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Complaint no. LA/SI/914 concerning an alleged contravention of the Councillors’ Code of Conduct by Councillor Jonathan Wills of Shetland Islands Council

1. Complaint number LA/SI/914 alleged breaches of the Councillors’ Code of Conduct (‘the Code’) by Councillor Jonathan Wills (‘the respondent’).

2. It was alleged that the respondent had contravened sections 3.1 to 3.4 relating to General Conduct and paragraph 20 of the Protocol for Relations between Councillors and Employees in Scottish Councils which provides that Councillors should not raise matters relating to the conduct or capability of employees in public.

3. The complaints were made by Councillors Alexander Cluness, Convener, Shetland Islands Council, Councillor Joseph Simpson, Vice – Convener, the then Chief Executive of the Council, the Depute Chief Executive and the Head of Legal and Administration and Monitoring Officer. The complainants alleged firstly that in publishing a letter dated 14 October 2009 in The Shetland Times and The Shetland News in which he was critical of the arrangements made for, and the conduct of a disciplinary hearing involving the Chief Executive, the respondent may have contravened the terms of the Code. The complainants secondly alleged that in repeating comments in the same public letter directly critical of the Chief Executive’s handling of six further issues, the respondent also breached the Code.

4. There have been a number of cases (LA/EL/584, LA/S/636/712) when I have been required to consider the scope of paragraph 20. In these cases I have taken the view the Code had to be considered in light of the protection given to freedom of expression by the Convention on Human Rights. I have also previously made the general observation that criticism of Council processes involving staff did not automatically equate to a breach of the Code and that it would always be a matter of manner and degree which required to be evaluated in the individual circumstances of each case.

5. It will always be a matter of manner and degree of such criticism which requires to be evaluated in the individual circumstances of each instance. There are competing principles involved which have to be evaluated and judgment has to be exercised. Respect for employees and their reputational rights, including questions of defamation and employment protection rights, have to be weighed against the principle of freedom of speech (particularly political comment), questions of qualified privilege (involving the right and duty to report matters of concern and criticism), and public interest (including a councillor's duty to scrutinise Council performance generally and specifically).

The Deliberations of the Investigating Committee

6. The first part of the complaint is based on that part of the respondent’s letter of 14 October which is critical of the proceedings of the Investigating Committee which convened on 8 October to consider the allegation by the respondent that he had received a threatening phone call from the Chief Executive. It is clear that the criticisms were directed not at an individual officer – or indeed member – but are of the process. Examples include (my emphases) – ‘the investigating committee were not allowed to hear all the evidence’…’The Chief Executive was permitted…to cross examine in a hostile and insinuating manner’…. I was not allowed to question [the Chief Executive’s] credibility……’

These were not attacks on an individual named officer but general criticisms of the approach of the investigating committee.

7. The investigation of any complaint about a chief executive is a most serious matter. Appendix ‘E/1’ of the SJNC Scheme of Salaries and Conditions for Chief Officials (which governs the disciplinary process) notes that ‘Authorities are recommended to have full regard to the principles and standards set out in the ACAS Code of Practice on Disciplinary Procedures. In turn the Code of Practice provides as follows:

‘Investigation of Cases

The nature and extent of investigations will depend on the seriousness of the matter and the more serious it is then the more thorough the investigation should be.’

8. In that context it seems to me that a full exploration of the circumstances of a meeting involving the Chief Executive, the Depute Chief Executive and the Executive Director of Infrastructure Services, which took place on the morning of 9 September 2009 in the Chief Executive’s office would have been a pre-requisite of such an investigation. At interview the Chief Executive (the third complainant) said that on the morning of 9 September he was agitated about the activities of the respondent and in common with the other complainants suspected that he was leaking information to the press, generating unrest about the workplace performance of the third complainant, and generally obstinately and unreasonably refusing to accept properly made corporate decisions. The third complainant was turning over in his mind how he might address this difficulty. As part of that process he thought he might have said something like – ‘If this was the West of Scotland he (the respondent) might have been taken up a lane and had his teeth kicked in, but it’s not, it’s Shetland’. According to the Executive Director of Infrastructure Services during the discussion the Chief Executive said that ‘he would like to take him up a back lane and kick his (the respondent’s) fucking teeth in’ or something very like it.

9. The proceedings – according to the initial statement made by the Chair of the meeting – seemed designed to follow a traditional adversarial model with opening statements on both sides, witnesses being presented in support of respective positions, cross examination, examination by the committee and closing statements.

10. In fact little use was made of the disciplines of the adversarial format to test the evidence which was heard by the committee. Other than a recitation of the complaint no opening statement was made on behalf of the Council, no witnesses were led in any recognised sense of the word, no cross examination was undertaken or summing up made on behalf of the Council. Witnesses appeared and were urged to volunteer their evidence. No assessment of the relevance of the third complainant’s cross examination was made.

11. The circumstances of and the content of the Chief Executive’s contribution to the meeting on the morning of 9 September were neither mentioned, far less explored. Although he thought it significant and was waiting for someone to ask him about it, the Executive Director of Infrastructure Services says that he did not have the opportunity to raise the issue of what was said by the third complainant at that meeting. Because it struck him as important, the Executive Director of Infrastructure Services said he told not only the third complainant but also the convener and vice convener of his reporting committee about what had been said and of his intention, should he be asked in future to truthfully relate what the third complainant had said about his intentions towards the respondent at the morning meeting of 9 September.

12. The point of reviewing what happened as part of the investigation was to assess whether there was any merit in the respondent’s public criticisms. I have no doubt that if the Investigating Committee had heard Chief Executive give evidence to the effect that he had discussed (albeit in selected geographic locations only) the possibility of violence being visited on the respondent in terms very similar to those alleged to have been made only some hours later and / or heard similar evidence from the Executive Director of Infrastructure Services they would have given it careful consideration. I am of the view that this was relevant material which was not uncovered and properly explored as part of the investigatory process, partly perhaps because the rigours and disciplines inherent in an adversarial hearing were not fully deployed at the Investigating Committee stage. In light of the foregoing, especially given the seriousness of the matter under consideration, I can understand the respondent’s broad concerns about the adequacy of the proceedings as expressed in his letter of 14 October. I do not consider that in publicising the comments he did in that letter the respondent was in breach of the Code.

The Post of Assistant Chief Executive

13. Shortly after his appointment the Chief Executive reviewed the senior management structures within the Council. The proposals the Chief Executive wanted to implement appeared to significantly alter the responsibilities which had hitherto been discharged by the Assistant Chief Executive. The changes proposed divested the post holder of responsibility for acting as an ‘assistant’ or ‘deputy’ to the Chief Executive and proposed a set of duties more focussed on departmental responsibilities.

14. On 24 August he described the changes in a proposed communication to members as follows; ‘Following review I am carrying out a minor restructure within the Executive Services Department. As of today, Monday 24th August, the position of Assistant Chief Executive will no longer exist. Written advice offered by the Council’s Organisational Development and Human Resources Departments suggested that the current post holder could as a result find himself in a redundancy situation.

15. The Assistant Chief Executive resisted the proposed changes. 

16. On any reasonable reading of the Council’s constitutional documents I did not consider that the Chief Executive had delegated authority to make the changes to the role or conditions of employment of the Assistant Chief Executive. Even if he had, by approaching the sensitive matter of an officer who had recently been a – strong – candidate for the post of Chief Executive in a peremptory fashion, he courted the controversy which followed. However the respondent became involved, it was unlikely that he would not pursue the issue which of course had generated a great deal of local, and indeed, national interest. Again I was of the view that in making the comments he did in his public letter of 14 October the respondent did not in the circumstances breach the Code.

17. The issue was eventually resolved by the submission of a report to the full Council on 9 December 2009 by the Chief Executive. After consideration of the report the Council adopted the following motion in respect of this issue: ‘invite (the Assistant Chief Executive) to resume his duties …. with immediate effect, on his existing salary and terms and conditions of service, with a remit to undertake a range of strategic projects ….’

Criticism of Report relating to Anderson High School

18. The respondent’s letter of 14 October repeated highly critical comment on the contents of a report by the Chief Executive considered by the Services Committee on 3 September 2009 in connection with the proposed replacement for Anderson High School. The criticisms were directed towards the merits of the various component parts of the report. The language used was measured and the narrative was not directed at the Chief Executive personally.

19. The Chief Executive regarded himself not only as the most senior officer in the Council but has having an enhanced responsibility for ‘fronting’ important issues being taken forward in the Council’s name.

20. The actions of the Council itself and its officers indicated that the contents of the report were susceptible to different interpretations and as such merited a degree of scrutiny. The respondent did not appear to have received a reply to his letter of 18 September 2009, the contents of which were referred to in a letter of 7 December 2009 signed by the respondent and five other councillors which itself received only a holding reply from the first complainant on 25 January 2010.  Given the lack of a definitive corporate response to the criticisms, that the respondent had recourse to the press is unsurprising. I thought it unrealistic to expect that because the Council decided to abandon the Knab Road site for Staney Hill, the respondent would retreat from his criticisms of the third complainant’s report. In these circumstances I did not consider that the critical engagement initiated (and regularly repeated) by the respondent on the merits of the third complainant’s report was a matter which breached the provisions of the Code.

Unauthorised Publication of Private Letters

21. In his public letter of 14 October 2009 the respondent was also critical of the inclusion by the Chief Executive in his report to the Services Committee of 3 September in respect of Anderson High School, of ‘private’ letters addressed to Councillor Gussie Angus, the Convener of the Services Committee. 

22. The Administrative Services Manager investigated the matter and came to the conclusion that ‘comments from Lerwick Schools Staff were sought in confidence, but this was not clearly communicated onwards to the author of the report, or to any member of staff concerned with the collation and distribution of the final papers.’

23. In reporting to the Council at their meeting on 28 October 2009 the Monitoring Officer presented a report which drew heavily on the work undertaken by the Administrative Services Manager. There he stated ‘Although maladministration can be acknowledged to have occurred….’  As a result the Council resolved to acknowledge that: ‘maladministration has occurred’, and to …’agree that a formal apology from the Council be sent to each of the correspondents, signed by the Convener’.

24. As regards the merits of this episode it appears that again the Council investigated the complaint made by the respondent and in effect found it to be well founded. The criticisms clearly had a basis in fact which was acknowledged by the Council, and they related to a very high profile political project. Again I did not find the circumstances to amount to a breach of the Code.

Appointment of the consultant as Co-ordinator (Anderson High School Project)

25. When the Convener of the Services Committee announced on 24 June that a consultant to review the High School Project had been appointed as a consultant by the Chief Executive, he had only been in post for a matter of three weeks. It was understandable that the Chief Executive’s priority at that time was to ensure that the review of this project was progressed as quickly as possible.

26. The Council’s administrative arrangements as set out in the Scheme of Delegated Functions and Standing Orders for Contracts, however, did not appear to invest in the Chief Executive authority to make such an appointment.

27.  had reservations about the Chief Executive’s explanation that the appointment of the consultant fell within the ‘de minimis’ exemptions in the Council’s Standing Orders for Contracts. The first time a financial quantification of fees was mentioned was on 1 July 2009 when the Chief Executive submitted a report to the Council in respect of the Independent Review process. Paragraph 6.1 of the report says ‘[the consultant’s] fee and expenses is estimated at £18,000 and a more accurate total estimate for the review should be available once he has identified everything that is needed.’ Paragraph 6.2 of the Report says ‘I appointed [the consultant] on 24th June, understanding that his estimated fees would be under the de minimis sum allowed for under the Council’s standing orders, at H2 (b). The sum produced by the application of Standing Order H2 (1) was £10,000.

28. The proceedings at the Council on 1 July seemed to indicate a retrospective attempt to justify the appointment in terms of the Council’s constitutional arrangements.  Apart from the absence of general or specific authority the projected fee and expenses exceeded the de minimis amount requiring the application of contract standing orders.

29. In the circumstances I considered that the public criticism of the third complainant in regard to this part of the complaint, if not inevitable, was entirely foreseeable. Inclusion of such material in the respondent’s letter of 14 October did not, in my view, amount to a breach of the Code.  

Drinking Session in the Chief Executive’s Office on 3 September 2009

30. The respondent complained that the Chief Executive had spent at least some of the afternoon of 3 September in his office involved in a ‘drinking session’ with the consultant. Earlier that day the Services Committee and the Council had considered a report reviewing the progress of the highly contentious Anderson High School project. I accepted that this represented the culmination of a substantial piece of work for which the Chief Executive was ultimately responsible. I also considered his explanation that after the demanding meetings he lunched with the consultant appointed by him to mark the conclusion of a difficult piece of work in a tight timescale to be entirely understandable. It was a matter of concession that to some extent the function carried on when they returned to the third complainant’s office where a bottle of champagne (supplied by the consultant) was consumed.

31. The Chief Executive claimed that he was in fact on holiday that afternoon and correspondence between himself and the Head of Legal and Administration makes reference to those arrangements. I have no reason to doubt, however, the explanation given by the Depute Chief Executive to the effect that she had an appointment with the Chief Executive on the afternoon of 3 September, but when she was told by town hall staff that he had been drinking with the consultant decided that it ‘was not worth’ attending for the meeting. She characterised the behaviour of the Chief Executive as ‘disrespectful’.

32. The Executive Director of Infrastructure Services was asked and agreed to represent the Chief Executive at the meeting with the group of three elected members who met on 10 September 2009 to consider the complaint made by the respondent about the Chief Executive. He advised the third complainant to apologise for this incident and to recognize that it had been a error of judgment. At the meeting according to the Executive Director of Infrastructure Services the third complainant did so and the matter ended there.

33. I came to the conclusion that a meeting of a mainly social nature took place on the afternoon of 3 September, involving the Chief Executive and the consultant at which alcoholic drink was taken. Whether he was on holiday or not I have no reason to doubt the evidence of the Depute Chief Executive that as a result she was unable to meet the Chief Execuitve as previously arranged on Council business. I considered it to have been unwise of the Chief Executive to have laid himself open to the criticism of over relaxing on Council premises. On reflection he agreed with that view which was shared with the Executive Director of Infrastructure Services and caused him to be penitent at the meeting with the initial investigating team of councillors.

Pressurisation of Planning Staff by Chief Executive

34. In his public letter of 14 October the respondent says: ‘My criticisms of [the Chief Executive] include the following: …2. The unreasonable pressure exerted on planning and roads staff to produce the answers required, to ignore objections and to meet unreasonable deadlines in connection with the planning application for the new Anderson High School at Knab Road’…

35. The Council’s Executive Directors consulted to accelerate the consideration of the planning application for Anderson High School which otherwise would have been delayed as a result of the summer recess. They were careful to receive assurances that in doing so the integrity of the process would not be prejudiced. They did not involve the Chief Executive.

36. In his response dated 28 May 2009 to Development Control on behalf of the Roads Department the Head of Roads prefaced his comments with the following introduction: ‘Given the time constraints placed on us by the 15 June meeting date I will be unable to complete my detailed assessment of the submission within the timescale available. I am therefore providing this outline summary for your information and consideration’.

37. Taken together the importance of the project, the complexity of the application, the (entirely proper) acceleration of the planning committee meeting, and the comments of the Head of Roads, I could understand how an impression was created of if not indecent, at least discernibly increased, speed. According to the Executive Director of Infrastructure Services a special meeting of the Planning Board was unprecedented. I also took into account that this comment was one of a list ‘tacked on’ to a number of others listed as of apparently higher priority by the complainants.

38. In his letter of 14 October, although the respondent referred to the Chief Executive, his criticism on this point was drafted in the passive voice. While as I have said the third complainant did not appear to have had any personal involvement in the processing of the application, as Chief Executive he would inevitably be held accountable for the organisational circumstances which allowed an application to be ‘fast tracked’.

39. In my view the comments of the respondent, even if made at a point in time when his involvement in, and dedication to the campaign surrounding the Anderson High School project may have clouded his judgment, were extremely unwise. Taking into account the circumstances above, however, and in particular that a wider latitude must be allowed to elected members in matters of public controversy, I concluded – but only just – that in this instance the respondent had not breached the Code.

40. Having considered the information that arose from my investigation, I concluded that, Councillor Jonathan Wills had not contravened the Councillors’ Code of Conduct.

D Stuart Allan

Chief Investigating Officer

44 Drumsheugh Gardens

Edinburgh

EH3 7SW

20 May 2010