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Complaint no. LA/Mo/214 Concerning an alleged contravention of The Councillors' Code of Conduct by Councillor Eddie Coutts of Moray Council

1. Complaint number LA/Mo/214 alleged a contravention of the Councillors' Code of Conduct ("the Code") by Councillor Eddie Coutts ("the respondent").

2. It was alleged that the respondent had contravened the Councillors' Code of Conduct, and, in particular, paragraph 3.2 of the Code which deals with Relationship with Council Employees and section 5 of the Code which deals with Declaration of Interests.

3. The persons complaining ("the complainants") who are employees of Moray Council alleged that at the final appeal stage of a Moray Council Grievance Procedure into a bullying and harassment case, the respondent who chaired the appeal panel of Councillors had been rude, hostile, aggressive and bullying towards them. Three of the complainants attended the appeal hearing as appellants and the fourth as a witness. The complainants also alleged that the respondent, having declared an interest at the commencement of the appeal hearing, should have withdrawn from the appeal hearing because of the nature of that interest and should neither have chaired nor participated in the hearing.

4. The response was set out in a letter from the respondent in which he refuted the allegations and claimed that throughout the hearing he had shown the appropriate respect and courtesy to the complainants while chairing the hearing in a firm but fair manner. He also stated that having applied the appropriate test as set out in paragraph 5.18 of the Code he had believed in conscience that his continued presence at the hearing would not fall foul of this objective test and that the declaring of an interest by him had not precluded his involvement as chair of the appeal hearing panel.

5. In February 2004 the complainants, along with a number of others, had lodged a grievance regarding harassment and inappropriate management practices in the Library Service of Educational Services. It had been agreed that the matter would be investigated by an independent investigator who would report his findings to the Director of Educational Services. This investigation had been carried out, and, after consideration of the independent investigator's report, Mr A, Head of Educational Resource Services, had advised the complainants and the other members of the group that he upheld their complaints in part.

6. In June 2004 appeals had been lodged on behalf of the group. This was in line with stage 2 of the Moray Council's appeals procedure. In June and July 2004 the Director of Educational Services, had heard the appeals against Mr A's decisions. The Director had responded to all the points raised on the group's behalf and had concluded that on the basis that Mr A had upheld the claim of bullying and harassment, he (the Director) did not see the appeal as being competent and accordingly he did not uphold the appeal.

7. The appeal hearing, which was chaired by the respondent, took place under stage 3 of Moray Council Grievance Procedure on the grounds that the appellants had been dissatisfied with the decision taken by the Director of Educational Services at stage 2 of the grievance procedure. In summary, the appellants had been aggrieved that those about whom they had complained - including Mr B, the Libraries and Museums Manager - had been returned to their previous positions within the workplace and therefore they, the appellants, claimed that they did not have a safe environment in which to work. The desired outcome for the appellants had been that those responsible for the harassment be removed from the workplace and from management responsibility over any of the appellants, and should apologise to the staff.

8. The stage 3 appeal was dealt with at a meeting of the Appeals Committee of Moray Council which was chaired by the respondent and which took place in December 2004 and January 2005. Prior to the meeting, the appellant's union representative had expressed concern about the respondent participating in the meeting in view of his relationships with two of the parties; namely Mr A and Mr B. In a letter to the union representative which was dated December 2004 the respondent stated that he had dealings with Mr A and Mr B outwith the Council as he did with many thousands of people within Moray. Specifically he confirmed that he was a member of Elgin Rotary Club, as was Mr B. However, since there were approximately 70 other members of that club this did not indicate of itself any close relationship with Mr B.

The respondent also noted that he was a member of the Scottish Football Association Referees, Moray and Banff Branch, as was Mr A and as are approximately 45 other individuals. The respondent also stated that the Committee would not be hearing the appeal in relation to any decision which had been made by Mr A but based upon the decision made by the Director of Educational Services.

The respondent concluded that he did not consider the above noted associations to predispose him towards either of the individuals. Furthermore, he was confident that this would be seen as no more than the routine contact a Councillor might be expected to encounter within a small community.

He did not therefore consider his position to be in any way prejudiced due to the fact that these two individuals shared the same two hobbies and would have no hesitation under the Code of Conduct to which councillors are subjected to continue to participate in this appeal.

9. With regard to the first part of this complaint it was clear that Mr B and Mr A, as the respondent had put it, shared the same two hobbies. Also it was not in dispute that Mr B was one of the subjects of the grievance regarding harassment and inappropriate management practices which had been lodged by the complainants and others. Similarly it was not in dispute that Mr A upheld the complaints in part after they had been investigated by an independent investigator. The Appeal Committee meeting in December 2004 and January 2005 was held to consider the appropriateness or otherwise of the decision taken by the Director of Educational Services at stage 2 of The Moray Council appeals procedure. The respondent had declared his "interest" in his letter to the union representative at the commencement of the Appeals Committee meeting. What fell to be considered was whether he had then acted in accordance with the requirement of the Code. That requirement is to test 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 he (the councillor) might be influenced by the interest in his role as a councillor and that it would therefore be wrong (for him) to take part in any discussion or decision making. It was clear from the terms of the respondent's letter dated 2 December 2004, that he had been mindful of the requirement under the Code and I was satisfied that in all the circumstances, and in view of the nature of his "interest", he had been entitled to form the belief, in conscience, that his continued presence would not fall foul of the objective test and that, having declared his interest, he was not then precluded from participating as chairman at the Appeals Committee meeting.

10. With regard to the second part of the complainants' allegation, namely that they had not been treated with respect by the respondent at the Appeals Committee meeting in December 2004 and January 2005, I had no doubt that the accounts given by the complainants of the events of the meeting had been given honestly and to the best of their recollections. However the background to the meeting was a grievance (partially upheld) of an emotive nature which involved allegations of harassment and inappropriate management practices and while the appellants might genuinely have believed that the tone of the meeting was not sympathetic towards them, it might well have been inappropriate for such a tone to have been set if the meeting was to be conducted in a firm, fair, proper and professional manner. Also I noted that none of the other witnesses who were interviewed and who were present at the meeting had formed the view that the respondent's conduct had been lacking in respect towards the complainants. Further I noted that at the conclusion of the meeting when asked if they were satisfied with the conduct of the proceedings of the hearing none of the parties appeared to have dissented or offered any adverse comment. Accordingly, while I was satisfied that the complainants honestly believed that they were justified in feeling aggrieved about the manner in which they had been treated at the meeting, I was not satisfied that, on the balance of probabilities, the evidence had established that they, as employees, had not been treated with the appropriate respect and courtesy by the respondent.

11. Having considered all information, I concluded that Councillor Eddie Coutts had not contravened the Councillors' Code of Conduct.

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