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Complaint no. LA/H/638 concerning an alleged contravention of the Councillors’ Code of Conduct by Councillor Alasdair Rhind of Highland Council

1. Complaint number LA/H/638 alleged a contravention of the Councillors’ Code of Conduct (“the Code”) by Councillor Alasdair Rhind (“the respondent”).

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

3. The person complaining (“the complainant”) alleged that the respondent submitted a false declaration and inaccurate or incomplete return of expenses incurred by him in relation to the local government election held on 3 May 2007.

4. On 11 April 2007 the respondent declared his candidature for election to the Highland Council in the local government election to be held on 3 May 2007.  He was successful in that election and continues to serve as one of the three Councillors who represent the Tain and Easter Ross ward. 

5. The provisions of the Representation of the People Act 1983 require an accurate and complete return of all electoral expenses to be submitted with 35 days of the election. Failure to comply with this requirement may constitute a corrupt practice and would thus justify investigation as a criminal matter.

6. The return of expenses submitted by the respondent to the Returning Officer formed the basis of the complainant’s allegation under the Code. The first issue was whether the respondent was acting as a councillor (rather than simply a candidate) in submitting his return. For a breach to be established I required to be satisfied that this return of expenses was a) accurate; b) complete; and c) did not conceal an element of third party assistance. In considering this matter I was aware that an investigation had been undertaken by the police and that no criminal proceedings were to be taken by the Procurator Fiscal.   

7. The accuracy of the expenses listed on the return were verified by the supporting documentation submitted by the respondent.  The complainant did not contend that these were inaccurate, and their cumulative value corresponded with the total amount of election expenses declared by the respondent.  The issue in essence was whether they represented the actual costs incurred and whether any element of discount had been applied.  In addition there was a question as to the omission of any reference to transport costs, and the absence of hire costs relating to three public meetings. 

8. In completing his return of election expenses the respondent was required to comply with the advice given in the notes provided by the Electoral Commission.  These are categorised under specified ‘purposes’ which are detailed in the advisory notes and further reproduced with minor changes) on the return form itself.  The judgement as to the purpose under which particular expenditure should be categorised is left to the candidate, it being recognised that some costs may fall into more than one purpose.  For ease of reference I scrutinised the respondent’s entries under the purposes in which he made his entries.

9. Purpose A: advertising.  The respondent entered expenses totalling £885.74 under this heading, with supporting invoices relating to brochure layout and the printing of leaflets, the construction, registration and hosting of an election website, and newspaper announcements of public meetings.  The complainant questioned the omission of a specific reference to posters from the printing invoice.  This was rebutted by the respondent who stated that the posters were printed by the same supplier who issued a single invoice which he assumed included all his printing requirements.  The supplier’s recollection supported the respondent and at this juncture, and mindful of the time that had elapsed since the work was undertaken, I did not consider that the accuracy of the invoice could be questioned.

10. In relation to the respondent’s election website the complainant speculated that the charge levied by the supplier did not represent the true commercial cost.  The supplier did not contend this and explained that he carried out the work at a reduced rate as he considered it to be of community benefit.  The supplier did not know, and I did not think he could reasonably be expected to have known, that the respondent would be required to submit a return of his expenses and that any significant discount would require to be included as notional expenditure.  The supplier stated that he did not make the respondent aware that he was providing his services at a reduced rate, and further explained that the work involved was not great as the text and pictorial content was supplied by the respondent.  In support of this aspect of his complaint the complainant had obtained quotes from other suppliers which showed a wide range of prices.  On the one hand these could be interpreted as showing that the charge invoiced to the respondent was indeed below the commercial rate, but on the other indicated that there was no standard charge which could be applied to website design.  The respondent confirmed that he accepted the invoice at face value and I did not therefore consider that his reliance on the invoice could be criticized; nor did I consider that the complainant had provided a robust assessment of the actual commercial cost. 

11. Purpose B: unsolicited material to electors.  The respondent applied no expenses to this category.  It would in my view have been appropriate to have allocated the cost of leaflets to this category but given that the total sum was entered under advertising purpose I did not consider that this was anything other than an error of judgement on the part of the respondent.

12. Purpose C: transport.  Again the respondent applied no expense to this purpose.  The complainant questioned this by comparison to the return of another candidate.  The respondent stated that he met all transport expenses himself, or made use of facilities provided by friends and family who provided their services free of charge.  I considered that the respondent was entitled to rely on the guidance note against this purpose on the return form which excludes the use of personal cars where no charge has been made by the owner. 

13. Purpose D: public meetings.  This aspect of the complaint relied on the omission from the respondent's return to charges for the hire of halls at Fearn, Polnicol and Inver which he utilised for pre-election meetings.  This was explained by the statutory exemption applying to the Council halls at Fearn and Polnicol, and the absence of any charge being levied for the community-run hall at Inver.

14. At the end of the day the key issue was whether the respondent was performing official duties as a councillor in submitting his return of election expenses, and, in this connection I found he was acting in his capacity as a candidate (all candidates were under the same legal obligations regarding the returns) and not as a councillor. There are appropriate procedures to challenge the returns of all candidates under the Representation of the People Act, as opposed to the Ethical Standards Act. In any event even if the Code did apply, in all the circumstances of this complaint, having regard to the underlying facts, the speculative nature of the alternative calculations provided by the complainant, the substantial time lapse, and the decision of the Procurator Fiscal on the same issues, I would not have concluded that the respondent had breached the key principles of Duty, Integrity, Accountability and Stewardship, or Honesty.  I found accordingly.

15. Having considered the information that arose from my investigation, I concluded that Councillor Alasdair Rhind had not contravened the Councillors’ Code of Conduct.

D Stuart Allan

Chief Investigating Officer

Forsyth House

Innova Campus

Rosyth Europarc

Rosyth

KY11 2UU

26 January 2009