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Complaint nos: LA/E/544 & LA/E/545 concerning an alleged contravention of the Councillors' Code of Conduct by Councillor Trevor Davies of City of Edinburgh Council

1. Complaint numbers LA/E/544 and LA/E/545 alleged a contravention of the Councillors' Code of Conduct ("the Code") by Councillor Trevor Davies ("the respondent").

2. It was alleged that the respondent had contravened the Code, in particular, paragraphs 3.8, 3.9 and 3.13 (Gifts and Hospitality) and paragraph 7.3 (Dealing with Planning Applications).

3. The first complaint (LA/E/544) alleged that, while the respondent was going into a Christmas party hosted by Mountgrange (Caltongate) Limited on 12 December 2006, he gestured angrily to protesters at the entrance to the building, by displaying his middle finger and that, by doing so, he breached paragraph 7.3 of the Code. The second complaint (LA/E/545) alleged that, by accepting hospitality from Mountgrange while it was an applicant awaiting a decision from the Council, the respondent contravened paragraphs 3.8 and 3.9 of the Code and that, by failing to register receipt of the hospitality, he contravened paragraph 3.13 of the Code.

4. Mountgrange (Caltongate) Limited is developing a site known as the Caltongate, part of which is comprised of the former New Street bus depot. The Council has agreed to sell additional premises in its ownership to Mountgrange to enable the company to add value to the development. For this purpose the Council has approved a master plan on the basis of which Mountgrange will submit planning applications to the Council.

5. In respect of the first complaint both the complainants and the respondent agreed that the respondent reacted to a protest directed at him as he entered a function hosted by Mountgrange (Caltongate) Limited on the evening of 12 December 2006. They disagreed, however, about the nature of the protest and the respondent's reaction. The complainants claimed that their protest took the form of good humoured singing to which the respondent reacted by displaying his middle finger. The respondent claimed that the protesters directed personal remarks at him and that he reacted with a "small gesture."

6. The complainants considered that the respondent had breached paragraph 7.3 of the Code. This particular paragraph falls within that part of the Code which comes under the generic heading of "Dealing with Planning Applications." It is directed at conduct by councillors when planning applications are going through the planning process or when they are before the Council or the Planning Committee for consideration. At the time of this incident, no planning application had been submitted to the Council by Mountgrange in respect of the Caltongate development. Quite apart from this the respondent's conduct while he was on his way to a social event (which was not a Council event) did not constitute conduct when dealing with planning applications. Consequently, as the respondent's conduct did not occur while he was dealing with planning applications I found that it was inappropriate to consider his conduct under section 7 of the Code and that he did not, as alleged by the complainants, contravene paragraph 7.3.

7. While the respondent's conduct did not fall to be considered under paragraph 7.3 of the Code it was appropriate to consider it under the key principles in paragraph 2.1, in particular, the key principle relating to Leadership and under paragraph 3.1 (General Conduct). The key principle relating to Leadership states that councillors have a duty to promote the key principles by leadership and example and paragraph 3.1 states that the principles of good conduct in section 3 must be observed in all situations where a councillor acts as a councillor, including representing the Council on official business.

8. Both the respondent and the complainants agreed that an incident took place as the respondent was on his way into the party but they disagreed on the nature of the protesters' action and the respondent's reaction. The complainants described their protest as good humoured singing whereas the respondent considered that the protesters had directed personal remarks at him. The complainants alleged that the respondent reacted by raising his middle finger whereas the respondent admitted to making a "small gesture." In the absence of a denial by the respondent of the complainants' specific description of his reaction and his admission to having made a small gesture I was inclined to the belief that the complainants' version of events more accurately described the respondent's reaction.

9. In considering the respondent's conduct I had regard to the fact that the Monitoring Officer confirmed that the respondent's attendance at the function was not authorised by the Council, or by a Committee of the Council. For this reason I did not consider that the respondent was representing the Council on official business. In addition, having regard to the nature of the function and the fact that the incident took place while the respondent was simply on his way to a social event, I did not consider that, at the time of the incident, the respondent was carrying out his duties as a councillor. For all of these reasons I found that the respondent's conduct in these circumstances was not subject to the provisions of the Code. I was also mindful of the fact that there was a degree of provocation on the part of the complainants. Even if the respondent's conduct had been subject to the provisions of the Code I considered that, while his reaction was offensive and unbecoming of a public representative, his conduct was not of a degree which could be reasonably be taken to amount to a breach of the Code. Accordingly I found that the respondent had not contravened paragraphs 2.1 or 3.1 of the Code.

10. The second complaint alleged that, by accepting hospitality from Mountgrange while it was an applicant awaiting a decision from the Council, the respondent contravened paragraphs 3.8 and 3.9 of the Code and that, by failing to register receipt of the hospitality, he contravened paragraph 3.13 of the Code.

11. The key objective of the provisions of the Code relating to gifts and hospitality is to avoid damaging confidence in individual councils and in local government generally. To achieve this requires adherence to the principles that gifts or hospitality should not be accepted where this would amount to (a) real or substantive gain to the recipient or (b) a reasonable suspicion of influence on the part of the councillor to show favour or disadvantage to any individual or organisation. Gifts of modest value and reasonable hospitality associated with councillors' duties would not fall foul of these principles.

12. Where the individual or organisation offering the gift or hospitality is an applicant awaiting a decision from the Council or is seeking to do - or continue to do - business with the Council, then a councillor may, in accepting the gift, fall foul of the principles, in terms of paragraph 3.9 of the Code. Where the nature of the hospitality does not strike at the two principles referred to in paragraph 11 above then, as a general rule, the acceptance of hospitality from an applicant who is awaiting a decision from the Council or is seeking to do - or continue to do - business with the Council would not give rise to a breach of the Code.

13. The respondent stated that the hospitality which he received at the Christmas party took the form of wine and nibbles. I did not consider that hospitality of this value, or attendance at an event of this nature, undermined the principles referred to in paragraph 11 above. I found, therefore, that the respondent's acceptance of hospitality from Mountgrange at the function on 12 December 2006 did not breach paragraph 3.8 of the Code.

14. The Monitoring Officer confirmed that, at the time of the incident, there were no planning applications from Mountgrange awaiting approval by the Council. An earlier application for the demolition of the former bus garage which occupied the site had been lodged in May 2005 and concluded by February 2006. While Mountgrange may, at the time of the party in December 2006, have been seeking to do business with the Council (in the sense that it was proposing to develop the Caltongate site in accordance with the master plan approved by the Council) because the hospitality did not (for the reasons explained in paragraph 13 above) strike at the principles referred to in paragraph 11 above, I found that the respondent had not breached paragraph 3.9 of the Code.

15. The respondent acknowledged that he had not registered his receipt of hospitality from Mountgrange on 12 December 2006 in the Register of Interests. He explained that it was his understanding that, where gifts are of a seasonal or modest nature and where hospitality is "normal" and "reasonably regarded as appropriate" it was not necessary to declare it.

16. Paragraph 3.7 of the Code states that, as a general guide, it is usually appropriate for councillors to refuse offers of gifts or hospitality except, inter alia, normal hospitality associated with their duties and hospitality which would reasonably be regarded as appropriate. Paragraph 3.13 of the Code states that a councillor must record with the appropriate officer the details of any gifts or hospitality received. The Standards Commission has issued a general dispensation in relation to certain gifts and hospitality which states that it is not necessary to record any gifts or hospitality which fall under paragraph 3.7 of the Code.

17. While the acceptance of certain hospitality could give rise to a breach of the principles referred to in paragraph 11 above, depending on its nature, value or frequency, the Code does not preclude a councillor from accepting hospitality of a modest nature, especially where it is related to his or her duties as a councillor. I considered that, on any reasonable view, the respondent's open and transparent acceptance of modest hospitality from a major developer at a social event could be regarded as being associated with his duties as Convener of the Planning Committee and that it came under the provisions of paragraph 3.7(b) of the Code. As such it came within the general dispensation issued by the Standards Commission and did not, therefore, require to be recorded in the Register of Interests. I found, therefore, that the respondent's conduct in not registering his receipt of hospitality from Mountgrange on 12 December 2006, did not represent a breach of paragraph 3.13 of the Code.

18. Having considered the information that arose from my investigations I came to the conclusion that, in relation to complaint numbers LA/E/544 and LA/E/545, Councillor Trevor Davies had not contravened the Councillors' Code of Conduct.

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