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Complaint no. LA/R/947 concerning an alleged contravention of the Councillors’ Code of Conduct by Councillor Jim Sharkey of Renfrewshire Council

1. Complaint number LA/R/947 alleged a contravention of the Councillors’ Code of Conduct (“the Code”) by Councillor Jim Sharkey (“the respondent”).

2. It was alleged that the respondent had contravened the Code, in particular, the provisions of paragraphs 3.14 (Conduct in the Chamber or Committee) and 5.15 (Making a Declaration) and the key principles of Honesty, and Leadership and Respect set out in section 2.

3. The person complaining (“the complainant”) Councillor Eileen McCartin alleged that at a meeting of the Renfrewshire Council Community and Family Care Board on 12 January 2010, the respondent had failed to respect her as Chair of the Board, also had failed to make a full declaration of interest in respect of an item of business before the meeting and that, in addition, by being the author of a formal amendment which was submitted to the meeting for the agenda item in question, had potentially contributed to the influencing of the debate on the matter under discussion (which was inconsistent with, and contrary to, the principle of having made a declaration of interest).  The item in question was the Renfrewshire Playing Field Strategy (future arrangements for the management, operation and development of the Council’s various playing fields and related facilities including mechanisms for engagement with user groups with a view to encouraging and maximising usage of the various different types of facility.)

4. I found that the formal minute of that meeting recorded that at the start of the meeting the respondent had declared an interest in item 16 of the agenda and “indicated his intention to leave the meeting during consideration of the item and not take part in any discussion or voting thereon”.  The minute also recorded at the minute item in question “Councillor Sharkey having declared an interest in relation to the following item of business, left the meeting and did not take part in any discussion or voting thereon”.  (This narration reflected the standard wording used by the Council in its minutes.)  I found that when the agenda item in question was reached the respondent got up from his chair and started to leave the room.  The evidence confirmed that the complainant asked for an explanation of the interest and it was around this point that the respondent had made a remark about leaving due to “legal advice”.  The complainant’s recollection was that she posed the question and that the Leader of the Council asked too.  The Leader of the Council’s recollection was that either he or the complainant asked the question.  The respondent’s recollection was that question was posed by the Leader of the Council and was “a heckle”.

5. The evidence also confirmed that the respondent’s departure from the room took place against some background noise which the respondent described as “SNP heckling” and which he had proposed as a justification for the way in which he conducted himself in responding to the point at issue.  I observed that the correct course of action for any councillor who wished to place himself/herself beyond criticism regarding a complaint of Conduct in Committee was to adhere carefully to the terms of the Code notwithstanding any alleged provocation.

6. I considered that the evidence obtained during interviews indicated that the respondent was abrupt almost to the point of rudeness when he made his declaration and left the meeting.  However, I had noted that the two Committee Services Officers present said that he was not shouting and that the conduct of the respondent (and indeed other members) was neither derogatory nor materially different from other Board meetings.  Whilst I had no hesitation in finding that the demeanour of the respondent left something to be desired, I did not assess that it had been of a sufficient level so as to amount to a breach of the Code and I found accordingly.

7. I considered that the sections of the Code that dealt with the Declaration and Registration of Interests were central to the whole ethical standards framework set up by Parliament.  They were patently designed with the clear purpose of promoting, ensuring and maintaining confidence in the conduct of councillors when decisions were made.  Given the importance attached to the making of declarations by the Standards Commission, it had also issued additional Guidance which set out the responsibilities of an individual councillor and the considerations he/she had to weigh up before reaching a personal decision on any Declaration.  The Code’s specific advice to individual councillors in deciding to make a declaration was “to err on the side of caution”.

8. This complaint raised an important issue which highlighted the complications and tensions which could arise between strategic policy decisions on council services and facilities and “site specific” matters.  The starting point was that it was in the public interest that the local spectrum of political interest should be enabled, as far as possible, to participate in debate on general strategy and policy determination and the Code did not seek to prohibit this, (with the exception of some individual interest declarations).  For example, paragraph 5.8 of the Code made clear that no declarable financial interest arose on issues relating to the terms of council services offered to the public generally where a councillor was a recipient or non recipient of those services.  A contrary example would have been where the general presumption in favour of any councillor taking part in strategic planning decisions could not have applied where that strategy involved considering changes in land use designation which had affected the value of a councillor’s property.

9. In this instance the evidence before me was that the respondent had declared interests from shortly after his election to the Council in 2007 (and onwards) relative to a playing field facility adjacent to his property.  Initially, at that time the business before the Board had been “site specific” relating to that individual location but more recently the site had been included amongst many facilities which the Council proposed to incorporate in a Council–wide Playing Field Strategy.  It was clear from the evidence that the respondent was properly giving consideration to the question of whether or not there was a live interest he needed to declare in regard to this particular Council-wide strategy.  The evidence of the complainant and the Leader of the Council (political opponents of the respondent) was that the matter before the Board was on general strategy and this had appeared to be a factor in seeking to obtain clarification at the meeting as to why the respondent was declaring an interest.

10. I found that Members should always proceed with caution and carefully consider whether or not they had a personal interest which might be affected with a proposed general policy/strategy.  They should have only participated if they could confidently and with justification state that the policy under deliberation had no real impact on their personal situation.  That fact that site specific issues had required previous declarations did not necessarily perpetuate a need for declaration each time a site was mentioned in a wider strategy context.  The ongoing need for declaration would have existed if a general strategy decision would have resulted in material changes (both positive and negative) in respect of the specific site which affected the personal interests of a councillor.

11. In this case I considered the respondent followed the Commission’s advice and had erred on the side of caution in making the declaration he did.  Having regard to the terms of the officer report, the tabled Labour amendment and the decision reached, I did consider that the need or otherwise for a declaration of interest on the particular occasion in question could reasonably have been stated to be, at best, “border-line”.  However, it was conceded by the respondent that when asked why he was making a declaration he did not provide any explanation beyond stating that his declaration was made “on the advice of a lawyer”.  Such a comment did not meet the standard of explanation as provided for in the Code and for that the respondent had to be criticised.  The reply given by the respondent to the meeting was inadequate and was guarded to the point of being of little or no explanatory value.  By his own admission, the respondent fell short in regard to his own declaration on this (and past occasions).  This was indeed somewhat surprising in the light of the fact that, by being the complainant to me in case no. LA/R/862, it appeared that the respondent had been keen to scrutinise the sufficiency or otherwise of declarations by his fellow councillors.

12. However, from the evidence before me I found that the respondent was not alone in paying insufficient attention to explaining declarable interests and I made a Recommendation to the Council on this point.  All members had also to bear in mind that notwithstanding they may have made prior explanatory declarations, such that other councillors and officers were well aware of the interest in question, this would have well not been the case for any member of the public or other party who might have been in attendance at the meeting in question, (or indeed any person having subsequently read the minute of the meeting which was a formal public record).

13. The complainant had also raised the point that the respondent was involved in the preparation of the tabled amendment which had been submitted as the Labour Group’s position on the Playing Field Strategy agenda item.  It was conceded by the respondent that he was involved in the prior Group deliberations on the content and typed the amendment in question.  It was noted that this matter was the subject of officer advice when queried at the Board meeting (after the respondent had declared an interest and had left the room) and a ruling was given to the effect that the written amendment was competent for consideration by the meeting.

14. As presently framed, the Code did not generally extend to regulating the decision making arrangements of political groups (with the important exception of dealing with the involvement of council employees therein).  That said, members who did have an interest which they required to declare must be seen to distance themselves from any attempt to exert influence in regard to the matter under discussion and good practice dictated that this would include group meetings.  Given the matter of his intended declaration it was unwise of the respondent to have involved himself in the drafting of the amendment.  I counselled any member with a clear personal interest to exercise extreme caution so as to avoid impropriety or the appearance of impropriety in such matters.  In the particular circumstances of this complaint where the respondent participated in group deliberations on general strategic matters (not site specific), I concluded that the respondent’s conduct did not amount to a breach of the Code.  (For the sake of completeness it also followed from my findings that the respondent had not breached the key principles referred to in the complaint.)

15. In reaching my determination that the respondent had not breached the Code, I considered the particular determining factors were that the evidence before me on the behaviour of the respondent, did not support a finding that it was of a sufficient severity to have engaged the Conduct in Committee provisions of the Code.  As regards the  declaration of interest aspects, the respondent had consistently and over a lengthy period declared an interest and had taken no part in site specific matters; the respondent had additionally on a number of occasions declared an interest in a wider policy context which involved the site; the respondent had sought and followed officer advice; the necessity for any declaration of interest on this particular occasion was perhaps debateable and the respondent was not alone amongst the membership of the Council in requiring to improve performance in the matter of explaining Declarations of Interest in terms of the Code.

16. I commended the Council for having a standing agenda item at the beginning of each Council and Board meeting on Declaration of Interests.  This was for the purpose of enabling individual members to make public notification of their intention to make any declaration of interest at a subsequent item on the meeting agenda.  This practice served to focus the attention of each member on their responsibilities in this matter as required by the Code.  A number of other authorities had also adopted such a practice but had further developed it so that not only was the notification/declaration recorded in the minute but the minute, additionally, recorded a brief explanation of the individual nature of the interest which was provided by the individual councillor involved. 

17. I recommended that Renfrewshire Council introduced this further development of its existing good practice in its minute arrangements with effect from a notified date and issued to all councillors a formal notification that the Council required any declaration made at any Board meetings after then would require to contain sufficient summary information such as enabled a clear understanding of the nature of the interest. (I considered it might be useful if the Monitoring Officer could expand his helpful guidance advice on examples of appropriate wording of declaration that he issued on 23 February 2009, (recognising however that the sole responsibility for the making of any declaration rested with the individual councillor concerned).  This would serve to further assist the Convener of the Council, Board Conveners and the relevant council staff in ensuring that a sufficient summary of the interests were made for the public record.

18. Having considered the information that arose from my investigation, I concluded that, Councillor Jim Sharkey had not contravened the Councillors’ Code of Conduct.

D Stuart Allan

Chief Investigating Officer

44 Drumsheugh Gardens

Edinburgh

EH3 7SW

22 June 2010