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Complaint numbers LA/S/636 and 712 concerning alleged contraventions of the Councillors' Code of Conduct by Councillor Gerard O'Brien of Stirling Council
- Introduction
- Outline of the Complaints and the Responses
- The Investigation
- Consideration of the Evidence
- Findings and Conclusion
Introduction
1.1 Complaints numbered LA/S/636 and LA/S/712 allege a number of contraventions of the Councillors' Code of Conduct (“the Code”). The Code was issued by the Scottish Ministers in terms of section 1 of the Ethical Standards in Public Life etc. (Scotland) Act 2000 (“the 2000 Act”) and came into effect on 1 May 2003.
1.2 The complaints (LA/S/636 and LA/S/712) have been lodged by Mr Keith Yates, Chief Executive, Stirling Council (“the complainant”) who alleges a number of contraventions of the Code by Councillor Gerard O'Brien (“the respondent”). The respondent is an elected member of Stirling Council (“the Council”).
1.3 Failure to Respect Council Employees
It is alleged that the respondent has contravened the Councillors' Code of Conduct relating to Failure to respect Council Employees.
With regard to section 3 of the Code, General Conduct, paragraphs 3.2 to 3.4 of the Code provide as follows:
‘Relationship with Council Employees (Including those employed by contractors providing services to the Council)
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.
3.3 Whilst both you and Council employees are servants of the public, you have separate responsibilities: you are responsible to the electorate but the employee is responsible to the Council as his or her employer. You must also respect the different roles that you and an employee play. Your role is to determine policy and to participate in decisions on matters placed before you, not to engage in direct operational management of the Council's services; that is the responsibility of the Council's employees. It is also the responsibility of the Chief Executive and senior employees to help ensure that the policies of the Council are implemented.
3.4 You must follow the Protocol for Relations between Councillors and Employees attached at Annex C. A breach of the Protocol will be considered as a breach of this Code.'
Annex C states:
‘PROTOCOL FOR RELATIONS BETWEEN COUNCILLORS AND EMPLOYEES IN SCOTTISH COUNCILS
Principles
1. This protocol sets out the way in which Councils and employees of Councils should behave towards one another. It does not cover all the variety of circumstances which can arise, but the approach which it adopts will serve as a guide to dealing with other issues as they come up.
2. Councillors and employees should work in an atmosphere of mutual trust and respect, with neither party seeking to take unfair advantage of their position.
Scope
3. The most common contacts are between councillors and senior employees at Chief Executive, Director or Head of Service level, and this protocol is largely about those contacts. There are also many contacts between councillors and other employees in their daily business, and the principles of this protocol also apply to them. The particular position of employees who provide direct support services for councillors is dealt with separately at paragraph 21.
Members' and employees' roles
4. Within a Council, councillors have a number of different roles, all of which call for separate consideration. Some councillors are chairs of committees, most belong to political groups, and all have a local constituency to represent.
5. Legally, employees are employed by the Council and are accountable to it. Ultimately they serve the Council as a whole and not any particular political group, combination of groups or any individual member. Nonetheless, political groups exist in most Councils and employees may properly be called upon to assist the deliberations of political groups and also to help individual members in their different roles. Chief Executives and Senior Officers have ultimate responsibility to ensure that the Council's responsibilities are implemented.
Office bearers
6. It is clearly important that there should be a close professional working relationship between the Chair of a committee and the director and other senior employees of any service which reports to that committee. However, such relationships should never be allowed to become so close, or appear to be so close, as to bring into question employees' ability to deal impartially with other councillors, and the ability of Chairs to deal impartially with other employees.
7. The Chair of a committee will often be consulted on the preparation of agendas and reports. Employees will always be fully responsible for the contents of any report submitted in their name and have the right to submit reports to members on their areas of professional competence. While employees will wish to listen to the views of conveners, they must retain final responsibility for the content of reports.
8. Committee Chairs are recognised as the legitimate elected spokesperson on their committees' areas of responsibility. Where authority is delegated to employees they will often wish to consult Chairs of committees about the action which they propose to take but the responsibility for the final decision remains with the employee who is accountable for it. Chairs should bear this in mind when discussing proposed action with employees.
9. Committee Chairs will have many dealings with employees. Those employees should always seek to assist a committee Chair but it must be remembered that they are ultimately responsible to the Head of the Service.
Political groups
10. Most Councils operate through a system of groups of councillors, many of them based on political affiliation. All employees must, in their dealings with political groups and individual members, treat them in a fair and even-handed manner. Employees must at all times, maintain political neutrality.
11. The support provided by employees can take many forms, ranging from the meeting with the Chair and vice-Chair before a committee meeting to a presentation to a full party group meeting. Whilst in practice such support is likely to be in most demand from whichever party group is for the time being in control of the Council, it should be available to all party groups. The advice given by employees to different party groups should be consistent.
12. Certain matters must, however, be clearly understood by all those participating in this type of process, councillors and employees alike. In particular:
Council rules about groups' access to employees, e.g. all requests being approved by the Chief Executive, must be followed;
employee support in these circumstances must not extend beyond providing information and advice in relation to matters of Council business. The observance of this distinction will be assisted if employees are not expected to be present at meetings or parts of meetings, when matters of party business are to be discussed;
party group meetings, whilst they form part of the preliminaries to Council decision-making, are not empowered to make decisions on behalf of the Council. Conclusions reached at such meetings do not therefore rank as Council decisions and it is essential that they are not interpreted or acted upon as such;
where employees provide information and advice to a party group meeting in relation to a matter of Council business, this cannot act as a substitute for providing all necessary information and advice to the relevant committee or sub-committee when the matter in question is considered;
political groups need to recognise that information and advice given by employees should be used to enhance discussion and debate at Council and committee meetings. If such information is used for political advantage, for example media briefings beforehand, then the process could become devalued and place employees in a difficult position in giving information and advice; and
the chair of a political group meeting attended by employees has a responsibility for ensuring that those attending are clear on the status of the meeting and the basis on which employees are attending.
13. Special care needs to be exercised whenever employees are involved in providing information and advice to a meeting of a political group which includes persons who are not members of the Council. Such persons will not be bound by the Codes of conduct for councillors and employees (in particular, the provisions concerning the declaration of interests and confidentiality) and for this and other reasons employees may not be able to provide the same level of information and advice as they would to a members only meeting.
14. Any discussion with a political group or councillor must be treated with strict confidentiality by the employees concerned and should not be accessible to any other political group. It is acknowledged, however, that factual information upon which any advice is based will, if requested, be available to all political groups.
15. Should any difficulty or uncertainty arise in the area of employee advice to party groups, this shall be raised with the Chief Executive who should discuss the matter with the group leader.
Local representative
16. All councillors represent part of the area of the Council. Within each Council's rules about consultation and councillor involvement, employees must treat all councillors fairly and openly in their role as local representatives. When performing their local representative role, councillors will be seen by the public as representing the Council and should act in accordance with the principles of the Code of Conduct for Councillors and this protocol.
Communications
17. Communications between an individual councillor and an employee should normally not be copied by the officer to any other councillor. Where it is necessary to copy the communications to another member, this should be made clear to the original councillor at the time.
Appointments
18. Where councillors are involved in the appointments of employees they must act fairly and openly and judge candidates solely on merit.
Social relationships
19. The relationship between councillors and employees depends upon trust and this will be enhanced by the development of positive, friendly relationships. Councillors and employees will often be thrown together in social situations within the community and they have a responsibility to project a positive image of the Council. Nonetheless, close personal familiarity between individual employees and councillors can damage the relationship of mutual respect and the belief that employees give objective and professional advice and commitment to the Council. Councillors and employees should, therefore, be cautious in developing close personal friendships while they have an official relationship.
Public comment
20. 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.
Employees supporting councillors
21. Where Councils arrange for employees to support members directly in carrying out their duties, particular considerations apply. Such employees are normally involved in administrative and practical support of councillors. While such staff may operate to the requirements of individual councillors in their daily business, it must be remembered that the employees are accountable to their line managers and any issues about conflicting priorities, conduct or performance must be referred to those managers.'
1.4 Standards Commission Guidance – Member / Officer Relations
The Standards Commission for Scotland Guidance Note to Councils issued in May 2007 provides further advice in relation to member – officer relations, in the following terms:-
‘Respect for Other Councillors and Employees.
23. In performing their functions as councillors, elected members should respect other councillors and Council employees. It is understood that in the political environment of local government there may be tensions between individual councillors and between party groups. Factors such as minority Administrations, coalitions and multi-member wards may have a bearing on such tensions.
24. It is essential to ensure that the interests of the electorate are represented as effectively as possible and - in this regard - respect by councillors for one another and for the Council's employees will play a key role.
25. Councils are, therefore, invited - within the context of any national guidance -to consider drawing up best practice guidelines or protocols to cover working arrangements among members and, where appropriate, among party groups and between members and officers to facilitate achieving this important objective.'
Stirling Council have adopted a number of policies regulating the behaviour of officers and members including a ‘Code of Conduct on working together at Stirling Council promoting Dignity at Work' and a harassment and bullying policy –‘Dignity at Work'.
1.5.1 The Code of Conduct on Working Together covers ‘management, employees and councillors'. It sets out fifteen rights with corresponding responsibilities, including the rights:-
to be treated with dignity and respect the quid pro quo for which is the responsibility not to take advantage of one's position,
to give and receive constructive feedback the quid pro quo for which are the responsibilities to listen to feedback and acknowledge it and to be clear and objective when giving feedback, and
to express personal and professional opinions the quid pro quo for which is the responsibility to act in the best interests of the Council.
1.5.2 The Council has also adopted a ‘Dignity at Work' policy, in terms of which the views of the victim are highlighted. The policy states ‘In cases of harassment the perceptions of the person making the complaint are very important. Behaviour which one person may see as acceptable may be unacceptable to another person. The fact that someone does not intend what he or she does or says to amount to harassment will not prevent it from being harassment. What may seem harmless to one person can be offensive to someone else.'
1.6 Inappropriate Intervention in Planning Matters
It is also alleged that the respondent has contravened the Code relating to inappropriate interventions in planning matters.
Section 7 of the Code, Taking Decisions on Individual Applications provides as follows:
‘SECTION 7: TAKING DECISIONS ON INDIVIDUAL APPLICATIONS
7.1 On questions which councillors have to decide on individual applications you may have to take account of different points of view. However, the legal responsibility for decisions will always be your own.
Dealing with Planning Applications
7.2 As a councillor you may have to deal with planning applications. You may become involved in local cases as a ward representative, or you may be more actively involved in decision making as a member of a committee or at meetings of the Council which deal with planning applications. If so, it is your duty to ensure that development decisions are properly taken and that parties involved in the development process are dealt with fairly.
7.3 To reduce the risk of planning decisions being legally challenged, in your dealings with planning applications you must not only avoid impropriety, but must at all times avoid any occasion for suspicion and any appearance of improper conduct.
7.4 If you have substantial property or other interests which would prevent you from voting on a regular basis you should not sit on a committee which deals with planning applications.
7.5 You must not act on behalf of, or as an agent for, an applicant for planning permission with the Council other than in the course of your professional role which you have registered.
7.6 When making a planning application for your own property, you must not take any further part in the development control process following submission of the planning application.
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.
7.8 You should not organise support or opposition, lobby other councillors or act as an advocate to promote a particular recommendation on a planning application, on a planning agreement or on taking enforcement action.
7.9 It is possible that you may receive representations from interested parties in relation to planning applications. If you are a member of the committee which deals with planning applications, or if you are to attend a meeting of the Council to consider planning applications, and you wish to respond to lobbying by constituents or others by openly advocating a particular course of action prior to the meeting, you must declare an interest and not take part in any consideration of the application in question and you must leave the meeting room until consideration of the matter is concluded.
7.10 If you propose to take part in the consideration of planning applications at a meeting of a committee or of the Council, you must not give grounds to doubt your impartiality. You must not make public statements about a pending application, to ensure that you are not seen to be prejudging a decision which will be made at the meeting where all the information required to take a decision will be available. You must not indicate or imply your support or opposition to a proposal, or declare your voting intention, before the meeting. Anyone who may be seeking to influence you must be advised that you will not formulate an opinion on a particular proposal until all available information is to hand and has been duly considered at the relevant meeting.
7.11 If you have an interest, whether financial, non financial, or personal, in the outcome of a decision on a planning application, or a planning agreement, or on taking enforcement action, you must declare that interest and refrain from taking part in the consideration of the application.'
1.7 Standards Commission Guidance - Taking Decisions on Individual Applications
The Commission Guidance Note also provides advice in relation to decision making on individual applications – including planning matters – in the following terms:
“48. Section 7 of the Code deals with decisions which councillors have to make in relation to individual applications, particularly in relation to planning applications.
49. The principles set out in these provisions relating to the need to ensure a proper and fair hearing and for the avoidance of any impression of bias in relation to applications do not apply only to planning applications but to a number of other applications of a quasi-judicial or regulatory nature which the local authority may also have to consider.
50. These will include applications for taxi, betting and gaming, liquor, theatres and cinemas and street trader's licenses and a range of other similar applications where the issuing of a statutory approval or consent is involved.
51. The provisions in section 7 are intended to deal with the handling of individual applications and should not be seen as limiting councillors from discussing or debating matters of policy or strategy, notwithstanding that these may provide the framework within which individual applications will in due course be decided.
52. As already indicated, section 7 of the Code deals in particular with planning matters. Councillors have a key role in establishing planning policies for their area and they are fully entitled to express their views or advocate proposals on the making, approval or amendment of the development plan.
53. When it comes to dealing with planning applications, different considerations apply. The Code emphasises the key importance of ensuring that all applications are dealt with fairly and - equally importantly - are seen to be dealt with fairly. In dealing with a particular application councillors must have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations. They must disregard considerations that are immaterial for planning purposes and be careful to avoid giving any impression of bias.
54. Where a councillor has a responsibility - either at a committee or at the Council - for dealing with planning applications, then he or she must not have - or be seen to have - prejudged any application before the proper occasion for deciding on the application, that is when all the relevant material considerations will be before the meeting that will determine the application.
55. A councillor should not organise support or opposition, lobby other councillors or act as an advocate to promote a particular recommendation on a planning application, (or on a planning agreement or on taking enforcement action) where the councillor has a responsibility for dealing with the planning application. If the councillor does so, then he or she should declare an interest and not take part in the debate and withdraw from the meeting room.
56. This should not, however, be taken as precluding the councillor from raising issues or concerns on any of these matters with the planning officers concerned. Indeed, a councillor may well have an important contribution to make in respect of an individual planning application or on what the Council should include in a planning agreement. It is entirely appropriate for councillors on the planning committee to make known what representations they have received on a pending planning application, to attend public meetings and to assist constituents in making their views known to the relevant planning officer, provided that at no time does the councillor express a "for"or "against"view by advocating a position in advance of the planning committee meeting to decide upon a particular application.
57. Councillors may be asked to attend site visits in connection with a pending planning application. If they do so, they should follow the procedures for such visits set out by their authorities. These procedures should be consistent with the provisions of the Code and this guidance.
58. The councillor may also be the person who is first made aware of unauthorised development and he or she might - quite properly - wish to refer the matter to the Council for possible enforcement action. Once the initial referral has been made to the appropriate department for investigation and any formal action, the councillor should advise all subsequent inquirers to deal directly with the relevant officer.
59. If a councillor who does not have a responsibility for dealing with planning applications wishes to support, oppose, or promote a particular recommendation on an individual application, he or she should do so in an open and transparent manner consistent with proper planning procedures. The councillor should not, however, seek privately to lobby other councillors who have a responsibility for dealing with the application in question.
60. All local authorities will have their own procedures for dealing with planning applications. A number adopt a system in which most applications are dealt with by local or area planning committees with the remaining being dealt with by a central Planning Committee. Some also have procedures where decisions can be referred from a Planning Committee to the full Council for final determination.
61. In the circumstances described in paragraph 59 above, it is perfectly in order for individual members to make their provisional views known as part of the discussions at these earlier meetings. As indicated however in paragraph 54 above, councillors who have responsibility for the decision should only make a final judgement on the application when all the relevant material considerations are before the meeting that will, in fact, determine the application. These considerations can quite appropriately include the views of a local or area Committee for a central Planning Committee, or the views of a Planning Committee for the full Council.
62. Councillors who have been appointed to outside bodies may - in certain circumstances - be entitled to participate in discussion and voting on matters relating to these bodies through the benefit of the Commission's dispensation (paragraphs 103 to 108). It should be emphasized, however, that the dispensation does not apply in respect of any matter of a quasi-judicial or regulatory nature where the outside body is applying to the local authority for a licence, a consent or an approval, is making an objection or representation or has a material interest concerning such a licence, consent or approval or is subject of a statutory order of regulatory nature, made, or proposed to be made, by the local authority.”
1.8 The respondent has signed a declaration of acceptance of the office of councillor under the Local Authorities (Councillors) (Declaration of Acceptance of Office) (Scotland) Order 1990, as amended, in terms of which the respondent has undertaken to meet the requirements of the Councillors' Code of Conduct in the performance of his functions in that office.
1.9 For the purpose of this investigation, I was assisted by Mr David Sillars , Senior Investigating Officer.
1.10 This report has been prepared for submission to the Standards Commission for Scotland in terms of section 14(2) of the 2000 Act. The report was submitted in draft form to the respondent for any representations. Details of the representations received and the extent to which the representations have been accepted or otherwise are set out in Annexes A and B respectively.
Outline of the Complaints and Responses
2.1 The First Complaint (LA/S/636)
The first complaint is set out in a complaint form from the complainant. The complainant alleges that the respondent:
‘has …tried to intervene on Planning Applications in his dealings with the Council' and
‘has failed to respect Council employees and treat them with courtesy in his many e-mails that are addressed to many individuals in the Council' and that ‘he has shown discourtesy and disrespect on many occasions since his election in 2003.'
The first complaint is exemplified by reference to eight specific episodes listed in the complaint. These relate in the main to instances of inappropriate behaviour by the respondent in his communication with employees of the Council which, it is alleged, amount to contraventions of section 3 of the Code which regulates the relationships between members and officers. The complainant states that despite offering advice to the respondent on more appropriate ways of communicating with staff, a number of senior officers have represented to the complainant that the work of the Council is being skewed in dealing with the respondent's correspondence. It is alleged that e-mail traffic from the respondent is unacceptable both in content and volume.
It is also alleged that the respondent has brought undue pressure to bear on officers to secure a particular outcome in relation to planning applications.
In addition it is suggested that the respondent cannot or will not recognise that it is the role of members to shape policy rather than become involved in operational issues. As a result it is alleged that he has inappropriately intervened on planning applications on two occasions.
The eight specific episodes to which the complainant refers are outlined as follows:-
The First Complaint (LA/S/636)
2.1.1 1922 Plean Miners Monument
Allegation - that the respondent unduly pressurised a planning officer and inappropriately advocated for a planning application for the erection of a plaque in commemoration of a mining disaster in 1922.
Relevant sections of Code - paragraphs 3.2, 3.3, 7.7 and 7.8.
2.1.2 Freedom of Plean
Allegation - that the respondent harassed officers in order to secure civic recognition for a resident of the village of Plean who was nearing her hundredth birthday.
Relevant section of the Code - paragraph 3.2.
2.1.3 Councillor Duties
Allegation - that the respondent undermined senior officers in correspondence with another councillor.
Relevant sections of the Code - paragraphs 3.2 and 3.3.
2.1.4 Ward 7 Bannockburn Delegated Decision in relation to Planning Application Number 07/00590/DET
Allegation - that the respondent inappropriately intervened (in terms of both motivation and tone of communication) in the processing of a planning application in which the Chairperson of the Council's Planning Panel had an interest.
Relevant sections of the Code - paragraphs 3.2, 7.7, 7.8 and 7.10.
2.1.5 Bowling Club, Cowie
Allegation - that the respondent unreasonably required officers of the Council to pursue overnight lorry parking on land which was not within the ownership of the Council.
Relevant section of the Code - paragraph 3.2.
2.1.6 Road Sweepers in the Eastern Villages
Allegation - that in correspondence with an officer of the Council and despite being explicitly requested not to do so, the respondent persisted in making inappropriate reference to close members of the officer's family.
Relevant sections of the Code - paragraphs 3.2 and 3.3.
2.1.7 B9124 Railway Crash Barrier
Allegation - that in advocating the need for a crash barrier along the Easter Greenyards section of the B9124 road, the respondent failed to take proper account of the technical assessment undertaken by officers of the Council. He further attempted to undermine the professional reputation of the Director of Environmental Services by submitting a letter for publication in the ‘Stirling Observer', the terms of which the Director regarded as inaccurate, exaggerated and defamatory.
Relevant sections of the Code - paragraphs 3.2 and 3.3
2.1.8 Hillview Place, Fallin
Allegation - that in pursuing the adoption by the Council, as Roads Authority, of a length of roadway, owned under the distinct and separate basis by the Council as Housing Authority, the respondent unjustifiably criticised the performance of officers of the Council, causing unnecessary distress.
Relevant sections of the Code - paragraphs 3.2 and 3.3.
2.2 The Second Complaint (LA/S/712)
In the course of my investigation additional alleged breaches of section 3 of the Code were drawn to my attention in further exemplification of the original complaint. In particular these are set out and comprise material in connection with:
2.2.1 Burnside Crescent, Plean
Allegation - that in the course of an e-mail exchange with the Director of Environment Services, the respondent was offensive and made unwarranted, unjustified and potentially defamatory comments.
Relevant section of Code - paragraph 3.2.
2.2.2 Publicity - Cairn at Plean
Allegation - that the respondent unjustifiably criticised the Council's Media Relations Officer in connection with the arrangements for the unveiling of a commemorative cairn in the village of Plean.
Relevant section of Code - paragraph 3.2.
2.2.3 Mr Ging, Fallin Village
Allegation - that in pursuit of the interests of a constituent, the respondent made derogatory comments about the professional competence of the Council's Director of Community Services.
Relevant section of the Code - paragraph 3.2.
2.2.4 Bannockburn Cemetery
Allegation - that the respondent behaved inappropriately in his support of a commercial planning application for the erection of a ‘portacabin' and display area for memorials and headstones within the curtilage of Bannockburn Cemetery. It is claimed that the respondent circulated material in support of the application (which contravened the Council's planning policies, and was the subject of an objection by the Bannockburn Community Council) at a meeting of the Council's Planning Panel.
Relevant sections of the Code - paragraphs 7.2, 7.7 and 7.8.
2.2.5 Gritting of Bannockburn and Eastern Villages
Allegation - that the respondent communicated in intemperate and inappropriate terms with officers in the Council in connection with the gritting of roads in the Bannockburn and Eastern Villages.
Relevant section of the Code - paragraph 3.2.
2.2.6 Material from the Stirling Observer
Allegation - that in an e-mail sent to the complainant and to reporters of the Stirling Observer (and copied to four S.N.P. and three Conservative members of the Council), the respondent infers that the complainant manipulates the content of the local newspaper, has taken unfair advantage of his position, is ‘a Labour Party appointment' and has prevented the erection of a safety barrier (see paragraph 2.1.7 above) to the detriment of the respondent's constituents in the village of Cowie.
Relevant section of the Code - paragraph 3.2.
2.2.7 Shutdown of the Chief Executive Office Proposal
Allegation – that the respondent circulated an e-mail to elected members unjustifiably critical of the performance of the complainant as Chief Executive which suggested an alternative structure within the Council which would eliminate the post of Chief Executive.
Relevant section of the Code - paragraph 3.2
2.3 The Complainant
The complainant has been the Chief Executive of the Council since its creation in May 1995. He is a very experienced officer having previously held senior posts in the former Central and Strathclyde Regional Councils. He has worked with the respondent for approximately eight years. He describes the respondent as going ‘the extra mile' for his constituents. Over the years repeated attempts have been made to help the respondent understand the relationship between policy and operational issues and how the latter sit within the context of the former. The complainant has given such advice personally and has encouraged mentoring of the respondent by peers within his political group. Notwithstanding these efforts it is clear that in his complaint the Chief Executive articulates and shares a sense of frustration on the part of officers who feel that the respondent does not or cannot accept that the claim for priority treatment in respect of an individual issue invariably has to be assessed by officers in a wider Council policy and budgetary context. Officers also find it difficult to understand the respondent's apparent unwillingness to acknowledge that he has been a party to putting in place the very policies which he seems keen to overlook in the pursuit of championing a particular cause as it affects an individual constituent. Again officers are sometimes nonplussed at the respondent's reluctance to accept or remember advice given to him. In the complaint appendices there is evidence of such tensions.
2.4 The Responses
The responses are set out in letters from the respondent. The respondent alleges that the complainant as Chief Executive of Stirling Council failed to consult appropriately with him in the discharge of his functions as a councillor and along with other officers does not understand the importance of the issues being pursued by the respondent. He alleges that the complainant was obstructive, ‘anti working class', and does not strike a balance between the objective and subjective viewpoints regarding the respondent as a ‘Roman Catholic / ethnic minority councillor.' The respondent suggests that in any instance where offence was given, the matter was resolved by a timely apology and ‘things have greatly moved on'.
Although not part of his formal response on 14 August 2008 the respondent transmitted further e-mail correspondence to my office, which together with a further e-mail from the respondent to the complainant of 15 August 2008.
The Investigation
3.1 To establish the background to the complaint, the Senior Investigating Officer sought and received information from the Council.
3.2 Having considered the documentary evidence, the Investigating Officer proceeded individually to interview the complainant, the respondent and relevant witnesses. The interviews took place on 15 and 18 February, 10 and 18 March, 6 June and 9 July 2008.
Consideration of the Evidence
Background
4.1 Stirling Council comprises 22 members. The political make up of the Council at the time of the lodging of the complaint was:
Scottish Labour Party (8 members) Scottish Conservative and Unionist Party (4 members) Scottish National Party (7 members) Scottish Liberal Democrats (3 members). Following on from the local government elections in May 2007 until March 2008 a coalition between the Scottish Labour and the Scottish Liberal Democrat Parties formed the administration in the Council, relying ultimately on the casting vote of the Provost.
4.2 During this period the respondent, who was elected as a Scottish Labour Councillor, held the position of Depute Provost (against the wishes of his own party) as a result of an apparent agreement with opposition parties which in turn resulted in the selection of Councillor Alasdair MacPherson, (an SNP Councillor), as Chairperson of the Council's Planning Panel. As a result of his co-operation with the opposition parties on these issues, the respondent was suspended from membership of the Labour Group on the Council and has, as yet, not been readmitted. Self evidently the balance of political power within the Council during this period was delicately poised.
4.3 On 13 March 2008 at a special meeting of Stirling Council the ruling Labour – Liberal Democrat administration resigned after the passing of motions of no confidence in the administration, for the dismissal of the Council Leader, Depute Leader and the ‘Executive' and for the removal from office of the Provost (Councillor Margaret Brisley (Labour)) and the Depute Provost (the respondent).
The motions were proposed by the SNP Group, supported by the Conservative Group and were carried by 11 votes to 10, the respondent not being present at that meeting. The administration resigned following the vote, and Councillor Houston (SNP) was appointed Leader of the Council, with Councillor Farmer (SNP) as Deputy Leader.
At a subsequent special meeting of the Council held on 27 March, Councillor Fergus Wood (SNP) was elected Provost. A decision on electing a Depute Provost was deferred so that an amendment calling for the provision of a “Baillie” system could be further considered. In the event, the Council subsequently deleted the political position of Depute Provost.
4.4 The respondent has been a councillor for five years and in addition to the office of Depute Provost was, until March 2008, the Depute Portfolio Holder for Community and Housing Strategy on the Executive Committee. He remains a member of the Regulatory Functions Panel.
4.5 Along with Councillor Margaret Brisley, (Labour), and Councillor Alasdair MacPherson (SNP), the respondent represents the constituents of Ward 7, Bannockburn.
4.6 There is a consensus amongst Council officers that the respondent is motivated by a strong desire to agree with and support any individual constituent seeking assistance from him. This can also extend to seeking to resolve problems which are not the responsibility of the Council but in respect of which the respondent nonetheless seeks action from Council officers. Since his election in 2003 the respondent has also pursued a number of individual projects. The respondent is described as tenacious in pursuit of his causes and almost invariably uses e-mails vigorously to pursue issues. Between 1 January and 7 February 2007, for instance, the Head of Roads, Transport and Streetscape received 293 e-mails from the respondent (which represented 60% of his total incoming e-mail traffic from councillors), the next highest from any other member of the Council being 40. It is not unusual for these e-mails to be copied to others, both officers and members. The evidence of those officers who work closely with the respondent indicates that he does not feel constrained by the adopted policies of the Council when pursuing or supporting individual causes. This has caused conflict and a number of attempts, such as peer member mentoring, specific guidance from the Chief Executive and the Monitoring Officer and the imposition of discipline by the Labour Party Group, have all been tried in the past to widen the respondent's perspective on the workings of local government.
4.7 Against the background of a number of unsuccessful attempts to moderate the behaviour of the respondent, the complainant continued to receive reports from senior staff that the behaviour of the respondent towards Council employees was not acceptable. On 1 October 2007 the Director of Environmental Services wrote to the complainant referring to a number of specific issues (see paragraphs 4.9, 4.12, 4.14, 4.15 and 4.16) which had caused concern amongst staff in his department. The complainant convened a meeting with the Director and the Council's Monitoring Officer at which a decision was taken to refer the matter to me. As a result the first complaint which forms part of this investigation was initiated. The complainant met with the respondent on 5 October 2007 explaining that because earlier attempts had failed to stem the flow of complaints, matters had been referred to my office. Continuing incidents caused the Chief Executive to lodge a further complaint with this office in March 2008.
4.8 At interview the respondent made it clear that he regarded himself as accountable primarily, if not entirely, to his electorate, his community council and his ‘community'. He gave the impression that any other articulation of local government, such as the Council as an entity, or committees or officers served a useful purpose only if they achieved the immediate end which the respondent sought. The respondent also seemed to see himself in competition with officers. If a decision was resolved in a way which he saw as favourable to him, he described himself as having ‘won' and if not as having ‘lost'. The respondent also suggested that coming from Ireland, cultural differences might account for the unfavourable reactions of recipients to his e-mail communications. He thought that some officers might, for instance, be overreacting to his tendency to be direct, if not blunt, in his terminology. He also thought that his Irish sense of humour might be lost on some officers.
The First Complaint
4.9 1922 Plean Miners Monument
4.9.1 The complainant alleges that in this instance the respondent unduly pressurised a planning officer and inappropriately supported an application for planning permission to allow the erection of a plaque in commemoration of a mining disaster in 1922 all in contravention of paragraphs 3.2, 3.3, 7.7 and 7.8 of the Code.
4.9.2 The respondent was not a member of the Council's Planning Panel.
4.9.3 The supporting evidence referred to comprises a number of e-mails between the respondent and planning officers of the Council in March 2007.
e-mail from Iain Jeffrey to Gerard O'Brien dated 21 March
e-mail from Gerard O'Brien to Iain Jeffrey dated 22 March
e-mail from Mick Stewart to Iain Jeffrey and Gerard O'Brien dated 29 March
e-mail from Gerard O'Brien to Mick Stewart dated 29 March and
memo from Brian Devlin to Keith Yates dated 1 October 2007
4.9.4 It is clear from the respondent's correspondence that he strongly supports the application and when informed that an objection had been received from the Plean Community Council, reacted by asserting that the matter should be publicised in the press and / or referred to the Labour Group as soon as possible. In his e-mail to the case planning officer of 22 March he states:
‘Iain Clearly this matter need to go to the papers / be reffered to THE Labour Group ASAP. How can any planning officials hold this line' Regards'.
As a result of his close involvement with the issue and the approach the respondent suggested, in his e-mail of 29 March, Mick Stewart, the Council's Head of Planning advised the respondent that he was in danger of contravening paragraphs 7.7 and 7.8 of the Code in connection with the application of pressure on officers and lobbying.
The conduct of the respondent here was also one of a number of matters which the Director of Environmental Services raised with the Chief Executive in a e-mail to him dated 1 October 2007.
4.9.5 In his response of the same date to the Head of Planning the respondent reacts angrily to the suggestion that there might be a breach of the Code, stating ‘How dare you write me such an e-mail' and making a number of comments stressing the importance of the issue. The respondent emphasises the absence of financial interest for him in the matter and prefers to focus instead on the importance of the commemorative aspect of the application. He says ‘In fact lets just release it to the papers now see how ridiculous it all is. Nil financial gain for me at all just a simple plaque on the back of a wall for twelve young men whom were blown to bits Have you ever worked down a mine?'
4.9.6 As it happens the application was referred to the Council's Development Management Panel (latterly renamed the Planning Panel) on 19 April 2007 at which – following the recommendation of officers – the application was granted.
4.9.7 The respondent does not accept that he acted improperly in this instance. As with a number of the episodes he appears to have seen himself in competition with officers. He claims that he was the subject of ‘political assassination' by the Head of Planning because the monument went where he, the officer, wanted it to go. The respondent does not consider that the content or tone of his correspondence might have breached the Code.
4.10 ‘Freedom' of Plean
4.10.1 A separate issue which caused friction between officers and the respondent related to his pursuit of a “civic” honour on behalf of a resident of the village of Plean as she neared her hundredth birthday. From the evidence of officers it appeared that after consultation with Plean Community Council in June 2007 the respondent had suggested that recognition in the form of the bestowal of a ‘Freedom of Plean' Certificate be made to the resident. In fact such a category of award has no official Council standing or meaning. It was being promoted by the respondent and the Community Council. Nonetheless, the respondent was of the firm view that it was the responsibility of Council officers to action this decision.
4.10.2 The respondent was anxious that the matter be progressed as is evident from the e-mail exchanges which comprise:
e-mail from Gerard O'Brien to Keith Yates dated 15 June
e-mail from Keith Yates to Gerard O'Brien dated 15 June and
e-mail from Gerard O'Brien to Rebecca Maxwell and Keith Yates dated 27 June 2007
To that end he interrupted a meeting held late on the afternoon of Friday 15 June 2007 between the complainant, Lynn Kennedy the Council's Community Governance Manager and Councillor Fergus Wood (who were in the course of a discussion about an imminent community conference) seeking action on his request that a commemorative certificate be produced. In an e-mail response later that day to the respondent, the complainant explained that when the respondent came in and ‘demanded' action of her, the Community Governance Manager had been working ‘flat out' in preparation for the forthcoming community event and had not had time to consider the issue, but that she would take it up on the forthcoming Monday. The complainant observed further in his e-mail that he did ‘not think it is helpful to harangue officers about decisions which have been taken by a community council without any prior consultation and when there is confusion about what is being requested'. He went on to say that the respondent ‘cannot make unrealistic demands and threaten officers with the fact that Mrs X (the prospective recipient of the civic recognition) might die before she gets the certificate.' He suggested that a further approach be made to the Community Governance Manager ‘with a little more respect'. In the event the respondent did not reply to the complainant's e-mail of 15 June but on 27 June e-mailed the complainant and Rebecca Maxwell the Assistant Chief Executive, referring to the salaries paid to senior officers and continuing to criticise officers for their failure to secure civic recognition for his constituent. In his e-mail the respondent went on to say:
‘Keith
Just to clear up details. Spoke with Andrew Yule whom gave me his word he would ammend the minutes of the prescribed meeting.This sadly has not happened.Regarding the matter of the use of Plean Castle.This was an example of the type of design only.Thus East Plean school design was never to be used.
Makes me profoundly sad at what has happened here and until1 my dying day will always remember what you have allowed to happen here Rebecca Maxwell included on the Freedom for this dying frail lady.
Hope you all get your just rewards .Between the two of you you cost the council £400k a year.
Clearly Provost Margaret Brisley Cllr Mc Chord and Cllr Colin 0 Brien has played their part in this also which of greater sadness.
No doubt in my mind how wrong this is,makes me actually sick
Regards'
CC: Hendry, John; McChord , Carrie
4.10.3 For her part the Community Governance Manager felt the respondent's behaviour dismissive, overbearing and intimidating. She thought that undue pressure was being applied to her by the respondent in front of the Chief Officer of the organisation. She was also sensitive to such challenging and, as she saw it, disrespectful behaviour being made in front of a recently elected member. She characterised the respondent's behaviour as typical of the way he approached issues but on this occasion it was even more extreme – she thought ‘it was wrong.'
4.10.4 In his efforts to secure a certificate the respondent also approached the Council Officer (ie the officer employed by the Council to support the Provost in discharging civic duties), and asked him to produce a certificate to the design of the respondent. When the matter was not progressed as speedily as he would have wished the respondent visited the home of the Council Officer outwith his working hours. As it happens the officer was not at home but did respond the following day (a Saturday) to the request that he contact the respondent. Although it was clearly not normal for members to visit officers at home, he was not unduly concerned or upset by the approach or visit of the respondent.
4.10.5 In the event further research was undertaken to explore the options available in respect of the grant of a civic honour by the Council and in particular to determine whether it was an appropriate gesture in the circumstances. This involved research into the history and status of grants of ‘freedoms' within the Council area, and into the process whereby the community council could formally request the involvement of the Council. Ultimately the matter was considered by the Council's Civic Meeting (whose remit includes such ceremonial matters) which concluded that since no formal request had been made by the community council no further action should be taken by the Council.
4.10.6 At interview the respondent explained that as far as he was concerned this was making a ‘mountain out of a molehill'. He had no recollection of a contentious encounter with Lynn Kennedy and thought that if he had been present at the meeting on Friday 15 June it was because he had been invited. He considered that he had a good working relationship with Lynn Kennedy. If the complainant had characterised the circumstances as fraught then he was ‘rewriting history'. The respondent could not recall having visited the home of the Council Officer, certainly not in connection with this matter, and regarded such an eventuality as very unusual.
4.11 Councillor Duties and Ward 7 Bannockburn Delegated Decision App. No. 07/00590/DET – (Planning Application S/07/0590 - Gift Baskets for All Occasions Bannockburn)
4.11.1 Although the complaints set out in paragraphs 2.1.3 and 2.1.4 are presented as discrete items in connection, respectively, with the respondent's conduct in relation to officers and separately with his involvement in planning issues, they overlap. Both relate to the respondent's conduct during and following on from the consideration by the Council of an application for retrospective planning permission for the erection of a shed and use for gift basket storage / packaging unit with office element at Hillhead Farm, Pirnhall Road, Bannockburn. For ease of comprehension a single narrative of the facts follows.
e-mail from Gerard O'Brien to Peter Morgan and Mick Stewart dated 25 July
e-mail from Gerard O'Brien to Peter Morgan and Mick Stewart dated 27 July
e-mail from Alasdair MacPherson to Bob Jack dated 15 August and
e-mail from Gerard O'Brien to Councillor Alasdair MacPherson dated 15 August 2007
4.11.2 The application sought retrospective planning permission for the erection of a shed and use for gift basket storage / packaging unit with office element. Although the shed was originally used for agricultural purposes its contemporaneous use was technically not permitted development. Further, the use of the building as a storage, packaging and distribution facility, with ancillary office facilities, did not require to be located in the countryside and was therefore contrary to Stirling Council's Development Plan Policies. The application was lodged with the Council on 6 June 2007. The application was made on behalf of Gift Baskets for All Occasions Ltd whose company secretary is Elaine MacPherson, the wife of Councillor Alasdair MacPherson who was then and remains the Chairperson of the Council's Planning Panel, and one of the three members, including the respondent, who represent the Bannockburn Ward on the Council.
4.11.3 The respondent's e-mails of 25 and 27 July are clearly supportive of the application and focus heavily on the unfavourable financial consequences of a refusal for the applicant's husband. He also suggests that there are political considerations which should persuade the Head of Planning to look favourably on the application. In his e-mail of 27 July he says: ‘The electorate in Bannockburn Ward voted for an SNP councillor. It is of supreme importance this elected councillor does his time and serves the people out here that voted for him. As Chief of Planning you must have a positive duty of care to protect the democratic process in any capacity available to you.'
4.11.4 Decisions on planning applications submitted to Stirling Council are made in three ways. Straightforward cases are delegated to the Director of Environmental Services and other senior staff. Where an application does raise controversial issues, or has attracted an objection, a recommendation is placed in the Planning Schedule which is published on a weekly cycle on the Council's website each Thursday. This becomes the decision of the Council one week later, unless the Head of Planning and Regulation or any councillor refers the application for discussion and determination to a meeting of the Planning Panel.
4.11.5 The Planning Panel considers reports on more complex and contentious cases. In this particular case Provost Brisley, as was her right in terms of the Council's Standing Orders, requested that the application be referred to the Planning Panel due to concern that this type of business would be setting a precedent in terms of the Council's policy that no new development should take place in the countryside which is not essential for agriculture or forestry. In the event the application S/07/0590 - Gift Baskets for All Occasions Bannockburn for retrospective consent was approved at the Planning Panel meeting held on 20 November 2007.
4.11.6 At interview Mick Stewart, the Council's Head of Planning and Regulation set out the background to the consideration of the application. He explained that as the most senior planning officer in the Council he had to work closely - as one would expect - with the Chairperson of the Planning Panel. In that connection he narrated that before his election in 2007 the Chairperson (Councillor Alasdair MacPherson) had operated in the Stirling Council area as a property developer, and so his contact with him had been from a fundamentally different perspective. The Head of Planning and Regulation described the evolution of a working relationship with the Chairperson from a difficult start. He referred me to instances where the Chairperson, for example, wanted to refer planning matters, such as the Council's approach to barn conversions, to the Planning Panel, which he felt involved changes of policy properly falling within the remit of the Council. He outlined the relatively controversial history of application number S/07/0590 and said that the application had attracted the support of the respondent.
4.11.7 Against that background the Head of Planning and Regulation reflected on the terms of an e-mail sent by the respondent to Councillor MacPherson at 21:40 on 15 August 2007, at which stage the application was in the course of being processed through its various administrative stages. In the e-mail (which in addition to the Head of Planning and Regulation was also copied to the Council's Monitoring Officer) the respondent remarks on the lack of support provided by these officers and goes on to say ‘Hence the need for new officers to replace these people, which by the way will cost a lot of money'. Although he is an officer of some thirty years experience, the Head of Planning and Regulation was concerned by the implied threat to his security of employment. It was his perception that the respondent and Councillor MacPherson, although from different political parties, were reasonably close allies, and given the political balance within the Council, the Head of Planning could envisage a situation whereby the respondent might influence a change of administration making the kind of threat to the job security of officers set out in the e-mail of 15 August a reality. He was also nervous because before his election Councillor MacPherson had previously made depreciatory comments about ‘nepotism' in relation to the employment by the Council of the wife of the Head of Planning and Regulation. He felt threatened by the e-mail and discussed its contents with the Council's Monitoring Officer.
4.11.8 Contextual information was provided by the Council's Monitoring Officer. The Monitoring Officer rehearsed the general difficulties encountered by most officers in working with the respondent. He confirmed that the respondent seemed to find it difficult to accept that operational decisions and priorities required to be informed by Council policy. He described how he had worked closely with the respondent after he was first elected to the Council to show him ‘how the levers worked'. As matters became worse he narrated the involvement of the respondent's political group in an – unsuccessful – attempt to moderate the respondent's ‘maverick' tendencies.
4.11.9 The Monitoring Officer indicated that the e-mail of 15 August 2007 in fact forms a reply to an earlier e-mail sent at 16.41 on the same day by Councillor MacPherson to the Monitoring Officer (and ‘blind copied' to the respondent) complaining about a general lack of responsiveness on the part of the Monitoring Officer to concerns raised by Councillor MacPherson in relation ‘to various matters'. The communication concludes by stating:-
‘I will be making an appointment with the Chief Executive's office to go over my concerns with him as I have lost all confidence in you.'
4.11.10 The Monitoring Officer recognised the e-mail of 15 August as continuing a threat from the respondent. As he put it ‘cards were being marked'. He was, however, sanguine about whether the Council, as a corporate body, would seriously entertain the prosecution of such a threat. He took the view that it provided ‘ammunition' for him to be used to protect his interests should any attempt be made to prejudice his employment. He did discuss the matter with the Head of Planning who was less phlegmatic and who, in the view of the Monitoring Officer, felt ‘particularly pressurised'.
4.11.11 In the period between May and December 2007 the Monitoring Officer sensed an increasing awareness on the part of the respondent that his vote was critical in the determining the political balance within the Council. The Monitoring Officer was, for instance, asked by the respondent to assist in the preparation of a motion of no confidence in the Provost in the autumn of 2007. As matters transpired the respondent's absence from the meeting on 13 March 2008 was indeed critical (see paragraph 4.3 above).
4.11.12 For his part the respondent offered a number of interpretations of, and justifications for, the use of the phrase ‘Hence the need for new officers to replace these people, which by the way will cost a lot of money', included in his e-mail of 15 August 2007. He stood by his view that the Council needed new officers who could bring more ‘specialised' expertise to planning matters. In that context he did not consider the e-mail disrespectful. To interpret the words as some kind of threat was, he thought, an overreaction on the part of the officers concerned. They never asked him what he meant. The respondent commented that with the safeguards in place in terms of human resource support, Councils could not ‘get rid' of anyone. He thought that the officers would know that the comments did not carry a personal threat to their job security. As he explained on a number of occasions during the investigation, because of the pressures arising from his working, personal and Council responsibilities, the respondent usually did not have time to carefully consider the terminology used in his e-mail communications and the impact it might have on the recipient. He denied that he had acted improperly in relation the processing of the planning application S/07/0590 - Gift Baskets for All Occasions Bannockburn.
4.11.13 The complainant confirmed that during the summer of 2007, in the wake of the e-mail of 15 August both the Head of Planning and Regulation and the Monitoring Officer (albeit the latter seemingly the more relaxed) appeared to him to be concerned about their continuing job prospects at the Council.
4.12 Bowling Club, Cowie
4.12.1 This part of the complaint relates to correspondence between the respondent and Council officers during September 2007 about lorries parking at the entrance road to the Bowling Club at the village of Cowie. The relevant e-mail traffic comprises:
e-mail from Gerard O'Brien dated 5 September to David (Crichton) / Bob (Jack)
e-mail from Les Goodfellow to Gerard O'Brien dated 18 September
e-mail from Gerard O'Brien to Les Goodfellow dated 18 September
e-mail from Les Goodfellow to Gerard O'Brien dated 20 September
e-mail from Gerard O'Brien to Les Goodfellow dated 20 September
e-mail from Les Goodfellow to Gerard O'Brien dated 20 September
e-mail from Gerard O'Brien to Les Goodfellow dated 20 September and
memo from Brian Devlin to Keith Yates dated 1 October 2007
4.12.2 Having raised the issue, and (as the respondent saw it) the unacceptable environmental consequences arising from the overnight parking of commercial vehicles close to the Bowling Club, the Head of Roads, Transport and Streetscape advised the respondent that the land was not within Council ownership. Consequently the Council was not in a position to take action against the drivers. He went on, however, to suggest steps that the Bowling Club committee might take to address the matter. Despite the provision of this information and a number of suggestions by the Head of Transport and Streetscape as to how the respondent might involve others in the resolution of the problem, the respondent remained unhappy at - again as he saw it - the failure of officers to find a solution. The approach of the respondent was the subject of critical comment by the Director of Environmental Service in an e-mail dated 1 October 2007.
4.12.3 The respondent again stressed that as far as he was concerned he enjoyed a good working relationship with Les Goodfellow, the Head of Roads, Transport and Streetscape. He had no intention to be disrespectful. He was simply agitated about the issue and sent the e-mails referred to in this part of the complaint ‘just out of frustration'. The respondent was reluctant to accept the reassurance of Council officers that the land in question was in private ownership because he claimed mistakes had been made by them before, in addition to which a local firm of solicitors had told him that ownership rights in this area were very complicated. He also considered that officers had not shown any real enthusiasm to resolve the matter.
4.13 Road Sweepers in the Eastern Villages
4.13.1 As a consequence of his dissatisfaction with the state of cleanliness of the streets in the villages of Plean and Cowie which lie within the respondent's ward, he e-mailed the Director of Environmental Services on 5 September 2007 asking for his ‘final word on the State of Eastern Villages and the removal of the roadsweepers'. The request was passed to Colin McNicol, the Roads Manager (Support) and Acting Streetscape Manager, who responded the following day. The full e-mail correspondence in this case comprises:
e-mail from Gerard O'Brien to Brian Devlin dated 5 September
e-mail from Brian Devlin to Gerard O'Brien dated 6 September
e-mail from Colin McNicol to Gerard O'Brien dated 6 September
e-mail from Gerard O'Brien to Colin McNicol dated 6 September
e-mail from Colin McNicol to Gearad O'Brien dated 13 September
e-mail from Gerard O'Brien to Colin McNicol dated 13 September and
e-mail from Colin McNicol to Gerard O'Brien dated 13 September 2007.
4.13.2 In his informative and constructive reply the Roads Manager explained that the Council were in the process of purchasing new mechanical sweeping equipment, and employing an additional worker for sweeping paths and channels in the outwith central Stirling areas including the eastern villages. Due to uncertainty about the length of the procurement process he was unable to be precise about the start date for the new service but thought that it would be ‘well before the end of the year'. In the meantime he informed the respondent that he would try to redirect two mini sweepers and a large sweeper to the village's area.
4.13.3 An hour after the information was sent the Roads Manager received the following message from the respondent:
‘Colin
Do you care? Your Father and sister do so much for the village Al best for the weekend.
Gerard'
4.13.4 The Roads Manager is also an experienced officer and is aware of the respondent's style of approach. He knows that the respondent is very keen to promote the interests of his constituents, against, he surmises, some keen rivalry among the members of the multi-member ward of Bannockburn. He was offended by the terms of the reply and distressed by the inclusion of references to his immediate family. As he put it ‘I'm thick skinned but this was unacceptable'. He thought the remarks were possibly a breach of the Code. He purposely took some time before responding to let his emotions calm down, and also consulted with both his Head of Service and the Chief Executive.
4.13.5 Having considered the matter carefully, a week later on 13 September 2007 he replied in the following terms:
‘Councillor O'Brien
Yes I do care and I have to say that I find this personal comment against me to be insulting and offensive.
This and other previous comments show a complete lack of dignity and respect for me as a Council Officer and in my opinion shows that you lack any understanding of the nature and complexity of the work I am responsible for delivering.
I have worked for the Council for 33 years helping to deliver public services with limited resources given to me by the Council of which you are now a part. This has always been challenging but can be rewarding. I have a thick skin and have received many similar personal verbal attacks from the public some a lot worse than this.
Whilst it is just as unacceptable coming from the public, this is to be expected.
However, I do not consider that it is acceptable for a Councillor to make similar insulting remarks.
You and I both have rights and responsibilities under the Councils Code of Conduct. I suggest you read this and try and understand that your use of language affects the people you communicate with.
I would appreciate that in future your communication takes account of my rights and your responsibilities in terms of this Code.
Regards
Roads Manager (Support)'
4.13.6 The respondent continued the exchange on the same day saying:
‘Colin,
All apologies but how are you delivering.
You just are not.
Spoke at length with your father this morning whom so positive'…….
the respondent then went on to raise an issue for which the Roads Manager was not responsible ending his e-mail:
…….. ‘Please understand nothing personal
Regards
Gerard'
4.13.7 The Roads Manager continued to be concerned about the references to his close family and replied by e-mail on 13 September stating:
‘Councillor O'Brien,
When communicating with me you continue to personalise matters by mentioning my father. My personal life and my professional life are two separated things and I would appreciate you recognising this. I am responsible for delivering services to all communities in the Stirling area not just Plean…………….
Regards
Roads Manager (Support)'
4.13.8 As a result of the exchanges with the respondent the Roads Manager felt offended at the continuing references to his family and insulted at the suggestion that he not only took no pride in his work (in which he had been engaged on behalf of the Council for upwards of thirty years) but did not care about it.
4.13.9 The respondent explained that in this case he held the Roads Manager responsible for lowering the level of service in the Eastern Villages. Again he was frustrated that his point of view was not accepted and immediately acted upon. In the circumstances he thought the tone and content of the e-mails appropriate. He appeared not to recognise the boundary between the professional responsibilities and personal interests of the Roads Manager or (despite it being drawn directly to his attention) the officer's sensitivity to references being made to his close family. Indeed at interview he sought to justify the terms of the correspondence by claiming that the Roads Manager's father ‘called him (his son) a shit'.
4.14 B9124 Railway Crash Barrier
4.14.1 Between August 2006 and September 2007 the respondent strongly advocated that a crash barrier should be erected along the Easter Greenyards section of the B9124 roadway to prevent vehicles crossing over onto the adjacent railway line. In relation to this issue the complainant has provided a ‘Timeline', which sets out and summarises in tabular form, more than fifty e-mail exchanges between the respondent and officers. From the correspondence it is clear that the respondent was not prepared to accept the professional advice offered by officers to the effect that the erection of such a barrier would be inappropriate and potentially counterproductive in road safety terms.
4.14.2 In a briefing note prepared in September 2007, the Head of Roads, Transport and Streetscape narrated the known accident history at the locus and assessed the likelihood of an incident such as predicted by the respondent. In the note he reports that two recorded accidents were known to the roads authority on this section of road. One involved a bus with miners on board and the second at the bend several hundred yards to the north of the railway bridge. The incident involving the bus was attributed to poor winter weather conditions and the second occurred when the driver lost control on the bend. The Head of Roads, Transport and Streetscape goes on to assess the situation in the following terms:-
‘Following the installation of the retaining wall there have been repeated requests for the installation of a crash barrier, initially to prevent vehicles driving off the carriageway and dropping into the field, and then to protect the railway.
This request has been repeatedly rejected, as the placing of a crash barrier on this road, is more likely to lead to more serious road traffic accidents: errant vehicles striking the barrier are likely to rebound across the carriageway and the potential of colliding with an oncoming vehicle would increase. An errant vehicle ending up in the field represents an accident likely to result in a less severe accident.
The possibility of a vehicle leaving the B9124 at this location and having sufficient momentum to traverse the field, knock over the railway boundary fence, run down the railway cutting and end up on the track is remote.'
Notwithstanding the professional assessment of the Council officers, on 6 September 2007 the respondent wrote to the local newspaper Stirling Observer rehearsing the case for the erection of a barrier by reference to the ‘likelihood for an exact carbon copy of the Selby rail disaster.' The letter is clearly marked ‘Press release' and goes on to say ‘The lack of responsibility and inability of the Director of Environmental Services to resolve this roads issue, is breath taking and opens the door in all likelihood for a major Scottish rail disaster with possible fatalities to occur'.
4.14.4 On receipt of the letter the ‘Observer' sought a view from the Director of Environmental Services on its terms. In his evidence at interview the officer said this was the first time in his career that such an open and damaging accusation had been made against his professionalism. He had given the issue a great deal of thought, cognisant of the attendant public safety issues. The Director had fully considered the consequences of an accident at the location. Having read the letter he felt frustrated, angry and stressed, his feelings were strong enough to persuade him to go home and discuss the matters with his wife. He was clearly distraught. He also took a legal view from the Council's in-house legal services team, who, he reported, advised him that the letter was defamatory. He also raised the matter with the Chief Executive in his e-mail of 1 October 2007 and empathised with staff in his department whom he thought were receiving similar treatment.
4.14.5 In the event the Observer did not publish the letter but instead carried an article on 26 September 2007 headed ‘Maverick Defies Council Experts' which set out the respondent's views and those of a Council spokesperson, the latter including the following:
‘Councillor Gerard O'Brien first raised the issue of installing a crash barrier on the B9124 on August 15 2006. Since then Councillor O'Brien has repeatedly been given professional advice from the Council's roads engineers that the installation of a crash barrier, at this location, would represent a significantly increased risk to drivers and could result in a more severe accident than if no barrier was present.
The roads service has installed delineator posts along the length of the retaining wall and has also added additional road markings to make drivers aware of the potential hazard.
Stirling Council places a high priority on road safety and in this particular issue will review any change in the status of this road, in consultation with Network Rail.'
4.14.6 At interview the respondent offered a variety of comments on this matter. Initially he suggested that the Council had not been consistent in its technical assessment of the risks. He then claimed that the letter sent to the ‘Stirling Observer' on 6 September (which I understood he conceded was intended for publication) should not have been referred back to the Council for comment – that being ‘undemocratic'. Finally since the letter had not as a matter of fact been published, it could not amount to a breach of the Code and in any event it was unfair to take it into account as part of this investigation.
Overall, given the importance of the issue he suggested that the comments were appropriate.
4.15 Hillview Place, Fallin
4.15.1 Amongst a number of constituency issues which caused concern to the respondent was the condition of the roadway ex adverso Hillview Place in the village of Fallin. The roadway is unadopted for maintenance by the Council in its legal capacity as Roads Authority. It is therefore owned by the Council as Housing Authority and different maintenance considerations apply, namely it has a lesser priority for expenditure due to the fact that housing financial resources are targeted to buildings maintenance. This road had however been identified as part of the Council's stock transfer process as one of a number of roads which would require to be upgraded and incorporated in future programmes. As at September 2007 indicative costs had been provided by the Council's road service as part of the business case for the possible housing stock transfer. The respondent was present at a meeting of the Council in December 2005 when a report listing the private roads – including Hillview Place – and the projected upgrading costs was considered.
4.15.2 Against that background on 21 September 2007 the respondent sent an e-mail to Hazel Young the Council's Tenant Services Manager. This forms part of the following e-mail correspondence
e-mail from Hazel Young to Gerard O'Brien dated 21 September
e-mail from Gerard O'Brien to Hazel Young dated 21 September
e-mail from Tony Cain to Gerard O'Brien dated 21 September
e-mail from Gerard O'Brien to Tony Cain dated 21 September
e-mail from Kate Smithson to Les Goodfellow dated 25 September and
memo from Brian Devlin to Keith Yates dated 1 October 2007
The e-mail of 21 September asserts that for four months the Tenant Services Manager has been waiting to hear from the office of the Transport Development Manager, Kate Smithson, in relation to the projected costs. It goes on to say: ‘Clearly very serious problem with Kate Smithson section on service delivery!! What makes me amazed the people concerned and relatives works on the Council tarmacing service and no doubt will be doing the work!!.…………. People in wheelchairs live here and elderly folk. Have referred this case onto Brian Devlin so up to him if it takes another four months to respond on this issue'. The e-mail was copied to senior officers in the Council including the Chief Executive, the Monitoring Officer and the Director of Environmental Services.
4.15.3 At interview the Transport Development Manager expressed her concern that the section for which she was responsible and she herself had been unjustifiably criticised. In her e-mail to her line manager Les Goodfellow on 25 September she explains that costs for the upgrading of private roads including Hillview Place were prepared and presented to the Council meeting in December 2005 (at which the respondent was present) and since time there had been no requests for further information. She was also upset that neither she nor her line manager had been approached directly about the respondent's concerns and that there had been an implication that she was not supportive of her own staff. Having disabled family members herself she thought his comments insensitive. She was concerned that an elected member ‘who should know better' could make unjustifiable comments and felt her professional reputation – the matter had been referred to the Chief Executive, the Monitoring Officer and the Director of Environment Services – could be damaged. As she put it there may be consequences even from ill considered comments – ‘mud is bound to stick'. In reporting to her line manager she wrote ‘I am distressed that Councillor O'Brien thinks that:
my team and myself are failing
seems unable to discuss it with you or;
felt it necessary to draw to the attention of others including the Chief Executive and Directors of Corporate Services and Environmental – especially as I can see no basis for such a comment'.
In the circumstances she felt that the respondent had impugned her professional reputation, about which she felt strongly and had compounded the offence by including the most senior officers in the Council in the e-mail circulation. Her misgivings were reflected in an e-mail dated 1 October 2007 from her head of department Brian Devlin, Director of Environmental Services, to the Chief Executive, Keith Yates.
4.15.4 The respondent did not have a clear recollection of this matter. He said he had never spoken to Kate Smithson. He thought that another officer (whose name he could not remember) had confirmed that there was a problem with the service provided by Kate Smithson's section. He also suggested that she should not have taken his comments as a personal criticism and that if she was offended she should have contacted him directly.
The Second Complaint
4.16 Burnside Crescent, Plean
4.16.1 This part of the complaint again arises from the respondent's communication with Council officers, and in particular the Director of Environmental Services, in connection with a request that one of his constituents be provided with a new kitchen. The matter also raises longer term issues concerning the respondent's communications with staff in the Environmental Services Department. The relevant e-mail correspondence comprises:
e-mail from Gerard O'Brien to Tony Cain and Hazel Young dated 22 January (with covering note and footnote)
e-mail in the name of Brian Devlin to Gerard O'Brien dated 24 January
e-mail from Gerard O'Brien to Brian Devlin dated 24 January
e-mails from Gerard O'Brien to Brian Devlin dated 25 January (timed at 18.56 and 19.00)
e-mail from Gerard O'Brien to Alasdair MacPherson dated 25 January (timed at 19:43)
e-mail from Brian Devlin to Gerard O'Brien dated 1 February
memo from Brian Devlin to Keith Yates dated 1 February all 2008 and
memo from Brian Devlin to Keith Yates dated 1 October 2007
4.16.2 In this case the respondent e-mailed the Head of Housing on 22 January 2008 on behalf of a constituent saying:
‘This guy ???needs??? a new kitchen and front garden fence. He resides with disable son aged 4 whose mother terminally ill@34 years in Hospice at this time. Tells me if kitchen units given to him he will put them in himself…………'
By this time such were the nature and volume of e-mails from the respondent that a separate ‘inbox' had been set up for his correspondence. A reply was prepared and sent on 24 January 2008 by the Service Co-ordinator for the Bannnockburn and Eastern Villages Team in Brian Devlin's name in the following terms:
‘New kitchens are due to be installed in Burnside Crescent in 2009/10. You asked if the tenant could have a new front fence. The criteria only allows us to repair/replace environmental fencing. Front fencing is the responsibility of the tenant.
I hope this answers your enquiry.
Brian Devlin
Director of Environmental Services'
4.16.3 The respondent was not satisfied with the explanation provided and on 25 January 2008 sent 2 further e-mails on the subject the first addressed directly to the Director of Environmental Services and the second to Councillor MacPherson but ‘blind copied' to the Director.
4.16.4 The Director explained that he had been in attendance at a civic opening on that Friday evening and switched on his ‘blackberry' at about 9.00 pm to find what he described as these two ‘completely unacceptable e-mails'
4.16.5 The first e-mail follows a pattern described by a number of officers in the Council whereby the respondent appeals by reference to the difficult personal circumstances of a constituent for a service or facility the provision of which is inconsistent with approved Council policy. In this case he refers to the terminal illness of the mother in the family, the attendance at the Edinburgh Royal Infirmary of the family's four year old child who requires to have fluid drained from his brain and who is vulnerable to traffic because of the lack of a front garden fence and in physical danger from the dilapidated state of the kitchen. The respondent is critical of the Director describing his approach as ‘cavalier', of the tone of the original reply as ‘dismissive' and of the attitude of him and his department as disparaging of working class people and Council tenants.
4.16.6 The e-mail dated 25 January to Councillor MacPherson appears to be an attempt to generate critical comments against the Director. It says: ‘Can I enquire if you (or any other elected councillor across the council) are encountering any difficulties with (the Director) in your role as councillor for Bannockburn ward. One thing after another after another. Be interested to hear from you on this matter.
Regards
Gerard'
4.16.7 On 1 February 2008 the Director of Environmental Services sent a memo to the Chief Executive in which he described his reaction to these communications. Amongst other things he says: ‘The tone, content and sweeping allegations are both unwarranted defamatory and completely unjustified……….Given these two latest e-mails and those previously received, I again find myself under significant personal stress through no fault of my own, and seek guidance from you as to what the Council intend to do to stop this. You will imagine how I felt over the weekend having read these two e-mails on the Friday night…….....I do not think that these e-mails are warranted nor should I be left feeling the stress I have since October 2007 and more lately last weekend.'
4.16.8 The Director confirmed to the Chief Executive that the matter raised by the respondent had been addressed and that he had also been contacted by telephone to follow up the issues raised in his correspondence. By this time the Chief Executive had attempted to moderate the behaviour of the respondent through counselling by senior officers, peer group support and ultimately, by invoking the provisions of the Code.
4.16.9 At interview the Director explained that the in his view the initial request from the respondent had been dealt with by his staff professionally and in accordance with Council policy. He was confident that they would have completed any assessment needed to assure themselves that all technical issues had been addressed. There was in his view no scope for adjusting the Council's programmes to give a higher priority to the respondent's demands. He and his staff would not have wanted to contradict a decision of the Council which could have set an unwelcome ‘precedent'.
4.16.10 The Director explained that the approach of the respondent had to be seen in the context of a course of behaviour towards officers in the Environmental Services Department over a longer time scale. In that connection he reflected on his e-mail to the Chief Executive dated 1 October 2007, which set out a history of inappropriate and disproportionate correspondence to members of his department from the respondent. The e-mail of 1 October catalogues a number of issues dealt with in this report including B1924 Crash Barrier (paragraph 4.14 above), 1922 Plean Miners Monument (paragraph 4.9 above), Bowling Club Cowie (paragraph 4.12 above) and Hillview Place Fallin (paragraph 4.15 above). He was conscious of the pressure felt particularly by Mick Stewart Head of Planning (see paragraphs 4.9 and 4.11 above) and for Les Goodfellow (see paragraphs 4.6, 4.12 and 4.20 above) as a result of the actions of the respondent. He described the demands made by the respondent on these and other officers – including himself – as a ‘huge burden'. The Director recalled a discussion amongst senior officers where it had been suggested that trade union advice be sought on how best to protect staff from the approaches of the respondent.
4.16.11 The Director reaffirmed the strength of his dismay on receiving the e-mails of 25 January. He said that the e-mails had ruined his weekend, caused him real grief that he felt isolated, stressed and unsupported within the organisation. He explained that he had taken external legal advice which confirmed that the respondent's views were inappropriate and potentially defamatory.
4.16.12 The respondent explained that he did not accept the interpretation put on the Council's policy, to the effect that a new kitchen and external fence could not instantaneously be made available as he had requested. He was dismissive of the response provided by the Service Co-ordinator. He did not accept that the terms of the e-mails of 25 January were untoward. The respondent explained that in the second of these he was seeking a view from Councillor MacPherson only as to whether he had experienced any difficulty over disputed interpretations of housing policy rather than in relation to wider aspects of the performance of the Director of Environmental Services. He said that it was not his intention to suggest that there were general shortcomings in the Director's standard of work or that he was canvassing for support for such an assertion.
4.16.13 He explained that he did have a difficult relationship with the Director of Environmental Services and regarded the circumstances of his appointment as Director by the Council as unsatisfactory, alleging that the Director had been appointed by ‘the Labour Group'. He stated that he objected to the appointment of the Director without national advertisement of the post. As a matter of fact the appointment of the Director of Environmental Services was considered and approved as part of a wider restructuring at the full Council meeting on 8 February 2007. Although other parts of the proposals were contentious the appointment of the Director was unanimous. The respondent was in attendance at the meeting but appears to have raised no issue in connection with or objection to the Director's appointment.
4.17 Publicity - Cairn at Plean
4.17.1 The context in which this issue arose involved the arrangements for the unveiling of a cairn in tribute to miners who lost their lives in a local pit disaster. An exchange of e-mails between the Council's Media Relations Officer 6 – 10 December 2007 and include:
e-mail from Fiona Fulton, Communications Officer to all Bannockburn Ward Members dated 6 December
e-mail from Gerard O'Brien to Fiona Fulton dated 6 December
e-mail from Fiona Fulton to Gerard O'Brien dated 7 December
e-mail from Gerard O'Brien to Fiona Fulton dated 7 December and
e-mail from Gerard O'Brien to Fiona Fulton dated 10 December 2007
4.17.2 From the correspondence it appears that the respondent was surprised that there was a Council involvement at all and was perplexed that invitations to the event should have been extended to all three ward councillors.
4.17.3 Having explained to the respondent that, although the event involves the ‘Plean in Partnership' organisation, she has been asked by the Council's Streetscape team (and the Partnership) to organise the media coverage and to inform the Bannockburn Ward Councillors, the respondent replied by e-mail of 7 December in the following terms:-
‘Thank you for this reply which just received. Can I ask are you aware you have breeched the email protocol for multimember wards with your depicted reply below and taken unfair advantage of me in your capacity as communications officer.
In essence when a councillor seeks clarification on an issue, the reply per protocol is to be sent just to the councillor alone.
I am uncertain if breech of this Protocol is subject to disciplinary procedures of Stirling council, but certainly a point that needs to be clarified by Bob Jack the monitoring officer, as what you have done here is totally unacceptable.
Thus the need to wait for clarification from Bob Jack on this entire matter.
Regards
Cllr G O Brien
Bannockburn Ward'
4.17.4 This was followed by a further e-mail on 10 December which read:-
‘Hi Fiona
Spoke with Les Silver at length tonight and hopefully weather wil be fine for Wednesday. Certainly shall attend.
This was a difficult project to get started and everything seems fine. Yes think right decision to get you to do publicity.
Massive project with historic significance for Plean into the future.
Bring umbrella
All very best
Gerard
Gerard O'Brien
Bannnockburn Ward'
4.17.5 At interview the respondent explained further that he considered the intervention (as he saw it) of the Council's Media Relations Officer as an attempt by the Council to take credit for a locally organised initiative in which he considered himself a key player. He saw the hand of the Provost manipulating the situation so as to take the matter out of his control and prevent him receiving credit for organising the project.
4.18 Mr Ging, Fallin Village
4.18.1 In this case the respondent had been supportive of Councillor Alasdair MacPherson who was pursuing the building of an extension to a property in the village of Fallin for a constituent with special needs. Councillor MacPherson had been liaising with the recently appointed Director of Community Services, Janice Hewitt, but was unhappy with the inconsistency of explanation provided by the Director. In an e-mail dated 11 December 2007 Councillor MacPherson suggested that the reason for not progressing the extension was budgetary constraint rather, than as been suggested to him by the Director, signs of improvement in the physical well being of his constituent.
4.18.2 The e-mail correspondence referred to in this case comprises:
e-mail from Councillor Alasdair MacPherson to Janice Hewitt dated 11 December
e-mail from Gerard O'Brien to Councillor Alasdair MacPherson and to Janice Hewitt dated 12 December
e-mail from Janice Hewitt to Gerard O'Brien dated 13 December
e-mail from Gerard O'Brien to to Janice Hewitt dated 13 December
e-mail from Gerard O'Brien to Councillor Alasdair MacPherson and copied to Janice Hewitt dated 17 December and
e-mail from Janice Hewitt forwarded to Keith Yates dated 18 December 2007
4.18.3 In support of Councillor MacPherson in an e-mail dated 12 December the respondent made a number of comments about the qualities of the Director including the following:
‘Whether your job is too much for you or there are other issues that caused you to behave in this way must be determined…………………………………………….
Before you came to the Council, my understanding is worked with COSLA and were someone of great ability………………………………………………………
with respect to Eastern Village community since your arrival here, would you say you have delivered for the folk out here? Have asked you to attend community meetings out here and to get to know our community but for whatever reason why this has not happened…..'
In response the Director e-mailed the respondent on 13 December in the following terms: ‘I apologise I am a disappointment to you
I have been liaising with Cllr MacPherson and he and I will continue to discuss the issues relating to Mr. Ging.'
4.18.4 Later the same day the respondent e-mailed the Director saying:- ‘Sadened this matter has arisen and you have not built up a rapport like Helen Munroe did and at this time not all you were cracked up to be'
4.18.5 At interview due to a lack of recall the respondent was unable to elaborate on this issue.
4.19 Bannockburn Cemetery
4.19.1 This element of the complaint arose from the consideration by the Planning Panel on 19 December 2007 of an application for the erection of a ‘portacabin' and display area for memorials and headstones by ‘Forget thee Not Memorials' (a commercial undertaking) within the curtilage of Bannockburn Cemetery and was drawn to the attention of the complainant by Councillor Reed the Spokesperson for Environment. In his support for the proposal it is alleged that the respondent handed out folders containing written material supportive of the application (which contravened the Council's planning policies, and was the subject of an objection by the Bannockburn Community Council) without prior permission. This part of the complaint includes an e-mail dated 21 December 2007 from Councillor Reed to Keith Yates (copied to Brian Devlin).
4.19.2 The respondent directly contradicts the assertions that he (a) distributed material at the Planning Panel meeting without the permission of the Chair, (b) was at odds with the views of the Bannockburn Community Council and (c) otherwise acted improperly. He claims that at the beginning of the meeting he sought and was given permission to distribute the folders and to participate fully in the proceedings. He says that no one at the meeting objected.
4.20 Gritting of Bannockburn and Eastern Villages
4.20.1 On 3 January 2008 the respondent e-mailed the Chief Executive, the Director of Environmental Services, the Director of Community Services, the Monitoring Officer, the Director of Children's Services, the Leader of the Labour Group on the Council, and the Council's Spokesperson for Environment, in the following terms:
‘THIS MATTER OF SERVICE GOES BEYOND THE POLITICAL LIVES IN BALANCE OUT HERE
Clearly Brian Devlin and Graham Reed will need to get things sorted. Anywhere else in British Isles this sort of service would not be tolerated.
Disappointed in Cllr Reed hope things will improve. Clearly nothing more to say on this issue – only hope nobody is killed out here.
Last night there was nil gritters out either despite newspaper warnings in Irish Newspapers about Scotland weather forecast far back as 31/12/07.
What happens affects all services
Keith good job you control what the newspapers print in this town.
Regards
Cllr G o Brien
Bannockburn Ward
Cc Brian Devlin; Keith Yates' and others'
The following day a response was sent by Les Goodfellow (Head of Roads and Transport) in these terms:-
‘Gerard,
I am extremely disappointed that you have not asked the Service itself what action it has taken to deal with the winter weather conditions across the area.
On Wednesday evening the gritters were out doing a precautionary salt on our priority one routes, in preparation for the anticipated snowfall.
On Thursday morning the gritters were again out on the priority one routes.
During Thursday all available gritters were snow-ploughing and salting all day and into the evening.
Last night the gritters continued to work, ploughing and salting the worst affected routes, generally to the north of the area but not exclusively.
Again this morning the gritter crews were out at four thirty and will continue to plough and salt on the priority two and three routes that are adversely affected by snow.
Can you please confirm where the problem areas are?
LES'
4.20.3 At interview the respondent maintained that for the sake of highlighting the public safety issue involved, the terms of his communication, although admittedly vigorous, were not excessive.
4.21 Material from the Stirling Observer
4.21.1 On 22 February 2008 the respondent sent an e-mail to the complainant. In it he:-
i Claimed that the complainant had ridiculed the respondent by circulating amongst officers, correspondence from the respondent which had been received from the Stirling Observer
ii Suggested that the complainant exercised editorial control over the contents of the Stirling Observer
iii Questioned whether the Council's payment of £200k for advertising allowed the complainant to influence the editor of the Stirling Observer
iv Compared the level of democracy in Stirling Council with that in place in Cuba
v Described the complainant as a ‘Labour party appointment'
vi Accused the complainant of ‘taking unfair advantage of ‘….his….'unique position
vii Claimed that the complainant's stewardship of his department was wanting and
viii Claimed that the railway interface barrier in Cowie (see paragraph 4.9 onwards) would be erected in the fullness of time, if not on ‘the watch' of the complainant
The e-mail was also copied to three members of the Conservative Group on the Council and to four members of the SNP Group.
4.21.2 The respondent was unsure about his rationale for sending this particular e-mail, but thought it might have been a continuation of his disagreement with the complainant over item viii, the proposed erection of a crash barrier on the B9124 road.
He claimed that he had seen a letter (referred to a i above) pinned up in an officer's room, and surmised that it was used as an object of ridicule, although he was not able to provide evidence to support that claim.
He thought it ‘obvious' that the complainant as Chief Executive influenced the content of the ‘Stirling Observer', which accounted for his remarks at points ii, iii, and vi above.
The respondent strenuously denied that the reference to the complainant as a ‘Labour party appointment' meant anything other than that a Labour Party administration was in power at the time of the appointment of the complainant. He thought it unreasonable to interpret the phrase as a slight on the complainant's political neutrality.
As a generality, he described the complainant's attitude to him as ‘disrespectful'.
4.21.3 The complainant refuted the respondent's comments in general, and in particular denied that he had ever been a party to undermining the respondent, or exercised any editorial influence over the ‘Stirling Observer'. In that context he referred to occasions when the newspaper had carried highly critical (if, in the view of the complainant, unjustified) articles referring to him personally. The complainant claimed that his department had consistently met its budgetary and performance targets. He said that he was sensitive to criticism of the Council and of himself personally. He was offended by the content of the letter because it unjustifiably attacked his professional competence and he thought it more than disrespectful on a personal basis. He did not feel that the correspondence warranted a reply and he sent none.
4.22 Shutdown of Chief Executive Office Proposal
4.22.1 The complainant also received a copy of an e-mail dated 29 February 2008 which he received on 13 March 2008 which was not addressed to him directly but which had been drawn to his attention by a number of councillors, directors (including the Council's Director of Children's Services), and other members of staff to whom it had been sent by the respondent. The e-mail makes reference to the change in administration referred to a paragraph 4.3, whereby the SNP Group were able to form a minority administration within the Council.
4.22.2 The respondent proposes the ‘shutdown' of the office of Chief Executive with attendant savings of ‘almost half million' or the amalgamation of the Head of Paid Service with one of the posts of Head of Corporate Services or Director of Education. He considers the process of negotiation required to terminate the employment of the Chief Executive, and, in that context makes reference to a similar situation in South Ayrshire Council. He suggests the curtailment of the ‘cabinet system' and a return to a ‘committee structures system'. The respondent rehearses his perception of the needs of the inhabitants of the Stirling Council area, and how these might be better addressed with ‘Partnership links', stressing the importance of the Scottish Government in achieving this.
4.22.3 At interview the respondent expanded on his criticisms of the Chief Executive explaining that he had never helped him as a councillor, or been interested in or supportive of issues relating to his ward.
Findings and Conclusion
5.1 The complainant alleges that Councillor Gerard O'Brien contravened the Councillors' Code of Conduct, as outlined in paragraphs 1.3, 2.1 and 2.2 of this Report.
5.2 The first complaint in this case (LA/S/636) alleges that the respondent has intervened inappropriately in the processing of planning applications in his dealings within the Council. It is also claimed that he ‘has failed to respect Council employees and treat them with courtesy in his many e-mails that are addressed to many individuals in the Council' and that ‘he has shown discourtesy and disrespect on many occasions since his election in 2003.'
The complaint is exemplified by reference to a number of specific instances to the complaint and they are set out in paragraph 2.1 above.
5.3 In the course of my investigation additional alleged breaches of breaches of section 3 of the Code were drawn to my attention in further amplification of the original complaint. This second complaint (LA/S/712) comprises material in connection with the matters that are set out in paragraph 2.2 above.
5.4 Approach and Context
5.4.1 Approach
The protocol for relationships between councillors and employees in Scottish Councils is set out in Annex C to the Code. In this case there are various elements to the complaint. These have arisen as a result of exchanges between the respondent and officers of different seniority within the Council and in connection with a variety of issues. Paragraph 1 of the ‘principles' of Annex C acknowledges it cannot comprehensively cover all the variety of circumstances which can arise but that the approach which Annex C adopts will serve as a guide in dealing with other issues as they arise. As well as the Code, the Guidance issued by the Commission and the Council's own policies and practices, I have also found the following considerations relevant in the determination of the various elements of this case, namely, the volatile political environment in the Council; the respondent's ‘cultural' background; and any evidence tending to suggest that communications were made in the heat of the moment rather than on a premeditated basis, regret on the part of the respondent for any offence actually caused to officers or a failure properly to respect employees and their reputational rights, including questions of defamation and employment protection rights.
5.4.2 Context
I have taken account of the tense political atmosphere in Stirling Council and the part played by the respondent in the generation of some matters of controversy, including the formation and removal from office of the last administration. His willingness to participate fully in the political life of the Council taken in conjunction with the initial peer group support and guidance from senior officers has led me to the conclusion that the respondent cannot reasonably be regarded as other that an experienced councillor. In that context it strikes me that it might have occurred to the respondent that when faced with an issue or a set of circumstances in respect of which he found himself at odds with officers, he might have found a fuller exploration of the corporate processes within the Council useful to articulate his point of view. There was nothing to stop him, for instance, translating his undoubtedly deeply felt opinions into making a formal approach to the Chief Executive or making a formal notice of motion or amendment at a Council or Committee meeting. Indeed he sought the advice of the Monitoring Officer at least once in relation to the framing of, and the formal requirements needed to move, a motion of no confidence in the previous Provost of the Council. This approach could have been extended to other matters.
5.4.3 I should also say that paragraph 3.2 of the Code (Respecting all Council employees and the role they play) places an obligation on councillors to respect all Council employees and the role they play and to treat them with courtesy at all times. I would, however, make the general observation that criticism of Council processes involving staff does not automatically equate to a breach of the Code. It will always be a matter of manner and degree of such criticism which requires to be evaluated in the individual circumstances of each instance. There are competing principles involved which have to be evaluated and judgment has to be exercised. Respect for employees and their reputational rights, including questions of defamation and employment protection rights, have to be weighed against the principle of freedom of speech (particularly political comment), questions of qualified privilege (involving the right and duty to report matters of concern and criticism), and public interest (including a councillor's duty to scrutinise Council performance generally and specifically). In relation to the reputational rights of employees the terms of paragraph 20 of Annex C should be borne in mind. It provides as follows:-
‘Public comment
20. 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.'
5.4.4 I have also paid close attention to the perceptions of the persons making the complaints which in my view are very important. Behaviour which one person may see as acceptable may be unacceptable to another person.
The fact that someone does not intend what he or she does or says to be discourteous or disrespectful will not prevent it from causing distress. What may seem harmless to one person can be offensive to someone else.
I have noted (see paragraph 1.5 above) that the Council has policies relating to the behaviour of officers and members.
5.4.5 The general judgment which has to be made in relation to most of the complaints is whether or not the respondent, as an elected member has, in his dealings with employees - for whatever reason - on balance failed to observe the requirements of section 3 of the Code. In the complaints relating to planning applications, the judgement is whether he failed to observe the requirements of section 7 of the Code.
The Complaints
The First Complaint (LA/S/636)
5.5 1922 Plean Miners Monument
5.5.1 I find that the main facts are as set out in paragraph 4.9 and within the correspondence between parties.
5.5.2 From the tone of the correspondence it is clear that the respondent was concerned to give his fullest support to the planning application for the erection of the commemorative plaque. While it does not overtly say so, I find that the respondent's e-mail of 22 March to the case planning officer signalled his preferred outcome and sought to pressurise the planning officer into approving the application by suggesting the matter had to go to the papers or be referred to the Labour Group. The suggestion that the issue be referred to the press and / or to a political group reveals the respondent's lack of judgment in dealing with regulatory matters and his failure to understand the need to deal with such matters on their intrinsic planning merits and certainly not on a party political basis. The terms of the respondent's e-mails were an (albeit crude) attempt to achieve a particular recommendation by the application of media and / or political pressure on officers. Paragraph 7.7 of the Code requires that a member must never seek to pressure planning officers to provide a particular recommendation on any planning application, planning agreement or taking enforcement action. I also find that the terms of the respondent's e-mail of 29 March 2007 to Mick Stewart where he says there is no reason for the application to go before the Planning Panel and that the development is simply a plaque on the wall, affirm that the respondent was pressurising the planning officer to approve the application. In the circumstances I have reached the conclusion the respondent's behaviour by pressurising officers to approve the application as afore-mentioned amounts to a breach of paragraph 7.7 of the Code.
5.5.3 I have carefully considered the general tone of the respondent's e-mails and again with some hesitation have reached the view that, while they are typically vigorous expressions of the respondent's views in support of an issue about which he holds strong views, they could not reasonably be taken to amount to a contravention of section 3 of the Code. I have found no evidence that the officers were engaged in anything other than the proper processing of the application. I regard the assertion made by the respondent at interview to the effect that they were involved in his ‘political assassination', as without foundation and at best an unfortunate example of his tendency to exaggerate. I have noted that the comments contained in the e-mail correspondence do not have a public dimension and are not directly critical of the capabilities or personal in their nature. Nonetheless they are at the far end of acceptability in terms of harmonious member - officer communications.
5.6 Freedom of Plean
5.6.1 Subject to the under noted qualifications, I find that the respondent pursued the possibility of recognition for his constituent as described in paragraphs 4.10.1 – 4.10.5 and the correspondence between parties.
5.6.2 There is a conflict between the recollection of the respondent, the complainant and Lynn Kennedy, the Community Governance Manager, in relation to the encounter on Friday 15 June 2007.
5.6.3 Because their recall is more secure, consistent and considered, I prefer the version of events described by the complainant and the Community Governance Manager, and find as a matter of fact that the respondent did interrupt a meeting between the Chief Executive, the Community Governance Manager and Councillor Wood on the afternoon of Friday 15 June 2007.
5.6.4 The Community Governance Manager was under significant pressure as a result of other Council priorities including an imminent community conference.
5.6.5 By interrupting a meeting between senior officers and another member, the respondent's behaviour was impetuous. In demanding that immediate priority be given to his pursuit of civic recognition for his constituent by the Community Governance Manager, I find he was rude, overbearing and intimidating to the Community Governance Manager by haranguing her on a matter that had not, at the time of the interrupted meeting, been considered and which – on the face of it – was not necessarily to be responsibility of the Council, and he did so in the presence of another member and the Council's head of paid service – her line manager.
5.6.6 It did not take account of the pressure under which the officer was working or the impact it might have had on her.
5.6.7 As a consequence the Community Governance Manager - a senior officer in the Council - felt unjustifiably harassed, embarrassed and exposed in front of the chief executive and another elected member.
5.6.8 There was no policy or operational scrutiny dimension the pursuit of which might justify the approach of the respondent.
5.6.9 In these circumstances and - despite being prompted by the Chief Executive - in the absence of an apology from the respondent or some recognition by him of the difficult circumstances in which the Community Governance Manager found herself, I have concluded that the respondent's conduct – as referred to in paragraph 5.6.5 above - and the pejorative references to senior officers contained in the respondent's ‘parting shot' e-mail of 27 June, particularly the expression of the respondent's ‘Hope you all get your just rewards' amount to a breach of paragraph 3.2 of the Code which requires councillors to ‘respect all Council employees and the role they play, and treat them with courtesy at all times.'
5.6.10 I should also say that I am satisfied and find as a matter of fact that the respondent did make an evening visit to the home of the Council Officer. Since the incident does not, however, form part of the complaint and since the officer expressed himself not to have been disturbed by the incident, I have found that no breach occurred in this respect. It would be highly unusual, however, for a member to call uninvited at the home of an officer outwith working hours and it is not difficult to imagine such circumstances potentially falling within the ambit of the Code.
5.7 Councillor Duties and Ward 7 Bannockburn Delegated Decision App. No. 07/00590/DET – (Planning Application S/07/0590 - Gift Baskets for All Occasions Bannockburn)
5.7.1 I find that the factual background to this part of the complaint is set out in paragraph 4.11 and the relevant correspondence between parties. The terms of the e-mail correspondence, and the procedure for the consideration and determination of planning applications are not matters of controversy. There are two elements to the determination of this part of the complaint.
Planning
5.7.2 In relation to the respondent's involvement with and support for planning application S/07/0590 (Gift Baskets for All Occasions Bannockburn) I have carefully considered the terms of his e-mails of 25 and 27 July 2007. While these might arguably raise (in the broadest sense) policy issues, their focus is on the financial and political impact of refusal of planning permission on Councillor Alasdair MacPherson the Chair of the Planning Panel. In his e-mail of 25 July 2007, (the whole e-mail is referred to for its terms) he specifically says “ Clearly if this (development) is taken away from him (Councillor MacPherson) he may no longer afford to be a Councillor and provide for his family within this present climate”. He goes on “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.” These contentions clearly represent an attempt to pressurise officers into a particular recommendation. As a matter of fact the Head of Planning felt that he was being subjected to such pressure and accordingly I find that in the circumstances the respondent is in breach of paragraph 7.7 of the Code.
5.7.3 Their terms also indicate a lack of understanding on the part of the respondent of the enhanced responsibilities of objectivity and natural justice which are incumbent on committee members charged with the discharge of regulatory functions. As I have already noted, however, the respondent is not a member of the Council's Planning Panel and I have accordingly concluded that the respondent is not in breach of paragraph 7.10 of the Code.
Conduct - Relationship with Council Employees
5.7.4 Section 3 of the Code and Annex C is relevant in setting standards in connection with member – officer relationships. In that context I find that the reference in the respondent's e-mail of 15 August 2007 to Councillor MacPherson (and copied to the Head of Planning and to the Monitoring Officer) to the ‘…. need for new officers to replace these people'…. could reasonably be, and was as a matter of fact, construed by both officers to whom it was sent as disrespectful, discourteous and - insofar as they felt it potentially prejudicial to their security of employment with the Council – threatening.
5.7.5 The delicate political balance of the Council and the respondent's ambiguous political allegiance exacerbated the insecurity.
5.7.6 The reaction of the officers varied. The Head of Planning was anxious and concerned, the Council's Monitoring Officer, phlegmatic.
5.7.7 I have come to the view that the respondent is not inexperienced. At interview he suggested that this communication with Councillor MacPherson was designed to assist another less experienced member, which explanation I find unconvincing.
5.7.8 He also offered a variety of explanations and justifications for the terminology used in the e-mail. In particular I do not accept his suggestion that it simply represents a suggestion that there is a shortfall in planning expertise which should be rectified by the recruitment of specialist officers. Neither do I accept that having received an e-mail suggesting their replacement, the onus should be on officers to follow that up in some way with the sender, seeking reassurance about possible alternative interpretations.
5.7.9 Senior officers should expect robust exchanges from time to time with members, but it is not acceptable to include in correspondence casual - and threatening - references to their replacement by others. Matters of employment are serious, confidential issues and should be respected as such by members. In these circumstances I have come to the conclusion that the respondent's conduct by calling for new officers to replace the Head of Planning and the Monitoring Officer as referred to in paragraph 5.7.4 above, amounts to a breach of paragraph 3.2 of the Code which requires councillors to ‘respect all Council employees and the role they play, and treat them with courtesy at all times.'
5.8 Bowling Club, Cowie
5.8.1 I find that the facts are as set out in paragraph 4.12 and the e-mail correspondence between parties. I have again carefully considered the content and tone of the respondent's e-mails, the terms of which are not disputed. I have also noted the respondent's apparent unwillingness to accept the advice of officers. For his part the respondent argues that he has reason not to readily accept the advice of officers, that he intended no disrespect and was frustrated at the lack of progress in resolving this matter.
5.8.2 While the tone of the respondent's e-mails might be described as strident and argumentative, they do not in my view seek to denigrate the professional reputations of officers and neither are they of a personal nature. In the circumstances I have come to the conclusion that the respondent's conduct in this instance does not amount to a breach of section 3 of the Code.
5.9 Road sweeping in the Eastern Villages
5.9.1 I find that the correspondence between parties in this case is as described in paragraph 4.13.
5.9.2 I also find that the respondent made unjustified comment about the attitude of the Roads Manager to his responsibilities, and despite being asked to desist, persisted in making references to his close family. The Roads Manager is an experienced and resilient officer, not unused to robust exchanges with the public about service delivery issues. I find he was offended by the terms of the respondent's e-mail of 6 September 2007, which suggested that the Roads Manager did not care about the level of service provided by the Council and that he, personally took no pride in his work.
5.9.3 In his mitigation this was again clearly an issue about which the respondent felt strongly. It was wholly inappropriate and highly offensive, however, to insinuate any personal dimension into the correspondence and – despite having been asked not to do so – to continue in the same vein. The responses from the Roads Manager were appropriate, thoughtful and the subject of prior discussion with his line manager and the Chief Executive
5.9.4 His attempt to justify the comments and in particular the references to family members by asserting that the Road Manager's father himself called his son ‘a shit', shows a complete lack of understanding on the part of the respondent that he bears a responsibility to maintain an appropriate level of respect when communicating and working with officers.
5.9.5 It is not difficult to understand as a result of the exchanges with the respondent, and I so find that the Roads Manager felt undermined, offended and insulted.
5.9.6 I have also taken into account the apology offered by the respondent in his e-mail of 13 September 2007, the impact of which is diminished by the respondent's insistence in referring, contrary to his express wishes, to the father of the Roads Manager. In these circumstances I have come to the conclusion that the respondent's conduct in implying in his e-mail of 6 September that the Roads Manager is uncaring about the standard of service he provides and by making wholly inappropriate and offensive references to the Roads Manager's family in e-mails to him about service issues are a breach of paragraph 3.2 of the Code which requires councillors to ‘respect all Council employees and the role they play, and treat them with courtesy at all times.'
5.10 B9124 Railway Crash Barrier
5.10.1 I find that the factual background is as narrated in paragraphs 4.14, and correspondence which is relevant to this issue was sent and received between parties, and that the respondent wrote a letter dated 6 September 2007 to the Stirling Observer which was intended for publication
5.10.2 The letter of 6 September says (amongst other things) ‘The lack of responsibility and inability of the Director of Environmental Services to resolve this roads issue, is breath taking and opens the door in all likelihood for a major Scottish rail disaster with possible fatalities to occur'.
5.10.3 The Director considered the terms of the letter an open and damaging accusation against his professionalism and as a result he felt frustrated, angry and stressed. He was clearly professionally and personally upset at its contents.
5.10.4 Again this was an issue which clearly aroused strong feelings. The Director had clearly paid careful attention to the issue and had the benefit of the opinions of other senior officers including the Head of Roads, Transport and Streetscape.
5.10.5 I have considered carefully the respondent's views on this matter. There is no evidence that the Council's officers vacillated about their technical assessment. On the contrary there appears to have been a consistent view that the installation of a barrier at this location might be prejudicial to road safety.
5.10.6 I can see no justification for the respondent's assertion that the Council should not have been consulted by the Stirling Observer on the content of his letter of 6 September. When asked to publish a highly contentious letter it seems entirely appropriate to seek the views of those criticised.
5.10.7 Paragraph 20 of Annex C to the Code requires that councillors should not raise matters relating to the conduct or capability of employees in public. Although the letter was not in fact printed, I have no doubt that in drafting the letter and sending it for publication, the respondent raised the issue of the Director's capability publicly. The letter was indeed marked ‘Press release'. A different conclusion might have been drawn, had the respondent attempted to recall the letter, or amend its terms before publication, but in reality it was through the intervention of the newspaper management – not his – that publication was avoided.
5.10.8 Given his conscientious approach, to dismiss the Director's contribution in the extravagant and comprehensive terms contained in the respondent's letter of 6 September, particularly in relation to an issue of public safety, is not acceptable. In the circumstances, and bearing in mind that the letter is addressed to the main local newspaper circulating in the Council area, the communication could hardly be seen as other than a contravention of paragraph 20 of Annex C of the Code.
5.10.9 I have therefore come to the conclusion that the respondent's conduct by writing a letter to the Stirling Observer intended for publication referring to the Director's lack of responsibility and inability and suggesting this would in all likelihood open the doors to a major Scottish rail disaster and which the Director considered questioned his professional competence leaving him feeling frustrated, angry and stressed amounts to a breach of paragraph 3.2 of and paragraph 20 of Annex C to the Code which requires councillors to ‘respect all Council employees and the role they play, and treat them with courtesy at all times' and provides that ‘Councillors should not raise matters relating to the conduct or capability of employees in public.'
5.11 Hillview Place, Fallin
I find that the terms and course of the correspondence between parties in this part of the complaint is as described in paragraphs 4.15.
5.11.2 In this case, the respondent asserted in an e-mail dated 21 September 2007 to the Tenant Services Manager ‘Clearly very serious problem with Kate Smithson section on service delivery!!' (Kate Smithson being the Roads Manager, Transport Department). The comment could readily be seen as critical not only of the members of the section, but of Kate Smithson as its manager and it is reasonable that she took that meaning from it. This view was not reported directly to the Roads Manager, Transport Development herself or to her line manager but was rather disseminated to the most senior officers in the Council without an opportunity being given to the officer affected to provide an explanation or rebuttal.
5.11.3 The officer was concerned and felt that her work had been unjustifiably criticised. Despite the lack of substance to the assertions, she feared that there could be damaging consequences for her career. She was also clearly offended at the respondent's lack of consideration for her feelings and her reputation.
5.11.4 In his mitigation I recognise that this is an instance where the respondent was engaged, in good faith, in the pursuit of the interests of the residents of Hillview Place, Fallin. Nonetheless officers are entitled to expect that members will undertake basic ‘due diligence', before reaching and broadcasting speculative views on their capabilities.
5.11.5 I do not consider it an appropriate suggestion that when subjected to unjustified and disturbing criticism, the onus should be on officers to seek out the respondent so as to be reassured as to the proper ‘interpretation' of his correspondence. As on a number of occasions the respondent appears to have overlooked the internal policies of the Council which stress that particular attention should be given to the views of the recipient.
5.11.6 Having regard to the whole circumstances in this case, including fact that the respondent made a single (albeit adverse) comment about Kate Smithson's section regarding a service delivery issue, that the e-mail (which contained the comment) was written about a broader issue of having a roadway adapted and that the e-mail was given a limited distribution (and then, due to his interest in the adaption of the road), I conclude that whilst the respondent should certainly been more thoughtful in choosing his words of criticism, they could not reasonably be taken to amount to a breach of the Code.
The Second Complaint (LA/S/712)
5.12 Burnside Crescent, Plean
5.12.1 I find that the terms of the e-mail correspondence between the respondent and Council officers is as set out in paragraph 4.16. I am also satisfied that the correspondence here is a typical example of a longer course of unsatisfactory communication between the respondent and officers in the Environmental Services Department about a range of matters.
5.12.2 I regard the response by the Service Co-ordinator on behalf of and in the name of Director in the e-mail of 24 January 2008 as representing an appropriate (albeit short) explanation of the Council's policy on the issues raised by the respondent. It has to be said however that the response was not sent personally by the Director but on his behalf and does not address the respondent's request for a meeting to discuss a case which, on the face of it, had special circumstances. The respondent's first e-mail of 25 January 2008 to the Director has to be seen in that context and also mindful he would have been unaware the e-mail under reply had not been seen or proposed by the Director. That said, the Director expressed himself confident that the initial reply to the respondent would have been informed by any necessary technical assessment.
5.12.3 As with the drafting of a number of e-mails, the respondent appeared to take little account of the effect which they might have on the recipient. While e-mail correspondence is associated with ease of communication, speed and a degree of informality, some care needs to be taken to ensure that basic standards of respect are maintained. From his second e-mail of 25 January I think it was reasonable for the Director of Environmental Services to infer that the respondent was generally canvassing for ‘ammunition' to discredit him.
5.12.4 The terms of both the respondent's e-mails of 25 January 2008 caused considerable distress to the Director of Environmental Services, such that he felt the need to take external legal advice as how to best protect his reputation.
5.12.5 Yet again this was an issue about which the respondent had strong feelings. That in itself does not, however, absolve him from the requirements of the Code. It does not follow from the receipt of an unwelcome response, that the attitude of the Director should automatically be characterised as ‘cavalier' or his approach ‘dismissive' although it has to be said that (particularly given the short response received) the respondent's comments could be seen as not wholly unexpected. The matter is exacerbated by the respondent's attempt to ask if councillors were encountering any difficulties which the Director could reasonably have taken to be an attempt to solicit further criticism of him
5.12.6 In considering the respondent's approach for assistance on behalf of a constituent in trying personal circumstances, it is appropriate to recall that the department response was curt and, as a matter of fact, did not address his request for an urgent case meeting; furthermore the response (although the respondent did not know it) was not seen or sent personally by the Director but on his behalf. I have concluded, however, that the respondent should have addressed himself in considerably more tempered language in relation to his constituent's problem. Set against the background of contentious correspondence between the respondent and officers within the Environmental Services Department, the terms of the respondent's e-mail of 25 January 2008 (timed at 18.56), which describes the approach of the Director as ‘cavalier' and ‘dismissive' was not appropriate. The recipient took it as a slur on his professional reputation and found it offensive. In the circumstances it was disrespectful and I have therefore concluded that the respondent's conduct here amounts to a breach of paragraph 3.2 of the Code.
5.12.7 The terms of the e-mail sent later on the same day at 19.43 in which the respondent sought comments from other councillors regarding difficulties with the Director might not – by itself – written as it was in plain inoffensive language, be seen as disrespectful, although it is not difficult to see that the Director, receiving a blind copy, could have readily interpreted it as being an attempt to solicit criticisms of him and his department. He certainly thought it could be damaging to his career. Taking account of the evidence of antipathy between the Director and the respondent, on balance I accept that however benign the terminology of the latter e-mail, it was as a matter of fact an attempt to generate criticism of the Director and served to undermine his position. He felt intimidated, under stress and vulnerable. As such it was disrespectful. Members must be free to criticise officers but because employment issues are serious and confidential such criticisms should have a substantive basis and should be pursued in a structured manner, mindful of the rights of the employee, and consistent with Council policy and good practice. It is not appropriate to transmit sensitive – and potentially damaging – information in a casual way. I have therefore again concluded that the respondent's conduct in this instance amounts to a breach of paragraph 3.2 of the Code.
5.12.8 I should also say that I regard the respondent's negative comments in connection with the appointment of the Director of Environmental Services as disingenuous. He was a participant at the full meeting of the Council at which the appointment was unanimously ratified. If he had misgivings there were a number of formal and public opportunities (not least moving a notice of motion) by which he could have openly articulated his views.
5.13 Publicity - Cairn at Plean
5.13.1 I find the terms of the e-mail exchanges between the Council's Media Officer and the respondent are as set out in paragraph 4.17.
5.13.2 I consider it unfortunate that the Council's Media Relations Officer – who seems simply to have been doing her job – appears to have been caught by a side swipe generated by a perceived slight to the respondent, which may have had a political dimension, but which certainly had nothing to do with her.
5.13.3 As a result, the Media Relations Officer was accused by the respondent of having breached the confidentiality requirements of a Council protocol rendering her vulnerable to disciplinary action or at least to an investigation by the Council's Monitoring Officer, all as suggested in the respondent's e-mail of 7 December.
5.13.4 Unusually in this instance the respondent did reflect on the matter and sent a further e-mail which, if not an outright apology, is at least in placatory terms and recognises the legitimacy of the Media Relation Officer's involvement. The language employed in his e-mail of 7 December 2007 to the Media Relations Officer was brusque and intemperate and the point about confidentiality and data protection could have been put in a more circumspect – rather than overbearing – way. In all circumstances, however, I have come to the conclusion that the language adopted could not reasonably be taken to amount to a breach of section 3 of the Code.
5.14 Mr Ging, Fallin Village
5.14.1 I find that the main facts and the correspondence between the parties relating to this issue are as referred to in paragraph 4.18. In the absence of specific comment from the respondent I have determined this matter on the basis of the content of the e-mail traffic referred to above.
5.14.2 The respondent's general support for Councillor MacPherson is perhaps understandable in the context of the apparent political alliances within Stirling Council. However, without some substantive basis, the comments made by the respondent to the effect that the Director of Community Services may not be performing to the level expected are at the very least highly insensitive.
5.14.3 The respondent's comments were not only insensitive but also ill-advised and included gratuitous comparison of the Director's personal and professional qualities with those of her predecessor. The respondent's comments were made in a robust manner when he was endeavouring to explain his expectations of her given her relatively recent appointment to the Council. In my view the approach of the respondent may be characterised as an attempt to communicate with the Director of Community Services regarding performance but was not such that it could reasonably be taken to amount to disrespect for the purposes required by paragraph 3.2 of the Code. I, therefore, find there was no breach of the Code in this instance. I would also observe that whilst the respondent's comments were ill-advised and insensitive, it has to be said that the comments by Councillor MacPherson in his e-mail of 11 December 2007 to the Director which was a prequel to this issue were equally ill-advised and insensitive.
5.15 Bannockburn Cemetery
5.15.1 The circumstances here are as described in paragraph 4.19 above and the relevant correspondence.
5.15.2 Rather as with the respondent's involvement with and support for planning application S/07/0590 (Gift Baskets for All Occasions Bannockburn – see paragraph 4.11) the respondent's behaviour at the Planning Panel on 19 December may indicate a lack of understanding of the sensitivities of regulatory matters.
5.15.3 While the claim that he ‘hijacked' the meeting to promote his support for the application (in contradiction of the views of the Bannockburn Community Council) might be regarded as discourteous to the Chair and fellow members, it is contested by the respondent as a matter of fact. As, for the reasons set out in paragraph 5.15.4 below, I have concluded that no breach is disclosed in this instance, I am not required and have not attempted to resolve the disputed matters of fact in this part of the complaint.
5.15.4 In the final analysis the respondent is not, however, a member of the Council's Planning Panel, and consequently the objectivity requirements of section 7 of the Code for those taking planning decisions do not apply him. In this instance there is no allegation or evidence that undue pressure was brought to bear on officers in relation to the outcome of the application. Accordingly I have concluded that the respondent is not in breach of that part of the Code. Neither do I find that his behaviour amounted to a breach of section 3 of the Code.
5.16 Gritting of Bannockburn and Eastern Villages
5.16.1 In my view the respondent's correspondence on the issue of the Gritting of Bannockburn and the Eastern Villages (see paragraph 4.20 above) may be seen in the context of the discharge of his role in scrutinising the efficient working of the Council.
5.16.2 Although an unflattering reference is again made to a senior officer the terms are within the bounds of acceptability given this officer's service responsibilities and the strong feelings generated by the issue. I have therefore come to the conclusion that the respondent's comments in this context do not amount to a breach of section 3 of the Code.
5.17 Material from the Stirling Observer
5.17.1 I find that the content and timing of the e-mail correspondence from the respondent are as set out in paragraph 4.21.
5.17.2 As a result of receiving the e-mail of 22 February 2008 the complainant felt that an attempt had been made to damage his reputation generally and his objectivity in particular.
5.17.3 I do not find the comments set out parts i - iv and – with some hesitation – vi of paragraph 4.21 sufficiently precise or pejorative to form the basis of a breach of the Code. In their broadest sense items vii and viii can be seen as the respondent discharging a scrutiny role and although the merits of his remarks are keenly contested, neither do I regard these as representing a breach of the Code. Those set out in v are, however, of a different order.
5.17.4 To characterise the complainant as a ‘Labour Party appointment' (the interpretation favoured by the respondent) may arguably simply mean that the administration of the Council was held by the Labour Party when the complainant was appointed which – as a matter of fact – is the case. Another meaning could be that the complainant is a political appointment made by the Labour Party or is generally biased towards the interests of that party and those considerations rather than the merits of his candidature, were the reasons for his appointment. The maintenance of confidence in the political independence of officers in general, and the chief executive in particular, is of fundamental importance to the system of local government. This does not mean that officers should be exempt from criticism where warranted, but in this case there is no evidence to suggest that the complainant is in any way in the thrall of any political party.
5.17.5 At the end of the day, the e-mail of 22 February 2008 makes only a single reference to the Chief Executive being a “Labour Party appointment” and there is no further comment in relation to this point. In the absence of any further such reference I have concluded that the reference made could not – by itself – reasonably be taken to amount to an attempt publicly to discredit the reputation of the complainant. The e-mail generally is highly critical of the Chief Executive but – given the right of freedom of expression set out in article 10 of the European Convention of Human Rights it would be going to far to see these general comments as amounting to a breach of the Code. Nevertheless the respondent should be well aware of the serious consequences of being careless in making public criticism of the Chief Executive particularly where they might readily be seen to impugning the professional reputation of the Chief Executive.
5.17.6 In these circumstances I have therefore come to the conclusion that the respondent's comments on this matter do not amount to a breach of paragraph 3.2 of the Code.
5.18 Shutdown of Chief Executive Office Proposal
5.18.1 I find the main facts and the correspondence between parties on this matter are as set out in paragraph 4.22 above.
5.18.2 Even after discussion with the respondent at interview, the status of e-mail dated 13 March 2008 remains unclear. On one view - which was to some extent reinforced by the personal antagonism displayed by the respondent towards the complainant at interview - it might be regarded as a personal attack. In many respects it might also not make comfortable reading for the complainant. In my view, however, leaving the merit of the proposals on one side, the contents represent, on the face of it, the thoughts of one member as to how the Council might be alternatively structured.
5.18.3 I therefore prefer to regard the content of the material referred to at paragraph 4.17, contemplating as it does, a different structure for the Council, as appropriate for political consideration. I have therefore come to the conclusion that the respondent's comments in this context do not amount to a breach of section 3 of the Code.
5.19 Summary of Findings
For ease of reference the following summary sets out my findings by reference to the complaints made.
The First Complaint (LA/S/636)
5.19.1 Plean Miners Monument (see paragraph 5.5)
Allegation - that the respondent unduly pressurised a planning officer and inappropriately advocated for a planning application for the erection of a plaque in commemoration of a mining disaster in 1922.
Relevant sections of Code - paragraphs 3.2, 3.3, 7.7 and 7.8.
Findings - breach of paragraph 7.7
- no breach of section 3
5.19.2 Freedom of Plean (see paragraph 5.6)
Allegation - that the respondent harassed officers in order to secure civic recognition for a resident of the village of Plean who was nearing her hundredth birthday.
Relevant section of the Code - paragraph 3.2.
Finding – breaches (x2) of paragraph 3.2
5.19.3 Councillor Duties and Ward 7 Bannockburn Delegated Decision in relation to Planning Application Number 07/00590/DET (see paragraph 5.7)
Allegations - that the respondent inappropriately intervened (in terms of both motivation and tone of communication) in the processing of a planning application in which the Chairperson of the Council's Planning Panel had an interest.
Relevant sections of the Code - paragraphs 3.2, 3.3, 7.7 and 7.8.
- that the respondent undermined senior officers in correspondence with another councillor.
Findings - breach of paragraph 7.7
- no breach of paragraph 7.10
- breach of paragraph 3.2
5.19.4 Bowling Club, Cowie (see paragraph 5.8)
Allegation - that the respondent unreasonably required officers of the Council to pursue overnight lorry parking on land which was not within the ownership of the Council.
Relevant section of the Code - paragraph 3.2.
Finding - no breach
5.19.5 Road Sweepers in the Eastern Villages (see paragraph 5.9)
Allegation - that in correspondence with an officer of the Council and despite being explicitly requested not to do so, the respondent persisted in making inappropriate reference to close members of the officer's family.
Relevant sections of the Code - paragraphs 3.2 and 3.3.
Finding - breaches (x2) of paragraph 3.2
5.19.6 B9124 Railway Crash Barrier (see paragraph 5.10)
Allegation - that in advocating the need for a crash barrier along the Easter Greenyards section of the B9124 road, the respondent failed to take proper account of the technical assessment undertaken by officers of the Council. He further attempted to publicly undermine the professional reputation of the Director of Environmental Services by submitting for publication a letter in the ‘Stirling Observer', the terms of which the Director regarded as inaccurate, exaggerated and defamatory.
Relevant sections of the Code - paragraphs 3.2 and 3.3
Finding - breach of paragraph 3.2 and paragraph 2 of Annex C
5.19.7 Hillview Place, Fallin (see paragraph 5.11)
Allegation - that in pursuing the adoption by the Council, as Roads Authority, of a length of roadway, owned under the distinct and separate basis by the Council as Housing Authority, the respondent unjustifiably criticised the performance of officers of the Council, causing unnecessary distress.
Relevant sections of the Code - paragraphs 3.2 and 3.3.
Finding - no breach
The Second Complaint (LA/S/712)
5.19.8 Burnside Crescent, Plean (see paragraph 5.12)
Allegation - that in the course of an e-mail exchange with the Director of Environment Services, the respondent was offensive and made unwarranted, unjustified and potentially defamatory comments.
Relevant section of Code - paragraph 3.2.
Finding - breaches (x2) of paragraph 3.2
5.19.9 Publicity - Cairn at Plean (see paragraph 5.13)
Allegation - that the respondent unjustifiably criticised the Council's Media Relations Officer in connection with the arrangements for the unveiling of a commemorative cairn in the village of Plean.
Relevant section of Code - paragraph 3.2.
Finding - no breach
5.19.10 Mr Ging, Fallin Village (see paragraph 5.14)
Allegation - that in pursuit of the interests of a constituent, the respondent made derogatory comments about the professional competence of the Council's Director of Community Services.
Relevant section of the Code - paragraph 3.2.
Finding - no breach
5.19.11 Bannockburn Cemetery (see paragraph 5.15)
Allegation - that the respondent behaved inappropriately in his support of a commercial planning application for the erection of a ‘portacabin' and display area for memorials and headstones within the curtilage of Bannockburn Cemetery. It is claimed that the respondent circulated material in support of the application (which contravened the Council's planning policies, and was the subject of an objection by the Bannockburn Community Council) at a meeting of the Council's Planning Panel.
Relevant sections of the Code - paragraphs 7.2, 7.7 and 7.8.
Finding - no breach
5.19.12 Gritting of Bannockburn and Eastern Villages (see paragraph 5.16)
Allegation - that the respondent communicated in intemperate and inappropriate terms with officers in the Council in connection with the gritting of roads in the Bannockburn and Eastern Villages.
Relevant section of the Code - paragraph 3.2.
Finding - no breach
5.19.13 Material from the Stirling Observer (see paragraph 5.17)
Allegation - that in an e-mail sent to the complainant and to reporters of the Stirling Observer (and copied to four S.N.P. and three Conservative members of the Council), the respondent infers that the complainant manipulates the content of the local newspaper, has taken unfair advantage of his position, is ‘a Labour Party appointment' and has prevented the erection of a safety barrier (see paragraph 2.1.7 above) to the detriment of the respondent's constituents in the village of Cowie.
Relevant section of the Code - paragraph 3.2.
Finding - no breach
5.19.14 Shutdown of the Chief Executive Office Proposal (see paragraph 5.18)
Allegation - that the respondent circulated an e-mail to elected members unjustifiably critical of the performance of the complainant as Chief Executive which suggested an alternative structure within the Council which would eliminate the post of Chief Executive.
Relevant section of the Code - paragraph 3.2
Finding - no breach
5.20 Conclusion - Summary
In relation to complaint numbers LA/S/636 and LA/S/712, I have therefore come to the conclusion that, having regard to the findings in section 5 and in particular paragraphs 5.5.2; 5.6.9; 5.7.2; 5.7.9; 5.9.6; 5.10.9, 5.12.6 and 5.12.7 of this Report, Councillor Gerard O'Brien has contravened the Councillors' Code of Conduct and by reference to the findings in paragraphs 5.5.3; 5.7.3; 5.11.6; 5.13.4; 5.14.3; 5.15.4; 5.16.2; 5.17.6 and 5.18.3 has not breached the Code of Conduct in respect of the issues dealt with in these paragraphs.
D Stuart Allan
Chief Investigating Officer
Forsyth House
Innova Campus
Rosyth Europarc
Rosyth
KY11 2UU
23 October 2008
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