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Complaint no. LA/SL/607 concerning an alleged contravention of the Councillors' Code of Conduct by Councillor John Higgins of South Lanarkshire Council

1. Complaint number LA/SL/607 alleged a contravention of the Councillors' Code of Conduct ("the Code") by Councillor John Higgins ("the respondent").

2. It was alleged that the respondent had contravened the Code, in particular, the provisions in the Councillors' Code of Conduct set out in section 2 on Duty and Respect; the provisions set out in section 3 on Relationship with Council Employees; and the Protocol for Relations between Councillors and Employees contained in Annex C.

3. The person complaining ("the complainant") alleged that on 6 and 7 June 2007 the respondent sent three e-mail messages with attachments to a Council employee, which were inappropriate and contained sexual innuendo.

4. The respondent was elected for the first time to the Council on 4 May 2007. He had known the Council employee concerned in relation to her official duties prior to being elected himself. This was a limited professional acquaintance and did not extend to a social friendship.

5. In all cases submitted for investigation I am required firstly, to assess their admissibility in terms of the Code and secondly, if that test is met, to determine their basis in fact. Both elements require to be established to sustain a finding that the Code has been breached.

6. The complaint was founded upon the sending of three unsolicited e-mails by the respondent to a Council employee. While the messages were directed to the employee's office computer, they originated from the respondent's own machine, located at his home address, using his personal e-mail address, and did not in any way relate to Council business. The contents of the communications were intended to be humorous but in poor taste and several relied for their effect on sexual innuendo. They were not however overtly pornographic or of an illegal character. The communications were not in any way connected with the respondent's official duties and his actions in sending them cannot reasonably be regarded as relating to his role as a councillor which the Code, taken as a whole, seeks to regulate. In regard to section 3 of the Code, this restriction to conduct in the course of Council business is highlighted by the opening paragraph which makes it clear that the principles of good conduct must be observed 'in all situations where you act as a councillor'.

7. The Protocol set out in Annex 3 to the Code provides guidance as to the working relationship which should exist between councillors and employees, and urges members to exercise caution in developing close familiarity. However the conduct of the respondent complained of in this instance took place outwith the working environment (although the communications were sent to the employee's office e-mail address) and could not in itself constitute a breach of the Code. I therefore found that the conduct of the respondent did not fall within the scope of the Code.

8. In this case the character of the communications sent to the employee were self-evident and the respondent himself acknowledged that the communications were unsolicited, inappropriate and offensive. The respondent also acknowledged personal responsibility for sending the e-mails, which originated from his personal home computer. In regard to the content of the messages I will merely state that the tenor of the attachments, and the title given to the covering e-mail sent on 7 June, were wholly inappropriate for communication between persons who were of limited acquaintance. I should also add that, having scrutinised the addressing of the individual e-mails and having regard to the terms of the respondent's apology to the employee, I did not accept as credible the suggestion that had been made that they were sent in error.

9. It is also important to make it clear that the Code only applies to the conduct of councillors while they are acting in an official capacity. That is not to say, however, that there are no other measures that can be - and were in fact in this case - brought to bear. I noted with approval the prompt action of the employee in bringing the matter to the attention of senior management and the prompt action of the complainant, as Chief Executive, in interviewing the respondent and seeking the involvement of the leadership of the respondent's political group. Council employees should not be subjected to unsolicited communications of this nature which, as in this case, are capable of differing interpretation, and they are entitled to the protection of senior management. Leaders of political groups also have a role in ensuring appropriate standards of conduct are observed by their members; in this case, the Leader of the SNP Group did take action to address the matter. I noted also that a written apology was tendered by the respondent, a course which might have more appropriately been taken at an earlier stage.

10. Finally, it goes without saying that elected members should themselves take steps to ensure that they conduct themselves appropriately and be aware of the public expectations on those holding public office; ultimately they remain accountable to the public through the ballot box.

11. Having considered the information that arose from my investigation, I concluded that Councillor John Higgins had not contravened the Councillors' Code of Conduct.

D Stuart Allan,
Chief Investigating Officer.
Forsyth House
Innova Campus
Rosyth Europarc
Rosyth
Fife
KY11 2UU
31 August 2007