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Complaint no. LA/An/857 concerning an alleged contravention of the Councillors’ Code of Conduct by Councillors Bob Myles and Ian Mackintosh of Angus Council

1. The complaints alleged that the respondents failed properly to acknowledge their interests as farmers, and to register and declare these interests, including in particular their association with National Farmers Union of Scotland (NFUS), their membership of farming related outside bodies, and to declare these financial and other interests.

2. Councillors Myles (Independent) and Mackintosh (Conservative) are respectively the Leader and Depute Leader of Angus Council and the complaints were made by Councillors Iain Gaul and Ralph Palmer both members of the SNP opposition group.

3. A number of the complaints alleged that because the respondents were farmers they should not deal with general farming issues. In a council such as Angus that approach is not only unworkable but undesirable. Whereas there may be specific occasions where an interest is so proximate a clear conflict of interest arises that will not happen simply because a member shares an occupational interest with another party associated with an item of business.

4. The relevant parts of the Code are section 4, and in particular section 5

Paragraph 5.3 provides as follows: ‘You may feel able to state truthfully that an interest would not influence your role as a councillor in discussion or decision-making. You must, however, keep in mind that the test is whether a member of the public, acting reasonably, would think that a particular interest could influence your role as a councillor.’

Any financial dimension associated with an interest requires the withdrawal of the member with such an interest. Paragraph 5.16 states: ‘Declaring a financial interest has the effect of prohibiting any participation in discussion and voting. You should leave the meeting room until discussion of the item of business is concluded.’

The ultimate test for the declaration of any interest, financial or non-financial, being encapsulated in paragraph 5.18 which provides: ‘ In the final analysis the conclusive test is whether, in the particular circumstances of the item of business, and knowing all the relevant facts, a member of the public acting reasonably would consider that you might be influenced by the interest in your role as a councillor and that it would therefore be wrong to take part in any discussion or decision making’…...

5. The complaints sought to infer a link between the respondents as associates of NFUS, and the outcome of Council business. There was, however, little if any evidence to substantiate such a link. Paragraph 86 of the Guidance and Dispensations Note to Councillors and Local Authorities in Scotland makes it clear that there must be a factual connection between the interest and Council business. It provides: ‘Any financial interest of the councillor which relates to a matter under consideration must be declared (see paragraph 5.6 of the Code)’.

The Code is regulatory in nature, compliance with which is hedged around with punitive sanctions, and I was not prepared to assume, in the absence of compelling evidence, that membership of an organisation such as NFUS per se indicated a disabling bias requiring regular withdrawal.

6. The complaint also suggested that because the respondents were associated with the NFUS which had formulated policies on subjects in respect of which the Council also held policies, an inevitable and irreconcilable conflict of interest arose. Scrutiny of the individual elements of the complaint did not, however, as a matter of fact disclose such a conflict.

7. The respondents were also involved in the work of a number of third party organisations with which the Council collaborated, in the main in connection with strategic initiatives designed to take forward economic or environmental planning issues. Again, in the absence of evidence of substantive conflict (rather than apparent communality of interest), I was not prepared to infer a breach of the Code.

8. It was also alleged that the first respondent failed to disclose his interest as a member of the Edzell Village Improvement Society at a meeting of the Council’s Corporate Services Committee where the Society were awarded a grant of £2000.

As a matter of Council policy all local members are consulted about the merits of   applications for grant funding and their comments (if any) are included in the relevant committee report. Any declaration of interest would to that extent have been redundant, a contribution to the deliberative process having already been made. In any event, as the member for Brechin and Angus it would seem highly artificial to anticipate a declaration of interest from the first respondent, his interest in the amenities in the village being transparent from his register of interests, and from his status as a local councillor.

9. I did not share the concern of the complainants about transparency. For instance, at a meeting of the Angus Rural and Environment Partnership (referred to in the complaint) both respondents were designated as representing ‘National Farmers Union (Scotland), and both have clearly registered their interest as NFUS representatives in their Register of Interests.

10. In terms of the Guidelines which regulate investigations, complaints should generally be made within 12 months from the date on which the complainant could reasonably have become aware of them. In this case the    majority of the issues raised took more than a year to report. Although the complaints were depicted as a pattern of behaviour, perhaps not immediately apparent to the uniformed onlooker, the source material was almost universally culled from minutes of public bodies and as such would have been publicly available reasonably quickly. Accordingly I saw no reason to allow them to be considered on an exceptional basis.

11. Having considered the information that arose from my investigation, I concluded that neither Councillor Bob Myles or Councillor Iain Mackintosh had contravened the Councillors’ Code of Conduct.

D Stuart Allan

Chief Investigating Officer

Forsyth House

Innova Campus

Rosyth Europarc

Rosyth

KY11 2UU

24 September 2009