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Complaint no. LA/PK/621 concerning an alleged contravention of the Councillors' Code of Conduct by Councillor Murray Lyle of Perth and Kinross Council

Complaint number LA/PK/621 alleged a contravention of the Councillors' Code of Conduct (“the Code”) by Councillor Murray Lyle (“the respondent”).

2.   It was alleged that the respondent had contravened the Code, in particular, the provisions relating to the Relationships with Council Employees contained in section 3, and the key principle of Openness set out in section 2.

3.   The complainants alleged that on 16 June 2007 the respondent entered their garden without giving prior notice or seeking permission, inspected building works, and failed adequately to explain the purpose of his visit when requested to do so.

4.   There were essentially two aspects to this complaint. Firstly the decision of the respondent to respond personally to the concerns of a constituent regarding the safety and legality of ongoing building works, rather than recognising that these were issues which should be referred to the Council's professional officers; and secondly the degree to which the respondent should have explained and justified his actions to the complainants. In examining these issues I was of course constrained by the terms of the Councillor's Code.

5.   In regard to the initial actions of the respondent I considered that he was contacted in his capacity as a local elected member and that his attention was drawn to matters which appeared to fall within the regulatory remit of the Council. I therefore considered that the visit was undertaken in the course of the councillor's duties.

6.   The respondent was prompted to respond quickly by the repeated and distressed nature of the telephone calls made to him by his constituent. While an early visit to the site to ascertain the position for himself showed a commitment to his role, the respondent did appear to have acted in a somewhat peremptory manner, doubtless with good intentions, but with only partial understanding of the situation. In particular, the respondent did not consider referring his constituent's concerns to the appropriate professional officers, or opt to consult such officers prior to his own inspection of the site. It is unclear quite what the respondent sought to achieve by his visit other than to inform himself of the circumstances. He had no statutory powers to permit or stop the work.

7.   On arrival at the complainants' property the respondent made no attempt to alert them to his presence and seek their permission to view the works ongoing in their garden. While I acknowledged that he did not wish to disturb the complainants at an early hour and believed them to be still asleep, I did not consider that such an intrusion on private property was appropriate or necessary. In the event the contractors on site were able to rouse the complainants during the time when, or immediately after, the respondent entered the garden, and the respondent was then placed in the position of having to explain his presence.

8.   The respondent acknowledged that his explanation was circumspect, and that he did not wish to exacerbate a possible dispute between neighbours by identifying the reason for his visit. Whatever the precise form of words used, his identification of himself as a local councillor was not in itself adequate to justify his actions, and his inability or unwillingness to discuss the matter further with the complainants served only to confuse rather than clarify. The e-mailed response from the complainant the following day somewhat undermined his justification for not identifying the source of his information by referring to a civil matter between the complainants and their neighbours.

9.   Paragraph 3.3 of the Code highlights the differing roles of councillors from officers. In essence councillors determine policy and must not engage in the operational management of Council functions. While in this case the respondent might have given the impression of undertaking a regulatory role which properly was the remit of Council staff, he did not in fact go beyond viewing the works and did not seek to exercise any authority. Neither did he issue any instructions to Council officers. As such I did not consider that he had breached the terms of paragraph 3.3 of the Code and I found accordingly.

10.   The requirement on councillors to explain and justify their actions is contained in the key principle of Openness. This is a general principle rather than a substantive provision of the Code, but this does not detract from the duty placed on councillors to restrict information only when the wider public interest demands.

11.   I considered that the complainants were justified in seeking an explanation for the respondent's visit as expressed in their e-mail of 18 June. Their request was couched in polite terms and simply requested an explanation for the visit and the identity of the person instructing it. The expressions of concern about the absence of prior permission, and lack of any means of identification, also seemed entirely reasonable, the work was after all being undertaken on the authority of a building warrant on privately owned premises, although the neighbour had raised significant issues as to whether the works complied with the warrant, the removal of the boundary hedge, and a possible safety issue. I considered that the e-mail sent by the respondent was uninformative and the absence of any reply to the complainants' further e-mails of 19 June and 25 June gave a further impression of withholding an adequate explanation. The letter sent by the respondent on 21 September went some way towards explaining his actions.

12.   Having taken all the circumstances into consideration, in particular the respondent's position that he was seeking to become informed about the situation on site relating to an issue relating to building works affecting neighbours who had concerns about the works and the fact he had replied (albeit very briefly) to the complainants' first e-mail seeking an explanation for his presence on site, I did not consider that the extent of communication was so lacking as to breach the principle of Openness, and I found accordingly.

13.   This case raised several issues which the Council might wish to take into consideration. Clearly elected members will as part of their normal representative duties often receive complaints or information from their constituents on matters which may properly fall within the remit of the Council. I would not wish in any way to discourage councillors from interesting themselves in such matters but they should be aware that many issues will fall within the functions of the Council's professional officers, who may indeed already have knowledge of the situation and be taking steps to achieve a resolution. In responding to complaints councillors should also be aware that they may only be armed with information from one party, and should take care to be even-handed in ascertaining the full nature of the case. It might be appropriate for the Council to consider whether advice or guidance for the handling of service or regulatory complaints should be agreed to ensure a consistent and coherent response from councillors and officers.

14.   It might also be helpful for councillors to be issued with some form of identification card to corroborate oral assertion of identity. I understood that the Council had already supplied members of the Licensing Board with such identification to facilitate inspection visits to licensed premises, and there might be merit in considering extending this to all councillors.

15.   Having considered the information that arose from my investigation, I concluded that Councillor Murray Lyle had not contravened the Councillors' Code of Conduct.

D Stuart Allan

Chief Investigating Officer

Forsyth House

Innova Campus

Rosyth Europarc

Rosyth

KY11 2UU

10 January 2008