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Complaint no. LA/SA/14

Concerning an alleged contravention of The Councillors- Code of Conduct by Councillor Gordon McKenzie of South Ayrshire Council

1. Complaint number LA/SA/14 alleges a contravention of the Councillors' Code of Conduct ("the Code"). The Code was issued by the Scottish Ministers in terms of section 1 of the Ethical Standards in Public Life etc (Scotland) Act 2000 ("the 2000 Act") and came into effect on 1 May 2003.

2. The person complaining ("the complainant") alleges a contravention of the Code by Councillor Gordon McKenzie ("the respondent"). The Councillor is an elected member of South Ayrshire Council ("the Council") who have their principal offices in Ayr.

3. The complainant alleges that at a meeting of the Planning Committee of South Ayrshire Council held on 2 September 2003 Councillor McKenzie acted improperly in relation to a decision on the application for the new pub/restaurant proposed for West Portland Street, Troon (ref: 03/00765COU). It is alleged that on 10 August 2003 Councillor McKenzie may have played a round of golf and also shared a meal with the applicant. It is also alleged that on that evening both Councillor McKenzie and the applicant may have attended a private party in Golf Crescent, Troon.

4. The inference of the complaint is that if any or all of the allegations are true, Councillor McKenzie may have breached the principles of the Code set out in section 2 on Selflessness, Integrity, Objectivity and Honesty and also section 3.6 to 3.13 on Gifts and Hospitality.

Section 2 of the Code states that Selflessness, Integrity, Objectivity and Honesty are among the key principles upon which the Code is based.

With regard to Selflessness it states:

"You have a duty to take decisions solely in terms of the public interest. You must not act in order to gain financial or other material benefit for yourself, family or friends."

With regard to Integrity it states:

"You must not place yourself under any financial or other obligation to any individual or organisation that might reasonably be thought to influence you in the performance of your duties".

With regard to Objectivity it states:

"You must make decisions solely on merit when carrying out public business including making appointments, awarding contracts or recommending individuals for rewards and benefits".

With regard to Honesty it states:

"You have a duty to act honestly. You must declare any private interests relating to your public duties and take steps to resolve any conflicts arising in a way that protects the public interest".

Section 3.6 to 3.13 of the Code deals with general conduct and in particular with regard to Gifts and Hospitality.

6. I also took evidence individually from the respondent (in the presence of his Solicitor) and from several other witnesses. These interviews took place on 14 January 2004 in Ayr. The complainant declined to be interviewed as did the person who apparently invited the respondent to play in the golf competition ("person A") which took place on 10 August 2003.

7. On 2 September 2003 the political composition of the Council was 15 Labour and 15 Conservative members. The respondent is the elected member for ward 2 - Troon West. On 2 September 2003 the respondent was one of 5 Labour members of the Planning Committee. There were also 5 Conservative members. The respondent is also the Provost. He has now come off the Planning Committee. His decision to do so was not related to this complaint but was based on the view that being a member of the Planning Committee was incompatible with certain functions which he is required to carry out as Provost such as welcoming prospective developers to the area.

8. The pro-am golf tournament in which the respondent played on 10 August 2003 was organised by Troon Welbeck Golf Club. The course was provided by South Ayrshire Council. The respondent was a member of the team representing McArthurs Bar. Each team comprised a professional and 3 amateur players. There were 50 teams in the competition. The entry was £399 per team which also covered the cost of a buffet meal for each player after the round. The respondent registered his participation in the event in the Council's Register of Offers of hospitality/gifts received by Council members. After the round the respondent had a buffet meal with the other players in his team followed by a few drinks in the golf club-house. Person A lives in Golf Crescent, Troon, but the respondent states he did not visit this house or any other house in Golf Crescent that evening.

9. The applicant does not play golf. He states that he did not play in the pro-am competition on 10 August 2003, he did not share a meal with the respondent that day nor attend a private party with him that evening. He also states that so far as he is aware he has never met the respondent.

10. The applicant's son who is a salaried partner in the family business did play in the pro-am competition on 10 August 2003. He was a member of one of the other teams sponsored by Person A (not McArthurs Bar). Accordingly he did not play in the company of the respondent and states that he did not share a meal with him or attend a private party with him that evening. The applicant's son and the respondent consider themselves to be unlikely companions as the applicant's son was an unsuccessful Conservative candidate in the local elections held in May 2003. He states that he was introduced to the respondent as the Provost when they were both having a drink in the hospitality marquee after their rounds. The applicant's son states that this was the first and only occasion on which he has met the respondent.

11. At the meeting of the Planning Committee on 2 September 2003 the respondent was one of 5 members who voted for the planning application in respect of 33 West Portland Street, Troon which was submitted in the name of Kenneth McPherson, Ayrshire and Galloway Hotel, Killoch Place, Ayr. In the roll-call vote the respondent was the second member to vote. The application was for a pub/restaurant or bistro/bar. The applicant owns 2 similar establishments - one in Ayr, the other in Prestwick.

12. At the meeting on 17 September 2002 the Council's Planning Committee of which the respondent was then the Convener considered a planning application in respect of 31-35 West Portland Street, Troon which was submitted in the name of Belhaven Pubs Division. That application was for what was described at the time as a "super-pub" with a capacity of 400 people. The committee unanimously agreed to reject that application.

13. The respondent has denied the three allegations and his evidence is corroborated by that of the applicant. Although the applicant's son did play in the same pro-am golf tournament as the respondent, he corroborates the respondent's evidence that they did not play together, nor share a meal together nor attend a private party together.

14. I have found no reason to conclude that it was inappropriate for the respondent, as Provost, to accept the invitation to play in the pro-am golf tournament. Further, I am satisfied that he recorded his acceptance of this hospitality in the appropriate manner.

15. I consider that the respondent was entitled to take a different view with regard to the two planning applications which cannot accurately be described as "very similar". The first application was for a public house with a large capacity whereas the application which was approved was for a bistro similar to those which the applicant had provided in Ayr and Prestwick and which could be considered to be preferable to the site's existing use as an amusement arcade. I note that the Director of Development Safety and Regulation recommended approval in relation to both applications, and that both apparently provoked strong opposition from the operators of other licensed premises in the area.

16. At interview the respondent who was accompanied by his Solicitor expressed the view that his reputation was being damaged unfairly by this complaint. When asked he stated that he believes that he had been made the subject of this complaint because he was the only Troon Councillor who voted to approve the application on 2 September 2003. Further he considers that his position has been aggravated by inaccurate press reporting of the manner in which the application was granted which inferred wrongly that he had exercised a casting vote.

17. In this case I have found no evidence that Councillor McKenzie has breached the terms of the Code.

18. Accordingly, I have concluded that Councillor McKenzie has not contravened the Councillors' Code of Conduct in terms of this complaint and I find accordingly.

D Stuart Allan,
Chief Investigating Officer.
Forsyth House
Innova Campus
Rosyth Europarc
Rosyth
Fife
KY11 2UU
7 May 2004