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Complaint no. LA/R/627 concerning an alleged contravention of the Councillors' Code of Conduct by Councillor Kenneth MacLaren and Councillor Tracie McGee of Renfrewshire Council

1. Complaint number LA/R/627 alleged contraventions of the Councillors' Code of Conduct (“the Code”) by Councillor Kenneth MacLaren (“the first respondent”) and Councillor Tracie McGee (“the second respondent”).

2. It was alleged that the respondents had contravened the Code, in particular, paragraphs 7.2 and 7.3 which place a duty on councillors to ensure fairness and avoid any occasion for suspicion and any appearance of improper conduct relating to decisions on planning applications.

3. The persons complaining (“the complainants”), alleged that during the consideration of a planning application by Renfrewshire Council Planning and Economic Development Board on 14 August 2007, the first respondent failed to note that a roll-call vote was in progress, required to be alerted to the requirement for him to vote and, on being so reminded, voted in accordance with the indication provided by the second respondent. The complainants also allege that the second respondent, in alerting the first respondent to the ongoing roll-call vote, directed him verbally as to how he should cast his vote.

4. Paragraph 7.2 places a duty on councillors to ensure that development decisions are properly taken and that parties involved in the development process are dealt with fairly. Further effect is given to this provision by paragraph 7.3 which requires that members must not only avoid impropriety, but at all times avoid any occasion for suspicion and any appearance of improper conduct.

5. In this case there was no suggestion that either respondent was biased in favour of the applicants, or otherwise acted improperly. The crux of the matter which I was required to consider was whether the inability of the first respondent to follow the proceedings of the Planning and Economic Development Board in their entirety, as a result of a temporary hearing impairment, and his apparent compliance with a direction from the second respondent to vote in favour of the motion, were such as to breach the provisions of the Code. I was also required to consider whether the actions of the second respondent in making, or apparently making, this direction were such as to breach the Code.

6. The first respondent stated to the Monitoring Officer on 24 August 2007 that on the date of the meeting he was suffering from an ear infection that significantly reduced his hearing ability. He repeated this explanation when interviewed in the course of this investigation, stating that he had a chronic hearing problem which occurred from time to time. He did not use a hearing aid and was unable to take advantage of the induction loop system within the meeting room. Neither had he made his handicap apparent to the Convener prior to the meeting. The first respondent stated that the extent of impairment during the meeting was partial and that he could follow the debate provided he was in view of the speaker. If, however, he turned away from the speaker he would not necessarily have been aware that he was being addressed. It was the first respondent's position that he was able to follow the debate prior to the vote, and that he was aware of the argument in favour of the application put forward by the Convener. On the basis of the Convener's input, and his own assessment of the papers, the first respondent stated that he had formed his own view in support of the application, and that he indicated this during the course of the debate in an unminuted aside to the second respondent. The first respondent asserted that this remark was made prior to the commencement of the voting procedure. This was refuted however by the second respondent whose recollection was that the first respondent did not indicate his voting intention until the exchange which followed her prompt that a vote was in progress.

7. That the first respondent was unaware that a roll-call vote was being taken was not disputed, and it was entirely logical for the second respondent, seated immediately to his right, to remind the first respondent as to the stage that the proceedings had reached. I did not consider that this in itself was improper.

8. Recollections differed as to the precise words used by the second respondent. The complainants' recollection was only of the second respondent nudging the first respondent, and saying, “Motion, motion.” The respondents' account was of a slightly longer exchange in which the second respondent simply guided her colleague as to the roll-call voting procedure and left the choice of vote to him. In the absence of a sound recording or minuted reference I was unable to determine with certainty the precise terms of the exchange. If the complainants' recollection was correct an observer might have justifiably gained an impression that the first respondent was being instructed how to cast his vote. If the respondents' account of a longer exchange was accepted, the second respondent might simply have been alerting the first respondent that a vote was required, although it was unfortunate that such audible and repeated emphasis was given to the word ‘Motion'. I was however conscious that the first respondent's confusion had created a hiatus in the proceedings and that the second respondent reacted quickly to the situation and without a great deal of time to consider the form of her words or how they might be interpreted.

9. In regard to the first respondent's hearing impediment and failure to recognise that a roll-call vote was in progress, I considered that this was an undesirable situation which, quite apart from the impression it could and did give to the complainants, had the potential to impair the degree of attention required of the member in giving his full attention to the application. The hearing impairment was present and known to the first respondent prior to the start of the meeting yet he opted to participate despite this handicap. In the event the impairment and loss of attention to the proceedings became evident to others, including members of the public, and it was clearly less than desirable for an elected member to place himself in this position when called upon to take decisions on important regulatory matters. The first respondent took no part in the debate and his position as to the merits of the application prior to the vote is not a matter of public record. The demonstration of momentary inattention was unfortunate but I did not consider that in itself it could be viewed as being unfair within the wider context of the application, and accordingly I found that the first respondent was not in breach of paragraph 7.2.

10. In regard to the first respondent's voting intention I was reliant on his own assertion that he was aware of the arguments in favour of granting the application put forward by the Convener. Some corroboration of this statement was provided by his comment to the second respondent that he intended to vote for the Convenor's motion, although the precise point at which this remark was made is open to question. I noted that the first respondent when questioned on this point by the Council's Monitoring Officer confirmed that his decision was made during the meeting. Accordingly I could make no finding in fact that the first respondent was influenced by the second respondent or voted in accordance with political allegiance. I therefore found that the first respondent was not in breach of paragraph 7.3 of the Code.

11. I was however concerned that a member with a significant, albeit temporary, hearing impairment should participate without proper assistance in such an important decision-making function. The perception that this could give to parties involved in the planning process, and the wider public observing the proceedings, did not reflect well on the process, and I did not consider that a member so handicapped could properly follow the debate or verbal submissions made by others addressing the Board. Accordingly I suggested that the Council give consideration to putting in place a mechanism to ensure that temporary impairment of this nature could be addressed appropriately.

12. The second respondent's actions were undoubtedly prompted by her realisation that the first respondent had lost track of the proceedings. I could take no exception to her alerting her colleague that a roll-call vote was in progress but the wording employed, in particular the repeated use of the word ‘motion', gave an unfortunate impression, to the complainants at least, that he was being instructed or influenced to vote in favour of granting the application. The intention of the second respondent's intervention appeared genuinely to have been in a spirit of helpfulness, however, rather than implying an attempt to direct or influence the vote, and I therefore found that the second respondent had not breached paragraph 7.2 or 7.3 of the Code.

13. Having considered the information that arose from my investigation, I concluded that Councillors Kenneth MacLaren and Tracie McGee 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