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Note Of Decision Web Version

Complaint number LA/Mi/156 concerning an alleged contravention of the Councillors' Code of Conduct by Councillor Russell Imrie and Adam Montgomery of Midlothian Council

1. Complaint number LA/Mi/156 alleged a contravention of the Councillors' Code of Conduct ("the Code") by Councillors Russell Imrie and Adam Montgomery ("the respondent").

2. It was alleged that the respondents had contravened the Code, in particular, the key principles of Duty, Selflessness, Integrity, and Accountability and Stewardship set out in section 2; the provisions relating to Appointments to Partner Organisations in section 3; the provisions relating to Registration of Interests in section 4; and the provisions relating to Declaration of Interests in section 5.

3. The person complaining ("the complainant") alleged that the respondents failed to register their interests as directors of Penicuik Citizens Advice Bureau and that this potentially resulted in conflicts of interest between their roles as councillors and directors.

4. The essence of the complaint related to whether the respondents were required to register an interest as ex-officio appointees to the Citizens Advice Bureau. In this respect the distinction between a director or representative was irrelevant in that section 4 of the Code refers to 'interests such as membership or holding office in public bodies, companies, clubs, societies and organisations.'

5. Both respondents were appointed as members of the Management Committee of the Citizens Advice Bureau in 1996, and on incorporation in 2002 Councillor Imrie was retained as a director. Councillor Montgomery's status was covered by the Bureau's Memorandum of Association which allows local authority representatives to attend meetings of directors on a non-voting basis. He has not in fact attended any meetings for several years, due largely to his commitments as leader of the Council.

6. Registerable interests are detailed in section 4 of the Code and categorised according to their nature. Category One deals with remunerative interests, including company directorships. In this case no payments had been made to either respondent and the requirement to register their interests in the Citizens Advice Bureau did not arise under this category.

7. Non-financial interests are detailed in Category Seven which requires the registration of 'significant non-financial interests'. Examples are given of membership or holding office in public bodies, companies, clubs, societies and organisations such as trades unions and voluntary organisations.' However this is further defined as only applying where members of the public might reasonably think that the interest could influence a councillor's actions, speeches or votes in the Council.

8. In this case Councillor Imrie attended directors' meetings intermittently and had a clear interest in the work of the Citizens Advice Bureau. At interview he stated that he perceived that his role on behalf of the Council was to monitor their financial interest as funders, and to oversee the services which the Bureau provided to the residents of Midlothian.

9. Councillor Montgomery's interest is essentially similar although he was not a director of the Citizens Advice Bureau and could therefore be considered to have a lesser degree of authority and influence. I noted in addition that Councillor Montgomery had not attended meetings in recent years, and that there was no reference to his involvement in the 2002-03, or 2003-04 Annual Reports. I considered therefore that he could not be viewed reasonably as having an active involvement in the management or direction of Penicuik Citizens Advice Bureau.

10. Councillor Imrie stated that he consulted the Monitoring Officer, as to whether he should register his interest in the Citizens Advice Bureau, and that he was advised that there was no need to do so as the post was not remunerated. It should be noted that the requirement to register interests under Category Seven is not prescriptive and requires the exercise of judgement as to whether the external perception test should apply. In this case I considered that Councillor Imrie did have a significant interest, which also applied to Councillor Montgomery despite his lack of recent attendance, and that the reliance of the Citizens Advice Bureau for continued funding support from the Council, and the Council's use of the organisation as a service-provider, could reasonably be interpreted by the public as influencing their actions.

11. I did not consider that either respondent had failed to register their interests through any deliberate attempt to conceal their involvement with the Citizens Advice Bureau. In addition it is appropriate to note that their appointments were made openly within a Council process and their participation in Citizens Advice Bureau meetings was recorded in the minutes of that body. In these circumstances I did not consider that either respondent had breached the Code and I found accordingly.

12. The complainant expressed concern as to the potential for a conflict arising between the respondents' interests in the Citizens Advice Bureau and their position as elected members of Midlothian Council. In the absence of a specific instance this is speculative, but it is pertinent to note that both respondents have a role in the ratification of the decision to allocate funds to the Citizens Advice Bureau.

13. The funding allocation for Penicuik Citizens Advice Bureau and other voluntary organisations is considered annually by the Council following receipt of their annual report, constitution and accounts. Officers recommend continued funding, usually increased in line with inflation, with a report to the Council Cabinet which includes both the respondents. Guidance on the funding of external organisations is given by The Accounts Commission in its Overview of 2000/01 Local Authority Audits, with particular reference being made to bodies on which councillors or officers serve in an ex-officio position. The Council is required to satisfy itself that the external body is not engaging in activities that would normally be outwith the powers of the local authority.

14. While the grant allocation is calculated and administered by Council officers, it is not paid until approved and authorised by the Council. In practice grants to individual bodies are rarely debated. There is no evidence that the respondents had sought to conceal their interest however, rather that they have followed accepted practice within the Council in relation to all members holding ex-officio appointments. I did not consider this to be in breach of the Code but it may be appropriate for a member with an interest in a Council-funded body, either personally or by virtue of an ex-officio appointment, to consider whether they should declare the interest and withdraw from consideration of that issue.

15. The complainant also drew attention to management issues within the Citizens Advice Bureau that he considered fell within the overall duty of the directors to ensure proper governance. From the information available to me I was unable to determine that Councillor Imrie took any active part in the day to day operational management of the Bureau and I did not consider there was any breach of the Code in this connection.

16. In regard to the perceived difficulty of a constituent in accessing a councillor who, by virtue of an ex-officio role, might be party to tribunal proceedings, I did not consider that this amounted to a breach of the Code. Many situations can arise where councillors fulfil other roles, either by ex-officio appointment or through a private or professional interest, and constituents may perceive that this would constrain their ability to consult that councillor as their ward member. This is recognised by local authorities and facilities exist for another member to undertake representation in a substitute role.

17. Having considered the information arising from my investigation, I concluded that Councillors Russell Imrie and Adam Montgomery had not contravened the Councillors' Code of Conduct.

D Stuart Allan,
Chief Investigating Officer.
Forsyth House
Innova Campus
Rosyth Europarc
Rosyth
Fife
KY11 2UU
26 July 2005