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Complaint no. LA/H/818 concerning an alleged contravention of the Councillors’ Code of Conduct by Councillors William Clark and Edward Hunter of The Highland Council

1. Complaint number LA/H/818 alleged a contravention of the Councillors’ Code of Conduct (“the Code”) by Councillors William Clark and Edward Hunter (“the respondent”).

2. It was alleged that the respondents had contravened the Councillors’ Code of Conduct, and, in particular, the provisions on Relationship with Council Employees set out in section 3; and the provisions on Public Comment contained in Annex C of the Code.

3. The complainant alleged that the respondents initiated a press report within the Lochaber News in which they publicly criticized his appointment as an employee of the Council, and cast doubt on the integrity of the Council’s recruitment process.

4. This complaint arose from the publication of an article in the Lochaber News, a local newspaper circulating in the Fort William and Lochaber area, which questioned the appointment of a former Highland councillor to paid employment with the Council.   I was asked to consider firstly, the comments attributed to the respondents, Councillors William Clark and Edward Hunter, and secondly, the actions of the respondents in questioning the appointment with the Council’s Chief Executive.  A distinction required to be drawn between that part of the article compiled by the press and the quotes attributed to the respondents.  I found no evidence to support the contention that the respondents initiated the article.

5. The first aspect of this complaint related to paragraph 3.2 of the Code which requires members to respect all Council employees and the role they play, and treat them with courtesy at all times.  The complainant pointed out that while the remarks attributed to the respondents in the newspaper article were primarily directed at his suitability for appointment to a Council post, the implication might also have been drawn that others involved in the recruitment process were being criticized.

6. In considering the impact of the remarks on the complainant himself I did not regard the respondents as being overtly critical.  Councillor William Clark simply expressed surprise at the appointment of a former chairman of the Housing Committee, and Councillor Hunter implied that in that role the complainant would have had an advantage over other candidates.  I did not think that exception could be taken to these comments.  An additional jurisdictional issue arose here in that the complainant was not, at the time the comments were made, a substantive employee of the Council as his contract of employment did not take effect until a subsequent date.   Councillor Hunter’s additional remark about the complainant’s attitude was ill-advised however and potentially unhelpful to a Council appointee whose job, when it commenced, would require close contact with the public.  I did not consider however that the comments attributed to either respondent, taken in isolation from the article, were of such a disrespectful or discourteous nature as to breach paragraph 3.2.

7. As a general observation I considered that the terms of the Code as they apply to substantive employees should be taken into account when considering the effect of public comment on any individual in the position of an applicant for employment, or appointee awaiting the commencement of employment, with the Council.

8. The complainant suggested that an implication might have been drawn that the respondents’ comments also levelled criticism at those Council employees who participated in his selection and appointment.  I did not consider that this could be supported by the evidence as no reference was made to any individual either by name or job title.  It might have been argued somewhat tenuously that the respondents were criticizing, or at least questioning, the propriety of appointing any former councillor to paid employment with the Council, or at least to a post related to their previous responsibilities as an elected member.  Indeed, this was the justification for the comments which the respondents made at interview, but criticism of Council policy and procedures, albeit raised inappropriately in the press, is not a matter that would conflict with this section of the Code.  I also noted that none of the Council employees involved in the recruitment process had interpreted the remarks attributed to the respondents as being critical of their actions. I did not consider that, taken in isolation from the contents and thrust of an article compiled by a newspaper reporter, the comments attributed to either respondent were of such a disrespectful or discourteous nature as to breach paragraph 3.2, and I found accordingly.

9. The second aspect of the complaint centred on the actions of the respondents in raising the complainant’s appointment with the Chief Executive.  It was not disputed that an approach was made by the respondents to the Chief Executive and it was difficult to place any interpretation on this other than that taken by the complainant.  Clearly the respondents had a motive in approaching the Chief Executive and questioning the appointment, whether or not this was directed at former councillors in general or the complainant in particular.  Given that both respondents stated at interview that they had asked the Chief Executive if he had provided a reference for the complainant it seemed plain that they were referring to him as an individual.  Councillor Hunter said that he was simply being inquisitive; Councillor Clark provided no explanation.   Had this indiscreet and unnecessary intervention taken place prior to, or during, the selection and appointment process it might well have constituted an attempt to engage in operational management.  In the event  the intention of the respondents remained unclear and they had no opportunity to take matters further as the Chief Executive quite properly made it clear that Council policy and procedures had been observed, and the statutory time-bar on the employment of the complainant as a former Councillor had expired. That was the case although it has to be borne in mind that the statutory provisions precluding an elected member from becoming an officer of the same council within 12 months of ceasing to be a member are well-established and are there to ensure there is no impropriety – or perceived impropriety – in relation to the appointment of a former councillor to a post as an officer.  I considered that the approach to the Chief Executive was reasonable and could not be interpreted as an attempt to intervene in a process which lay outwith the role of elected members.  In the whole circumstances of this case I considered that the conduct of the respondents could not reasonably be taken to amount to a breach of paragraph 3.2 of the Code and I found accordingly.  

10. Annex C to the Code of Conduct sets out a protocol for relations between Councillors and Employees.  Paragraph 20 constrains elected members from raising matters relating to the conduct or capability of employees in public.  The protocol applies only to substantive employees, but again it would appear a matter of common sense that critical public comment should not be made about any applicant for, or appointee to, a Council post who is at the relevant time in what might be described as a neo-employment role.  Members should consider very carefully whether any comments are appropriate in such circumstances.  The respondents in this case took the view that to have made no comment in response to questions about the appointment of a former councillor to paid employment with the Council could have given a perception of approving this as a general policy.  In alluding to the complainant as an individual however they gave a negative impression towards his specific appointment which they need not have expressed.  I did not consider however that the specific comments made by either respondent breached paragraph 20 of Annex C and I found accordingly.

11. Having considered the information that arose from my investigation, I concluded that Councillors William Clark and Edward Hunter had not contravened the Councillors’ Code of Conduct.

D Stuart Allan

Chief Investigating Officer

Forsyth House

Innova Campus

Rosyth Europarc

Rosyth

KY11 2UU

7 May 2009