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Complaint no. LA/SB/786 concerning an alleged contravention of the Councillors’ Code of Conduct by Councillor Gavin Logan of Scottish Borders Council

1. Complaint number LA/SB/786 alleged a contravention of the Councillors’ Code of Conduct (“the Code”) by Councillor Gavin Logan (“the respondent”).

2. It was alleged that the respondent had contravened the Code, in particular, the provisions set out in section 2 on Duty, Selflessness, Integrity, Objectivity, Accountability and Stewardship, Leadership and Respect, and paragraph 3.14 on Conduct in the Chamber or in Committee.

3. The person complaining (“the complainant”), Councillor Willie Archibald, alleged that a meeting of the Scottish Borders Licensing Board (West Division) was due to be held in Galashiels on Friday 25 July 2008 at 10:30am. However, at the informal pre-meeting held earlier that morning, the respondent stated that unless he was appointed as interim chairman or convener for that meeting of the Licensing Board, he would not attend the meeting thus rendering it inquorate and unable to deal with any business. The complainant further alleged that he did not consider the respondent’s proposal to be appropriate as he wished the meeting to appoint a new permanent convener. The complainant also rejected an offer by Councillor Mitchell, the vice-convener, to chair the meeting and consequently, as, despite further discussion, no agreement could be reached, it was not possible for the meeting to take place. The complainant alleged that this outcome was the result of the action of the respondent which was in breach of the provisions of the Code.

4. The respondent pointed out that the conduct complained of occurred not at a Council or Committee meeting, but at an informal pre-meeting. He claimed that the reason that the meeting of the Licensing Board did not take place was the intransigence of the complainant. He wrote that he suggested the appointment of a temporary convener for only one meeting, having been advised on the previous day by the Area Offices Manager that such action would be competent, and because he considered that it would be preferable to appoint a permanent convener at a later meeting at which a larger number of members would be able to attend and participate. He claimed that the meeting did not take place because the complainant rejected his suggestion and the suggestion by Councillor Mitchell that he, in his capacity as vice-convener, would chair the meeting.

5. After the election on 03 May 2007, the first convener of the Scottish Borders Licensing Board (West Division) was Councillor Fiona Lackenby. She resigned from the Board because of a perceived conflict of interest relating to her employment with the police. A few weeks before the intended meeting of the Board on 25 July 2008 Councillor Lackenby’s successor, Councillor Carolyn Riddell-Carr resigned as convener due to work commitments. Councillor Riddell-Carr was replaced as a member of the Board by Councillor Sandy Aitchison. He would have been unable to participate in the meeting on 25 July 2008 because he had not completed the mandatory training for a licensing board member and was thus precluded from taking part in any proceedings of the Board. He was present at the pre-meeting on 25 July 2008 but 2 of the 6 members of the Board, namely, Councillors Paton-Day and Davidson had intimated in advance that they would be unable to attend the meeting scheduled for that date. The quorum for a meeting of a Licensing Board is one half of the number of members (but in any case, not fewer than 3) i.e., in this case, 3 members.

6. On the afternoon of Thursday 24 July 2008, the respondent telephoned the Area Offices Manager who would have acted as Clerk to the Board at any meeting on 25 July 2008 had she not been taking a pre-arranged day of annual leave on that date. In the course of that telephone conversation, the respondent expressed concerns about the convenership of the Board. He indicated that he was willing to be put forward as convener but that he was concerned about the small number of members who were going to be present at, and able to participate in, the meeting. He was advised that there is a statutory requirement that “where there is a vacancy in the office of convener, the board must at their first meeting after the vacancy arises elect one of their members to fill the vacancy”. He was further advised that if the other members present at the meeting were in agreement, a convener for the day could be appointed on the understanding that he would resign at the end of the meeting. The Area Offices Manager was asked by the respondent to raise the matter with the complainant and did so in a telephone conversation later that afternoon. The complainant made it clear to her that he wanted to become the convener and that if he was appointed he would not resign at the end of the meeting. The likely impasse which would result from the positions which the respondent and the complainant were intending to take was explained to the complainant, as were the implications for an applicant, who had been cited to attend for a Hearing at the meeting.

7. Because of the positions adopted by the complainant and the respondent it became clear that an impasse had been reached at the informal pre-meeting, and that it would not be possible for the meeting to take place. The parties then left the Council Offices after the Depute Clerk to the Board had explained to the applicant, who was waiting in another room, that the meeting could not take place as it would be inquorate. The main item of business on the agenda for the meeting of the Board on 25 July 2008 was an application for grant or provisional grant of a new off-sales licence, the applicant having been cited to attend. This item, and all the other items of business on the agenda, were not dealt with until the next meeting of the Licensing Board (West Division) which was held in August 2008.

8. I found that the meeting of the Scottish Borders Licensing Board (West Division) could have taken place on 25 July 2008 as the meeting would have been quorate if attended by 3 members, namely Councillor Mitchell, the complainant and the respondent.

9. I noted that the third item of business on the agenda for the meeting of 25 July 2008 was “Consider appointment of Chairman”. The respondent expressed the view that this description of the item was, “at best, misleading”. The complainant formed the view that the item of business had to be taken to mean that a permanent chairman had to be appointed. I found that the description of the item of business made it clear that a permanent or temporary chairman could be appointed (the legislation making it mandatory that a convener or chairman be appointed).

10. I found that before the pre-meeting and at the pre-meeting, the complainant and the respondent were both advised by the Depute Clerks to the Licensing Board that it would be competent to appoint a permanent or temporary chair or convener.

11. I found that the appointment of a permanent convener was not a course of action which found favour with the respondent. He sought to justify his position by suggesting that, at a later meeting of the Board, the two members who were unable to attend on 25 July 2008 would hopefully be present and Councillor Aitchison, if he had completed his training, would be able to take part in the proceedings of the Board. I observed that in relation to the respondent’s desire to become the new convener of the Board, he might reasonably have been expecting that at a future meeting he would receive the support of the two members who were absent on 25 July 2008 (both fellow members of the Administration) and might also have been expecting support from Councillor Aitchison.

12. I found that the proposal to appoint a temporary convener on 25 July 2008 did not find favour with the complainant. He sought to explain his view on the basis that, as two past conveners had resigned within the previous year or so, the appointment of a temporary convener would create a bad impression of the way the Board business was conducted. He also described appointing a temporary convener as “a departure from the published agenda”. I was unable to find any justification for this view, and I observed that, if a permanent convener had been appointed on 25 July 2008, the complainant would have expected his candidature to have been successful having been supported by his SNP colleague Councillor Mitchell and opposed by only the respondent.

13. I found that, in his capacity as vice-convener of the Board, Councillor Mitchell offered to chair the meeting on 25 July 2008, and that his offer was rejected by the complainant. I considered that if the meeting had been chaired by Councillor Mitchell that would have been entirely appropriate since, although the position of vice-convener is not one created by legislation, it was presumably introduced by Scottish Borders Council to deal with a situation such as that which arose on 25 July 2008.

14. I found that the business on the agenda for the meeting of 25 July 2008 should have been dealt with on that date, including the application in respect of which an applicant had been cited to attend and did so.

15. I noted that early in 2009, it is anticipated that the West and East Divisions of Scottish Borders Licensing Board will be amalgamated and will require only one convener (this amalgamation has now been agreed). The respondent very honestly admitted that the convener of the West Division of the Board might well be in a strong position to become the convener of the new amalgamated Board.

16. I found that the conduct of the respondent on 25 July 2008 fell far below the standard which voters are entitled to expect of members who have been elected to represent their interests, in that he refused to attend a Board meeting on that date, unless his proposal with regard to the convenership of the meeting was to be followed. At interview, the respondent expressed regret about his conduct and used phrases such as “Our egos got the better of us”, “I very much regret events” and “Things went wrong, I am not proud of it”.

17. I was unable to avoid making a similar finding with regard to the conduct of the complainant on 25 July 2008, in that he also refused to attend the meeting unless his wishes with regard to the appointment of a new convener were acceded to. Despite this, I noted that the complainant appeared to remain of the view that it was only the conduct of the respondent (which the complainant considered amounted to a breach of the Councillors’ Code of Conduct) which prevented the meeting from taking place.

18. The Chief Executive of Scottish Borders Council expressed the view that it was entirely regrettable that the good name of the Council and of local government in general has been brought into question by the press reporting of the events of 25 July 2008. I concurred with this view and found that the responsibility for this lay with the respondent and with the complainant.

19. This was a complaint alleging breach of certain key principles of the Councillors’ Code of Conduct and of paragraph 3.14 of the Code. The key principles provide a context for and underpin the Code of Conduct and complaints of this nature should also allege a breach of the substantive sections of the Code. In this case, Section 3, General Conduct, is the substantive section of the Code which it was alleged had been breached. The allegation centred on paragraph 3.14 of the Code, which deals with Conduct in the Chamber or in Committee. In this case, the conduct complained of took place at an informal pre-meeting, and did not take place during a Council or Committee meeting or other formal proceedings of the Council. Accordingly, I found that the provisions of paragraph 3.14 of the Code did not apply in this case and that the respondent had not been in contravention of the Councillors’ Code of Conduct.

20. Having said that, I added that if the conduct complained of had occurred at a Council or Committee meeting, it did not follow this would have been found to amount to a breach of the Code. The conduct was ill-advised and lacking in maturity and evinced disservice towards the applicant involved but it could not reasonably have been taken to amount to impropriety.

21. Having considered the information that arose from my investigation, I concluded that Councillor Gavin Logan had not contravened the Councillors’ Code of Conduct.

D Stuart Allan

Chief Investigating Officer

Forsyth House

Innova Campus

Rosyth Europarc

Rosyth

KY11 2UU

7 January 2009