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Complaint no. LA/SA/436 concerning an alleged contravention of the Councillors' Code of Conduct by Councillor Gordon S McKenzie of South Ayrshire Council

1. Complaint number LA/SA/436 alleged a contravention of the Councillors' Code of Conduct ("the Code") by Councillor Gordon McKenzie ("the respondent").

2. It was alleged that the respondent hadcontravened the Code, in particular,section 3 General Conduct (Gifts and Hospitality).

3. The person complaining ("the complainant") alleged firstly, that the respondent accepted a Racecourse Badge from the owners of Ayr Racecourse on 21 December 2004, (which provided free entry to every race meeting held at Ayr Racecourse for a period of one year, and possibly also to race meetings at other Scottish Racecourses, and retained the gift for a period of 5 months. Secondly, the respondent had chosen to amend the Council's Gifts and Hospitality Register, once he had decided to return the gift, in a way that appeared to indicate that his original decision was to refuse the offer of the gift. Thirdly, the respondent had refused to provide a written explanation to the Council's Monitoring Officer, for his conduct in relation to these matters.

4.These 3 allegations in respect of this complaint each had to be considered against the specific terms of the Code to assess the obligations councillors had to meet. Firstly, the respondent's acceptance and retention, for a period of some 5 months, of a Racecourse Badge. Secondly, the respondent's actions in altering the Gifts and Hospitality Register. Lastly, the respondent's refusal to provide the Council's Monitoring Officer with a written explanation of the situation.

The First Allegation

5. As regards the first allegation, it was not in dispute that, on 21 December 2004, the respondent had accepted the gift of a Scottish Racing Badge from the owners of Ayr Racecourse. The respondent had entered acceptance of that gift in the Council's Gifts and Hospitality Register, which was a public register available for inspection by members of the public in terms of the Code. The aim of such a register was to ensure transparency relative to councillors' actings in being offered or accepting gifts and thereby to maintain public confidence in the proper conduct of their elected members in that regard.

6. At the time of acceptance of the gift, the donors were in the process of seeking planning permission for a multi-million pound redevelopment of Ayr Racecourse. (This had been lodged with the Council, as Planning Authority on 14 November 2003 and formally registered on 27 November 2003.). The application was undergoing the lengthy investigation and evaluation by planning officers which such proposals always entailed, with a view to then subsequently being submitted for decision by the councillors responsible for determining planning applications. The proposal had attracted objections from local residents and a section of the local business community. In November 2004, the month preceding the gift, the respondent gave a public speech in which he supported the development of Ayr Racecourse and another separate project. (He had also included comments about his perceptions of the attitude of certain planning staff of the Council towards such new developments, for which he later apologised in writing to the Departmental Head concerned.)

7. At the time of these statements, the respondent was the Provost of South Ayrshire Council, its Civic Head. He had also been a previous Convener and Vice -Convener of the Council's Planning Committee. The position of a Provost was generally perceived to be an influential one and this, taken with the previous planning posts held by the respondent could readily have been argued as, potentially, giving significant weight in favour of the overall development. Such a possible scenario had been recognised, previously, by the respondent and the Council when advice was given to, and accepted by him, that he should not hold both the position of Provost and Vice-Convener of the Planning Committee at the same time. The Code of Conduct contained a number of very specific obligations on councillors in relation to the individual consideration of planning applications. Paragraph 7.9 made clear that a councillor supporting or advocating an application could not take part in subsequently determining the application. In this instance, the planning application had not been submitted for adjudication to the Planning Committee at the time of the speech and the respondent was not a member of the Committee at that time or at any subsequent time when decisions were made. Section 7 of the Code, as framed, when read in conjunction with Standard Commission Guidance, was not designed to place obligations on councillors who did not participate in adjudication of planning applications. Accordingly there was no barrier to other councillors advocating their support for potential developments. There was no evidence before me that the respondent was involved in the planning application process. Accordingly, I recorded, for the sake of completeness, that the respondent was not in breach of the provisions in the Code in this regard.

8. It was also to be recorded, however, that some of the content of the speech as reported was critical of staff. Section 3.2 of the Code (Respecting all Council employees and the Role they play) placed an obligation on councillors to respect all council employees and the role they play. The respondent himself had recognised this by issuing a subsequent letter of apology and requesting further training on his obligations under the Code. The respondent was also the subject of a reprimand by his Political Group on the Council in respect of this incident. It should be noted that this matter was not before the Commission as it was the subject of local action and resolution at the time and did not form part of the complaint issues. Accordingly, I merely observed that it could readily have been said that the respondent's actions in making public remarks about staff in the manner he did were somewhat injudicious and inappropriate. I also made the general observation that criticism of Council processes involving staff did not, however, necessarily equate to a breach of the Code on the part of a Councillor to respect all Council employees and the role they played. It would always be a matter of manner and degree which required to be evaluated in the particular circumstances of each individual case. In this particular instance, the criticism made was general in nature on an issue of considerable importance and did not reasonably amount to disrespect to the extent envisaged by the Code.

9. It was not in dispute that the respondent retained the Badge for a period of some five months. His acceptance of the Badge had been queried by the Council's Chief Executive who was undertaking a review of the Gifts and Hospitality Register as part of his corporate governance responsibilities since he took up post. He had queried the reasons for acceptance of the Badge and asked the respondent to provide a formal reply on the justification for that decision. As a professional and experienced officer he was properly concerned to ensure propriety in such matters having regard to the clear need to maintain public confidence in the reputation of the Council and its members. He was particularly mindful, with justification, that his officers were engaged in significant work evaluating a planning application for a multi-million pound development which was the subject of local controversy. After discussions with the Chief Executive, the respondent took the decision to return the Badge by letter of 24 May 2005 to the donors, which explained his reasons for so doing. In so doing, he made specific reference to the Code of Conduct as the basis for that decision.

10. The provisions of the Code relating to gifts and hospitality were intended to avoid damaging public confidence in individual councils and local government generally. Essentially, it could be said that the principles involved were that gifts or hospitality should not be accepted where this would amount to (a) real or substantive personal gain or (b) a reasonable suspicion of influence on the part of the councillor to show favour or disadvantage to any individual or organisation. With reference to (a), gifts of modest value and reasonable hospitality associated with a councillor's duties would not have fallen foul of these principles. Where the individual or organisation offering the gift or hospitality was an applicant awaiting a decision from the Council or was seeking to do - or continue to do - business with the Council, then the councillor might have - in accepting the gift or hospitality - fallen foul of these principles. Also, a councillor who accepted offers to attend social or sporting events - unless they were clearly part of the life of the community or where the Council would be expected to be represented - might have again fall foul of the principles.

11. In this instance it was of particular relevance to consider the terms of paragraph 3.10 of the Code. Paragraph 3.10 dealt with the acceptance of offers to attend social or sporting events where these were clearly part of the life of the community or where the Council would have been expected to attend or be represented. As framed, the Code clearly envisaged the attendance by a member was permitted in these specific circumstances.

12. From the information before me, it was clear that the respondent had attended the Racecourse in his capacity as Provost to continue the tradition of civic attendance at the Scottish Grand National Race Meeting and had also attended another event there as part of Council duties. I considered both of these visits were appropriate as they could have been reasonably considered as part of the duties of the Office of Provost. He had worn the Badge when attending the Racecourse at recognised Race Events where, by custom, the Civic Head had attended to demonstrate the ongoing community link which the Council had with this important business facility which operated Scotland's premier racing venue. As regards the matter of whether or not the gift was of a "trivial" or "inexpensive character", as envisioned in the Code, it was clear that thegift had significant value if used by the respondent on a personal basis, or his representative, to gain admission to all race meetings at Ayr Racecourse and the other racecourses in Scotland as permitted by its terms. As matters stood, there was no evidence before me that the respondent had ever used the gift in a personal capacity to realise that significant value or had permitted it to be used by others.

13. Following a direct enquiry from him about this matter, I advised the respondent in April 2006 that I considered that there might be occasional instances when a gift was returned after receipt. This was such an example. I considered that the Badge was provided to the respondent in view of his particular Civic Office and this had continued a previous practice in that regard. Advice was given to the respondent by the Council's Chief Executive regarding the possible public perceptions which might arise about the Badge and the respondent took the decision to return it. I considered this to have been a precautionary and prudent step to take. Having regard to the principles explained in paragraph 10 of this Note regarding (a) real or substantive personal gain or (b) a reasonable suspicion of influence on the part of a councillor to show favour or disadvantage to any individual or organisation and to the whole particular circumstances of this matter, I concluded, that the acceptance of the Badge for a period of five months could not reasonably have been taken as a breach of the Code of Conduct by Councillor McKenzie. In reaching this conclusion, I had noted that he did not fail to disclose the initial receipt of the gift; that there was no evidence before me the gift was ever used in a personal capacity; that he had decided to return the gift after further considering the Code; that the matter had been the subject of (at least) partial internal resolution measures within the Council itself at the time; that he had not been involved at any stage in the formal determination of the Racecourse planning application and that the planning application had been ultimately approved by the Planning Committee with cross-party unanimous support.

The Second Allegation

14. The second allegation in this complaint was the way in which the respondent subsequently had amended the Council's Gifts and Hospitality Register. The decision by the respondent to return the Badge was intimated to the Chief Executive who had noted the step taken and had requested the respondent to make the appropriate entry in the Register indicating the step which had then been taken. The Chief Executive had confirmed to the respondent that the register would then be able to be "signed-off". The respondent had deleted the original reference in the Register that he had "Accepted" the Badge and substituted the word "Refused". No supplementary entry or other information was inserted by the respondent. It was the clear view of the Chief Executive and the Monitoring Officer that such an alteration was wholly inappropriate and did not record the steps the respondent had taken to return the gift some five months after the original entry. They considered that a new separate entry should have been made in the Register to confirm the return at the date in question.

15. My own advice to the respondent was set out in my letter to him of 4 April 2006 and had made clear that the whole basis of any Gifts and Hospitality Register was to ensure transparency in these matters and in particular to ensure that the content of the Register reflected what actually happened. The respondent accepted, in hindsight, that his amendment to the Register was incomplete. It was my view that by amending the original entry of "Accepted" to the new term "Refused" the respondent chose the wrong language. If the respondent had considered that a one word amendment to the Register was involved, the more accurate word to be used was, patently, "Returned". There was also a failure on the part of the respondent to seek advice from the Monitoring Officer on what was an unusual situation. The training material for councillors on the Code of Conduct which had been exhibited by the Monitoring Officer had highlighted the availability of staff to provide additional individual advice if needed. The respondent should have availed himself of that offer. As regards a contention by the respondent that the Code of Conduct was incomplete in advice about this point, I considered such a proposition could be readily rejected as unreasonable. It was not the function of the Code to contain such detail. It was well recognised by the vast majority of Councillors that a Monitoring Officer was available to provide specific advice on the particular individual circumstances of councillors in relation to their obligations in terms of the Code of Conduct. In my view, any conscientious councillor should not have hesitated to avail himself or herself of such professional support.

16. The amendment made did not reflect that there was a decision by him to accept and retain a gift for some 5 months. A subsequent decision was taken by the respondent to return that gift and this was done. It was my view that the original entry in the register should have not been amended in any way but with a separate, dated, chronological entry specifying that the gift had been returned. For ease of understanding, the supplementary entry could have also perhaps been cross-referenced to refer to the previous entry earlier on in the Register. I took the view that by amending the Register in the way he did, the respondent had not reflected properly the sequence of events in this matter. I also considered that anyone, including a member of the public, inspecting the Register would have been unable to ascertain that the gift had been retained for five months and, indeed, might have reasonably assumed that an error had been made by the respondent in recording what had happened at the point the gift was offered.

17. I also observed that the terms of paragraph 4.2 of the Code confirmed the personal responsibility on any councillor to comply with theRegulations made by Scottish Ministers which described the detail and timescale for registering interests. In connection with evaluating this particular aspect of the complaint, the precise terms of the Scottish Statutory Instrument 2003 No.135, (The Ethical Standards in Public Life etc. (Scotland) Act 2000 (Register of Interests) Regulations 2003), required to be considered in conjunction with the Council's arrangements for maintaining the Register of Interests which applied not only in relation to categories of interests set out in section 4 of the Code but also to gifts and hospitality as referred to in section 3 of the Code. It terms of the foregoing provisions, it was the responsibility of the Monitoring Officer of a Council to maintain a Register of Interests and to keep a record therein of the information submitted by a councillor in any notice given of a change in circumstances. The regulations required any Councillor to give a notice to the Monitoring Officer of any changes to his or her Register of Interests. This included providing, from time to time, a notice of giving a description of any gifts or hospitality received. The legal obligation on the individual councillor was to submit such a notice within 30 days of a "change in circumstances", (i.e. in the case of gifts and hospitality within 30 days of receipt). This particular case highlighted that a change in circumstances could also have included the occasional circumstance where a councillor no longer had the gift because he or she had returned it. Again, the obligation on the councillor was to provide a notice of such a change in circumstances within 30 days, (i.e. within 30 days of return). The Regulations prescribed that the Monitoring Officer should maintain a record in the Register of Interests of information contained in any notice received from a councillor. The contents of that record should have consisted of:

(a) the date of receipt of the notice received;

(b) the name of the responsible person, (councillor), who gave that notice; and,

18. In the case of South Ayrshire Council, the mechanism employed for the notification of gifts and hospitality, was to permit members to enter the specified details in a separate Gifts and Hospitality Register. This, in effect, was a continuation of the local register arrangements which pre-dated the introduction of the Code. Crucially, these arrangements contained no provision for a formal notice including a statement of the necessary information and the date of receipt of the notice. Whilst such an arrangement was clearly less administratively cumbersome and more "user-friendly" for councillors and was likely to be similar to other arrangements for gifts and hospitality operated by other Councils across Scotland, it did not fully accord with the process which the above Regulations required, namely that individual notices would be submitted to the Monitoring Officer to enable him or her to keep the information received in the Register of Interests covering all the registerable interests of councillors as they occurred from time to time. If a system of individual notices had been in place for gifts and hospitality, this would have assisted the respondent to submit a change of information notice in respect of the subsequent return of the Badge which, crucially, would have shown, in a chronological fashion, that the Badge was being returned some 5 months after it had been accepted. In fact, the then arrangements effectively allowed the respondent to alter or change the original entry and that was wholly inappropriate; a new notice setting out the new position was what had been required. Any failure had however to be considered in the light of the register arrangements as then operated by the Council which in my view did not fully reflect the detailed terms of the Register Regulations as set out in this Note and therefore had not allowed for the envisaged mechanism to operate fully. I made a recommendation on the matter to the Council as set out in paragraph 21 of this Note. In view of the particular circumstances in relation to the Council's registration arrangements, it would not have been appropriate to reach a conclusion that there had been a breach by Councillor McKenzie in relation to paragraph 3.13 of the Code of Conduct.

The Third Allegation

19. The third allegation in the complaint referred to the failure of the respondent to reply to correspondence sent by the Monitoring Officer about this matter. The Monitoring Officer had received a formal communication from the new Leader of the Council querying the register entry and the surrounding circumstances. As a conscientious and responsible Officer, the Monitoring Officer notified the respondent that he had received a query and had sought a written explanation of the situation. Particular mention was made of the amendment to the Register. The respondent had provided no such written explanation. Several reminders were issued in an attempt to obtain a reply. (It was noted that at the time the respondent had suffered a close family bereavement). During this period the respondent also wrote to me about the situation as referred to in paragraph 13 of this Note.

20. Having regard to the provisions in the Code at paragraph 3.2, (Respecting all Council employees and the role they play), I considered that in normal circumstances a conscientious councillor mindful of his/her responsibilities should have issued a letter of response. It was unhelpful of the respondent that he did not issue even a brief written response. It was not disputed that the respondent had spoken to the Monitoring Officer about his correspondence and had confirmed he would not be issuing a letter of reply. It was the respondent's clear view that the Monitoring Officer was well aware of the circumstances relating to the Badge. The respondent felt that the enquiry was part of a political vendetta against him, by the new political leadership of the Council, as he had returned the Badge and amended the Register, (being the 2 steps involved which, he considered would have enabled the Chief Executive to sign off the register and thereby close the matter). This assessment by the respondent of this written enquiry might have been considered as reasonable or unreasonable but the effect of his actions did not assist the Monitoring Officer to follow due process in this matter. Other than the obligations, specified in Section 3.2 of the Code, I was mindful that the Code did not contain any specific obligations on a councillor's interaction with a Monitoring Officer. In the particular circumstances of this matter as narrated in this report, given that the Monitoring Officer had some prior knowledge of the matter, the respondent had spoken to him following receipt of the letters to confirm his position on the latest round of enquiry, I concluded that the failure by the respondent to reply in writing to the Monitoring Officer did not amount to a breach of paragraph 3.2 of the Code of Conduct.

21. Recommendation to the Council

21.1 As stated in paragraph 18 hereof, one of the particular aspects of this complaint was the existing arrangements for the operation of a separate Gifts and Hospitality Register, distinct from the main Register of Interests arrangements in place. I did not consider that such arrangements were unique to South Ayrshire Council. There was no doubt that this had proved - in some ways - to be administratively convenient for councillors to provide details of what could often amount to only a small change in circumstances, eg the acceptance of a diary. The existing arrangements also had the benefit of being based on long standing, local and well-understood practice.

21.2 That said, the specific terms of the Regulations which applied did set down details of steps to be taken by councillors in relation to the Register of Interests and the notices to be provided to a Monitoring Officer. The Regulations also set out the content of the information to be maintained by the Monitoring Officer in the statutory Register of Interests. The Regulations required any Councillor to give a notice to the Monitoring Officer of any changes to the information contained in his or her Register of Interests. This included providing, from time to time, a notice of giving a description of any gifts or hospitality received. The legal obligation on the individual councillor was to submit such a notice within 30 days of a change in information (ie in the case of gifts and hospitality within 30 days of receipt).

21.3 This particular case had highlighted that such a change in information could arise from the occasional circumstance where a councillor no longer had the gift because he or she had returned it. Again, the obligation on the councillor was to provide a notice of such a change in information within 30 days, (ie within 30 days of return). In no circumstances, however, should any person have been allowed to amend an earlier entry to the Register properly entered at that time. The Regulations prescribed that the Monitoring Officer must maintain a record in the Register of Interests of information contained in any notice received from a councillor. The contents of that record should have consisted of:

(a) the date of receipt of the notice received;

(b) the name of the responsible person, (councillor), who gave that notice; and

I recommended that the Council review the existing Register arrangements it had in place in respect of gifts and hospitality and consider what additional information or steps required to be taken tofacilitate the proper recording of gifts and hospitality in terms of the Regulations. I also recommended that any such review should ensure that no person should be permitted to add to, change or delete an earlier entry in the Register where that entry was properly entered at the time. Such a review should also extend to the guidance contained in the Members' Handbook issued by the Council. The Council should ensure that the information provided there by the Council was consistent with the Code of Conduct and any relevant guidance issued by the Standards Commission.

22. Having considered the information that arose from my investigation, I concluded that, Councillor Gordon McKenzie had not contravened the Councillors' Code of Conduct.

D Stuart Allan,
Chief Investigating Officer.
Forsyth House
Innova Campus
Rosyth Europarc
Rosyth
Fife
KY11 2UU
19 December 2006