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Complaint no. LA/Mo/920 concerning an alleged contravention of the Councillors’ Code of Conduct by Councillor Douglas Ross of Moray Council

1. Complaint number LA/Mo/920 alleged a contravention of the Councillors’ Code of Conduct (“the Code”) by Councillor Douglas Ross (“the respondent”).

2. It was alleged that the respondent had contravened the Code, in particular, the key principles of the Code relating to Leadership and Respect, section 5.14 of the Code relating to Making a Declaration and paragraph 20 of Annex C to the Code which is a Protocol for Relations between Councillors and Employees in Scottish Councils.

3. The person complaining (“the complainant”), the Director of Environmental Services of Moray Council, alleged that on various occasions the respondent had failed to declare two interests namely his tenancy of a house of Pitgaveny Estates and his father’s occupation as a groundsman with Moray Council. The complainant also alleged that at the meeting of Moray Council’s Policy and Resources Committee on 25 August 2009 and the meeting of the Council’s Audit and Performance Committee on 27 August 2009 the respondent had failed to apply the key principles of the Code relating to leadership and respect and had contravened the terms of paragraph 20 of Annex C to the Code by raising in public matters relating to the conduct or capability of the complainant

4. The respondent accepted that he is the tenant of a house on Pitgaveny Estates and that his father is employed by the Council. However, he did not consider that these interests had ever been sufficiently relevant to the particular circumstances of an item of business, that, knowing all the relevant facts, a member of the public acting reasonably would have considered that he (the respondent) might have been influenced by the interest in his role as a councillor, and it would therefore have been wrong for him to have taken part in any discussion or decision making. With regard to his alleged failure to apply the key principles of the Code relating to Leadership and Respect, and his alleged breach of the provisions of paragraph 20 of Annex C to the Code in relation to public comment, the respondent explained that he had, since his election in 2007, been seeking information about a Council project in the Deanshaugh area of Elgin, and, although he had been persistent and critical, and his questioning style had been robust, he had always tried to keep within the bounds of reasonableness. He did acknowledge that on re-reading some of the documentation out of context it may have appeared that intemperate remarks had been made in the heat of debate. He pointed out that the relevant debates at the two meetings referred to above had focused on the terms of an Internal Audit Investigation Report into the Deanshaugh project and that the contents of that report can fairly be described as critical.

5. The background to this complaint could be best understood from consideration of the Conclusions section of the Internal Audit Investigation Report referred to above. That section is in the following terms:

“Conclusions

4.1 An opportunity to conduct contaminated land remediation at three sites in Elgin presented itself back in 2004/05 when the Scottish Executive made available additional funding of £2.15 million. Works were undertaken and, in terms of contaminated land obligations placed on the Council, the project as approved by Councillors has been a success.

4.2 The works will also facilitate the construction of the Flood Alleviation Scheme planned for the town and having been fully funded by the Scottish Executive will reduce the burden on local taxpayers who are meeting the balance of expenditure on the flood scheme.

4.3 The Council had a budget of £675,000 and was faced with costs of £860,000. Decisions were taken by officers to reduce expenditure on drainage and cover material. Internal Audit is not in a position to comment on what the outcome might have been if the Council had been asked to approve additional funding of £185,000. However, a consequential effect of the works that were undertaken at Deanshaugh has been the loss, at least for an extended period, of an area that was widely used by the community for sports and recreation purposes. This significant use and the technical risks of the project were highlighted early on in the project by the Lands and Parks Offices, as were the cost risks by the Flood Alleviation Consultancy Manager. Had the Council given these risks fuller consideration, further work could have established if alternative solutions were feasible.

4.4 It is a particular concern that the wider community were led to believe that by foregoing their facility for a limited period of time they would secure something much better at the conclusion of the project. This contrasts with it being apparent very early on that the project could not be delivered with the funding available.

4.5 It is difficult to see how the site can be made suitable for use as formal sports pitches without significant further expenditure being incurred. The Council will have to consider if best value would be achieved by spending more on this site or whether investment elsewhere in the development of sports pitches would represent a better alternative.”

6. I dealt first with the parts of this complaint which alleged failure to declare interests.  The interests identified by the complainant are Councillor Ross’s tenancy of a house on Pitgaveny Estates and his father’s employment with the Council.  I was satisfied that these interests could in certain circumstances become declarable interests but I was also satisfied that I had no evidence of occasions on which, in the particular circumstances of an item of business, the interests had been relevant or significant to the extent that a member of the public acting reasonably would have seen them in a different light because they are the interests of a person who is a councillor as opposed to the interests of an ordinary member of the public and I found accordingly.

7 In relation to the respondent’s contribution to the meeting of the Policy and Resources Committee on 25 August 2009, a webcast had been made of the meeting, which could be viewed and listened to.  Having done this, I was satisfied that the respondent had been entitled to ask the questions which he had asked.  A critical Internal Audit Investigation Report was being debated and searching questions were inevitable.  I had considerable concerns, however, about the language which had been used by the respondent to frame some of his questions and found that this had often been inappropriate and ill-considered.  I noted that similar questions had been asked by the Chairman and other Members present, but that their questions had been framed in such a way that they appeared to have been unexceptionable.  I also noted, however, that there had been only one occasion on which the Chairman had felt it necessary to intervene in relation to the respondent’s questioning.  This had been after the respondent had contrasted the description of an item in the Internal Auditor’s Report with a description of the item in the complainant’s verbal report, and had posed the question “Who is telling the truth?” This had prompted the complainant to request that the respondent retract his question and the Chair to intervene.  The Chairman had not, however, invited the respondent to retract his question but rather had pointed out that questions had to be asked in temperate language and that there had to be no individual attacks on officers.  He had subsequently instructed the respondent to move on to his next point.  The Chairman, an experienced councillor, had not considered it necessary or appropriate at any stage in the meeting to deem the respondent’s contribution to be obstructive and offensive conduct such as could have been dealt with by the Chairman in terms of the Standing Orders for the Regulation of the Business of Moray Council.

8. The next part of the complaint was in the following terms: “Following the meeting of the Policy and Resources Committee on 25 August 2009, he (the respondent) was approached by a journalist with the Northern Scot newspaper, who wished to discuss his statements at that meeting.  During that conversation, Councillor Ross reminded the journalist that there was a further meeting of Audit and Performance Committee on Thursday and made him aware he was set to ask “if I had considered my position over the incident”.  He is quoted as saying “I do believe that someone has to be held accountable for this.  If the public has been misled by an officer of this Council that officer has to consider his position”.  Councillor Ross was clearly inferring that I have misled the public”.  The respondent confirmed that this conversation with the journalist took place.  I found that this action by the respondent had been unwise, as it had inevitably led to his remarks being published in the next edition of the newspaper on 28 August 2009, but had prevented the newspaper from publishing any responses to the respondent’s remarks, as, by the time the Audit and Performance Review Committee meeting took place on 27 August 2009, the newspaper’s publication deadline had passed.  I noted however that the complainant’s concerns appeared to lie with the contents of the respondent’s remarks, and as they had been repeated by him on 27 August 2009 at the Audit and Performance Review Committee Meeting, I dealt with the remarks complained of when I dealt with the respondent’s contribution to that meeting.

9. With regard to the part of that complaint which related to the questions which had been asked and the remarks which had been made by the respondent at the meeting of the Audit and Performance Review Committee on 27 August 2009, (a webcast of that meeting was also available and helpful) I shared the view of the Chairman of that meeting, another experienced councillor, that in view of the nature of the item of business which was being debated, the questions which had been asked by the respondent had been legitimate.  Once again, however, I had concerns about the manner in which some of his questions had been framed.  Again I noted that at this meeting the Chairman had not found it necessary to intervene on any occasion, although, at one stage, the representative of the Council’s Legal Department who was present had invited those present to be mindful of the remit of the Committee. She had also pointed out that it was not appropriate for councillors or officers to make personal remarks.  In this context, I considered that two further pieces of evidence were relevant. These were that it had been a matter of concern for the Chairman of this meeting that, despite its nature, this item of business was to be debated in public, as he had felt this would restrict and inhibit a full and thorough debate.  The other point which I noted was that prior of this meeting the respondent had asked the Chairman of the meeting what he, the respondent, could and could not say and had been told by the Chairman that he understood that the respondent had been given good advice about this by the Chairman of the Policy and Resources Committee.

10. As noted above, the terms of the Internal Audit Investigation Report, which were an important element in this complaint, may reasonably be regarded as critical.  In relation to various aspects of what had occurred in respect of the Deanshaugh project the complainant had relied upon the provisions of the Council’s Scheme of Delegation to Officers. Although there had been a material change to a contract, which led to drainage work originally priced at £184,000 being reduced to works costing just £6,500, this situation had not been referred to committee for consideration.  The complainant accepted that this had been unfortunate, but he took the view that he had been entitled to act as he did in terms of the Council’s Scheme of Delegation to Officers, and because lack of time had prevented the matter being referred back to committee.  This in turn had led to another area of difficulty, in that although the complainant had held informal discussions with senior councillors on the subject of the curtailed expenditure, there were no minutes of these discussions and meetings and accordingly, no audit trail could be followed.

11. I was made aware that the outcome of the consideration of the Internal Audit Investigation Report by the Policy and Resources Committee was that amendments have now been made to the Scheme of Delegation. In particular an additional safeguard has been added that, where there are material and substantive changes to be made to a project, “the Director shall, prior to the decision or action being taken, consult the Chief Executive, Chief Legal Officer and Chief Financial Officer as appropriate.”

12. It had also been a matter of concern, as set out in the Internal Audit Investigation Report, that “notwithstanding the decision to curtail expenditure on drainage of the area, a letter dated November 2006 from the Department of Environmental Services was issued to householders in the area informing them of the works taking place.  The letter noted “although these works will cause short term disruption to the play field, not only will it secure environmental improvement and the long term future of Deanshaugh play fields, they will also provide for four full sized football pitches and one seven-a-side pitch, compared with the three pitches currently on the site”.  The complainant explained that the letter had been issued in good faith, since, at that time, albeit the reinstatement of the football pitches has not proved possible, the information which he had was that it would still be capable of achievement. 

13. All these areas of concern appeared to strengthen the view that the decision to consider this item of business in public might have restricted and inhibited thorough and satisfactory debate.  I found that the respondent had failed to properly understand the restrictions and inhibitions which had been created, and despite them, had asked several questions in which his choice of language had been entirely inappropriate, particularly as others appeared to have been able to frame similar questions differently and without subsequent complaint.  I could well understand why the complainant considered that the conduct of the respondent, a young and inexperienced Councillor, had shown lack of respect to the complainant, an experienced officer who has given forty years of service as a Council official.  However, having carefully considered the background to this complaint, which I have set out above, I did not consider that in these particular circumstances the respondent’s conduct in respect of the various matters complained of, although it had clearly left a great deal to be desired, had been inappropriate to the extent that it had constituted breach of the provisions of the Councillors’ Code of Conduct.

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

D Stuart Allan

Chief Investigating Officer

44 Drumsheugh Gardens

Edinburgh

EH3 7SW

28 April 2010