leader of the Main Opposition, it was 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.

7. The terms of the Code had to be considered in light of the over-arching protection given to freedom of expression as protected by the Convention on Human Rights. Whilst not entirely unfettered, it remained the case that the principle of free speech, particularly in relation to political matters and matters of public interest, allowed people to express their opinions and to speak in a manner which others may have sometimes considered unbecoming, ill-considered or intemperate. The principle of freedom of expression was of fundamental importance in matters of public expenditure and any restrictions had to be narrowly interpreted and applied only where it was necessary to do so. This situation was, demonstrably, a matter of political and public interest notwithstanding that it did include criticism of Council processes involving named staff.

8. I also considered that the respondent's 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. 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. 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.

10. 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."

11. 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 Group 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 & 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

12. 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 in relation to advice provided to political groupings.

Conclusion

13. 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