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Complaint no. LA/NL/871 and 872 concerning an alleged contravention of the Councillors’ Code of Conduct by Councillor Alan O’Brien of North Lanarkshire Council

1. Complaint number LA/NL/871 and LA/NL/872 alleged a contravention of the Councillors’ Code of Conduct (“the Code”) by Councillor Alan O’Brien (“the respondent”).

2. It was alleged that the respondent had contravened the Code, in particular, the provisions in the Councillors’ Code of Conduct set out in section 2 and Annex C on Respect; and in section 3 on the Separate Roles of Councillors and Council Employees, and on Dealings with the Council.

3. On the morning of 18 June 2009 following a complaint from the respondent about the positioning of his recycling bin after collection, the complainants, who are Cleansing Department supervisors, in accordance with the instructions of their manager, visited the respondent’s property to investigate. It was alleged that the respondent approached the first and second complainants in a threatening and aggressive manner, made pejorative remarks about the conduct of the complainants and of the Cleansing Department in general, and referred to the second complainant in offensive terms.   It was also alleged that following the incident the respondent sent e-mails in which he referred to the first complainant in an offensive manner and stated that he wanted the complainants relocated.

4. From the evidence I was satisfied that from the moment the respondent picked up the telephone to complain about the bin placement he was acting as an ordinary council tax payer but also invoked his status as a councillor. Members of the public would not have been able to contact managers directly, nor was it likely that they would have insisted that disciplinary action be initiated. The respondent’s status as a councillor featured again in the verbal exchanges with the complainants when he made reference to ‘his constituents’. In his subsequent e-mails requesting that disciplinary action be taken and the complainants re-assigned to other duties he was not acting as a private individual. Further, in his subsequent e-mail correspondence with their manager he addressed the recipient by his forename suggesting a familiarity in approach unlikely to be adopted by a member of the public.

5. In these circumstances it was disingenuous of the respondent to suggest that he was or expected to be treated as a member of the public. He asked for and anticipated that disciplinary action would be taken against the complainants, and he did not access the complaints procedure available to the public. After he made his phone call the respondent became angry at the lack of responsive which suggested that he expected his complaint to be treated preferentially.

6. The respondent’s claim that he was not acting in a public capacity was also undermined by the tenor and tenacity of his subsequent e-mail correspondence maintaining his stance that the complainants should be peremptorily disciplined.

7. I was satisfied that a short, heated altercation took place between the respondent and the complainants outside the home of the respondent on the morning of 18 June 2009. It was conceded by the respondent that during the verbal exchanges he used an offensive description in referring to the second complainant. 

8. Later that day the respondent again repeated his offensive description of the second complainant in the context of formal correspondence with managers of the complainants, requesting that disciplinary action be taken against them.

9. Despite my reservations as to the justification for his agitation, I accepted that the words used by the respondent to describe the second complainant were uttered in the heat of the moment. Obviously it was not acceptable for the respondent to refer to an employee in an offensive manner. It was also unfortunate that the respondent wrote in similarly offensive terms on the day of, and on the day after, the incident. Critically for the determination of the complaint, however, at interview the respondent recognised that on reflection he should not have used offensive language towards the second complainant. I also took into account that the respondent was, at least initially, complaining as a council tax payer, his natural concerns for the wellbeing of his recuperating wife, and the rapid escalation of the incident. I therefore found that there was insufficient evidence to permit a conclusion that Councillor Alan O’Brien had contravened paragraph 3.2 of the Councillors’ Code of Conduct which requires councillors to treat employees with respect and courtesy.

10. The investigation of this complaint revealed evidence of the respondent’s desire to have the complainants disciplined in terms of the initial phone calls and subsequent e-mails to their managers. I noted that after a formal internal inquiry held in terms of the Council’s disciplinary code, no action was taken against the complainants. Initiation of disciplinary action is a serious operational matter and employees are answerable in terms of line management arrangements to their supervisors. Paragraph 3.3 of the Code is clear that the role of councillors is to determine policy and to participate in decisions on matters placed before them, and not to engage in direct operational management of the Council's services. Because there was no direct evidence suggesting that the formal investigation was undertaken other than in the normal course of events by senior officers responsible for the management of cleansing services, and this dimension does not form part of the formal complaint, I found that there was insufficient evidence to permit a conclusion that the respondent had breached paragraph 3.3 of the Code. I felt bound to say, however, that in future he should be careful to observe the boundary between the role of members and the responsibilities of officers. I also advised that care should be taken in his exercise of wider judgements relating to member/officer relationships.

11. The respondent’s recognition that his behaviour and the language used towards the second respondent were unacceptable influenced my determination that, on balance, the Code was not breached in this instance. I did not think it unreasonable, however, to have expected that the realisation that his behaviour was inappropriate, and might have prompted an apology, should have occurred to the respondent earlier.

12. Having considered the information that arose from my investigation, I concluded that Councillor Alan O’Brien had not contravened the Councillors’ Code of Conduct.

D Stuart Allan

Chief Investigating Officer

44 Drumsheugh Gardens

Edinburgh

EH3 7SW

14 January 2010