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Complaint no. LA/Mo/131 concerning an alleged contravention of the Councillors' Code of Conduct by Councillor Ronald Shepherd of The Moray Council

1. Complaint number LA/Mo/131 alleged a contravention of the Councillors' Code of Conduct ("the Code") by Councillor Ronald Shepherd ("the respondent").

2. It was alleged that the respondent contravened the key principle contained in section 2 relating to Duty, by failing to provide the complainant with information and discussing his affairs with another party. The complainant alleged that, in so doing, Councillor Shepherd failed to represent his interests.

3. The person complaining ("the complainant") bought his house in March 2003 and was informed it was a listed building. He wanted to install new front windows and he said that he contacted the planning department for information but was told no planning consent was required. He and his wife remained doubtful and he said they telephoned several times, but were assured by the Duty Planning Officer the building was not listed. Subsequently, after two new windows were installed, an objection was made to the Council and the complainant was asked to submit a retrospective planning application. The planning application was later refused and an appeal to the Scottish Executive Inquiry Reporters Office was not upheld.

4. The complainant also made a complaint to the Council and in early 2004 he contacted his local councillor, Councillor Shepherd, to discuss the ongoing problems over the replacement windows. The complainant said that Councillor Shepherd told him of a conversation he had with the Duty Planning Officer in June 2003 about the matter. The complainant felt this would help his case and, based on his own understanding of the conversation, he wrote out a draft letter for the councillor to sign. However, Councillor Shepherd replied saying he was unable to supply an accurate recollection of the conversation with the Planning Officer and had been advised not to sign the letter. The complainant considered this showed that Councillor Shepherd had seen fit to discuss his affairs with a third party and been advised not to provide the information. He also considered that the Councillor's claim that he could not remember the conversation with the Planning Officer was not credible. The complainant said Councillor Shepherd was unwilling to represent his interests. He believed that this lack of representation, and Councillor Shepherd's failure to provide a record of his conversation with the Planning Officer, was prejudicing his dealings with the Council.

5. During the investigation, Councillor Shepherd said he remembered telephoning another officer, the Planning Enforcement Officer, when the matter first arose in June 2003 asking for general planning information about replacement windows and the appeal procedure. He had no recollection of a direct conversation with the Duty Planning Officer. In view of this, when the complainant asked him in 2004 to sign the letter which the complainant himself had drafted for his signature, he felt unable to do so. He confirmed that he did not consult with a third party in regard to this. When he had stated that he was 'advised not to sign' the letter, Councillor Shepherd said he had chosen an unfortunate way to express it. What he meant was that he had been advised by his own conscience. He now felt it was a somewhat stupid way of putting it.

6. Giving evidence, the Council's Chief Legal Officer confirmed that Councillor Shepherd had not asked him for advice; nor, as far as he was aware, did the councillor consult with any other officer in regard to signing the letter. The Duty Planning Officer stated that he had no contact or conversation with Councillor Shepherd in regard to the matter. He confirmed he had made three brief diary entries which were not detailed but merely recorded that the complainant or his wife had telephoned regarding replacement windows. The Head of Development Services had made enquiries and it appeared to him that any information which Councillor Shepherd received had come from his conversation with the Planning Enforcement Officer who had been unaware of the details and had speculated that there might have been some confusion over the address of the property.

7. The investigation did not confirm that Councillor Shepherd spoke directly to the Duty Planning Officer at any time and by early 2004 Councillor Shepherd's recollection of events was uncertain. In such circumstances, it would have been unwise of him to confirm information of which he was not certain. It was concluded that Councillor Shepherd did not fail to represent the complainant's interest; rather he took a considered decision not to sign something of which he was not confident.

8. Councillors are entitled to ask senior or legal officers for advice and it would not have been a matter for criticism if Councillor Shepherd had sought advice on the letter he was being asked to sign. However, there was no evidence that such advice was sought or given. In this case, Councillor Shepherd's statement that he had been 'advised not to sign' was misleading and I note he accepts that the wording he used was unfortunate.

9. In relation to complaint number LA/Mo/131, it was concluded that Councillor Ronald Shepherd had not contravened the Councillors' Code of Conduct.

D Stuart Allan,
Chief Investigating Officer.
Forsyth House
Innova Campus
Rosyth Europarc
Rosyth
Fife
KY11 2UU
06 April 2004