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Complaint no. LA/S/671 concerning an alleged contravention of the Councillors’ Code of Conduct by Councillor Colin Finlay of Stirling Council

1. Complaint number LA/S/671 alleged a contravention of the Councillors’ Code of Conduct (“the Code”) by Councillor Colin Finlay (“the respondent”).

2. It was alleged the respondent had contravened the Code, in particular, the parts of sections 2 and 3 of the Code which deal with treating other councillors with Respect.

3. The person complaining (“the complainant”) Councillor Gerard O’Brien, alleged that, during a Council meeting, the respondent failed to treat him with respect, and that the respondent threatened the life of the complainant in the Council Chamber and then again outside the Chamber, on both occasions in the presence of a number of witnesses.

4. The respondent refuted the complainant’s allegations and wrote that he had never threatened anyone let alone the complainant with death. Councillor Finlay rejected the complainant’s claim that he had failed to treat the complainant with respect and wrote that throughout his time as a Stirling councillor he had conducted himself with the respect that the position deserves and had always treated others in a responsible manner and with due respect.

5. The result of the Stirling Council election on 3 May 2007 was that 8 Scottish Labour Party, 7 Scottish National Party, 4 Scottish Conservative and Unionist and 3 Scottish Liberal Democrats councillors were elected and therefore no political group had an overall majority on the Council. (The complainant and the respondent are both members of the Scottish Labour Party.) At the statutory meeting of Stirling Council held on 17 May 2007 the Council appointed Councillor Margaret Brisley as the Provost of Stirling Council. Thereafter, the Labour and Liberal Democrat members formed the administration, and various Council decisions were made, there being an equality of votes, with the Provost using her casting vote (other than in relation to the appointment of a member to an office or committee where the matter must be decided by lot).

6. At a meeting of Stirling Council which was held on 14 June 2007 the Council agreed to establish a Planning Panel comprising 8 members. When the meeting moved to the appointment of the Chair of the Planning Panel the member nominated by the opposition, Councillor McPherson, received 11 votes and the member nominated by the administration, 10 votes. This was to an extent because the complainant, although a member of the Scottish Labour Party, unexpectedly abstained from voting. Thereafter, the members nominated by the administration and the opposition to be the Chair of the Regulatory Functions Panel each received 11 votes, and in accordance with Standing Orders, the Council proceeded to elect the Chair by lot in the form of a cut of a pack of playing cards. The member nominated by the opposition drew the higher card and was duly appointed as Chair of the Regulatory Functions Panel.

7. The meeting then moved on to the appointment of the Depute Provost. A member was nominated by the administration and, unexpectedly, the opposition nominated the complainant. The complainant accepted the nomination and was duly appointed by 12 votes to 10. A number of other items of business were then dealt with before the Provost agreed to a short adjournment of the meeting.

First alleged incident

8. The complainant alleged that he had been threatened by the respondent when he, the complainant, had abstained from voting for the Chair of the Planning Panel. He claimed that the respondent had threatened his life by saying “I’m going to do you in, in the car park.” The respondent denied that he had threatened the complainant at this stage in the meeting and stated that after the vote had been taken on the Chair of the Planning Panel he had asked the complainant: - “What have you done?” None of the other witnesses had heard any words spoken by the respondent to the complainant in the Chamber and indeed the evidence of those witnesses was not in agreement as to where the complainant and the respondent had been sitting during the meeting.

Second alleged incident

9. It was when the meeting had been adjourned that the second incident complained of was alleged to have occurred. At that stage some of those present at the meeting had remained in the Chamber while others had made their way out into the foyer. There are two meeting rooms beyond the foyer and the Labour Group members were making their way to one of those rooms to discuss their position following the unexpected turn of events at the meeting. The witnesses described the atmosphere at this stage as tense.

10. It was at this stage that the complainant alleged that while he had been standing in the foyer he had been approached by the respondent who had said to him: - “I am going to do you in”. He described the respondent as being out of control. He stated that he had stood in the foyer for some time then had made his way into the meeting room where his Labour Group colleagues had gathered. His evidence was that he could not remember whether the respondent swore at him. He stated that the next day he had reported the incident to the police.

11. In respect of the alleged incident in the foyer the respondent stated that as he had left the Council Chamber he had seen the complainant standing at the desk in the foyer and recalled having said to the complainant:- “Come on, get in that room now, hurry up”. He accepted that he had been angry but denied that he had been out of control. He denied that he had used either of the expressions alleged namely that he would “take out” the complainant or “do in” the complainant. The respondent recollected that Councillor Farmer (SNP) had been standing nearby when he, the respondent, had spoken to the complainant. He stated that Councillor Farmer may have told him to “steady on”. Within a few days the respondent had become aware that the complainant had made a complaint to the police. He remembered a discussion with Councillor Farmer thereafter in which he had asked Councillor Farmer if he, the respondent, had threatened to kill Councillor O’Brien. Councillor Finlay’s evidence was that Councillor Farmer had confirmed that he, Councillor Finlay, had not threatened to kill the complainant.

12. The respondent also referred to a subsequent meeting with the complainant in the presence of Councillor McChord (Labour). At this meeting Councillor Finlay stated that the complainant had apologised to him and had telephoned the police asking that any charges against Councillor Finlay be dropped. The respondent claimed that when, in July 2007, the Scottish Labour Party had started disciplinary proceedings against the complainant he, the complainant, had once again begun to complain that, at the meeting on 14 June 2007, he had been threatened by the respondent. It was the respondent’s view that this complaint was an attempt by the complainant to deflect blame away from himself.

13. Councillors Farmer and Houston (SNP) appeared to have witnessed the alleged incident in the foyer. Councillor Farmer’s evidence tended to support that of the complainant, in that he spoke to the respondent having been very angry and having shouted and sworn at the complainant. He alleged that the respondent had used the expressions that he would “do in” and “take out” the complainant but considered that these were threats of some unspecific violence rather than threats to kill. Councillor Farmer’s evidence was that he had urged the respondent to calm down and had then re-entered the Chamber to express his concern about the incident to the Monitoring Officer. Councillor Farmer’s evidence was that later he had been asked by Councillor Finlay if he, Councillor Finlay, had threatened to kill the complainant. Councillor Farmer stated that he had agreed with Councillor Finlay that Councillor Finlay had not so threatened the complainant, but had told Councillor Finlay that he considered his behaviour had been outrageous.

14. The same incident appeared to have been witnessed by Councillor Houston. His description of it was, however, very different in that he spoke to witnessing a heated conversation between Councillors Finlay and O’Brien. He stated that he had heard Councillor Finlay say to Councillor O’Brien:- “That’s it, you’re for it”. He described Councillor Finlay’s voice as angry but had not taken the words to mean a threat of violence. Councillor Houston stated that he had continued to walk through the foyer to the SNP offices. He had not felt any need to intervene as he had not formed the view that the complainant was in any danger.

15. Councillors Simpson and Hendry (both Labour) had not witnessed the alleged incident in the foyer but spoke of an incident which had taken place in the meeting room when the Labour Group members had assembled there during the adjournment. This was the incident referred to in the respondent’s written response where he had alleged that in the meeting room the complainant had twice punched a table and had twice challenged Councillor Finlay to go outside with him for a fight. Councillor Finlay’s description of this incident was corroborated by the evidence of Councillors Simpson and Hendry. The complainant, however, stated that he could remember no incident taking place in the meeting room.  

16. In order to evaluate the evidence in a fair and proper manner, and to make findings, and to reach the appropriate conclusion about this complaint, I considered it is necessary to take account of a number of other relevant facts which I had established.

17. The first of these was that following the complainant’s abstention from voting for the Chair of the Planning Panel, and his acceptance of the nomination by the opposition for the post of Depute Provost, disciplinary proceedings had been initiated against him and subsequently he had been suspended by the Labour Group for a period of 6 months. So far as I am aware that suspension is still in force. Despite his suspension the complainant had been expected to continue to attend meetings of the Council, and to vote with his Labour colleagues. However, he had failed to do this on a consistent basis, thus depriving the administration of its casting vote majority. On 13 March 2008 at a Special Meeting of Stirling Council the ruling Labour – Liberal Democrat administration had been removed after a motion of no confidence submitted by the SNP Group had received support from the Conservative Group. The motion had been carried by 11 votes to 10, the complainant not having being present at that meeting. The administration had resigned following the vote, and Councillor Houston (SNP) had been appointed Leader of the Council with Councillor Farmer (SNP) as Deputy Leader. This chain of events could be traced back directly to the actions of the complainant at the Council meeting on 14 June 2007 and I was certain that the atmosphere at that meeting, when the Provost agreed the adjournment, must have been extremely tense. I also had no doubt that, as he had admitted, the respondent had been angered by the actions of the complainant.

18. The next relevant fact which I took into account was that after the alleged incident the complainant had complained to the police who had begun a criminal investigation. Thereafter, it appeared that the complainant had attempted to have that investigation dropped by making representations both to the police and to the Procurator Fiscal. Despite this he appeared to have been unhappy about the final decision by the prosecution authorities not to institute criminal proceedings against Councillor Finlay. I found the complainant’s actions in this respect extremely puzzling. When asked at interview why he had attempted to have the police investigation dropped the complainant stated that he had asked for the investigation to be put on hold while he waited to see what the respondent would do next. I considered this to be an extraordinary action by someone alleging that the person about whom he had complained had threatened to kill him.

19. Another aspect of the complainant’s evidence with which I had difficulty, was his assertion that he could not recall an incident having taken place in the meeting room where the Labour Group members had gathered during the adjournment. The incident described by Councillors Finlay, Hendry and Simpson was not of a type which one would have expected someone who had been present to have been unable to remember.

20. In all the circumstances referred to above I was satisfied that the respondent had spoken angrily to the complainant in the foyer outside the Council Chamber at the meeting of the Council which was held on 14 June 2007. I did not believe, however, that the evidence was sufficiently clear and reliable to enable me to make a finding as to the words which had been used by the respondent and their meaning. Accordingly, while I had no doubt that, in light of the events which had taken place at the meeting, the respondent had spoken to the complainant in an angry manner, I could not form a view, given the conflicting evidence referred to above, as to whether what he had said to the complainant had been sufficiently lacking in respect to constitute a breach of the Councillors’ Code of Conduct.

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

D Stuart Allan

Chief Investigating Officer

Forsyth House

Innova Campus

Rosyth Europarc

Rosyth

KY11 2UU

16 April 2008