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Complaint no. LA/E/753 concerning an alleged contravention of the Councillors’ Code of Conduct by Councillor Marilyne MacLaren of City of Edinburgh Council

1. Complaint number LA/E/753 alleged a contravention of the Councillors’ Code of Conduct (“the Code”) by Councillor Marilyne MacLaren (“the respondent”). The respondent is a member of the Scottish Liberal Democrats and is the Convener of the Education, Children and Families Committee (“the Education Committee”).

2. It was alleged that the respondent had contravened the Code, in particular, the key principles of Duty, Integrity, Objectivity, Accountability and Stewardship, Openness, Honesty, Leadership and Respect in section 2.

3. The person complaining, Mrs Lynda Flex, (“the complainant”) was appointed by the Director of Children and Families (“the Director) to serve on the Forum on School Estate (“the Forum”) as one of three parental representatives. The Forum was set up by the Education Committee in November 2007 to review and draw up proposals for the rationalisation of the primary school estate. The complainant alleged that the respondent rescinded her membership of the Forum on School Estate based on false information that she had leaked confidential information to the press on the names of four primary schools which had been identified by the Forum for possible closure.  The complainant also alleged that the respondent accused her of telephoning the schools concerned to advise them of the closures, that the respondent prevented her from advising a meeting of the Consultative Committee with Parents (“the CCWP”) that she (the complainant) had lodged a Freedom of Information (“FOI”) request with the Council and that she (the respondent) had her ejected from the City Chambers.

4. Arising from the findings and conclusion of a separate investigation commissioned by the Council’s Chief Executive into similar complaints which the complainant had lodged with the Council the respondent accepted that she did not have proof that the complainant was the original source of the leak of the names of the four schools.  As the respondent had accepted this position the issue for consideration regarding this aspect of the complaint was whether her conduct constituted a breach of the Code.  To facilitate this assessment it was necessary to examine in some detail the events which led to the respondent’s action.

5. When the Education Department became aware that the Edinburgh Evening News (“the Evening News”) intended to publish, on 23 April 2008, the names of the four primary schools, an officer from the Department contacted the Head Teacher of Lismore P.S. (“the Head Teacher”) to advise her. According to the Departmental Assistant to Councillor MacLaren (“the Departmental Assistant”) the Head Teacher said that she already knew, having been telephoned by a member of Lismore P.S. Parents Action Group (Mrs Ross) who had named the complainant as the person responsible for the leak.

6. Among staff of the Education Department there were differing versions of the actual manner in which the Head Teacher described her source of the information.  The Departmental Assistant stated that the Head Teacher said that a Parents’ Action Group member had telephoned the school and had identified the person who had leaked the information to the Evening News as the complainant.  The Head Teacher had named the Parents’ Action Group member as Mrs Ross. On 23 April 2008, a media officer, acting on information obtained by the Head of Neighbourhood Services (“the HoNS”) sent an email to the Departmental Assistant stating that “a parental rep” had telephoned the Lismore Action Group to advise them of the Forum’s decision.  The Head Teacher herself could not recall the exact detail of her conversation with the officer from the Department but she was certain that she would not have said that “a parental rep” had telephoned her.

7. Whatever the actual nature of the information relayed by the Head Teacher it was interpreted by the officers involved as meaning that the names of the schools had been leaked to the newspaper by a parental representative serving on the Forum. Based on their knowledge that the complainant was known to the press, and had spoken to the press on previous occasions (without proof that she had divulged Forum business), they assumed that she was the parental representative responsible for disclosing the names of the four primary schools to the Evening News.

8. The email from the media officer went on to say “we now have confirmation    that the leak came from one of the parent representatives on the forum” and “she (meaning the complainant) is also now taking it on herself to inform parents about the discussions and [the Head of Neighbourhood Services] feels that maybe now is the time to take action against her.”

9. The information which officers obtained was passed to the respondent by the Departmental Assistant. From this it appeared to the Departmental Assistant and the respondent that a parental representative on the Forum had made two telephone calls; one to the Head Teacher of Lismore P.S. and another to a member of Lismore P.S. Parents’ Action Group. (Mrs Ross). The respondent stated that she telephoned Mrs Ross a couple of days later (ie around 25 April 2008) who confirmed that the complainant was the source of the leak.

10. Based on the information which she had accumulated, and knowing that the complainant had previously spoken to the press, the respondent decided that the complainant was responsible for disclosing the names of the four primary schools to the Evening News.  Following a discussion with the Director she wrote to the complainant on 28 April 2008 stating that she had “incontrovertible proof from two different sources” that she was leaking information to the press and that she had telephoned the four primary schools to tell them that they had been identified for possible closure. She advised the complainant that she was rescinding her place on the Forum.

11. In an attempt to establish the actual source of the leak I sought information from the Editor of the Evening News regarding the newspaper’s statement that the complainant was not the “original” source of the leak.  In his response the Editor stated that the original source of the leak was Mrs Ross who told the reporter that Lismore P.S. was to close.  The reporter contacted the complainant who was able to confirm that this was so.  The reporter then went through the list of possible closures and, believing the reporter to be in possession of the full facts, the complainant confirmed the identity of the other three schools still at risk.  The complainant did not at any time offer up new information and expressed concern that the discussions of the Forum were confidential.

12. Mrs Ross is the Secretary, and a very active member, of Lismore P.S. Parents Action Group. She is in frequent contact with the Education Department, local councillors, the Head Teacher of Lismore P.S. and the Evening News regarding matters pertaining to the school. Mrs Ross denied that she passed the names of the primary schools to the newspaper.  She also denied that she told the Departmental Assistant and Mrs Edwards (a member of Victoria P.S. Parents Council) that she got the name of the complainant from a reporter on the Evening News.  This conflicted with the evidence of the Departmental Assistant and Mrs Edwards.  It also conflicted with the evidence of the Editor of the Evening News who I considered to be a credible witness.  I accepted his statement as an accurate explanation of how the newspaper had obtained the names of the four schools identified for possible closure. I considered that I could place reliance on the collective evidence of these three witnesses in preference to the inconsistent evidence of Mrs Ross.  It was the case, of course, that Mrs Ross would have had to obtain the name of Lismore P.S. from a member of the Forum before she could have given it to the newspaper but the fact that it was not possible to identify the person or persons who passed the information to her did not diminish the probability that that was what occurred.  The fact that Mrs Ross appeared to have become aware of the termination of the complainant’s membership of the Forum at almost the same time as the complainant herself also suggested that Mrs Ross had obtained information from within the Council.

13. The information from the Editor stated that when the complainant was contacted by the reporter she confirmed that Lismore P S was to close and that when the reporter went through the list of possible closures the complainant, believing that the reporter had the names of the three remaining schools, confirmed the identity of those as well.  After an initial denial the complainant acknowledged, at interview, that she may have been contacted by the reporter and if the reporter had mentioned the names of the four primary schools she may, without herself naming the schools, have responded in a manner which provided the reporter with confirmation of the names.  This would explain how the newspaper was able to state that the complainant was not the “original” source and would indicate that the complainant (even if she did so unintentionally and unwittingly) provided the newspaper with the confirmation which it sought.  This, of course, did not alter the fact that, at the time the respondent wrote to the complainant rescinding her membership of the Forum, she did not have proof that the complainant had spoken to the newspaper or that she had contacted the four primary schools to tell them that they had been identified for possible closure.

14. The respondent’s action in rescinding the complainant’s membership of the Forum and in alleging that she telephoned the four schools to advise them that they had been identified for possible closure fell to be criticised on several grounds. Fundamentally, she did not have proof that the complainant had leaked the names of the schools.  In addition, she took action without consulting other members of the Forum which would not only have been good practice but would have ensured that the decision regarding the complainant would have been a corporate decision rather than a personal one.  While the respondent did discuss the situation with the Director and other staff she did not share a draft of her letter to the complainant with the Director before she released it.  It is a matter of speculation as to whether, if she had done so, it would have altered the course of events but it would have given the Director an opportunity to assess the action which the respondent was about to take and may have resulted in the situation being subjected to greater scrutiny.

15. The complainant had a fundamental right to be informed of the respondent’s suspicion that she had leaked information and to be given an opportunity to respond.  However, the respondent did not seek to discuss the situation with the complainant but proceeded, instead, to take action against her based solely on the suspicion that she was responsible.

16. In order to make a balanced assessment of the respondent’s action there were a number of factors which required to be taken into account.  The respondent  explained that she had acted in good faith and from the best of motives; her overriding concern had been for the distress to the communities of the schools which were the subject of the leak and she  had acted on the information available to her at the time.  She considered that it would have been difficult to call an emergency meeting of the Forum and, in any event, she had dealt with the matter personally as she had no wish to embarrass the complainant publicly.

17. The information on which the respondent acted was obtained largely from staff of the Education Department and from a media officer from the Corporate Services Department. Their information appeared to have originated, in turn, from the Department’s telephone contact with the Head Teacher.  The Head Teacher was sure that she had not said that she had been told by “a parental rep” that Lismore P.S. had been identified for possible closure.  While it was not possible to be certain exactly what had been said by the Head Teacher, staff appeared to have interpreted whatever information she gave them as meaning that it was a parental representative serving on the Forum who had telephoned the school.  The reference to a “parental rep” was repeated in an email from the media officer to the Departmental Assistant on 23 April 2008.  The email stated that the Head Teacher had told the HoNS that “a parental rep” had telephoned the “Lismore Action Group” to advise them that they were on the closure list.  The email reinforced the belief by staff that it was a parental representative on the Forum who had leaked the information and that the person in question had contacted the school and the Lismore Parents’ Action Group.  This information was passed to the respondent and she interpreted it as meaning that a parental representative had made two calls; one to the Head Teacher and the other to Lismore Parents’ Action Group. 

18. The email also stated “We now have confirmation that the leak came from one of the parent representatives on the forum” and “she is also now taking it on herself to inform parents about the discussions and [the Head of Neighbourhood Services] feels that maybe now is the time to take action against her.” This statement was significant on two counts.  Firstly it stated that the there was “confirmation” that it was a parental representative from the Forum when there was no reliable earlier information to confirm. Secondly, as the reference to “she” meant, according to the media officer’s explanation, the complainant, the email stated, as a fact, that it was the complainant who was responsible for the leak even though there were three parental representatives on the Forum (one male and two female) and there was no reliable factual information to identify the complainant as the source of the leak. Even if the Head Teacher had indicated that it was a parental representative who had contacted the school or the Parents’ Action Group there was no indication that the Head Teacher referred to the person by name. The media officer’s statement that it was the complainant who had informed parents appeared to have been based solely on the suspicion of staff, based on the fact that the complainant was known to have spoken to the press in the past. At interview, the media officer responsible for the email described the wording as a “heat of the moment” reaction.

19. There was a further factor to which it was relevant to refer. The Forum was a Group set up to evaluate the Children and Families Department Estate and make recommendations to the Education Committee. It was not a Committee of the Council and was not, therefore, subject to the formal protocols which apply to the operation of Committees. While the Forum made arrangements to issue press notices after each meeting and members were strongly advised against disclosing information to the press, there were no arrangements for the general governance and administration of the Forum. The Director had arranged the appointment of the complainant to the Forum but there was no guidance to indicate how the termination of a person’s membership of the Forum should be dealt with. In the event, when the leak occurred the respondent considered that, as Convener, it was her responsibility to take action and none of the officers seem to have questioned or challenged whether that was the most appropriate approach administratively. If authority to terminate a parent representative’s membership of the Forum had been the Director’s responsibility it was not unreasonable to assume that greater scrutiny would have been exercised with the attendant safeguards inherent in that process.

20. There was no doubt that the respondent acted precipitously, without consulting the complainant or fellow councillors on the Forum, and without the proof which she claimed to have that the complainant had leaked the information to the newspaper and had telephoned the schools concerned to inform them. In so doing the respondent made an error of judgment. However, her action had to be assessed in the context of the absence of administrative arrangements for dealing with the type of situation which arose and of the speculative and unreliable nature of the information passed to her by staff which identified the complainant as the person responsible for the leak. It was also relevant to point out that, based on the evidence of the Editor of the Evening News, the complainant had spoken to a reporter from the newspaper and, without necessarily having named the schools herself, may (even if unwittingly and unintentionally) have provided the newspaper with confirmation of what, hitherto, had been unreliable or speculative information. The respondent would not, of course, have been aware of this at the time she wrote to the complainant but it indicated that her suspicions about the complainant having spoken to the press were not entirely without foundation. I also took account of the fact that the respondent had acknowledged that she did not have proof to support her allegations and her action against the complainant, that she had apologised to the complainant and offered to re-instate her as a member of the Forum, and that she is willing to offer the complainant a public apology at a meeting of the Council as soon as she has an opportunity to do so.

21. In forming a view on this aspect of the complaint I had regard to all of the factors referred to in paragraphs 16 to 20 above. I took account, in particular, of the absence of administrative arrangements (in respect of which I make certain recommendations below) which resulted in the respondent becoming involved in a matter which would have been more appropriately dealt with by executive action and of the fact that the information passed by staff to the respondent (which, to an extent, she relied on and led to her taking action) was based largely on suspicion (rather than firm evidence) that the complainant was responsible for the leak. While the respondent made an error of judgment such action does not necessarily constitute a breach of the Code especially where, as in this case, there was no evidence that the respondent had acted out of bad faith towards the complainant but rather in good faith out of a sense of duty to the parents of the schools involved. Having regard to all of the aforementioned factors I considered that the respondent’s action, in relation to this part of the complaint, could not reasonably be taken to amount to a breach of the Code and I found that the respondent had not breached the key principles of Duty, Integrity, Objectivity, Accountability and Stewardship, Openness, Honesty, Leadership and Respect in section 2 of the Code. I noted that the respondent intended to apologise publicly to the complainant at the Council meeting on 16 October 2008 but that she was prevented from doing so because it was ruled that it would not be appropriate to discuss the situation while the Chief Investigating Officer’s investigation was on-going. I recommended that the Council now afford the respondent an early opportunity to make her apology.

22. The complainant also alleged that the respondent prevented her from advising a meeting of the CCWP that she (the complainant) had lodged a FOI request with the Council. The information available indicated that it was the Director who decided that, as the complainant’s FOI request was being dealt with under the Council’s normal procedures, it was not necessary or appropriate for it to be discussed at the meeting. The respondent indicated that she had no knowledge of the complainant’s FOI request or of the Director’s intended action at the CCWP meeting. Based on the information available I did not consider that the respondent played any part in the Director’s decision and I found that, in relation to this aspect of the complaint, the respondent had not breached the Code of Conduct.

23. The final allegation was that the respondent had the complainant ejected from the City Chambers. This allegation related to an incident involving the complainant on 11 June 2008 when she was prevented from attending a meeting of the Forum on that date because her membership of the Forum had been rescinded. The complainant had arrived for the meeting and had managed to gain access to the meeting room by entering with a councillor. She was later persuaded to leave the room in order to sign in at reception and the opportunity was taken not to allow her to return to the meeting room. It was alleged that the respondent’s action was intended to debar the complainant from the entire City Chambers building and not just the meeting room.

24. A statement by one of the officers on security duty on the day in question indicated that when the complainant returned to reception to sign in she was advised that she would not be allowed back into the meeting. The exchanges between the complainant and security staff appear to have been conducted in friendly terms and there was no indication that the complainant was forced to leave the actual building. At interview the complainant stated that she, herself, was uncertain whether the respondent had attempted to debar her from the meeting only or from the entire City Chambers building. She also stated that she had since been allowed into the City Chambers.

25. Having regard to the information available and, in particular, to the complainant’s own statement, I did not consider that there was any material evidence that the respondent acted to debar the complainant from the City Chambers building. Consequently, I did not consider that the respondent’s conduct in relation to this aspect of the complaint constituted a breach of the Code and I found accordingly.

26. Having considered the information that arose from my investigation, I concluded that, Councillor Marilyne MacLaren had not contravened the Councillors’ Code of Conduct.

Supplementary Recommendation

27. As referred to in paragraph 19 above, there were no formal arrangements in place for the governance and administration of the Forum. While the Monitoring Officer’s explanation that it is not practical to design a single set of protocols that would be appropriate for the diverse range of groups which operate within the Council was accepted, it was recommended that consideration be given to the production of a comprehensive check list of key matters for application to, or consideration by, newly formed groups to enable each group to have available, or alternatively to draw up, governance arrangements which are appropriate, having regard to the composition of the groups and to the purposes for which they have been established.

D Stuart Allan

Chief Investigating Officer

Forsyth House

Innova Campus

Rosyth Europarc

Rosyth

KY11 2UU

31 December 2008