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Complaint no. LA/S/714 concerning an alleged contravention of the Councillors’ Code of Conduct by Councillors Alasdair McPherson and Gerard O’Brien of Stirling Council

1. Complaint number LA/S/714 alleged a contravention of the Councillors’ Code of Conduct (“the Code”) by Councillors Alasdair McPherson and Gerard O’Brien (“the respondents”).

2. It was alleged that the respondents had contravened the Code, in particular the Key Principle of Respect in section 2, paragraph 3.10 in regard to Dealings with the Council, and section 7 Taking Decisions on Individual Applications. The person complaining (“the complainant”), Councillor Margaret Brisley, raised four complaints.

3. Complaint 1 alleged that Councillor Alasdair MacPherson’s behaviour towards Councillor Brisley after a Housing Strategy pre-meeting on 6 November 2007 was abusive, threatening and intimidating. She alleged this was because she had called in his company’s planning application to be considered by the Planning Panel. There was no doubt whatever that an unpleasant scene occurred between the two in the Council’s public reception area.  From the available evidence, Councillor MacPherson’s voice was raised louder than Councillor Brisley’s and he was the more agitated, but that is not in itself evidence that his behaviour was in the category described by the complainant.  Neither of the two staff who were in the vicinity could provide much evidence of what was actually said, and they could hardly be blamed for not wanting to be party to a scene between two elected members in a public place.  There is no suggestion of any physical intimidation, and although I did not doubt that Councillor Brisley was shaken by the encounter, she stayed to engage in argument with Councillor MacPherson for around 10 minutes.

4. Councillor Brisley was quite entitled to exercise her right to call in the planning application, and there must never be any suggestion of pressure on a member that would prevent them from exercising that right. Essentially, however, the thrust of the complaint was that Councillor MacPherson was abusive towards Councillor Brisley and threatened her with a vote of no confidence because she called in his planning application. What little comments were recalled by the staff who witnessed parts of the scene did not provide substantive evidence of this.  There were no sufficiently substantive grounds, therefore, to uphold the complaint regarding Councillor MacPherson’s alleged threatening conduct towards the complainant.  It follows that Councillor MacPherson did not breach the provisions of section 3.20 in seeking to get preferential treatment for his planning application, nor the provisions of section 7 relating to taking decisions on individual applications. It is noted that Councillor MacPherson’s company’s planning application did come before the Planning Panel and, as required by the Code, he declared an interest, vacated the Chair and left the meeting.  In regard to this complaint, I found there had been no contravention of the Code of Conduct.

5. Complaint 2 concerned a letter circulated by Councillor Gerard O’Brien which raised the prospect of a motion on a vote of no confidence in Councillor Brisley as former Provost.  It is the right of any member to seek advice on putting forward such a motion.  Councillor O’Brien considered doing so but in fact did not proceed.  It was open to him to inform other members.   I found no breach of the Code of Conduct in regard to this matter.

6. Complaint 3 related to a leaflet which Councillor Alasdair MacPherson circulated to hundreds of households in Cowie.  He was personally responsible for the drafting, printing and distribution of the leaflet which he paid for; he undertook this as a local political activist and not in an official capacity. It singled out his fellow ward councillor, Councillor Brisley, for criticism following a decision by the Council to withdraw financial support from Credit Unions and, in particular, the Cowie Credit Union. The facts relating to the withdrawal of funding for the Cowie Credit Union and the complainant’s endorsement of that were substantially true. The personal criticism in the leaflet of the complainant – referring to her betrayal of the people of Cowie - was gratuitous and could readily be taken to be wholly inappropriate. At the end of the day, the main issue was whether the issuing of the leaflet was undertaken by the respondent in performing his functions as a councillor. In this connection I had little hesitation in concluding that the respondent took on the printing and distribution of the leaflet in a private capacity and at his own expense for, broadly, electioneering or political purposes; he was not acting in an official capacity and was not performing any official functions. He did use the title “Councillor” to describe himself and also the respondent but that, by itself, did not mean he was acting in an official capacity. I found, therefore, that he was not in breach of the Code as it did not apply to him as he was performing no official function. 

7. Even if a finding could have been made to the effect that distributing the leaflet was carried out in an official context, I do not consider that the wording of the leaflet – being on the one hand factually substantially accurate on a matter of some public interest and on the other highly critical personally of a fellow Councillor – could be seen as falling into the category of attracting a conclusion that it amounted to breaching the key principle of Respect set out in the Code. This is especially so given the application of the freedom of expression set out in article 10 of the European Convention of Human Rights which provides that everyone has the right to freedom of expression including the freedom to hold opinions and to receive and impact information and ideas without interference by public authority. The principle of freedom of expression is of fundamental importance in matters of public expenditure, and any restrictions – as in this case due to reputational issues – must ` be narrowly interpreted and applied only where it is necessary to do so, which did not apply in this case.

8. Complaint 4 alleged that Councillor MacPherson gave Councillor O’Brien sight of planning papers not normally available to other councillors or members of the Planning Panel.  Councillor O’Brien said that the papers never came into his possession, but he discussed them with Councillor MacPherson who clarified certain details for him.  In general, pre-agenda papers are not widely circulated, but there is rarely anything to prevent a councillor providing information to another councillor.  In this case I found no grounds to uphold a complaint that there was a breach of the Code of Conduct by either Councillor MacPherson or Councillor O’Brien.

9. Having considered the information that arose from my investigation, I concluded that Councillors Alasdair McPherson and Gerard O’Brien had not contravened the Councillors’ Code of Conduct.

D Stuart Allan

Chief Investigating Officer

Forsyth House

Innova Campus

Rosyth Europarc

Rosyth

KY11 2UU

31 July 2008