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Complaint no. LA/H/904 concerning an alleged contravention of the  Councillors’ Code of Conduct by Councillors John Holden, Robert  Wynd and Glynis Sinclair of The Highland Council 

1. Complaint number LA/H/904 alleged a contravention of the Councillors’ Code of Conduct (“the Code”) by Councillors John Holden, Robert Wynd and Glynis Sinclair (“the first, second and third respondents” respectively).

2. It was alleged that the respondent had contravened the Code, in particular, set out in section 3 on Relationship with Council Employees; and in paragraphs 2, 16 and 20 of the Protocol for Relations between Councillors and Employees in Scottish Councils.

3. The first complainant alleged that, in relation to her duties as a Tenant Services Officer of the Council concerning the management of unauthorised traveller encampments at Slackbuie and Smithton, Inverness, the respondents harassed, intimidated and bullied her by means of e-mail communications to herself, colleagues, external services, and the press; and that she had been publicly and personally attacked by the respondents for not carrying out their instructions.  The second complainant, who as an Assistant Housing Manager oversaw the first complainant’s duties, alleged that in relation to their duties concerning unauthorised traveller encampments, officers of the Council, and in particular those of the Housing and Property Service, in the course of their involvement with unauthorised traveller encampments, had been subjected to harassing, intimidating and threatening behaviour from the respondents by e-mail communications and press statements.

4. Paragraphs 3.2 of the Code requires councillors to respect Council employees and their roles, and treat them with courtesy; and paragraph 3.3 reminds elected members that their role is to determine policy and not to engage in the direct operational management of the Council’s services. Members are required to respect this distinction in role. 

5. The Protocol for Relations between Councillors and Employees is contained in Annex C, and brought within the scope of the Code by paragraph 3.4.  Paragraph 2 of Annex C  requires that councillors and employees should work in an atmosphere of mutual trust and respect, with neither party seeking unfair advantage; paragraph 16 recognises that councillors are local representatives and entitled to fair and open treatment by employees, while the members themselves must also comply with the principles of the Code and the protocol; and paragraph 20 specifically bars members from public comment on matters relating to the conduct or capability of employees.  

6. In considering the facts of this case I was required to assess the references made by the respondents to the conduct of Council employees engaged in the response to unauthorised traveller encampments, against the requirements laid down in the Code and Protocol requiring them to show respect and courtesy and to avoid critical public comment.  It was not within my role to scrutinise compliance with the legislation on race relations or data protection.   

7. I was mindful that the principal evidence upon which the complaint was founded consisted of e-mails from the respondents which were indisputable in terms of content and origin.  I placed less reliance on remarks to the press attributed to the first and second respondents due to susceptibility to selective quotes and potential loss of context.  It was however pertinent that internal e-mails and comments had been provided to the press by the first and second respondents, Councillors Holden and Wynd.  Only one telephone conversation was referred to – between the first respondent Councillor Holden and the first complainant, the Tenant Services Officer, who took a note of the content.  I noted that the precise terms of that conversation were disputed by Councillor Holden.

8. I also took account of the public disquiet about the unauthorised traveller encampments which had clearly been matters of concern to constituents and which had been communicated directly to the respondents.  I did not doubt that they were put under considerable pressure to respond to their constituents and that the respondents had an expectation that the Council would take a proactive role.  It was of concern that the respondents were apparently less than fully aware of the existence of the multi-agency guidelines to which the Council had agreed, and that in particular the restriction of removal powers to land in Council ownership was not clearly evident either from the document itself or in the version available on the Council website.  I considered there would certainly be value in this aspect being reconsidered and communicated, possibly by means of an awareness seminar, to elected members at an early date.

9. Finally, I was also been mindful of the terms of article 10 of the European Convention on Human Rights which provides for the right to freedom of expression (including the freedom to hold opinions and to impart information and ideas without interference by public authority) subject to restrictions necessary in the interests of (among other matters) the protection of the reputation or rights of others.  In this connection, it was appropriate to bear in mind that the issue of unauthorised travellers’ sites was one of considerable controversy and of significant public interest.

10. Turning to the circumstances of this case I then considered the actions of the respondents in relation to the unauthorised encampments at Slackbuie and Smithton.

11.  The Slackbuie Encampment - Councillor John Holden:  Councillor Holden’s involvement began on 17 April 2009 when he first observed that a group of travellers had set up camp.  It was to his credit that he approached the travellers himself and engaged them in conversation to ascertain their intentions and reason for choosing the Slackbuie site.  Councillor Holden was also proactive in seeking advice and convening a meeting with Council officers, including the first complainant, the Tenant Services Officer.  He appeared however to have assumed that the Council could commence eviction proceedings either in their own right or by prompting the landowner and that, when the travellers showed no intention of moving on, he became frustrated by what he perceived as a lack of action on the part of Council officers.

12.  The tenor of Councillor Holden’s telephone conversation with the first complainant, the Tenant Services Officer,  on 8 May 2009 – which I found was substantially as described by her written note - confirmed a belief on Councillor Holden’s part that as an elected member he could instruct the giving of a time limit to the travellers and, failing that, the commencement of eviction action irrespective of the guidelines or legal constraints.  References to selective memory on the part of the first complainant, and deliberately obstructive conduct by Council officers generally, were indicative of ill-considered language and not excused by any personal frustration or external pressure experienced by Councillor Holden.  The first complainant’s note of the conversation incorporated in an e-mail to senior managers was made three hours later, the terms of which were disputed by Councillor Holden, and I attached some importance to the very fact that she felt the need to place the conversation on record.

13. Essentially, the conversation related back to a meeting two weeks earlier and involved a misunderstanding or lack of agreement as to what had been discussed and determined at that meeting.  Councillor Holden said (in the telephone conversation) that the meeting had agreed that the travellers would be given notice to leave the site.  The first complainant said the meeting had agreed they were not in a position to do that. However, the last paragraph of her note of the conversation said that she had subsequently checked her note of the meeting and accepted it was suggested at the meeting that 14 days notice to leave be given to the travellers but that “this was later overturned due to the legalities of this action and the possible repercussions on the Council if we were to be disregarding our own policies and procedures”.  There was, therefore, a genuine misunderstanding during the telephone conversation of what had been decided at the earlier meeting.  Councillor Holden was substantially correct in recalling the decision had been to serve notice on the travellers and Ms Johnston had failed to recall that that decision had been overturned after the meeting.  It seemed that Councillor Holden was unaware of the decision having been overturned and that he was not advised of this.  This went a long way to explaining the somewhat heated nature of the telephone conversation.

14. In all the circumstances, therefore, I did not consider that Councillor Holden was inherently disrespectful or rude and I did not consider that there was sufficient evidence to support a finding that the respondent’s part in this conversation breached paragraph 3.2 or 3.3 of the Code.  I found accordingly.

15. Councillor Holden’s next intervention arose some six weeks later when on 20 June he was quoted in the Press and Journal newspaper as being “embarrassed as an elected member when I have to give residents what sound like lame excuses” and demanding “an eviction order to be raised and served on the travellers” and being “appalled at the lack of effort being put in to implement the policy”.  These comments, coupled with a remark attributed to Councillor Holden in the Highland News on 25 June 2009, after the travellers had moved to another site, that he was “fed up trying to provide lame excuses on behalf of the Council” again implied criticism of the Council and the officers concerned whether or not individual members of staff were identified by name.  I was not satisfied that the contact by a reporter from the Highland News on 16 July  in which similar comments were attributed to Councillor Holden reflected a renewed criticism by the respondent as opposed to an attempt to prompt a response from the Council.  

16.  Comments attributed to Councillor Holden in the Highland News published on 23 July that he had been ignored by officials could readily be interpreted as levelling criticism at the Council and Council officers. The respondent asserted at interview that he was commenting on the process rather than the conduct of individual officers

17. Taken as whole I considered that Councillor Holden’s comments to the press showed a significant level of criticism of the Council’s performance on this matter generally which was a matter of considerable controversy and public interest but the criticism was not such that could reasonably be taken to amount to disrespect for individual officers, none of whom had been named by him. I therefore found that Councillor Holden had not breached paragraphs 3.2 and 3.3 of the Code, and paragraphs 2 and 20 of Annex C in respect of his press comments.

18. The Smithton Roundabout Encampment – Councillor Wynd:  As with the Slackbuie encampment it was not long before the local elected members received representations from constituents who sought the removal of the encampment at Smithton roundabout.  Initially the second respondent, Councillor Wynd, passed on his observation of dogs leaping at joggers to the Tenant Services Officer, the first complainant.  No objection could be taken to that contact which was simply alerting the officer to a problem.

19. On 24 July 2009 Councillor Wynd was quoted in the Press and Journal newspaper as asking Council officers to block off the site with concrete bollards in an attempt to persuade the travellers to leave the site.  While not endorsing this suggestion I did not consider that this could be viewed as being critical of the officers’ response to date, although it must be noted that it was not in accordance with the guidelines and could have been construed as a harassing manoeuvre.

20. A clear aim to have the travellers moved on was indicated by Councillor Wynd’s e-mail to the Tenant Services Officer, the first complainant, on 20 August 2009 requesting that she move the encampment on, and this was reinforced by his ‘tongue-in-cheek’ e-mail of 27 August when he opined that the travellers were not entitled to be dealt with as an ethnic minority, a matter on which he had not sought legal advice and which conflicted with the opinion of the Council’s Head of Legal Services.

21. The quotes attributed to Councillor Wynd in the Inverness Courier article on 1 September 2009 were undoubtedly critical of Council officers, albeit unidentified by name but clearly referring to those with an involvement in the response to the Smithton encampment.  References to “butting your head against a  brick wall”; being “sick to the back teeth of asking our officials what the council is going to do”; and “the officials are not doing enough at the moment” could only be viewed as public criticism of the Council and Council  officers concerned.  

22. The public criticism continued when, on 2 September 2009, Councillor Wynd, copied an e-mail addressed to his ward manager to the Inverness Courier and Press and Journal newspapers.  This was overtly critical, and the tone was at best sarcastic.  The impression is given that the e-mail was written in frustration and anger, and potentially undermined the corporacy of the Council’s response.  It also personalised the issue by its targeted references to “this woman” and “this lady” which, having regard to its context appeared to be directed specifically at the Tenant Services Officer, the first complainant.  Further weight to this view was given by the second e-mail of same date, again copied to the newspapers, which alleged that “apparently officials responsible for this area of council work are not paying attention to the worries and concerns of the community, nor to the wider road safety issues this encampment is causing”. 

23. In this case, Councillor Wynd had, on a number of occasions, communicated with officials about what had undoubtedly been a difficult issue at the Smithton roundabout. It was clear the second respondent had very genuine concerns relating to public nuisance and public safety at the roundabout.  He was entitled to express his views in an endeavour to achieve more action on an issue that was also of considerable public interest.  The e-mails he sent within the Council were sharp and the language employed was, in certain cases, unnecessary and inappropriate; they were not however – in all the circumstances and on balance – such that they could reasonably be regarded as disrespectful of individual officers.  The issue was of considerable interest to the press and Councillor Wynd saw it as important to keep the press advised as to developments.  He was entitled to do that but when he copied e-mails which were principally for internal purposes within the Council to the press, he made a serious error of judgment.  I accepted that the press were not the main recipients of, and that the complainants were not personally named in, the e-mails but the press could have attributed his comments to specific officers.  The fact they did not do so reflected creditably on the newspapers involved.  I strongly urged Councillor Wynd to be much more circumspect in the future when considering passing copies of internal correspondence to the press, especially when such correspondence touches on the actions of individual officers who often will not be in a position to respond publicly. 

24. In the whole circumstances of this case and having regard to the public interest in the situation at the Smithton roundabout, I – on balance – concluded that it could not be reasonably concluded that Councillor Wynd had breached paragraphs 3.2 and 3.4 of the Code, and paragraphs 2 and 20 of Annex C in respect of the comments referred to above.

26.  The Smithton Roundabout Encampment – Councillor Glynis Sinclair:  The third respondent first became involved in this issue on 20 August 2009 when she e-mailed the Tenant Services Officer, the first complainant, to ask that immediate steps be taken to move the travellers from the Smithton roundabout site.  On 24 August she sent a rather dramatic e-mail to the Tenant Services Officer which referred to the situation being “out of control!” and the possibility of an accident resulting in the death or injury of persons using the carriageway rather than the pathway through the site.  I accepted that this was a legitimate concern, albeit neither the roads authority, their managing agents, or the police appear to have considered the risk to be significant.  Road safety was a valid issue to be raised by Councillor Sinclair and other local members and given the location in proximity to a trunk road junction I considered that this should have been given greater weight than the evidence provided to me indicated. 

27. On 27 August Councillor Sinclair raised with the first complainant the legal status of the travellers, as had her colleague Councillor Wynd on the same date.  There was no evidence that this was anything other than a coincidence and the request for clarification was expressed politely.  A further e-mail to the first complainant on 29 August reiterating the concerns and requesting a risk assessment appeared entirely reasonable.

28. Councillor Sinclair’s final involvement was contained in an e-mail to Councillor Wynd and copied to a constituent which effectively criticises all Council officers involved in the response to the Smithton encampment – “I have raised this issue with every official, from the top down – to no avail – I have witnessed the problems, and reported to the relevant authority, but just keep getting fobbed off.  Who will be responsible when there is a catastrophe?”  The impression was given that Councillor Sinclair was both expressing frustration and criticising officers, and in addition disassociating herself from responsibility for the corporacy of the Council approach as directed by the multi-agency action plan approved by the Housing and Social Work Committee in 2008.  Taken in isolation however I did not consider that it could be regarded as a breach of the Code or Protocol and I found accordingly.

Summary of Conclusions

29. Having considered the information that arose from my investigation, I concluded that Councillors John Holden, Robert Wynd and Glynis Sinclair had not contravened the Councillors’ Code of Conduct.

Comments and recommendations

30. In reviewing the course of events to which my attention was drawn I was struck by the escalation in public awareness over the issue of the unauthorised traveller encampments and the early involvement of councillors in response to constituents.  While the respondents relayed these concerns primarily to the Tenant Services Officer, the first complainant, many of the relevant e-mails were also copied to more senior officers.  In addition media reports of the continued presence of the travellers on the unauthorised sites provided evidence of a heightened public interest.  I considered that these indications of public, councillor, and media interest were such as to comprise critical incidents which required a co-ordinated management approach.  While this might not have altered the respondents’ views on the action being taken it would at least have served to explain the Council’s position as directed by national guidance, ensured that other public agencies were alerted at an appropriate level, and provided an assurance that positive action, within the constraints of the guidance and the law, was under way.  It was difficult to escape an impression that officers who were not at a particularly senior level appeared to be expected to bear the brunt of dealing with these difficult situations, and that active and co-ordinated management, of what was undeniably  problems of very real public concern, were not readily apparent. 

31. I therefore recommended that the Council give consideration to the following:-

(i) the existing guidelines on unauthorised camping should be reviewed, (particularly to clarify the role of the elected members and the extent to which Council or other landowner permission is required for extended stays).

(ii) elected members should be offered an early opportunity on being fully briefed on the terms and operation of the guidelines.

(iii) having regard to the sensitivity and often controversial nature of these cases, the role of senior management’s involvement should be reviewed, with a view to providing appropriate support to staff at the front line.

(iv) members should ensure that in commenting on or criticizing action (or inaction) by a Council service they do not inappropriately call into question the performance of individual officers.  In this connection it is essential that elected members fully accept their responsibilities for maintaining the mutual trust and respect between members and officers which are essential for there to be public trust and confidence in local government.

D Stuart Allan

Chief Investigating Officer

44 Drumsheugh Gardens

Edinburgh

EH3 7SW

28 June 2010