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Decision of the Hearing Panel of the Commission following the Hearing held at the Royal Hotel, Bridge of Allan on 24 and 25 February 2009

Panel Members:

Mrs Wendy Goldstraw, Chairman

Mr John Dowson

Mr Albert Tait

In respect of a Report by D Stuart Allan, Chief Investigating Officer (“the CIO”) further to Complaints No. LA/S/636, and LA/S/712 (“the Complaints”) concerning alleged contraventions of the Councillors' Code of Conduct (“the Code”) by Councillor Gerard O'Brien (“the Respondent”) of Stirling Council. Mr David Sillars, Senior Investigating Officer, represented the CIO and was accompanied by Mr Douglas Winchester, Investigating Officer.

The Respondent did not attend the Hearing. He submitted a written response to the allegations against him, which at his request was read out at the Hearing.

 

The Complaint

The Complainant was Mr Keith Yates, Chief Executive of Stirling Council. The Complainant alleges, firstly, that the Respondent breached the provisions of the Councillors' Code of Conduct which deal with relationships with Council Employees. Secondly, the Complainant alleges that the Respondent breached the provisions of the Code which deal with seeking to pressure planning officers to provide a particular recommendation on a planning matter.

The CIO 's Report (“the Report”) (in full at Appendix I) was submitted to the Commission in accordance with Section 14.2 of the Ethical Standards in Public Life etc. (Scotland) Act 2000 ( "the Act"). The Code came into effect on 01 May 2003 and the Commission accordingly had jurisdiction to hear the Complaint, as the alleged breaches of the Code occurred after the Code came into operation.

The CIO's findings were:

1. A series of e mails, over a period of time and on different subjects, were sent by the Respondent to a number of Council employees. The CIO found that the Respondent breached on 5 occasions paragraph 3.2 of the Code in that those e mails contained references which demonstrated a lack of respect towards to those employees.

2. The Respondent was rude, overbearing and intimidating to a Council employee in his demands for immediate priority to be given to his (the Respondent's) pursuit of civic recognition for a constituent. The CIO found that, by his conduct, the Respondent had breached paragraph 3.2 of the Code.

3. The Respondent sent a letter to a newspaper, with the intention that it should be published, in which he questioned an employee's professional competence. The CIO found that the Respondent had breached paragraph 3.2 and paragraph 20 of Annex C to the Code by questioning his (the employee's) professional competence and by raising such matters publically.

4. On two separate matters – one relating to a planning application for a 1922 Plean Miners' Monument and one to a specific planning application in Ward 7 Bannockburn – the Respondent sent e mails to planning officers which sought to put pressure on them to achieve particular outcomes in those planning applications. The CIO found that the Respondent had breached, on two occasions, paragraph 7.7 of the Code.

The relevant paragraphs and sections of the Code are as follows:

Paragraph 3.2: You must respect all Council employees and the role they play, and treat them with courtesy at all times. It is expected that employees will show the same consideration in return.

Paragraph 20, Annex C (Protocol for Relations between Councillors and Employees in Scottish Councils): Councillors should not raise matters relating to the conduct or capability of employees in public. Employees must accord to councillors the respect and courtesy due to them in their various roles. There are provisions in the Code of Conduct for Employees about speaking in public and employees should observe them.

Paragraph 7.7: You must never seek to pressure planning officers to provide a particular recommendation on any planning application, planning agreement or taking enforcement action.

 

Joint Statement of Facts

There was no joint statement of facts agreed between the CIO and the Respondent.

 

The Decisions

The Hearing Panel considered all the evidence, submissions given in writing and orally at the hearing, and their findings, and reasons for those findings, were as follows:

1. Decision: The Councillors' Code of Conduct applied to the Respondent.

1922 Plean Miners' Monument

2. Decision: The contents of the e mail dated 22 March 2007 sent by the Respondent to the case planning officer and the contents of the e mail dated 29 March 2007 sent by the Respondent to the Head of Planning constituted a breach of paragraph 7.7 of the Code.

Reasons for decision:

  • The contents of his e mail dated 22 March to the case planning officer was an attempt to pressure the planning officer by suggesting that the matter be referred to the press or the Labour Group.
  • The contents of his e mail of 29 March 2007 to the Head of Planning, in which he suggested that there was no reason for the application to go before the Planning Panel and that the development was simply a plaque on the wall, further demonstrated the Respondent's efforts to exert pressure on a planning matter.

Freedom of Plean

3. Decision: The Respondent's conduct towards the Community Governance Manager on 15 June 2007, when he demanded immediate consideration of a civic recognition of a constituent, constituted a beach of paragraph 3.2 of the Code.

Reasons for decision:

  • The uninvited interruption, on 15 June 2007, by the Respondent of a discussion concerning another matter between the Community Governance Manager, the Chief Executive, and another councillor was rude, disrespectful and unwarranted.
  • His conduct towards the Community Governance Manager was inappropriate, and in her view “unacceptable”. The Hearing Panel concluded that she was justified in that opinion.
  • His reference to the possibility that the prospective recipient of the civic recognition might die before she received it was considered by the Community Governance Manager as being “emotional blackmail” to respond immediately to his demands. The Hearing Panel considered that she was justified in that opinion.
  • The evidence of the Chief Executive supported the view that the Respondent was intimidating and was making unrealistic demands.

4. Decision: The inclusion of pejorative references in an e mail sent by the Respondent on 27 June 2007 to both the Chief Executive and the Assistant Chief Executive constituted a breach of paragraph 3.2 of the Code.

Reason for decision:

  • The Respondent's comments in that e mail to the effect that he hoped the recipients would get their “just rewards” showed a lack of respect towards senior officers.

Councillor Duties and Planning Application S/07/00590 (Gift Baskets for All Occasions Bannockburn )

5. Decision: The Respondent, in his e mails of 25 and 27 July 2007, attempted to pressure the Head of Planning in respect of the planning application and as such breached paragraph 7.7 of the Code.

Reasons for decision:

  • The inclusion of the phrases “Clearly if this is taken away from him (Councillor MacPherson) he may no longer afford to be a councillor and provide for his family within this current climate” and “I now call for this application to be given immediate consent or fast tracked to the planning panel before enforcement action (can) be taken here.” was unambiguous in its intent to exert pressure on planning officials
  • The Hearing Panel concluded therefore that it was justifiable for the Head of Planning to interpret the Respondent's correspondence in that way.

6. Decision: The references to the replacement of the Monitoring Officer and the Head of Planning contained in the Respondent's e mail of 15 August 2007 sent to another councillor and copied to the two officers was a breach of paragraph 3.2 of the Code.

Reasons for decision:

  • The use of the words “the need for new officers to replace these people” demonstrated a lack of respect for the officers concerned.
  • They (the Monitoring Officer and the Head of Planning) interpreted those words, to differing degrees, as a threat to their future employment and job security and the Panel concluded that they were justified in adopting that view.

Road Sweeping in the Eastern Villages

7. Decision: The references to the Road Manager's dedication and to his family contained in the Respondent's e mails sent to the officer on 6 and 13 September 2007 were in breach of paragraph 3.2 of the Code.

Reasons for decision:

  • The inclusion of comments “do you care” and “how are you delivering. You are just not” show a lack of respect and courtesy towards the Roads Manager and questioned his dedication to providing a professional service.
  • The reference to the Roads Manager's family was unwarranted and irrelevant. The Roads Manager was justified in his expectation that the professional and private aspects of his life were separate, and that it was inappropriate and offensive to introduce such a personal dimension.

B9124 Railway Crash Barrier

8. Decision: The letter dated 6 September 2007, headed as a press release, written and sent by the Respondent to the Stirling Observer breached paragraph 3.2 and paragraph 20 of Annex C of the Code.

Reasons for the decision:

  • The inclusion of comments such as “the lack of responsibility and inability of the Director of Environmental Services to resolve this roads issue is breathtaking and opens the door in all likelihood for a major Scottish rail disaster with possible fatalities to occur” demonstrated a failure to treat the Director with respect.
  • Writing the letter to the Stirling Observer showed that the Respondent had the clear aim that it should be published by the paper. It therefore represented a clear intention on the part of the Respondent to raise in public matters relating to his perception of the capability of the Director of Environmental Services.
  • The Director of Environmental Services was in the view of the Hearing Panel justified in his feelings of frustration, anger, and stress concerning the allegations about his professionalism.

Burnside Crescent

9. Decision: The contents of the e mail sent by the Respondent on 25 January 2008 by the Respondent to the Director of Environmental Services was in breach of paragraph 3.2 of the Code.

Reasons for decision:

  • The inclusion of terms such as “cavalier” and “as long as you have the backing of prominent people you will be able to behave in this manner towards me” demonstrates a lack of respect towards the Director.
  • The Hearing Panel concluded that the Director was justified in his feelings that this was a slur on his professional reputation.

10. Decision: the contents of the e mail sent by the Respondent on 25 January 2008 to another councillor in which he sought comments from other councillors on any difficulties being encountered with the Director is a breach of paragraph 3.2 of the Code.

Reason for decision:

  • The contents of the e mail can reasonably be interpreted as an attempt to canvass criticism of the Director and therefore as attempt to undermine his authority. As such, he was disrespectful to the Director.

Summary of the Decisions

The Hearing Panel's findings were that the Respondent contravened the Code on 10 instances – specifically, 7 breaches of paragraph 3.2, 1 breach of paragraph 20 of Annex C, and 2 breaches of paragraph 7.7.

Sanction

The Panel decided to disqualify the Respondent, for a period of 18 months, from being, or from becoming, or from being nominated for election as, or from being elected, a councillor. This sanction is made under the terms of the Ethical Standards in Public Life etc ( Scotland ) Act 2000 Section 19 (1) (d). It has the effect described under Section 19 (3) of the Act which states that disqualification imposed under subsection (1) (d):

(a)   has the effect of vacating the councillor's office; and

(b)   extends to the councillor's membership of committees and subcommittees of the council of which the councillor was a member and any joint committee, joint board, or other body on which the councillor is a representative or nominee of the council.

The date on which it is imposed and will commence is Thursday 05 March 2009

Reasons for Sanction

In reaching their decision, the Hearing Panel took into account:

1. The breaches were by their nature, individually and cumulatively, of a serious nature and the Respondent failed to meet the standards expected under the Code over a long period.

2. The Respondent is an experienced councillor who had received training on the Code. Moreover he had received individual mentoring support to assist him in applying the principles of the Code and to assist him in adhering to the Code.

3. The Respondent failed to accept his statutory responsibilities in planning, failed to recognise that propriety is at the heart of the planning process and tried to exercise undue and totally inappropriate influence on the outcome of planning applications by putting pressure on planning officers.

4. Over a long period, the Respondent demonstrated a consistent, unacceptable and inappropriate treatment of a number of Council employees and demonstrated a total disregard for the requirements of the Code in his relationships with them. He failed to show them respect, did not seem to understand that comments about a person's private life/family were not permissible and made statements which could lead employees to believe that their employment was being threatened.

5. There were no indications that he had modified or would modify his conduct. He had submitted no serious apology for his conduct. His written response to the Hearing Panel indicated a continuing lack of respect for Council employees.

6. The Hearing Panel recognised that the Respondent might believe that his actions were in the best interests of his constituents, but considered that the way in which he furthered those interests needed to be consistent with the Code.

7. Given the number, nature and seriousness of the breaches, that training/ mentoring had already been employed and the fact that there did not appear, in the opinion of the Hearing Panel, to be a prospect of the Respondent modifying his conduct, especially in his relationships with Council employees, the Hearing Panel concluded that disqualification was therefore the appropriate sanction.

Conclusion

The attention of the Respondent is drawn to Section 22 of the Ethical Standards in Public Life etc. ( Scotland ) Act 2000 which details the Right of Appeal in respect of this Decision.

The Panel determined that there be no award of expenses under Rule 13(1) of the Commission's Hearing Rules.

 

 
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