Information on Investigations

Which Sector? > Local Authorities > Angus > LA/An/862

Note of Decision Web Version

Complaint no. LA/An/862 concerning an alleged contravention of the Councillors’ Code of Conduct by Councillor David Fairweather of Angus Council

1. Complaint number LA/An/862 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, Section 5 (Declarations of Interest) and Section 7 (Taking Decisions on Individual Applications) were of relevance.  (Although the Code made specific reference to planning applications in Section 7, the Commission’s Guidance had confirmed that the provisions of the Code also were designed to refer to licensing and other individual applications).

3. The person complaining (“the complainant”) alleged that the respondent had threatened that he would ensure that the civic government licences granted to the complainant and her husband would be revoked and that they would be unable to obtain such licences anywhere in Scotland. 

4. The subject matter of this complaint had the background context of a private dispute between the complainant (as a former tenant) and the respondent’s cohabitee.  The respondent had become involved and undertook what can be classified as the actions of a property factor on the arrangements for the vacation of the premises. In so doing, I concluded that the respondent was acting, patently, in a private capacity. The Code covered the actions of a councillor whilst acting only in that official capacity.  It was my further conclusion that the respondent himself engaged the obligations of the Code for his activities, in the capacity of a councillor, in relation to the complainant, when he had uttered a very specific threat about the civic government licences which the Council had granted to her and her husband.  

5. The licences which had been granted to the complainant and her husband were not required for the commercial premises which had been leased to the complainant and were for a wholly separate commercial activity.  The respondent was a member of the Civic Licensing Committee which had the ultimate responsibility for granting or refusing such licences for the Angus  Council area and in the specific legislative terminology he used in his threat, it was clear he was aware of the specific grounds on which a licence application could be refused.   It had been a very clear and specific threat which went well beyond any boundaries of appropriate behaviour by any councillor appointed to sit in judgment on such licensing applications. It had to be noted that the granting of a civic government licence was an essential pre-requisite for the conduct of certain activities in a council area and enabled a licence holder to earn his/her livelihood from the licensed activity.  Correspondingly, the refusal of an initial or renewal application for such a licence meant that the livelihood in question could not have been undertaken. 

6. The respondent had admitted that he sent a very specific text message.  It was however also necessary as part of the assessment of whether or not his conduct had amounted to a breach of the Code to consider what steps, if any, he had taken to implement that threat.  In such matters it was necessary to consider whether or not there had been an actual course of completed conduct. There was no evidence before me that the respondent had taken any steps to carry out his original threat. The evidence of the Council’s Monitoring Officer who had overall responsibility for the licensing function and the corroboration from the Police Inspector was critical in such an assessment. They had advised that the respondent had not taken any action in this matter. This leant weight to the proposition of the respondent that he had uttered a threat “in the heat of the moment” only. 

7. This case had highlighted the need for any councillor to consider, evaluate and maintain at all times a clear separation between his/her interests as a private individual and those responsibilities and duties in his/her capacity as a councillor.  In this instance the respondent had to be severely criticised for his complete failure to discharge the continual responsibility which any elected councillor had to maintain that vital “separation of interests” at all times. His failure to do so in this instance had, quite understandably, resulted in a complaint to me.

8. I made clear that the action of the respondent, as admitted, did not meet the standards of reasonable behaviour expected of one who had achieved elected office. For the purposes of my evaluation of whether or not the conduct of the respondent had amounted to breach of the Code in either relation to Declarations of Interest or Taking Decisions on Individual Applications, there was no evidence before me that the respondent has taken any action on the admitted threat he uttered. Had he done so, my assessment of the situation would have been different.  I had also taken into particular account the evidence of the Monitoring Officer and the local Police Officer in that connection as well as the respondent’s past pattern of assessing whether or not declarations were required. (For his part, it was also clear that the respondent was well aware that his future actions were liable to be subject to scrutiny as a result of this complaint.)

9. 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

44 Drumsheugh Gardens

Edinburgh

EH3 7SW

12 November 2009