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Complaint no. LA/An/740 concerning an alleged contravention of the Councillors’ Code of Conduct by Councillor David Fairweather of Angus Council

1. Complaint number LA/An/740 alleged a contravention of the Councillors’ Code of Conduct (“the Code”) by Councillor David Fairweather (“the respondent”).

2. It was alleged that the respondent had contravened the Code, in particular, paragraphs 4.18 and 4.19 (Registration of Interests/Houses, Land and Buildings) and paragraphs 5.12 and 5.13 (Declaration of Interests/Interests of Other Persons).

3. The person complaining (“the complainant”), Councillor Alex King, alleged that, at the meeting of the Council on 27 March 2008, the respondent failed to declare the financial interest of his partner and that he failed to record in the members’ Register of Interests his interests in a property in which he resides and in his partner’s business with which he is involved.

4. The main element of the complaint was that the respondent failed to declare an interest when the subject of a pedestrian crossing at the junction of Catherine Street and Keptie Street, Arbroath was raised. When this matter was considered at a meeting of the Council on 20 September 2007 the respondent declared an interest and took no part in the discussion or voting. On that occasion the location of the proposed crossing was in close proximity to a business owned by the respondent’s partner. The respondent decided that, because he had acted as a spokesperson for Arbroath Business Association in their opposition to the crossing at that location, the prudent course of action was to declare an interest and withdraw from the meeting for that item of business. The decision of the Council on 20 September 2007 had reversed a decision taken by the Infrastructure Services Committee (“the IS Committee”) on 24 August 2006, under the previous Administration, to install a crossing at the Catherine Street/Keptie Street junction.

5. At the meeting of the IS Committee on 4 March 2008 a motion not to proceed with the installation of a crossing at an alternative location between Helen Street and Garden Street was approved. An amendment by the complainant, which included a proposal to install a crossing at the original location at the junction of Catherine Street and Keptie Street, was deemed not to be competent because the Council’s Standing Orders do not permit a decision to be altered or revoked within a period of six months of such decision being taken. The respondent considered that, because the alternative location was at a considerable distance from his partner’s business and because he had not been active on behalf of Arbroath Business Association in making representations against the alternative location, he did not require to declare an interest. The complainant accepted that, his amendment having been declared not to be competent, the respondent did not require to declare an interest at this meeting.

6. At the request of the complainant the decision of the IS Committee was referred to the Council meeting on 27 March 2008 for consideration. The respondent spoke in support of and seconded a motion to approve the decision of the IS Committee of 4 March 2008. The complainant proposed an amendment, in similar terms to that which he had proposed at the IS Committee, which included a proposal to complete the installation of the crossing at the location originally selected at the junction of Catherine Street and Keptie Street. The amendment had not previously been circulated to members there being no requirement under the Council’s procedures to do so; it was simply proposed at the meeting and read out by the complainant. The motion not to proceed with a crossing at the second location between Helen Street and Garden Street was carried by 15 votes to 10 with the respondent voting in support of the motion.

7. The complainant contended that by virtue of him proposing an amendment which raised the issue of a crossing at the original proposed location this put the respondent in the same position (after he had moved his amendment) as he was when this matter came before the Council on 20 September 2007 and required him to declare an interest.

8. The respondent did not accept that he required to declare an interest at the meeting on 27 March 2008. It was his view that the issue of a crossing at the junction of Catherine Street and Keptie Street had been disposed of by the Council’s decision on 20 September 2007 and that, thereafter, the substantive issue was whether a crossing should be installed at an alternative location. In his view the focus of the meeting on 27 March 2008 was on whether the alternative location identified by the Director of Infrastructure Services was acceptable. It was this issue specifically on which he spoke in support of the motion not to proceed with the alternative location. Under the Council’s procedures he was not permitted to speak again on the same item of business. When the complainant proposed his amendment, it did not occur to the respondent that this in any way altered the fact that the substantive issue before the Council was the alternative location for a crossing or that by referring back to the original location the amendment re-activated the interest which he had declared at the 20 September 2007 meeting. It was for these reasons that he did not declare an interest when the amendment was proposed.

9. In considering this part of the complaint I took account of the fact that the defining decision not to proceed with the installation of the crossing at the junction of Catherine Street and Keptie Street was taken at the Council meeting on 20 September 2007 and that, thereafter, the Council’s interest was in a possible alternative location. The respondent, understandably, regarded that as being the substantive issue for the Council’s consideration at the meeting on 27 March 2008. It was relevant to point out that the complainant accepted that, while the sole issue before the Council was the issue of an alternative location for the crossing, the respondent did not have a declarable interest; he himself did not raise the issue of a possible need for the respondent to declare an interest after moving the amendment as he saw that as entirely the respondent’s responsibility.

10. I also took account of the fact that the complainant’s amendment was not circulated prior to the meeting on 27 March 2008 but simply proposed and read out at the actual meeting. This was in accordance with the Council’s procedures and I inferred no improper intent on the part of the complainant by this, merely that it offered less time for the respondent to consider the possible implications of an amendment which, among other things, advocated a return to the original location at the junction of Catherine Street and Keptie Street. I did not subscribe to the complainant’s view that the respondent should have been aware that the six month period would have elapsed by 27 March 2008 and that he should have anticipated that it was likely that the amendment which was deemed to be not competent at the meeting on 4 March 2008 would be put forward again at the meeting on 27 March 2008, particularly when account was taken of the fact that the respondent was a relatively new councillor and much less experienced in the Council’s procedural exactitudes than the complainant.

11. Having given careful consideration to this matter I considered that the principal issue before the Council at the meeting on 27 March 2008 was to deal with the decision of the IS Committee of 4 March relating to the Proposed Pedestrian Crossing at Keptie Street, Arbroath between Helen Street and Gordon Street and, in relation to that item, the respondent did not have to declare an interest. The proposed amendment, by referring back to the original location, might be said to have raised an issue as to whether the respondent had to think again about declaring an interest. The whole circumstances taken together did not, however, support that. Firstly, the item was about – and was so headed on the agenda and the minute – the crossing at the second location. Secondly, the complainant’s amendment (insofar as it proposed to “ratify” the earlier decision to proceed with the crossing at the first location) did not relate directly to the item of business on the agenda but – to all intents and purposes – was effectively a new item of business in that it was proposing to renew an earlier proposal for the crossing which had been earlier rejected by the Council. Thirdly, there was, in my view, significant doubt as to whether that particular part of the amendment was competent within the context of the agenda item in question. Decisions to approve new projects (which effectively this was) should not be taken without proper notice (see section 50B (4) of the Local Government (Scotland) Act 1973) unless, by reason of special circumstances, the matter is one of urgency (which was not the case). Finally, there was the issue whether it would have been appropriate or in the public interest for an elected member effectively to have been disenfranchised from voting on the substantive issue before the meeting where he would not (but for the amendment which did not necessarily on the face of it deal with the substantive issue in question) have any declarable interest. Having regard to all of these circumstances I did not consider that I could reasonably conclude that the respondent was required to declare an interest or, consequently, that he had breached the Code and I found accordingly.

12. The second part of the complaint alleged that the respondent had breached paragraphs 4.18 and 4.19 of the Code by failing to register in the members’ Register of Interests the address of the property in Addison Street in which he resides with his partner. After his election to the Council the respondent registered his tenancy of an address in Catherine Street in the Register. At that time, although he resided occasionally at his partner’s address, the Catherine Street property was his main residence. In early May 2008 he began to reside on a permanent basis with his partner and to reflect this, on 19 May 2008, he deleted his Catherine Street address from the Register and inserted his Addison Street address. I considered that the addresses which the respondent recorded in the members’ Register of Interests reasonably reflected his residential circumstances and I found that he had not breached paragraphs 4.18 and 4.19 of the Code.

13. The final element of the complaint alleged that the respondent had an interest in a business owned by his partner which he had failed to register in the members’ Register of Interests as a result of which he had breached paragraphs 4.18 and 4.19 of the Code. In fact paragraphs 4.18 and 4.19 refer to interests relating to Houses, Land and Buildings. In the context of this particular part of the complaint the more appropriate paragraphs of the Code to consider were paragraph 4.3 (Remuneration), paragraph 4.12 (Directorships) and paragraph 4.20 (Shares and Securities).

14. Paragraph 5.12 of the Code makes it clear that it is only a councillor’s financial interests which require to be registered and as the respondent had no financial holding in his partner’s business, held no position in the company and ceased being employed by the business in December 2006 he had no interests which required to be registered under section 4 of the Code. Accordingly, I found that the respondent had not breached paragraphs 4.18 or 4.19 of the Code. For the avoidance of doubt I also found that the respondent had not breached paragraphs 4.3, 4.12 or 4.20 of the Code.

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

D Stuart Allan

Chief Investigating Officer

Forsyth House

Innova Campus

Rosyth Europarc

Rosyth

KY11 2UU

23 September 2008