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Complaint nos.  LA/WD/829 and LA/WD/830 concerning an alleged contravention of the Councillors’ Code of Conduct by Councillor Ronnie McColl of West Dunbartonshire Council

1. Complaint numbers La/WD/829 and LA/WD/830 alleged a contravention of the Councillors’ Code of Conduct (“the Code”) by Councillor Ronnie McColl (“the respondent”).

2. It was alleged that the respondent had contravened the Code, in particular, by breaching section 2 (Key Principles) namely Duty, Selflessness, Objectivity, Openess, Leadership and Respect; section 3 (General Conduct) specifically paragraph 3.3; section 6 (Lobbying and Access to Councillors) specifically paragraph 6.3; section 7 (Taking Decisions on Individual Applications) specifically paragraphs 7.3, 7.5, 7.7, 7.8 and 7.9. Reference was also made to paragraphs 49 and 55 of the Standard Commission’s Guidance. (The first complainant also considered the respondent was in breach or potential breach of various provisions of the Council’s Member/Officer Protocol (August 2007) which the Council adopted as its response to paragraph 25 of the Standards Commission’s Guidance

3. The person complaining, in respect of the first complaint LA/WD/829 was the Chief Executive of West Dunbartonshire Council on the instruction of the Council. The person complaining in respect of the second complaint LA/WD/830 was Councillor Martin Rooney, a member of that Council.

LA/WD/829

The first complaint related to the interventions in and representations made by the respondent to senior officials and members of the Council privately and publicly in relation to the implementation of a decision of the Council’s Appeals Committee. The respondent had been the Acting Chair of that Committee which determined an employee grievance case. Following subsequent approaches from the employee’s trade union representative, the respondent had taken the view that an inaccurate decision letter had been issued and sought to have this changed. In view of the perceived legal position in relation to the contractual employment matter in question, the responsible officers had declined to do so. In the light of this, the respondent invoked the Council’s Standing Orders to requisition a Special Meeting of the Council with the stated objective to instruct Council officers to fully implement the decision of the Committee. One of the Council’s unanimous decisions on the matter as a result had been to instruct the first complainant “to ask the Standards Commission to investigate the allegations made concerning the behaviour of Councillor Ronnie McColl which are in conflict with the Councillors’ Code of Conduct”.

LA/WD/830

The second complaint related to the same course of alleged conduct by the respondent as outlined above. A specific concern was that the alleged actions of the respondent constituted an interference in operational management matters which were the domain of officers. (The second complainant had also participated in the decision of the Council.)            

4. The central issue of both complaints was the Code’s regulation of conduct in the councillor/employee relationship. The respondent had felt he had legitimate concerns about a particular issue involving a formal Committee decision in which he had played the leading role as the Acting Chair. The question to be considered was whether, or not, the respondent’s actions in all the very particular circumstances were of a nature and extent that he had not met the relevant requirements and obligations contained in the Code. Paragraph 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 played and to treat them with courtesy at all times. Paragraph 20 of the Protocol also dealt with this aspect. I made the general observation that criticism of Council processes involving staff did not automatically equate to a breach of the Code on this point. It would always be a matter of manner and degree of such criticism which required to be evaluated in the individual circumstances of each case. There were competing principles involved which had to be evaluated and judgment had to be exercised. Respect for individuals and their reputational rights, including questions of defamation and employment protection rights, had to be weighed against the principle of freedom of expression (particularly political comment), questions of qualified privilege (involving the right and duty to report matters of concern and criticism), and public interest.

5. Paragraph 3.3 of the Code confirmed that a councillor and council employee had separate roles. The role of the councillor was to determine policy and participate in decisions on matters placed before him/her and not to engage in direct operational management of the council's services, which was the responsibility of the employee. In any conclusion reached of "operational interference", consideration had to be given to the ultimate effect of any action taken by a councillor in that connection. A clear example of such interference was where a councillor instructed a member of staff to stop, amend, add or substitute any task or duty he/she was then involved in discharging, as part of their job responsibility to deliver council services, and the employee complied with that instruction, which had not been approved by the council line manager involved. 

6. There could be no doubt that councillors had a widely recognised role to provide information, seek to scrutinise actions taken by officers, and request that matters of council business be reviewed or investigated in the light of new information. It was then for the council manager responsible to consider what action, if any, to take in the light of such an approach. I considered that a "request" or "demand" from any councillor to take any particular action was not, of itself, an interference in operational management. It was incumbent on any council manager in receipt of such an approach to take his/her own professional decision on the matter and act as he/she considered appropriate in discharge of their employee responsibilities to the council as specifically confirmed by the terms of the Code and the Protocol.

7. It was not in dispute that the respondent had commenced a line of representation and action involving a Council employee who had participated in the Council’s then approved grievance process.  The respondent had clearly felt that he had a duty as the Acting Chair to do so. The representational role, in drawing matters to the attention of council officers for any required action, (which could and should be a key task of any councillor), was developed by him in this instance to such a stage that it had to be said that he almost put himself in the position of an advocate acting on behalf of that interest. It was clear that, in the respondent’s own opinion, his prior experience as a councillor over a lengthy period was such that he had felt able to deal with a matter, which by its technical (legal) nature was one which many other councillors (even of similar experience to his) would have hesitated, with justification, to have dealt with to the extent he did.

8. A key issue for consideration in this case was that the subject matter fell into that special category of council decision making which can be classified as “quasi-judicial”. I considered that a particular duty of care was involved in such decision making processes which councillors had always to bear in mind.  The Code and the supporting Guidance issued by the Commission made this quite clear. The consequences of failure to follow due process could have been far reaching.  In this instance, there was potential for Council employment decisions to be challenged and overturned by an Employment Tribunal with adverse financial and legal consequences for the Council and Council taxpayers. Following the decision of the Committee being made, the respondent had fully engaged with one party to such proceedings by meeting him.  Whilst there might have been very exceptional circumstances where that might have been an appropriate action to take, the proper and safe course of conduct for any councillor was for him/her to be accompanied by the Clerk to the Committee. The respondent’s failure to do so in this instance was to be criticised. 

9. It was my view that the Head of Legal Administrative and Regulatory Services/ Monitoring Officer’s assessment about the formal notification of the Committee’s decision was one which he had a duty to the Council to undertake. As the Council’s professional officer, who had the primary responsibility for the provision of such specialist advice, he had taken the clear view that it was wholly inappropriate for a formal letter to be issued by the Council in particular terms regarding a grievance process. He had assessed such a letter would render the Council liable to Employment Tribunal proceedings with adverse legal and financial consequences. Ultimately, after a period of some 7 months, the Council had issued a final letter which, in effect, clarified the Appeals Committee decision. Critically, it did not contain the phraseology which the Head of Legal Administrative and Regulatory Services/ Monitoring Officer had advised should not be used.

10. There was no other evidence before me that the respondent was ever abusive, or personally offensive, to the officers he was engaging with regarding his views that the decision of the Committee needed to be changed to reflect his clear recollection of what he had said.  He had, however, made it clear to them that he felt strongly about the matter. When he did not achieve the resolution he sought, he had submitted a valid notice of motion to requisition a Special Council Meeting in terms of the Council’s approved Standing Orders.  The decision of the Council (after a vote of 11 to 9 in favour) was that the agenda items should be dealt with in public session. This was within the range of options for the Council to take, but it was certainly at variance with the long standing convention and best practice that individual personnel cases were dealt with in private. The Code provisions of Respect and related aspects could have become engaged in such instances.  In addition, it was entirely proper for officers to make clear their professional advice to councillors on the dangers to the Council associated with public discussion which had had the very clear potential to involve the personal circumstances of individual employees. It appeared, however, from the Minute of the Council’s deliberations of the Special Meeting, that wider issues in relation to the Council’s grievance processes, which could be argued to be more of a policy nature, had been involved.

11. It was also a material consideration for my evaluation of these complaints to take account of the fact that as a result of the Council meeting, (in addition to agreeing to refer the matter to me for investigation), the Council had unanimously taken two other substantive decisions. One of them was to undertake an external review of issues around the existing grievance processes and associated staffing issues. (I  noted the outcome of that which had included recommendations on a number of adjustments in Committee procedures and documentation on grievance decisions.)  The other decision was to endorse, in effect, the proposition advanced by the respondent that the decision of the Appeals Committee had not been “fully” implemented.

12. I had also considered the respondent’s course of conduct in this matter against the other relevant provisions of the Code and the Council’s own protocol (which was subsidiary to the Code). I considered the respondent was clear and open about his interest in the matter when he raised the case. Initially, he had dealt with the appropriate officers on a private basis and he had received specific advice from qualified officers whom the Council had employed to provide such support.  The matter then had moved into a wider domain and was the subject of formal debate by the Council. A perception of management “not implementing” more than one decision of the Appeals Committee had seemed to have played a part in the Council formally accepting the stance of the respondent in this matter and determining that an external review of Committee process and related matters be undertaken.

13. In assessing whether or not the conduct complained of amounted to a breach of the Code, I considered the issues were finely balanced. Ultimately, I considered the particular determining factors were that the matter was raised following the original decision having been made; it had concluded on a basis which satisfied the Head of Legal Administrative and Regulatory Services; the Council endorsed the proposition of the respondent that the Committee decision had not been “fully implemented”; and the Council had amended its Appeals Committee processes.  (For his part, the evidence of the respondent made clear that he was also well aware his future conduct might well be subject to further ongoing scrutiny by interested parties.) Taking into account the whole particular circumstances in this matter, I did not consider that the conduct of the respondent could have reasonably been taken to amount to a breach of the Code and I concluded accordingly.

Recommendation to the Council

14. Following the election in May 2007, I would have expected early training for new members of the Appeals Committee and refresher training for members with some existing experience of such matters. The recent developments of employment law and, in particular, the legal clarifications provided by Tribunal on the decision making processes, should have been be a key feature. While this was attempted, I agreed with the views of members on the need for them to be consulted on the scheduling arrangements. I made a specific recommendation to the Council that such training, in so far as it had not already done, was completed with urgency.

15. Having considered the information that arose from my investigation, I concluded that Councillor Ronnie McColl had not contravened the Councillors’ Code of Conduct.

D Stuart Allan

Chief Investigating Officer

44 Drumsheugh Gardens

Edinburgh

EH3 7SW

14 October 2009