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Complaint no. LA/I/967 concerning an alleged contravention of the Councillors’ Code of Conduct by Councillors Alan Blair, Tom Fyfe, Innes Nelson and Luciano Rebecchi of Inverclyde Council

1. Complaint number LA/I/967 alleged a contravention of the Councillors’ Code of Conduct (“the Code”) by Councillors Alan Blair, Tom Fyfe, Innes Nelson and Luciano Rebecchi (“the respondents”).

 2. It was alleged that the respondents had contravened the Code, in particular, paragraphs 7.2, 7.3, 7.8 to 7.10 (Dealing with Planning Applications).

3. The person complaining (“the complainant”) alleged that Councillors Alan Blair, Tom Fyfe, Innes Nelson and Luciano Rebecchi contravened the Councillors’ Code of Conduct, as a result of their conduct when a planning application from him was before the Planning Board for consideration. In addition to identifying those paragraphs of the Code which he considered had been breached the complainant also identified several paragraphs of the Standards Commission’s Guidance and Dispensations Note which he regarded as having also been breached. For the avoidance of doubt I pointed out that the purpose of Guidance and Dispensations Note is to assist the interpretation of the Code; the Guidance and Dispensations Note itself does not constitute a set of rules to be observed by councillors. The conduct of councillors falls to be assessed solely in relation to the Code of Conduct.

Complaint against Councillor Blair

4. The complaint alleged that Councillor Blair improperly nominated himself to replace an absent councillor at the meeting of the Planning Board held on 6 January 2010 and that he was not, in any event, entitled to participate in the determination of the complainant’s planning application which was before the meeting as he had expressed opposition to it when he spoke, in his capacity as a ward councillor, at the meeting of the Board on 2 December 2009. The complainant alleged that this conduct constituted a breach of paragraphs 7.3 and 7.8 to 7.10 of the Code.

5. Councillor Blair was not a member of the Planning Board. He attended the meeting of the Board on 2 December 2009 in his capacity as a ward councillor. This is permissible in terms of paragraph 60(c) of the Council’s Standing Orders which, with the consent of the Chair, permits a councillor to participate in the Board’s discussions but not in the voting.

6. The notes taken by officers present at the meeting indicated that when Councillor Blair commented on the complainant’s application he was expressing the views of his constituents rather than his personal views. The Monitoring Officer confirmed this to be the case.

7. When Councillor Blair attended the Planning Board meeting on 6 January 2010, he was acting in response to an invitation from Councillor Nelson who had been asked by Councillor Grieve to select a substitute. Councillor Blair did not, as the complainant alleged, select himself as a substitute. His selection was in accordance with the arrangements laid down in the Council’s Standing Orders for such an eventuality. In his capacity as a substitute Councillor Blair had the same rights as other members of the Board and so was entitled to participate in the discussion and vote on the application, which he did.

8. The fact that Councillor Blair had already publicly expressed constituents’ opposition to the application at the Planning Board meeting on 2 December 2009 did not preclude him from expressing his personal opinion on the application at the meeting on 6 January 2010. His conduct was consistent with the guidance in paragraph 61 of the Standards Commission’s Guidance and Dispensations Note which indicates that it is acceptable for councillors to make known their provisional views on an application at an early meeting and, where the application progresses to a later meeting, still participate in the final determination of the application at that later meeting. In addition, Councillor Blair was in exactly the same position as the other councillors who had already expressed a preliminary view at the meeting on 2 December 2009 and who had, quite properly, participated in the determination of the application at the Planning Board meeting on 6 January 2010.

9. Having regard to the foregoing, I did not consider that there was anything improper in the manner in which Councillor Blair acted and I found that he had not breached paragraph 7.3 of the Code. I saw no evidence that he organised opposition, lobbied other councillors or acted as an advocate to promote opposition to the complainant’s application and I found that he had not breached paragraph 7.8 of the Code.

10. Similarly, I saw no evidence that he openly advocated a particular course of action in relation to the complainant’s application prior to the meetings of the Planning Board or that he made public statements about the application outwith the comments that he legitimately made at the Planning Board meetings of 2 December 2009 and I found that he had not breached paragraphs 7.9 or 7.10 of the Code.  

Complaint against Councillor Nelson

11. The complainant alleged that Councillor Nelson organised opposition, lobbied other councillors and demonstrated bias against his application by circulating to the Board meeting on 6 January 2010 a document entitled “Reasons for Refusal.” The complainant stated specifically that Councillor Nelson had breached paragraphs 7.2 and 7.8 of the Code and inferred a breach of paragraph 7.10.

12. The document in question was, in fact, a note of a motion which Councillor Nelson intended to table in the event that, having heard the views and deliberations of the Board, he was minded to oppose the application. He had prepared the note because the Council’s Standing Order No. 28 stipulates that the Provost may require that any motion or amendment shall be reduced to writing. The Monitoring Officer advised that this is to avoid the delay and the potential for error which could arise if officers are required to take handwritten notes of an oral motion or amendment.

13. In circulating to the Planning Board, in writing, his reasons for refusal of the complainant’s application, Councillor Nelson was simply complying with the procedure encouraged by the Council’s Standing Orders. I did not consider that his action in doing so was indicative of bias against the application. In the event it was Councillor McCallum who moved refusal of the application based on the reasons set out in Councillor Nelson’s note.

14. Councillor Nelson was present at the meeting of the Planning Board on 2 December 2009 when the application was considered and may well have formed a provisional view of the application at that time. As indicated above, Paragraph 61 of the Standards Commission’s Guidance and Dispensations Note recognises that it is acceptable to have a provisional view of an application and still participate in the determination of the application at a later meeting. Having regard to this guidance I did not consider that, because he had committed a potential motion to writing in preparation for the meeting of the Planning Board on 6 January 2010, this indicated that Councillor Nelson had prejudged the application. Similarly, I did not consider that Councillor Nelson’s action constituted the organisation of opposition to the application, the lobbying of other councillors or acting as an advocate to oppose the application. I found that Councillor Nelson had not breached paragraphs 7.8 or 7.10 of the Code.

15. The complainant alleged that because no advance notification of the document circulated by Councillor Nelson was provided to him he was denied an opportunity to consider its contents and respond to it. In fact, as the published minutes of the Planning Board meeting of 2 December 2009 contained a note of the grounds of refusal, in similar terms to the note circulated by Councillor Nelson at the meeting on 6 January 2010, the complainant had an opportunity to comment thereon in the interval between the two meetings. The Monitoring Officer has confirmed that he did not do so. More significantly, the document in question was not part of the documents relating to the application which are accessible to the public via the Council’s website but a document produced to facilitate the efficient operation of the Planning Board meeting. As such there was no obligation to make it available to the complainant in his capacity as the applicant. Accordingly, I considered that the nature of this allegation was such that it did not fall to be assessed as a breach of paragraph 7.2 of the Code

Complaint against Councillors Blair, Fyfe and Rebecchi

16. The final part of the complaint, stated simply, was that because the political party to which these councillors belong rents an office from one of the objectors to the complainant’s application they should have declared an interest and refrained from participating in the determination of the application The complainant stated that the objector in question is a joint owner or controller of a retail unit that would have faced considerable competition if the application had been approved. The complainant alleged a failure of these councillors to declare an interest but did not specifically identify the part(s) of the Code which he considered had been breached.

17. In broad terms a councillor is required to declare an interest if it has been registered as a financial interest under section 4 of the Code or if the interest is of such significance that a member of the public, acting reasonably, would think that it could influence their role as a councillor.

18. None of these councillors had a registerable financial interest which they required to declare. There were 133 objectors to the complainant’s application and it is probable that, among that number, several could be shown to have tenuous links with some members of the Planning Board. If such links were to be regarded as giving rise to declarable interests the ability of the Planning Board to function would be seriously compromised which is not the purpose of the Code. I regarded the link which the complainant perceived between these three councillors and the objector in question as being, at best, tenuous, remote and not of such proximity or significance to constitute an interest which they required to declare. Consequently, I found that they had not breached the Code in relation to this matter.

19. Having considered the information that arose from my investigation, I concluded that Councillors Alan Blair, Tom Fyfe, Innes Nelson and Luciano Rebecchi had not contravened the Councillors’ Code of Conduct.

D Stuart Allan

Chief Investigating Officer

44 Drumsheugh Gardens

Edinburgh

EH3 7SW

16 June 2010