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NOTE OF DECISION WEB VERSION

Complaint no. LA/An/979 concerning an alleged contravention of the Councillors’ Code of Conduct by Councillor David Fairweather of Angus Council

1. Complaint number LA/An/979 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 the provisions in section 2 of the Code relating to Respect and in paragraph 3.14 relating to Conduct in the Chamber or Committee.

3. The person complaining (“the complainant"), Councillor Alex King, complained about remarks made by the respondent at a meeting of Angus Council on 26 March 2009.

4. Councillor King alleged that the respondent referred to him (and Councillor Robert Spink) as having told “porky pies” in the press, and alluded to their consequential ability to be best sellers of fiction. The remarks were made during a debate on an agenda item about the issue of the possible use of Arbroath Common Good land to assist with parking problems at Arbroath Infirmary.  The respondent’s remarks were subsequently repeated publicly in the edition of the Arbroath Herald on 3 April 2009 under the leading headline "Compromise over Common Good Land, but…Councillors still at each other’s throats!.

5. The crux of this individual complaint was the strong (and opposing) political views which were held on whether or not the possible use of Common Good land for additional car parking to assist a current inadequate provision within NHS Tayside’s hospital site was an appropriate use of a Common Good asset. The respondent, Councillor David Fairweather, considered that the comments made publicly by the complainant, Councillor King, and Councillor Spink on his alleged stance on this issue were a misrepresentation of his position.  As a result, the respondent made the specific remarks complained of and these had subsequently been reported in the press. The respondent did not dispute that the remarks were made by him.

6. The minutes of the Council record the sequence of decisions made into what was proposed by the Council in relation to engagement with NHS Tayside on the matter of parking problems at Arbroath Infirmary.   At a meeting of the Council’s Infrastructure Services Committee on 3 March 2009, a formal motion was submitted by the complainant, seconded by Councillor Spink, that the Director of Infrastructure Services be instructed to investigate the possibility of Common Good land (currently an undeveloped Public Open Space) being utilised as additional parking to help with parking problems in the vicinity of Arbroath Infirmary.  An amendment was proposed by the respondent to the effect that the Director investigate possible parking solutions which did not involve the use of Common Good land.  The respondent’s amendment was carried by 8 votes to 7 and the complainant then invoked the Council’s Standing Orders to have the matter subsequently remitted to full Council for a decision.

7. At the subsequent meeting of the Council itself on 26 March 2009 to consider this matter, the respondent tabled a motion seeking a report from the Director providing an assessment of the current parking difficulties, options for dealing with same “including options which would avoid use of Common Good land” to include financial implications and funding information. The minute also stated “Councillor Fairweather confirmed the Director’s Report would include options for alleviating the pressures on parking capacity and on street parking by using Common Good land, as well as not using it”.

8. On any interpretation, these minuted decisions of the Council demonstrate that the respondent adjusted his formal position on this issue from one of outright opposition to use of Common Good land to one of not currently excluding such possible use. It is clear from the evidence that the complainant (and Councillor Spink) in proposing the Common Good solution from the beginning were already convinced that a resolution by NHS Tayside within the hospital grounds was not likely to be achieved. In his evidence the respondent was clear that he sought the provision of additional spaces within the hospital grounds by NHS Tayside and possible traffic management measures by the Council in the surrounding streets.  He considered that he was being portrayed by the complainant (and Councillor Spink) in their public remarks as being a fundamental impediment to a solution, which is what prompted his public response. Regarding his assessment that they were misrepresenting his position, his comments regarding “porky pies” and “best selling writers of fiction” reflected his own assessment of how he needed to defend himself politically on this emotive local issue. (It must be stated that neither of the respective political positions of the complainant and the respondent, in relation to the parking difficulties at the hospital, were intrinsically unreasonable and both standpoints could be argued in an attempt to influence the ultimate decision of the Council on the matter.)

9. The decision of the Council at its meeting on 26 March 2009 was subsequently reported in the press as a “compromise”. The full headline “Compromise over Common Good Land, but… Councillors still at each other’s throats!” can be said to be instructive about the public perception of how councillors (not just the respondent) had handled this issue in debating and publicising their views.  This headline must also be seen within the context of adverse public criticism by the Accounts Commission in so far as it relates to the finding of a political failure of the Council Administration and the SNP Opposition Group to establish a necessary level of collaborative working for the good governance of the Council, notwithstanding political differences.

10. In submitting this complaint to me about an incident almost 12 months after the event in question, the complainant conceded that he had only done so as a result of complaint number LA/An/921 submitted to me by the respondent against him. (That complaint is a case in which the Councillor Fairweather complained about derogatory email comments about him sent to a council official by Councillor King - which comments are admitted.)  I am clear that all complaints submitted to me fall to be evaluated individually on the particular subject matter involved. That said, any assessment made by me must have regard to the background context relating to the complaint.  I found that the joint ongoing political failure of the Council Administration and the SNP Opposition Group to establish a necessary level of collaborative working, notwithstanding political differences, contributes to combative conduct and bad tempered meetings. It is also the case that there is a level of personal difficulty and indeed apparent animosity between the complainant and respondent which colours their judgement on how they conduct themselves in relation to one another. This is highly unfortunate, not least for the electorate of the ward they both represent. It reflects no personal credit on either of them.

11. The public comments by the respondent about “porky pies” and “best selling writers of fiction” were directed not only to the complainant but also to Councillor Spink. It was (and remains) the assessment of Councillor Spink that the situation did not warrant a complaint to me and indeed he advised the complainant at the time of his view. I consider that Councillor Spink's assessment had merit. He clearly assessed that the heated exchanges on this issue constituted what passes for political “cut and thrust” debate between members of Angus Council.  As the only Independent/Non-Aligned member of the Council, Councillor Spink is uniquely placed to observe the debating exchanges between the Administration and the Opposition Group which he described as “arrows flying everywhere”. He has also observed the significant level of inter-councillor complaints to me lodged by members of the Angus Alliance Group Administration and the Angus SNP Group against each other.

12. I found that the conduct of the respondent, in making the remarks that he admittedly did, fell short of what might more properly have been said in political debate and for that he is to be criticised. I have taken into account, however, that this occurred in relation to a contentious local issue (in which both he and the complainant were the main principals) and within the context of significant tensions between the two main political groups on the Council. Critically, I was clear that the respondent was not solely responsible for the difficult and heated atmosphere within which he first uttered his remarks. Having considered all the particular circumstances in this instance, I concluded that the conduct of the respondent was not of a sufficient severity to engage the provisions of the Code.

13. In reaching my determination that the respondent had not breached the Code, I considered the particular determining factors were that the evidence before me on the behaviour of the respondent indicated that his remarks were initially uttered in the debate during a contentious issue in which he was having to justify himself as a principal player, and he was not alone in contributing to the heated atmosphere between members of the Council.  I also considered that this situation arose due to the corporate failure in good governance as established by the Accounts Commission deriving from the endemic political failure of senior councillors in the leadership of both the Angus Alliance Administration and the SNP Opposition Group to promote and support collaborative working which I am clear includes appropriate standards of debating behaviour. I have accordingly made a recommendation to the Council arising from this complaint.

Summary of Conclusion

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

Recommendation to the Council

15. I endorse and support the Findings of the Accounts Commission and the Audit Scotland Best Value 2 Audit Report regarding the current poor political relationships within Angus Council and the assessment that there is a specific need to improve the Council’s governance “by ensuring that all political groupings can work better together to improve outcomes for the people of Angus”.  I consider this to be a matter of some urgency. The Standards Commission for Scotland has, as part of its Guidance on the Code, encouraged all Councils to adopt and operate local arrangements or protocols for inter-councillor working which it was envisaged would also enable minor difficulties between elected members to be resolved at political leadership levels within the Council without the need for reference to me.

16. I welcome the undertaking of the Council’s Chief Executive and Monitoring Officer regarding the development of such a protocol for Angus Council as part of the Council’s response to the Findings of the Accounts Commission.  I would observe, however, that it will not be sufficient simply for such a document to be adopted by the members of Angus Council.  The Council then requires to implement and apply its terms. I strongly urge all councillors, particularly senior councillors comprising the leadership in both the Angus Alliance Administration and the SNP Opposition Group, now to rise to this challenge.

17. I would make clear that there is an absolute entitlement for any councillor, individual or organisation to submit a complaint to me alleging a breach of the Code.  I would also observe that not all aspects of councillor conduct are covered by the Code. The Council’s Chief Executive or the Monitoring Officer are both well placed to provide information on the past application of the Code to any councillor who is considering the submission of a complaint to me.  Councillors can also directly avail themselves of the resource which has been built up on the Standards Commission/Chief Investigating Officer web-site of previous case decisions since the introduction of the Code in 2003.

D Stuart Allan

Chief Investigating Officer

44 Drumsheugh Gardens

Edinburgh

EH3 7SW

10 August 2010