Information on Investigations

Which Sector? > Local Authorities > Renfrewshire Council > LA/R/543

Note of Decision Web Version

Complaint no. LA/R/543 concerning an alleged contravention of the Councillors’ Code of Conduct by Councillor Jim Harkins of Renfrewshire Council

1. Complaint number LA/R/543 alleged a contravention of the Councillors' Code of Conduct ("the Code") by Councillor Jim Harkins ("the respondent").

2. It was alleged that the respondent had contravened the Code, in particular, the key principles of Duty and Leadership in section 2, paragraph 3.15 (Confidentiality Requirements), paragraphs 5.1 and 5.3 (Declaration of Interests), paragraph 6.1 (Lobbying and Access to Councillors) and paragraphs 7.2, 7.3, 7.9 and 7.11 (Dealing with Planning Applications).

3. The person complaining ("the complainant") alleged that the respondent failed to support a group of constituents in their opposition to a proposed housing development in their area and, instead, sided with the Council by supporting the related planning application.

4. In August 2006 the Council's Planning and Development Policy Board granted full planning permission to Cube Housing Association for a residential support unit and outline consent for residential development on a site at Burns Drive/Burns Avenue, Johnstone, subject to referral to the Scottish Ministers.

5. When it became evident that it was not possible to implement the development in partnership with Cube Housing Association and a private developer the Housing, Environment and Community Safety Board approved developing part of the site for private housing at its meeting on 9 January 2007. Full planning permission for the erection of 24 semi-detached houses was granted by the Planning and Development Policy Board at its meeting on 20 March 2007.

6. The complainant, in conjunction with a group of local residents, sought to enlist the respondent's support for their opposition to the development. The respondent was in favour of the type of development which was proposed and refused to support the complainant and other constituents in their opposition to the development on the grounds that to oppose the building of socially rented housing would be against his life's work in politics. The complainant considered that the respondent's failure to support his opposition to the development, and his related action, constituted a breach of the Code. The complainant made a number of general allegations (which he did not relate to the Code) regarding the respondent's conduct and a further series of allegations which he related to specific provisions of the Code.

7 .The first of the complainant's general allegations was that the respondent refused to help 283 residents who were opposed to the development of a housing complex for mental patients. It is relevant to explain that the final planning approval was for the development by Cube Housing Association of a specialist housing unit for people with learning difficulties together with 24 houses for social rent. In addition, part of the site was to be used for the erection of houses for sale. None of the housing was designated for people with addictions.

8. Information provided by the respondent indicated that he heard representations against the proposed development from a group of constituents at his surgeries on 3 November 2006 and 1 December 2006. At the meeting on 3 November he undertook to make further inquiries about the development and report back to the group. He made the same offer to the group's spokesperson when he wrote to her on 20 November 2006 and explained that he was prohibited under the Code from making any comment or judgment on any planning application before it was considered by the Council's Planning Board. He enclosed with his letter a copy of section 7 of the Code.

9. The respondent wrote to the group's spokesperson again, on 29 November 2006, explaining the nature of Cube Housing Association's proposals for the development and offering his assistance or advice if the group wished to make representation to the planning authority, within Planning Guidelines and planning legislation. Following this offer the respondent wrote to the Head of Planning asking him to arrange a meeting with representatives of the group. A meeting between the group and the Head of Planning and the Convener of the Planning Board took place on 19 January 2007.

10. On 10 January 2007 the respondent forwarded to the group's spokesperson a copy of a letter which he had received from Cube Housing Association explaining in detail the nature of the proposed development.

11. In relation to this part of the complaint I found that, far from refusing to help residents who were opposed to the development, the respondent went to considerable length to assist them, as described in paragraphs 8 to 10 above. I also found that the respondent did not support their opposition to the development and that he was entitled to adopt that position. I further found that the respondent explained the constraints which the Code imposed upon him and offered assistance to residents in making representations against the development.

12. In a further general allegation the complainant claimed that the respondent portrayed residents as saying that the development was to house drug addicts and "drugees." The copy correspondence which the respondent enclosed with his response to the Investigating Officer showed that the terms which he used in letters to a spokesperson for those opposing the development, and to constituents to whom he wrote in an attempt to allay their concerns, were "drug addicts" and "people with addictions." The respondent stated that he had been advised by worried constituents that they had been told by those who were organising a petition against the development that the development was for drug addicts. In relation to this aspect of the complaint I found that the respondent had reasonable grounds to believe that some residents were being advised that the proposed development was intended to house drug addicts and that he was entitled to use this terminology in his correspondence.

13. The third general allegation was that the respondent stated at his surgery in November 2006 that there was to be no Cube Housing Association project in the complainant's area. The respondent denied that he ever said to the complainant that he had no knowledge of the Association's proposals to build houses in the area and said that the complaint was without foundation and a falsehood. The respondent was present at the meeting of the Planning and Development Policy Board on 8 August 2006 when the planning application from Cube Housing Association was approved and would have been aware, therefore, of the Association's proposals. In his response to the Investigating Officer he explained that at the meeting at his surgery on 3 November 2006 he advised those present that he could make no comment regarding the planning application from Cube Housing Association because of the Code. Having regard to the information available and to the strong denial by the respondent I found that it was highly improbable that the respondent stated that there was to be no Cube Housing Association project at his surgery in November 2006.

14. The final general allegation was that the respondent has family members who work in the Housing and Planning Departments and that his wife is a member of Cochrane Castle Tenants' Association and so he had a conflict of interest. The complainant provided no information beyond this and did not explain how any of these factors gave rise to a conflict of interest. I considered, therefore, that in relation to this matter, the complainant had not established a credible complaint that warranted investigation.

15. In relation to the complainant's general allegations, as referred to in paragraphs 7 to 14 above I found that the respondent had not breached the Code.

16. In addition to his general allegations the complainant made a number of allegations which he related to specific parts of the Code. He expressed these as general observations or as questions and they are dealt with in paragraphs 17 to 25 below.

17. The complainant alleged that the respondent was not particularly helpful when the group visited his surgery and that he took some time to respond to their concerns. He also stated that the respondent did not offer to represent their interests or to redirect them to someone who could help them to oppose the planning proposal. The facts were that the respondent wrote to the group's spokesperson on 20 November 2006 advising her that he was still investigating their concerns and that he would contact her again when he had completed his investigations. He also explained that he was prohibited by the provisions of the Code from making any comment or judgment on a planning application before it was considered by the Council's Planning Board. The respondent followed this up with a more detailed letter on 29 November 2006 to the spokesperson in which, among other things, he asked her to contact him if the group required any assistance or advice on making representations to the Planning Authority regarding the planning application. Subsequently he made arrangements for representatives from the group to meet with the Director of Planning and the Convener of the Planning Board. Based on the evidence, I found this allegation by the complainant to be unfounded and that the respondent had not breached the key principle of Duty in section 2 of the Code.

18. The complainant claimed that the Council's proposals for the development did not instil the group's trust and confidence in the integrity of the Council and its councillors and that this represented a breach of the key principle of Leadership in section 2 of the Code. This aspect of the complaint was directed at the Council generally rather than at the respondent specifically. It represented a basic disagreement with Council policy and was not specifically related to the respondent's conduct. Consequently it did not fall to be investigated as a valid complaint against the respondent.

19. The complainant alleged that an email which he sent to Mr Hugh Henry MSP was circulated by the respondent to other members of the community, which action he considered to be a breach of paragraph 3.15 of the Code. It was relevant to point out that paragraph 3.15 refers primarily to Council information and Council documents. Quite apart from this, as the email referred to a matter which involved the Council (the proposed project by Cube Housing Association) and many of the respondent's constituents, and as the email was not marked confidential, I found that it was not unreasonable for the respondent to have made the contents more widely available and that, by so doing, he had not breached paragraph 3.15 of the Code.

20. The complainant questioned whether the respondent could not have declared an interest by stating that he wished to represent his community, therefore taking no further action or part in any meetings/decisions relating to the planning proposal. He stated that the test was whether a member of the public, acting reasonably, would think that a particular interest (position as Leader of the Council) could influence the respondent's role as a Councillor. The complainant considered that these issues amounted to a breach of paragraphs 5.1 and 5.3 of the Code (Declaration of Interests). It is the case, as indicated in paragraph 7.9 of the Code, that if a Councillor who is a member of the Committee which deals with planning applications wishes to advocate a particular course of action prior to the meeting, he must declare an interest and take no part in the consideration of the application. However this is an option open to a councillor. A councillor is not obligated to take such a course of action. I found that the respondent was fully entitled not to support his constituents in their opposition to the proposed development, to refrain from publicly stating his position prior to consideration of the planning applications and to take part in the consideration and vote on the applications. I found that, by electing to do so, he had not breached paragraphs 5.1 or 5.3 of the Code.

21. The complainant stated that the Council needs to encourage appropriate participation by organisations and individuals in the decision making process in order to fulfil its commitment to being open, honest, accessible and responsive to the needs of the public. He alleged that this was not the case by Renfrewshire Council or his local Councillor (the respondent) and regarded this as a breach of paragraph 6.1 of the Code. This paragraph is an aspirational provision which imposes a general obligation on the Council, as a corporate body, to encourage participation in the decision making process; it does not relate to the conduct of councillors acting as individuals. Accordingly, I found that the respondent's conduct did not, therefore, fall to be considered under this paragraph.

22. The complainant considered that the respondent had breached paragraph 7.2 of the Code by failing to ensure that decisions relating to the development were properly taken or that the respondent's constituents were dealt with fairly. The information provided by the Monitoring Officer indicated that the various decisions relating to the proposed development had been taken by the relevant Boards of the Council after considering reports from the appropriate chief officers of the Council and I found no evidence of impropriety in the manner in which the respondent participated in the planning decisions relating to the development. In addition, I found nothing to indicate that the respondent had dealt unfairly with the complainant or other constituents. The fact that the respondent supported the Council in pursuit of one of its policy objectives in preference to the wishes of part of the local community simply indicated that the respondent took a different view of the development to that of the complainant and the local community. I found that the respondent was entitled to do so and that his actions did not constitute misconduct. Accordingly, I found that the respondent had not breached paragraph 7.2 of the Code.

23. The complainant stated that the fact that he, and members of the local community, did not feel properly represented by the respondent made them suspicious that that there had been improper conduct within the respondent's role as a local councillor. He considered that the respondent had breached paragraph 7.3 of the Code. I took the complainant's reference to feeling that he had not been properly represented to derive, primarily, from the fact that the respondent was unwilling to support his opposition to the development. As already indicated the adoption of a different point of view by the respondent about the development does not constitute misconduct. The complainant did not produce any evidence to support his allegations of suspicion about improper conduct and, as indicated in paragraph 22, I found no evidence of improper conduct on the part of the respondent. In relation to this aspect of the complaint I found that the respondent had not breached paragraph 7.3 of the Code.

24. In a further allegation the complainant questioned why the respondent had not selected the option available to him under paragraph 7.9 of the Code, taken a position on the development prior to consideration of the planning applications (presumably in opposition thereto) declared an interest and taken no part in the consideration and vote on the applications. The complainant considered that, by not doing so, the respondent had favoured his role as a member of the Planning Board and Leader of the Council. It was the case that, by supporting the planning applications from Cube Housing Association the respondent had elected to support the Council's proposals for the development rather than to support the complainant's opposition to it. This is an option which is always open to all councillors. Indeed it would not be unusual in relation to many decisions taken by councillors to find that there is an individual, or a group of individuals, who are opposed to the position adopted by an individual councillor on a particular issue. This is simply a feature of local politics. A councillor is always free to decide whether to support or oppose a proposal which affects his or her local community. To adopt a different point of view to an individual, or a group of individuals, does not constitute conduct which falls to be assessed under the Code. In relation to this aspect of the complaint I found that by electing to support the Council's proposals for the development in preference to the local community's opposition to it, the respondent had not breached paragraph 7.9 of the Code.

25. The complainant's final allegation was that the respondent had a non financial interest and that he should, therefore, have declared an interest in terms of paragraph 7.11 of the Code, left the room and taken no part in the consideration of the planning applications relating to the development. The complainant did not explain the nature of the non financial interest but it was assumed that he was referring to his allegation that members of the respondent's family are employed in the Council's Housing and Planning Departments, and that his wife is a member of Castle Cochrane Tenants' Association. The complainant did not explain how these matters gave rise to the non financial interest which he alleged and, as indicated in paragraph 14 above, on the basis of the limited information provided I did not consider that he had established a credible complaint that warranted investigation.

26. I made the general observation that, in my opinion, this complaint had been influenced by the misconception that for a councillor to disagree with the views or position of a constituent (or a group of constituents) on a particular matter, or to fail to support the constituent or group in their opposition to that matter, constitutes misconduct and a breach of the Code. The mere act of a councillor disagreeing with a constituent's position or being unwilling to support the constituent in his or her opposition to a matter does not, of itself, give rise to misconduct and does not fall to be assessed under the Code. Indeed, in this case, I consider that the respondent has properly and diligently carried out his official duties in relation to the matters at issue.

27. Having considered the information that arose from my investigation, I concluded that Councillor Jim Harkins had not contravened the Councillors' Code of Conduct.

D Stuart Allan,
Chief Investigating Officer.
Forsyth House
Innova Campus
Rosyth Europarc
Rosyth
Fife
KY11 2UU
26 April 2007