Complaint no. LA/SA/478 concerning an alleged contravention of the Councillors' Code of Conduct by Former Councillor David Duncan of South Ayrshire Council

• Introduction
• Outline of the Complaint and the Response
• The Investigation
• Consideration of the Evidence
• Findings and Conclusion

Introduction

1.1 Complaint number LA/SA/478 alleges a contravention 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 complaint has been lodged by MrJ Graham Peterkin, in his capacity asMonitoring Officer of South AyrshireCouncil("the complainant"), (at the request of the Council's Chief Executive, Mr Tom Cairns), who alleges a contravention of the Code by former Councillor David Duncan ("the respondent"). The Monitoring Officer is also the Council's Depute Chief Executive and Director of Development Safety and Regulation, (which includes responsibility for the planning and legal functions of the Council). The respondent was an elected member of South AyrshireCouncil ("the Council"). Mr Duncan retired as a councillor at the May 2007 local government elections.

1.3 It is alleged that the respondent has contravened the Councillors' Code of Conduct, and, in particular, section 3 Relationship with Council Employees:

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

Paragraph 3.3 of the Code states:
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.

Paragraph 3.4 of the Code states:
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.

The Protocol states as a guiding principle that councillors and employees should work in an atmosphere of mutual trust and respect with neither party seeking to take unfair advantage of their position. With regard to public comment, the Protocol also provides that councillors should not raise matters relating to the conduct or capability of employees in public.

1.4 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.

1.5 For the purpose of this investigation, I was assisted by Douglas Winchester, Investigating Officer.

1.6 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.

Outline of the Complaints and Response

The Complaint

2.1 The complaint is set out in a letterfrom the complainant.

The complainant alleges that the respondent in his dealings with various Council Officers over a period of time has failed to comply with the requirements of the Code and relative Protocol in relation to his dealings with them. There are two aspects of these alleged dealings:

• a failure to respect specific Council employees and the role they play and to treat them with courtesy at all times.
• a failure in various instances to respect the different roles played by a councillor and an officer, which has allegedly resulted in the respondent straying into matters of operational management which are clearly the domain of officers.

The specific focus and basis of the complaint is the respondent's voluminous e-mail correspondence with various officers. They can be characterised as expressing in forthright, trenchant and intense terms the respondent's views, comments, complaints, requests and demands in respect of particular items of Council business being handled by officers. A number include details of the respondent's objections, criticisms and alternative proposals as to how the business should be conducted. Some 200 pages of such e-mails have been submitted in support of the letter of complaint. (The said pages do not amount to 200 different examples of alleged conduct - there are a number of duplicate e-mails enclosed for the purposes of demonstrating their distribution.) The complainant has referred to a number of specific items of Council business which it is considered demonstrates the alleged conduct in question.
For the purposes of this report, the alleged conduct will be dealt with in relation to following items of specific Council business:

• Burnside Path, Mossblown;
• Lydia Trust;
• Safe Haven;
• Woodhill Developments;
• Homelessness Strategy Budget;
• Staffing Disciplinary Matter;
• Contract Awards;
• Local Plan;
• Staffing Appointment Matter.

The Response

2.2 The response is set out in two initial communications from the respondent. The respondent's position and explanation is also reiterated in subsequent communications to me. The respondent alleges that he is not in breach of the Code of Conduct. He considers that his e-mail correspondence with officers has been necessary due to their various failures to deal appropriately with his concerns, queries and complaints in relation to the specified items of Council business. His comments are based on truth. He does not consider that he has ever had a satisfactory response to any of the specified items of Council business he has raised. He considers that various officers have not been dealing with matters as they should and it is his democratic duty to scrutinise their activities and to hold them to account. He has had an increasing sense of frustration at how his concerns queries and complaints have been handled. He is aggrieved that there is not an equivalent body to the Office of the Chief Investigating Officer to whom he can report Council officers. He has asserted his specific rights as an elected member to exercise freedom of speech which he considers is protected by the ECHR. He feels that any criticism of any officer that he has made is entirely justified and he does not accept that the purpose of the Code of Conduct was to "silence" criticism of officers by councillors. In addition, he considers he has been disenfranchised by a direction of the Council's Chief Executive that all his enquiries to Council officers have to be directed to the Chief Executive or Monitoring Officer who will arrange a response and so advise him. The respondent also raised a number of questions regarding the investigation which were the subject of discussion at interview.

The Investigation

3.1 To establish the background to the complaint, the 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 9 and 15 November 2006. As a result of the interviews it was considered appropriate to allow the respondent the further opportunity to submit additional documentary evidence in support of his position and to further investigate any such submission. The respondent indicated at interview that he wondered if any of his e-mails had been tampered with or changed. He was invited to check all the copy e-mails received from the Council and to confirm to the Investigating Officer if any particular e-mail was in dispute as not having been issued by him. The respondent subsequently provided no such confirmation. Accordingly for the purposes of this Report all the copy e-mails bearing to have been issued by the respondent have been considered and form part of this complaint. The respondent also indicated at interview that he had a schedule of some nine pages listing his unanswered queries to various officers. He was invited to submit the list for examination and investigation.

3.3 As indicated in paragraph 2.1 hereof, the complaint is supported by a schedule of e-mail correspondence in respect of various items of Council business.

3.4 Instead of submitting the schedule referred to in paragraph 3.2 hereof, the respondent submitted some 220 pages of copy e-mails, with some covering comments, many of which were already included in the complainant's submission. He considers the e-mails not to have been answered or not answered to his satisfaction.

3.5 Subsequent to the interviews taking place, the complainant alleges that the respondent continued to engage in additional examples of the conduct initially complained about. Supplementary examples of his e-mail correspondence were submitted in support of the continuing conduct.

3.6 The respondent was issued with this supplementary documentation and given the opportunity to respond. In his submission the respondent refers to his various rights under ECHR, and alleges that the Council in harassing him can be argued to be guilty of torture which is prohibited by Article 4. The Council is also "gagging" him and preventing him from carrying out his duties as a councillor. He wishes the Council to be more specific in its allegations so that he can properly respond.

3.7 It should also be noted that during the period since this complaint has been lodged the respondent has continued to make representations to me regarding this complaint. I would confirm that I have taken these comments into account in my assessment of issues arising from the complaint.

Consideration of the Evidence

4.1 The respondent has been a Labour Party Councillor since 1995. He has held various committee appointments. From 1996 to 2003 he was a member of the majority Labour Administration of the Council. Following the local government elections in May 2003, the political composition of the Council comprised an equal number of Labour and Conservative Councillors, (15 seats each). The Convener-ship of the Council was determined by lot, as provided for in statute, and the result was that a Labour Party Councillor was appointed as Convener of the Council (Provost). This appointment enabled the Labour Party Councillors to form an Administration by virtue of the Provost's casting vote. The respondent also held to the political position of Depute Leader of the Labour Party Group on the Council for several years. He was also Acting Leader for a short period.

4.2 In January 2006, as a result of the recent resignation of a Labour Party Councillor, the Conservative opposition members on the Council were able to form the Administration of the Council and to appoint one of their own members as Provost. The current political composition of the Council is 15 Conservative Councillors, 14 Labour Party Councillors and one Independent Councillor.

4.3 In line with Standards Commission guidance, training of members on the Code of Conduct was given by Council Officers, which the respondent had the opportunity to attend. In addition, the Monitoring Officer met specifically with the respondent on 19 May 2006, during which meeting he sought to remind the respondent of his duties and responsibilities in terms of the Code.

4.4 At interview the Monitoring Officer confirmed that the alleged difficulties with the respondent's conduct in relation to member/officer relationships had reached a level in the last year or so which had caused concern to the Chief Executive, himself and other managers. In general terms it was the method and manner of the respondent's e-mail correspondence on which this complaint centred. No matters of conduct at formal or informal meetings of the Council were involved. Due to staff concerns, he had met with the respondent on 19 May 2006 in an effort to try to resolve this matter internally. This was the first formal approach to the respondent to draw concerns to his attention. Previously there had been efforts to have the matter resolved through the respondent's Political Group which had not brought about any improvement. The report he had received back was that the respondent was not prepared to change how he dealt with officers.

4.5 The Monitoring Officer confirmed that at the meeting he had sought to remind the respondent of his responsibilities in terms of the Code and gave him a copy of 2 cases from the Commission's website on member conduct. He suggested the respondent look at the website and reflect on the matter and desist from interference in the work which was the responsibility of officers. Specifically, he reminded the respondent of the Council's e-mail policy regarding Respect which had been in place since 2003. He wrote to the respondent on 23 May 2006 to confirm the content of the meeting, which he considered had passed off amicably. He was left with the impression that the respondent accepted there was an issue with officers being unhappy with e-mail correspondence and that the respondent would reflect on what he had said. Matters had not improved and indeed it was the assessment that the tenor of the correspondence had deteriorated even further. The Monitoring Officer confirmed that the Council had an approved e-mail Policy which specified, amongst other things, that no e-mails in the Council's system should be defamatory or abusive. The Council also had adopted a Respect at Work Policy through its Community Protection and Support Services Committee. The policy affirmed that "South Ayrshire Council is committed to providing a working environment for every employee in which we have equal opportunity, freedom from discrimination, harassment, bullying and victimisation". There was also a Code of Conduct for Employees of the Council which had recently been updated and been approved at a meeting of the Human Resources Committee on 15 June 2006. This contained a Policy and Procedure where issues emerged between a councillor and an officer which could not be resolved by informal discussion. The process was one of escalation to senior management and political levels within the Council. If no resolution was achieved the policy referred to the right of the employee to make a complaint to the Standards Commission.

4.6 Thereafter the Chief Executive and the Monitoring Officer decided to meet formally with the respondent to discuss their concerns about his conduct in his manner of dealing with Council officers and the subsequent action taken. The meeting was arranged to take place, by agreement of the parties, on 7 July 2006. The respondent did not attend, explaining that due to his personal circumstances he never attended appointments at that time of day. The Chief Executive subsequently wrote to the respondent to complain about the lack of respect he felt had been shown to himself and the Monitoring Officer. He also expressed the view that matters had reached the stage where it was considered all local efforts to deal with this matter had been exhausted and there was no alternative other than to report the actions of the respondent to the Standards Commission. In connection with the nature and extent of the respondent's conduct towards other officers, the Chief Executive confirmed that all further officer contact by the respondent had to be routed through the Chief Executive or the Monitoring Officer who would seek any appropriate response from the officer concerned and relay it back. (The respondent described this action as "illegal" and continued to issue e-mails to various officers, as well as writing to the Chief Executive about various matters.)

4.7 At interview the Chief Executive said he had ultimate responsibility for the management of relations between members and officers of the Council. The Council had a policy of "escalation" in that if there was an issue between a member and an officer it would be referred up to the next level of management and ultimately to him. The Council had a duty of care to its employees and in relation to questions of "bullying". As Head of the Council's Paid Service he had to take action in response to the formal complaints made about how the respondent was treating staff. It was for this reason that he put in place the arrangement that the respondent's enquiries should be routed through him or the Monitoring Officer. He considered that all Members of the Council had legitimate requirements of their officers in relation to receiving advice, support and information, but the other Members did not conduct business in the same way as the respondent. Officers were employed to give their professional advice to the Council as an organisation and its Members. It was his assessment that officers were generally fulfilling their responsibilities to members. He confirmed that the recent change in Council Administration had been difficult in relation to the expectations of the new Opposition Group. He considered that the respondent had brought the Council into disrepute by submitting the allegations of officer misconduct to a Scottish Government Minister.

4.8 At interview the Director of Social Work, Housing and Health, Ms Jenny Thompson OBE, said that she had been a Council officer since 1975, working in a variety of local authorities. She had extensive experience in advising members and it was her judgment that she and others were being attacked in an unacceptable way by the respondent. She had raised the matter with the Chief Executive. She considered she had a reputation as being professional, approachable and transparent. She had no difficulties in face to face dealing with the respondent. She had the impression that he was uncomfortable with her "because he can't break me down". She had received a telephone call from Mr Brian H Donohoe MP regarding a case, (Safehaven), the respondent was pursuing, during which she was advised to "protect herself".

4.9 At interview, Councillor Gibson McDonald, the Leader of the Council Administration, indicated that he found the respondent very pleasant in face to face contact but that he did not get into discussion or say much at committees. He had not been consulted about the decision to make the complaint but he had been shown various e-mails which he felt were so unlike the respondent "in person". He did not consider it was appropriate to send such e-mails. He considered that this situation had been exacerbated by the recent change in Council Administration and he felt that the respondent had a sense of grievance about that. He considered the respondent to be a very experienced councillor who should have known better than to make some of the comments he did (eg his comments on the Contract Awards by officers). He also felt that senior officers "took a lot" in their dealings with councillors. It had also to be said that the senior officers now complained of by the respondent had generally been appointed by the previous Labour Administration of the Council.

4.10 At interview, Councillor Douglas Campbell, the Labour Party Group Leader on the Council, confirmed that the Chief Executive had had a number of discussions with him about the presentation in the e-mails and also about their content. As a result he spoke to the respondent on a couple of occasions to try to get a grasp of the basis of the issues. He had offered to pursue some of the issues on behalf of the respondent in an effort to improve the situation but the respondent had declined his offer. The respondent indicated to him that the contents of the e-mails were not "bullying" but "emphasising". (Councillor Campbell was not aware of any training having been given to councillors in this matter). The respondent was very committed to his ward which was a rural one and was also concerned that a number of Council policies were unhelpful which needed to be changed. Councillor Campbell felt that there was sometimes an overlap between policy and operational aspects in such situations. His experience of the officers in dealing with member inquiries was that they "generally answer the question you've asked and put an interpretation on it". He had contacted officers to try and resolve issues informally as when any matter got to committee the officers would "support the Administration and only answer when questions were asked". As regards the need for changes in Council policy, eg the Safehaven Issue, the respondent had still to convince his own Group to support such a project.

4.11 At interview Councillor Robert Campbell, Depute Leader of the Labour Party Group on the Council, confirmed that the Chief Executive had spoken to him on about 3 occasions and in turn he had spoken to the respondent. He had advised the respondent that if he wished to criticise officers he should do it face to face and not write such e-mails. He recognised that, "right or wrong", the respondent felt there was some maladministration in the Council and the situations in his e-mails were causing frustration. The respondent tended to take up causes. He understood the Chief Executive's position regarding the e-mails but he did not agree with the decision that all enquiries should be routed through him.

4.12 At interview the respondent confirmed his view was that there was a "psychology of non-response or inaccurate response" by officers to his inquiries. His defence of what he had written was that he stated the truth about the various matters. He used capital letters to emphasise not bully and he did it in all his e-mail correspondence. Until he had received a comment from the Head of Planning and Transportation no-one had ever told him that capitalisation in e-mails was considered as equating to shouting. He disagreed with the advice that various officers had been giving the Council and how officers had dealt with a number of individual cases involving his constituents. He could not address the concerns of his constituents if no reply was received from officers. It was his responsibility and right as a councillor to call officers to account and to perform a scrutiny role. To do that, he required the fullest information from officers in reply to his questions. He did not consider the Chief Executive replied to anything. If he sent 6 e-mails, it was because he had not received a reply to the first five. He had complained about officers to Cathy Jamieson MSP and the Scottish Executive (he has subsequently confirmed that he has had no response from Cathy Jamieson MSP and the First Minister to whom he also wrote). He did not consider that that constituted "externalising" his views or criticisms of officers to outside bodies. He had raised his concerns with colleagues in the political process who were the Council's "paymasters". It was unfair that there was no equivalent Standards Commission for the conduct of Council officers. He was not interfering in operational matters. To say that was in effect, a "gagging tool on councillors". If it was proved to him he was wrong he would apologise and he had previously done so to officers on several occasions. He found a number of officers very helpful but he felt this did not extend to the most senior officers. As regards the conduct of individual officers, he felt that he had merely raised issues "in the form of questions" as opposed to allegations.

4.13 The following specific items of Council business have been referred to by the complainant to illustrate the alleged course of conduct followed by the respondent. The Commission is referred to the schedule of Excerpt Supporting Documentation, which, it is considered, highlights the conduct issues to be determined by the Commission.

Burnside Path, Mossblown

4.14 This item of Council business relates to an alleged right of equestrian access over a public right of way within the respondent's ward. This matter first arose in 1999 and subsequently continued to be considered at various stages by the relevant committee of the Council until 2006. Whether or not such a right existed was the subject of local controversy in that the respondent, the local Community Council and various of his constituents did not consider such a right ever really existed. The respondent indicated that his investigations had indicated that historically there had only been occasional equestrian use. It was also the respondent's assessment that use of the path for equestrian purposes would result in real danger of harm to pedestrians in view of the narrowness of the path.

4.15 The Council undertook a public consultation exercise, the results of which were disputed by the respondent who considered these results had been skewed by the activities of the owner of a local equestrian centre in seeking support for the right of way. The advice from the Council's legal department in the light of the survey results and other relevant considerations was that the Council should recognise that an equestrian right of access existed, with the Council then going on to consider whether or not to take the subsequent legal step to stop equestrian use in the light of public safety concerns. The Council so determined. Such a decision was the subject of a right of appeal to the Scottish Executive. Subsequently, following the passing of the legislation which provided for the "right to roam" the countryside, a further report was submitted to the relevant committee indicating that following further consideration of the new legislation and the powers available to the Council in relation to stopping the equestrian right of way, the prospects of success for the Council were minimal. The Council determined that they should not oppose equestrian use as such but should investigate the possibility of regulatory bye-laws to ensure public safety.

4.16 The respondent considered that it had been a mistake for the Council to have conceded the equestrian right of access in the first place and considered that the Council's legal department had given advice which was "flawed". He made his views clear in various e-mails. He was not a member of the relevant committee who considered the report and so had no locus to make public representations at the meeting where the final decision was taken. He felt aggrieved by the failure of clear Council committee procedures to permit him the right to make his views known as part of the formal decision making process.

4.17 Amongst other comments, he noted that the Council's Safety Officer had visited the Path without informing him and had deemed it to be safe. He expressed the contrary opinion in trenchant terms and went on to express the opinion that "certain officers are too close to this". He considered that the options to local residents were to stop using the path or risk being killed by a horse. He requested "new officers" examine the details and stated that he wanted "THE SAFETY ASSESSMENT DONE AGAIN and WISH TO BE PRESENT while it is done". He also stated that officers "ARE ALL ACCOUNTABLE IF ANYONE IS HURT OR KILLED, BE ASSURED,"

4.18 He also went on to refer to the governing legislation involved with rights of ways and stated that anyone who ignored it would do so "at their PERIL". He confirmed he would be sending a copy of the e-mail to Cathy Jamieson MSP as she wished to be kept informed of any outcomes as this was her constituency.

4.19 At interview the complainant confirmed that this had been a long protracted matter, following a local farmer blocking the path to equestrian use. The Council, as Planning Authority, was asked to use powers to ensure such use. There was a community consultation exercise carried out involving meetings, full questionnaires etc to ingather local knowledge. The community was polarised. There was a business related to the matter. On the basis of the information received, it was the assessment of officers that equestrian use was established. He did not consider it was the role of the officers to interrogate those individuals submitting questionnaire responses. The respondent disputed such use and there was concern regarding public safety. The Council's Health and Safety Officer had brought forward certain works to improve the situation. Professional judgments had been made by those employed by the Council to make them and the matter referred to committee for the Council to take a decision. With regards to the decision to try to extinguish the equestrian right of way, the Council had subsequently received professional advice that it would not succeed and this had been reported to the Planning Committee which determined not to proceed with its original proposal.

4.20 The Monitoring Officer also confirmed that, as regards the right of local members to be consulted and address Council committees, there was no general policy apart from local members having the opportunity to input into individual planning applications and be heard at committee where such applications were being considered. He did not consider that the respondent had any justification for his comment that "flawed" legal advice had been given and he considered this was a clear breach of the Code. The same had to be said for the remarks made around an officer being friendly with a particular party. A single officer dealt with the matter and did the questionnaires and the committee report. It was quite clear to whom the respondent was referring. The officer's Head of Service had expressed concern on behalf of the member of staff to him. This matter was one of the concerns which had lead to an approach being made to the Labour Group Leader in an attempt to bring about an improvement in the way the respondent dealt with Council business and staff members.

4.21 In a matter such as this, the Monitoring Officer confirmed his view that, as local member, the respondent was entitled to inquire how matters were progressing and to give his views. However, he felt the respondent had crossed the "operational line" in thinking he should be engaged in the whole process.

Lydia Trust

4.22 This item of Council business relates to the Council's relationship with Lydia Trust which provided drugs rehabilitation services in a facility near the boundary of the respondent's ward. The Trust leased a property for this operation and applied to the Council for Housing Benefit payments. This is a service operated by the Council as agent for the Department for Work and Pensions which is ultimately responsible for this national social security system. The landlord of the property provided the respondent with various property details as a result of which the respondent made repeated allegations in respect of the property and its occupiers. He considered that the applicants for Housing Benefit in respect of the property were guilty of embezzlement and fraud. He alleged that Council officers had been negligent in the expenditure of public monies in that regard. He considered that the basis of the claimant's occupation of the property was flawed as was the officer's interpretation of the relevant statutory provision which regulated payment of these public monies. He wished the matter to be investigated by the Internal Audit section of the Council and sought to have such an exercise undertaken, ultimately, by a request to the Chief Executive.

4.23 The respondent did not accept that the payment levels were appropriate. He took the side of the landlord of the property who alleged that he was not receiving the rent for the property reflected in the Housing Benefit application. Officers of the Council spent much time considering the representations of the respondent and he was provided with detailed information on the case in an attempt to set out and explain the actings of the Council officers in question and the reasons for the decisions reached. The Internal Audit function is an independent unit of the Council outwith Council departments. It operates under the direct control of the Council's Chief Executive. The Chief Executive determined that that it was appropriate for the Internal Audit section to investigate various aspect of this matter raised by the respondent and so instructed. The respondent remained dissatisfied with the actings of Council officers and contacted Cathy Jamieson MSP, (Minister for Justice), who was a local MSP regarding what he considered was the misuse of public monies. As a result the Council received an official enquiry from the Department for Work and Pensions on the allegations. The Council cooperated fully and provided information.

4.24 The Internal Audit Investigation was undertaken. The outcome was that despite the allegations of the respondent, there was no basis for the suggestion that fraudulent activity had taken place by the applicants or that the officers of the Council concerned had acted improperly. A copy of the Report was sent to the Council's External Auditors and to the Department for Work and Pensions who have both noted the outcome and raised no further comments. The respondent described the report as a "whitewash".

4.25 At interview the Chief Executive, Monitoring Officer, Head of Finance and ICT, Ms Eileen Howat, and the Revenue and Benefits Manager, Mr Billy Phillips, confirmed that considerable time had been spent in attempting to deal with the matters raised by the respondent. In addition the officers were of the view that the matter had been dealt with appropriately in terms of the regulations and relevant policies then applying.

4.26 The Head of Finance, in particular, considered that that the time so expended was disproportionate and disadvantageous to the other areas of work which her staff had to discharge. She felt they were being put under severe pressure by the frequency and tone of the e-mails. They were all experienced in the very complex matter of benefit assessment. One of them said to her "this is getting out of hand". If it had been a member of the public, they would have been advised that the matter was closed. The respondent had had "detailed, (verging on too much detail), responses but he doesn't like the answer". She personally had stopped replying to the respondent's e-mails when the matter was referred to Internal Audit for investigation. His "threats to refer the matter to the Council's External Auditors did not bother her but they might feel threatening to staff". She had raised her concerns with the Chief Executive. As a result of the respondents actions, the Council had received inquires from the Council's External Auditors and the Department for Work and Pensions. These had been answered in full and no further issue had been taken with the actions in question.

4.27 The Revenue and Benefits Manager of the Council, who has significant experience, confirmed that the respondent was very passionate about issues. It was the frequency and intensity of the e-mails which bothered him. He did not find them intimidating as such but wearing and repetitive and very time consuming. He would however not class the respondent's behaviour as harassment. He understood that capital letters in an e-mail equated to shouting.

4.28 The Chief Executive and Monitoring Officer both confirmed that they considered it was an entirely legitimate action on the part of the respondent to raise and intimate such concerns to Council officers and to provide information about any particular case. Where the respondent had exceeded his position was in relation to his attempt to instruct Internal Audit and to repeatedly dispute and harass Council officers who had fully explained their reasons for the decisions taken. The respondent had made allegations about the misuse of public funds by officers to a Government Minister which was disrespectful of experienced Council officers and he seemed to believe anyone except officers of the Council of which he had been a senior member. The respondent had not hesitated to describe the applicants as "crooks" and to repeatedly criticise officers for their actions. He made specific allegations of criminal activity about named occupants of the property which were investigated by the Council for the relevant purposes and which were found to be inaccurate or not to have a bearing on the applications. It was their view that when the respondent was given a response to a question which he did not like, he simply kept asking the same or similar question again.

Safehaven

4.29 This item of Council business relates to the respondent's actions in relation to the Safehaven Project. This was in respect of a local charity which sought to provide drugs rehabilitation services in a hostel setting. The operator of the charity contacted the respondent to complain about the failure of the Council to pay the correct level of Housing Benefit. In addition, the operator wished to provide these services to the Council, ie to become a tenderer/contractor. The respondent visited the premises and obtained information on the matter. As a result, he formed the clear view, which he never changed, that the charity should provide these services to the Council for the benefit of persons living in South Ayrshire requiring drug rehabilitation. He proceeded to raise the operator's complaints and wishes with Council officials. He was advised that the operator had received the correct housing benefit assistance. He disputed, on behalf of the operator, an individual liability to pay Council tax. The officer responses received were unacceptable to the respondent. He considered that the officers' interpretation of the various regulations was wrong. Another aspect of the matter was that the charity had not achieved registration with the national regulating body, the Care Commission, and the respondent was also aggrieved that Council officers were not making efforts in that regard. He considered it was the responsibility of the Social Work Department to facilitate Care Commission registration for the charity.

4.30 It is the position of the Department that existing Council policy did not include provision for the use of such facilities/services as operated by the charity. Other arrangements were in place. It was the responsibility of any organisation itself seeking to provide such services to obtain all necessary registration and to demonstrate a sound footing. This stance was unacceptable to the respondent and he continued to criticise the officers concerned by e-mail correspondence. In addition he sought the involvement of Cathy Jamieson MSP and Brian H Donohoe MP in relating to supporting the promotion of the operator's services and facilitating registration with the Care Commission. He issued an e-mail to Cathy Jamieson MSP in which he criticised the position on the matter which had been indicated by the Director of Social Work, Housing and Health. He referred to "bad blood" and described social workers as "being worse than the Masons". He cast aspersions on the professional integrity of the Director in a communication to the local MP by accusing her of bias and "shirking her responsibilities".

4.31 At interview the Chief Executive, Monitoring Officer and Director of Social Work, Housing and Health expressed the view that the existing policies of the Council were to be implemented by officers until they were amended through the usual political process. As regards Care Commission registration, that was a process operated by another statutory body responsible for regulating care provisions. Any body which sought to provide services to the Council had to demonstrate that they had achieved any necessary registration with the relevant regulators and had an appropriate basis or track record to do business with the Council. The respondent seemed to be expecting the Council to play a role in supporting the particular organisation to achieve registration.

4.32 At interview the respondent indicated that so far as the alteration of any Council policy was concerned in respect of the charity, he had raised the matter with the Leader of his political Group on the Council, who had indicated interest, but indicated that a full case needed to be made out to evaluate if there would be political support for using the specific charity in question. It was his position that the use of the charity was being blocked by the intransigence of officers of the Council who were biased against the operator.

Woodhill Developments

4.33 This item of business relates to a proposed housing development of 80 units within the respondent's ward which was the subject of the Council's planning process. Initially in view of officer concerns regarding some aspects of the proposals, the developers were advised to reconsider the proposal and come forward with a revised application. The national planning regulations had changed which had the affect of reducing the timescale any applicant had for submitting a second application before another planning fee was incurred. This resulted in a supplementary statutory fee of £13,000 being involved which the developers were aggrieved about. Ultimately the Monitoring Officer, who was also responsible for the planning function, met with the developers and their agents and agreed that the Council should meet 60% of the cost of the fee. The basis of this agreement was that he recognised that the planning service had not performed as satisfactorily as he would have wished in that there were delays in responding to the developers during the process. In addition, the second application was given to another planning officer to deal with in view of the situation.

4.34 During this process, the respondent, who was not a member of the Planning Committee, was contacted by the developers. They copied all correspondence to explain the difficulties they considered they were having with the Council to him and provided him with full details of their proposal. The respondent made repeated and trenchant representations to the Planning Service on the matter. He considered that the application had not been processed and evaluated properly by officer(s) and he considered that the Council had failed in a perceived duty, (he felt existed), to service users to publicise/intimate changes in planning regulations like fee changes. He considered that the developer should not be obliged to pay the second fee and lobbied for it not to be charged. His trenchant comment included the view that the objectivity of the Department had "gone out of this" and described the matter as a "debacle". He criticised a named planning officer as "playing silly beggars" and having the applicant "by the short and curlies". He demanded that the planning officer should issue a personal apology and the Head of Planning should obtain payment of the fee from the planning officer concerned. During the respondent's involvement, he accused planning officers of breaking the law by not replying as he wished. He also demanded that there be officer disciplinary proceedings for gross misconduct.

4.35 During the respondent's involvement, the Head of Planning and Transportation, Mr Ian McLarty, wrote to the Monitoring Officer to confirm he considered that the respondent's comments represented a criticism of his service and an individual officer without first getting comments from the planning section. He stated this was not the first time the respondent had done this and asked if this amounted to bullying.

4.36 The respondent's activities also included contacting the Leader of the Council to express his dissatisfaction and requesting "senior intervention", describing the Head of Planning and Transportation as "Rip van McLarty" and alleging that many planning applicants suffered similar treatment at the hands of named planning officers. He also circulated this last allegation to a Conservative member of the Council and to unidentified person(s). The Head of Planning and Transportation again asked the Chief Executive and Monitoring Officer what action was to be taken against the respondent.

4.37 At interview, the Chief Executive stated this case illustrated for him that the respondent had raise a legitimate issue and there was nothing wrong with posing questions on the details and providing information. This had resulted in the Council accepting that it had a degree of culpability in the time taken to deal with the issue. He did not consider what the respondent had done amounted to interfering in an operational issue. The credit the respondent was due in this matter was however undermined and diminished by the manner of its intemperate presentation and the specific assertions against individual planning officers.

4.38 At interview, the Monitoring Officer stated that the respondent was correct to raise concerns regarding the progress of the particular application. He confirmed that his assessment of the situation was that the respondent had the right to be aware of any issues or proposals in his ward. This included the right to express concerns about any individual matter, and to inquire as to progress but not to influence officers "by being on their backs" and interfering and intervening on any issue. He also stated that he had ultimate directorial responsibility for the Planning Service, including staff management issues, and in his opinion, having reviewed all the circumstances of the case, the matter of disciplinary procedures against any member of staff did not arise.

4.39 At interview, the Head of Planning and Transportation described his difficulties with the respondent as "intense". He felt the respondent "takes up cases in his constituency without listening to officers". In this instance he felt the respondent's correspondence amounted to bullying and asked him to write in a different way. The respondent had apologised but soon reverted to the previous style. He had written to the Chief Executive on his own behalf and also of staff. To describe staff dealing with a matter as playing "silly beggars" was unacceptable to him. There were other examples also of inappropriate language.

4.40 At interview the respondent stated that he had only stated the truth about this matter including the conduct of the specific officers in question. In connection with the specific remark he had made about the Head of Planning and Transportation he had done that due to the fact that he felt the officer concerned had taken a year to deal with the matter. The planning application has still to be finally determined.

Homelessness Strategy Budget

4.41 This item of Council business relates to the respondent's disapproval with the operation of various aspects of the Homelessness budget. He queried a number of details on items of expenditure. He considered that there had been a misuse of monies allocated, in particular on the reduction of the number of single homeless units available and the payment to various private landlords of various sums by way of grants, which was inappropriate. He considered that the sums did not add up. He complained to the Director of Social Work, Housing and Health. He received a response providing some explanation of financial details and confirming that the budget in question had been approved by the appropriate Council committee and that periodic budget monitoring/progress reports were submitted to committee for approval.

4.42 This response was not acceptable to the respondent who proceeded to continue to issue e-mails in that regard. In addition he raised the matter with the Scottish Government Minister concerned, on the basis that Council officers had misused Council resources for homelessness and money was "missing".

4.43 At interview the Director of Social Work, Housing and Health said she was very concerned that officers of the Council were being accused of misuse of public funds and that this had been raised at Government level by the respondent. He had been supplied with detailed information and reports. The Council had robust procedures for budgetary management. Reports had to go to the Policy and Resources Committee for approval and noting on the progress of expenditure, a fact of which the respondent was well aware. If an officer wished to transfer money from one budget to another above a level of £5000, this required specific committee approval and details were provided to explain what was involved and why.

4.44 At interview the Head of Regeneration and Housing, Mr Ken Hamilton, said that his general practice was to acknowledge member inquiries within three days and thereafter issue a substantive response. The length of time taken to do so would depend on the nature and complexity of the issues raised. In the case of the respondent, he sometimes found it difficult to see the issues behind the questions and what motivated them. He had received a series of e-mails in rapid succession with slight variations. He considered that full responses had been given to the respondent. He then got repeat requests around the same matter which he felt to be "insidious". The respondent was also concerned about chimneys in his ward not being blocked off in the Housing Modernisation Programme and translated that to an overall failure of the Housing Service. The service was delivering record levels of investment in its housing stock and, in any programme of that magnitude, it would be inevitable that there would be some slippage in the work. The respondent never spoke to him face to face.

Staffing Disciplinary Matter

4.45 This item of Council business relates to an ongoing disciplinary procedure against an employee of the Council in the Department of Social Work, Housing and Health. The disciplinary process centres on the alleged issue of inappropriate written material and two handwriting experts have provided evidence which indicated that the employee in question was in likelihood the author. For some time the respondent has objected to this process which he considers to be the third attempt by Council officers to terminate the employment of the employee in question. By e-mail he has made representations to the Chief Executive to "stop this farce". He has queried the cost of the investigation into the alleged conduct of the employee. In trenchant style he has supported the position of the employee and contrasted this with his view of the alleged conduct on the part of other Council officers dealing with this matter. His view of the matter is that continuing the disciplinary process will be damaging and costly to the Council as an organisation. The respondent has confirmed that he is a supporting witness for the employee in the disciplinary proceedings.

4.46 It should be noted that, in addition to the correspondence which the respondent had with the Chief Executive, he also provided comment in a press article in the Sunday Mail on 15 October 2006 in which he criticised the Council, as an employer, in this matter. He said:

The Council officials employed two forensic fingerprint and handwriting experts at a cost of £860 to the taxpayer. The findings of these experts were inconclusive and (the employee's) own independent expert was of the opinion that the writing in the card was of some one trying to forge her handwriting.

4.47 It is the view of the Chief Executive, the Director of Social Work, Housing and Health and the complainant, as Monitoring Officer, that the respondent has been seeking to interfere with an ongoing formal process which is the responsibility of officers to carry out in terms of approved employment procedure and is a clear interference with operational matters.

4.48 Councillor Douglas Campbell, Leader of the Labour Group, when interviewed on the point confirmed that the general role for councillors, as ultimate employers in staffing matters, was setting the relevant policies and dealing with internal appeal processes following the initial determination by an officer panel. He confirmed that he was Chair of the Appeals Sub-Committee in that regard and might be involved in any appeal of the officer decision. He felt that if any individual councillor wished to be a witness for an employee, he considered that would be allowable but the councillor in question could not then be part of the "employer side" in dealing with the matter. He confirmed that the respondent was not a member of the Appeals Sub-Committee. The respondent had not raised the matter with him and if he had done so he would have "put him out the room" as that was wholly inappropriate. He did not think that it was appropriate, until the approved processes were completed, that any councillor make a public comment on such a matter.

Contract Awards

4.49 On 27 August 2006, the respondent e-mailed the Leader of the Council and the Leader of the Labour Opposition on the subject of Contract Awards. He referred to the fact that the Council had many officers/employees living out-with the Council area and stated his belief that these officers had a "tendency to commission Service Contractors from these areas". He did not specifically name the officers he had in mind. He considered that a directive should be given insisting that they use companies from within the South Ayrshire Council area.

4.50 The respondent went on to explain that this proposal was designed to stimulate the local economy, cheapest was not always best, and that local business should be the main consideration. He requested that a paper go to the next Council meeting clearly stating this directive.

4.51 The Leader of the Council wrote back to the respondent, and undertook to look into, (a) the range of contracts awarded out-with the Council boundary and (b), the legality of the suggestion made. The matter could not come before the Council before Group discussion and the concept struck at the Best Value principle. He remonstrated with the respondent regarding his remarks about such experienced officers which he described as "outrageous". He commented that the respondent had been part of the ruling Administration that had appointed many of the officers now complained of and these matters had not been raised before the change of Administration. Such comments seemed to him to be "close to a breach of the Standards legislation".

4.52 At interview, the Chief Executive said he felt that these remarks were directed at him personally as he lived out-with the area and as did several other senior officials. It was not respectful.

4.53 At interview the respondent said he had not made any allegations about anyone but had merely posed questions. He wished to have the existing policy changed.

Local Plan

4.54 This item of Council business relates to Council procedures undertaken to review the Local Plan. This was the subject of a public consultation exercise and a presentation was given to members of the Council. The procedures involved were explained. The respondent subsequently wrote to the Chief Executive and the Head of Planning to express his concerns at the Plan content in relation to his ward and stated he wished to appeal various proposals that were included. He stated that the Planning Department "would do anything that is the opposite of what I want". He considered that once again the Planning Service was not supporting him in his position as a local member. The Chief Executive requested that the Head of Planning respond to the respondent's further e-mail enquiries on the topic.

4.55 It was the position of the Head of Planning and also the Chief Executive that the respondent, as an experienced councillor, should have been well aware from the information to councillors what was involved. There was an opportunity for members to raise issues on the Plan at the Council meeting which considered the recommendations.

Staffing Appointment Issue

4.56 This item of Council business relates to the appointment of the Director of Social Work, Housing and Health to her post after a lengthy period as Acting Director of the Department. The appropriate Sub-Committee of the Council which made the appointment was in receipt of professional personnel advice that in would be in order, in the circumstances, for her appointment to be made. The respondent, who had some years experience on the Sub-Committee, was of the view that the post should be the subject of full advertisement. He considered that any appointment made, in line with the professional advice given, was in breach of policy and officers were at fault. He asked that his dissent to the appointment be recorded.

4.57 The relevant officers were quite clear that the making of the appointment as advised was entirely competent and appropriate in terms of correct personnel procedure. At interview the Leader of the Council confirmed that he had been wholly satisfied with the professional advice given regarding the appointment. It had proved difficult to recruit appropriate Social Work staff in the past and the member of staff had more than proved her capabilities during her period as acting Director.

Findings and Conclusion

5.1 The complainant alleges that former Councillor David Duncan contravened the Councillors' Code of Conduct, as outlined in paragraphs 1.3 and 2.1 of this Report.
5.2 The complainant alleges that the respondent in his dealings with various Council officers over a period of time has failed to comply with the requirements of the Code and relative Protocol in relation to his dealings with them. There are two aspects of these alleged dealings:
(a) a failure to respect specific Council employees and the role they play and to treat them with courtesy at all times.
(b) a failure in various instances to respect the different roles played by a councillor and an officer, which has allegedly resulted in the respondent straying into matters of operational management which are clearly the domain of officers.
The basis of the complaint is the respondent's voluminous e-mail correspondence with various officers. Some 200 pages of such e-mails have been submitted in support of the letter of complaint. (The said pages do not amount to 200 different examples of alleged conduct--there a number of duplicate e-mails enclosed for the purposes of demonstrating their distribution.) The complainant has referred to a number of specific items of Council business which it is considered demonstrates the alleged conduct in question.

5.3 These allegations in respect of this complaint each have to be considered against the specific terms of the Code to assess the obligations councillors have to meet. There are two central strands to the compliant:

• a failure of the respondent to show Respect to various officers of the Council and treat them with courtesy as required by paragraph 3.2 of the Code, and
• a failure by the respondent to respect the different roles of a councillor and employee, the former having a role to determine policy and to participate in decisions on matters placed before him/her and the latter being responsible for direct operational management of the Council's services. The Code confirms that it is not the role of a councillor to engage in operational management as specified in paragraph 3.3 of the Code. Paragraph 3.4 of the Code confirms a requirement on a councillor to follow the Protocol for relations between Councillors and Employees attached as Appendix C to the Code.

5.4 The starting point for evaluating this complaint is the over-arching matter of freedom of expression as protected by the European Convention on Human Rights. The respondent has founded on this fundamental right in relation to his various actions. Article10 deals with freedom of expression; it provides that everyone has the right to freedom of expression, including freedom to hold opinions and to receive and impart information and ideas without interference from a public authority. This, however, is not an absolute right. Article 10(2) further provides that "the exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society... (among others) for the protection of the reputation and rights of others". The respondent is misconceived in his understanding that he has an absolute right of freedom of expression. The Code is compliant, compatible and consistent with the provisions of the Convention and the respondent is therefore also under a duty to comply with the provisions of the Code.

5.5 The restraints imposed by a Code of Conduct designed to uphold standards in public life are, in principle, likely to be within Article 10(2), but it is important that the restraints (on freedom of speech) should not extend beyond what is necessary to maintain those standards. There must be justification for the interference with freedom of speech. Accordingly, whether or not a particular restraint on freedom of speech is proportionate has expressly to be considered. In relation to political comment it is the position that there is a higher threshold to be surmounted in establishing that the restraint was proportionate.

5.6 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 make the general observation that criticism of Council processes involving staff does not automatically equate to a breach of the Code on this point. It will always be a matter of manner and degree of such criticism which requires to be evaluated in the individual circumstances of each case. There are competing principles involved which have to be evaluated and judgment has to be exercised. Respect for individuals and their reputational rights, including questions of defamation and employment protection rights, have to 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. The respondent had a number of particular criticisms of Council processes which involved the action of staff in carrying out their duties. (Indeed, in one particular instance, there is general agreement that a planning application was not dealt with as appropriately as it should have been.) The judgment which has to be made is whether or not the respondent, as a elected member, having come into possession of information which concerned him and for which he sought explanation, action or remedy and being provided with a range of responses or professional advice from those Council officers charged with that duty, then acted in such a way that engaged the protection in Article 10(2) given to individuals in respect of their reputation.

5.7 The respondent made a number of comments to persons external to the Council which dealt with the reputation of others whom he maintained were at fault and, in effect, guilty of misconduct. He did so in the knowledge of having received information, professional explanation and justification from Council officers which contradicted that position which he wished to promote. I do not consider that the respondent was then acting fairly or properly. I consider that the terms of Article 10(2) protecting individuals' reputations became engaged.

5.8 Having regard to the EHCR rights of the respondent, it is clear that the Code obligation on Respect cannot simply equate to a requirement for politeness on the part of a councillor towards staff in all circumstances. The judgment to be applied, necessarily relates to the reputation of individuals. Overall, the evidence confirms, clearly, that the respondent was polite in face to face dealings with staff when he had any and confined the bulk of his comments to within the Council. I consider that to be fundamental and a key factor in the assessment of whether, or not, there have been breaches of the Code in respect of the specific case issues which comprise this complaint. The same cannot be said of his e-mail correspondence to officers. The Council had an E-mail Policy which was stated to be in respect of all e-mails passing through its system. Such a policy was clearly aimed at staff as breach of that policy was specified to be a matter for potential disciplinary action. The policy did not make any specific reference to the use of capitalisation. It is clear that all the issues the respondent raised were considered by him to be extremely important and pressing to the work he felt he had to undertake as a councillor. He was often confrontational, impatient, rude and hectoring in his style. The use of emotive language was extensive and was often aimed directly at the recipient(s). His extensive use of capitalisation further highlighted the approach he was taking in this correspondence, albeit the extent of capital letters used was inconsistent and haphazard. Indeed, it can be said that this style and extent of his written communication did him little personal credit. More importantly, it served to obscure and undermine several concerns and issues he wished to pursue, which any experienced councillor or officer would recognise and accept as having weight and legitimacy. By upsetting staff he did himself, those he represented and the Council a clear disservice in the proper dispatch of business.

5.9 Paragraph 3.3 of the Code confirms that a councillor and Council employee have separate roles. The role of the councillor is to determine policy and participate in decisions on matters placed before him/her and not to engage in direct operational management of the Council's services which is the responsibility of the employee. In any conclusion reached of "operational interference", consideration has to be given to the ultimate effect of any action taken by a councillor in that connection. A clear example of such interference is where a councillor instructs a member of staff to stop, amend, add or substitute any task or duty he/she is then involved in discharging, as part of their job responsibility to deliver Council services, and the employee complies with that instruction, which has not been approved by the Council line manager involved. The Code refers to the individual responsibilities of councillors and employees in their respective roles. There can be no doubt that councillors can provide information, seek to question actions taken by officers, and request that matters of Council business be reviewed or investigated in the light of new information. It is then for the Council manager responsible to consider what action, if any, to take in the light of such an approach. In relation to the mutual respect between a councillor and employee and the different roles to be played by each, as required by the Code, it may well be necessary, (particularly in the case of an inexperienced councillor), for a Council manager to provide further guidance and advice to an elected member that the individual decision in question, is one for the manager to determine, having regard to approved Council policy and procedures which places that professional responsibility on the manager so to do. I consider it reasonable to expect that any experienced councillor, who had operated at a senior level, such as the respondent, should have remained mindful of these separate responsibilities and couched his communications to officers in appropriate terms. That said, I consider that a "request" or "demand" from any councillor to take any particular action is not, of itself, an interference in operational management. It is incumbent on any Council manager in receipt of such an approach to take his/her own professional decision on the matter and act as he/she considers appropriate in discharge of their employee responsibilities to the Council as specifically confirmed by the terms of the Code and the Protocol. It is also the responsibility of the Chief Executive and senior employees to help ensure that the policies of the Council are implemented. The background to this particular aspect is that the respondent had in previous years had a prior senior role in the determination of policy by virtue of having been the sometime Depute Leader of the then ruling Labour Administration of the Council. That was no longer the case after January 2005 and it was, patently, a more difficult task for a member of the opposition to get any policy changes agreed. The respondent felt that the route to do so was first to persuade officers of the benefits of what he was advocating.

5.10 It is quite clear that the working relationship between the respondent and senior officers of the Council became increasingly strained. The respondent's position is that the officers have consistently failed to provide him with the information, support and professional expertise which is required to enable him to carry out, in full, his role as an elected councillor, as he perceives it to be. The officers are seeking to "gag" him. It is the officers' position that they have generally expended considerable time and effort in relation to the matters raised by the respondent. He has often raised matters of operational detail. In a number of instances he has received more detail of operational matters than would normally be considered appropriate for someone whose responsibility is for strategic and policy matters, rather than day to day operation of specific Council functions. Officers consider that, in their professional capacity, they have dealt with the matters raised by the respondent. They contrast the time spent in so doing with the time taken up in responding to the totality of other individual member inquiries, which they assess as less.

5.11 The officers interviewed generally dispute that they have failed to answer the respondent's inquiries. It is their assessment that the respondent, on receiving replies often did not accept the answers because it was not in accord with his wishes in the matter or provide him with the agreement or outcome that he sought. Officers consider that the respondent then repeated requests for the same or similar information. In a number of instances officers considered they were confirming Council policy, with which the respondent disagreed. In such latter circumstances officers considered it was for the respondent to take the matter through the political process rather than issuing repeated demands to officers on the subject. The generality of the evidence before me does not confirm that there was a general failure of senior officers to provide responses to the e-mails issued by the respondent. Indeed, overall, officers generally seem to have responded with information which they considered, in their professional judgment, to be sufficient to deal with the matter. It may well be that a number of points/issues may not have been the subject of response or covered in the generality of other responses issued. In the situation where a member and an officer had maintained a closer working relationship, such points could have readily been clarified. This was not such a situation due, in no small part, to the style adopted by the respondent in his e-mail correspondence. Patently, it was open to the respondent to change the manner and style of his communications, which he was aware were causing concern to staff. He chose not do so. The fact that the respondent did not agree that satisfactory answers had been given is not conclusive of failure on the part of the officers concerned. Several officers indicated that they ceased replying to the respondent's inquiries in relation to the complaint made to me or the Internal Audit function of the Council. There also seemed to be a practice not to respond when they were simply copied into other e-mails, taking the view that it was for the primary recipient to do so. As regards the time taken to deal with member inquiries, it is clear from my investigation that there is no Council-wide policy on the response timescales that should be involved. A number of Councils in Scotland have set arrangements for acknowledging such inquiries and indicating estimated response times, dependent on the extent of information sought. I consider that such general practices may have assisted the situation in this instance and I am making a recommendation to the Council on this point.

5.12 The tone of the e-mail responses from Council officers is in stark contrast to the tenor of the e-mails from the respondent. There is no evidence before me that officers of the Council ever replied to the respondent in other than a professional and polite manner, notwithstanding that he/she was often in receipt of e-mails from the respondent which did not come up to that standard. In so doing, I consider that officers of the Council were always mindful of the need to treat the respondent and his role with respect.

5.13 One of the main complaints of the respondent was that the Chief Executive, by requiring that all the respondent's e-mail enquiries were routed through him or the Monitoring Officer, was acting "illegally" and in breach of the respondent's rights as a councillor. This is a serious allegation to make against any experienced and conscientious officer and in particular a Chief Executive, who is the Head of the Council's Paid Service with particular responsibilities for staff. In this instance, the Chief Executive had received complaints regarding the conduct of the respondent in relation to his dealings, via e-mail, with staff. The Chief Executive made a number of informal efforts to resolve this matter at political level where, it has to said, there was some recognition that the conduct of the respondent was inappropriate, but no improvement occurred. The Chief Executive had to be particularly mindful of his duty of care towards staff in such circumstances. Employment Tribunal decisions in that regard make it clear that a failure to consider and deal with such situations, have the potential to incur employer liability. By his actions, the respondent confirmed that he was not prepared to alter his way of working. In such circumstances, I have no hesitation in stating that the decision taken by the Chief Executive was wholly appropriate and proportionate to the situation.

5.14 It is the view of the Chief Executive that the respondent has brought the Council into disrepute by his actions in contacting various parties external to the Council and repeating his allegations about various members of staff. In contrast to the Councillors' Code of Conduct in England which does contain such a specific prohibition of such conduct, the Code in Scotland does not. Accordingly, it is not appropriate to make such a finding.

5.15 It is clear that the respondent has been a committed councillor who can become deeply involved in particular cases. He holds strong views about various issues. He has been particularly vigorous in representing various parties whom he sees as having been disadvantaged by the actions of the Council. This representational role, in drawing matters to the attention of Council officers for any required action, (which can and should be a key task of any councillor), has been developed by him to such a stage that it can be said that he puts himself in the position of an advocate acting on behalf of that interest. This has meant that in a number of key areas he has sought to promote that interest to the fullest extent and to debate and dispute matters of technical and professional detail which are within the sphere of work responsibilities which the Council employs staff to discharge. Such actions on the part of the respondent have rendered him liable to accusations that he is interfering in those operational matters which are the clear responsibility of officers. I consider that councillors should always be mindful that it is not their role to supplant the professional assessment of an officer with their alternative understanding or view of what that professional position should be. It is open to any councillor involved in the democratic decision making processes of a Council to accept the officer advice given or to reject it.

5.16 In his representations, the respondent indicated that by contacting the Scottish Ministers he did, as well Mr Brian H Donohoe MP, he was simply exercising his legitimate right to consult with political colleagues on concerns he had about various Council services. There can be no doubt that such general political contacts, communication and networking are an intergral part of the political system involving local government and the Code, patently, does not prohibit such general contact. In addition, Scottish Ministers have various statutory rights and responsibilities to oversee certain strategic, financial and policy issues relative to the operation of local government. Any councillor has a right to raise inquiries and issues with Scottish Ministers in that regard. Any councillor, however, still needs to be mindful of the obligations he/she has in terms of the Code relative to individual conduct. This case has highlighted a number of examples where the respondent in his contact with political colleagues at national level made a number of very particular allegations about specific senior officers employed by South Ayrshire Council, not by Scottish Ministers, in relation to their professional conduct and standing, which raised issues of public reputation. In so doing in this particular manner, the respondent erred in relation to his conduct obligations under the Code.

5.17 The Members of South Ayrshire Council, including the respondent, have approved a number of policies for their employees. These aim to promote high standards of conduct and to provide mechanisms, (generally disciplinary measures), for dealing with occasions when these standards are not met. I have been referred to the Respect at Work Policy, the Employee Code of Conduct and the E-mail Policy. I do not consider that any councillor who is properly mindful of his/her duties and responsibilities as a policy maker for such matters should ever, in any circumstances, find it acceptable to operate to a lesser standard of behaviour whilst undertaking the duties and responsibilities of office.

5.18 Paragraphs 5.4 to 5.16 set out the general assessments and conclusions which can be drawn in respect of the complaint. The particular case issues involved in this matter have now to be considered in the foregoing context.

Burnside Path, Mossblown

5.19 The crux of this issue is the fact that the respondent was completely dissatisfied with Council procedure in relation to a disputed right of way in his ward. The long-running matter was investigated by officers, included a community consultation exercise and other evaluation steps and was the subject of Council committee decision making at several points. The respondent took particular issue with the legal advice given and criticised it in robust terms for being "guff". He also specifically referred to the role of the Safety Officer. He was not a member of the relevant committee and so felt he had no mechanism for making his position clear. The Monitoring Officer felt that this matter raised the issue of respect. He did not accept that the legal advice was wrong in the circumstances and he felt that the criticism of "closeness" in respect of another officer was damaging to that employee. In written comment, the Head of Legal Services felt that the respondent had slandered some members of the public with his remarks in internal e-mails but considered the respondent was entitled to his opinion about the legal advice.

5.20 This matter was dealt with through the formal committee processes of the Council. Members sitting on that committee had the benefit of reports from the officers involved who were employed to give professional advice. It was for the responsible councillors to consider the advice given and take decisions on the matter before them. The Committee did so in this case and took decisions with which the respondent did not agree. I consider the respondent was entitled to have his own opinion about the legal and other advice, irrespective of whether or not he was correct in his assessment of the situation. As regards the generality of this issue, I have concluded, with some hesitation, that insufficient reputational issues are involved to constitute a breach of the Code in respect of paragraphs 3.2 and 3.4 thereof.

5.21 I do not consider, having regard to the very particular circumstances, that by the nature and extent of his involvement in this matter in which he sought to demand certain action to be taken, the respondent was seeking to engage in operational matters.

5.22 In respect of this issue I make the following findings:

(i) As regards the suggestion that there has been a failure to respect Council employees and the role they play, the respondent has not contravened the Code of Conduct, (paragraphs 3.2 and 3.4), by his failure to respect the role of the Safety and Legal Officers;

(ii) As regards the suggestion that there has been an attempt to engage in matters of operational management which are the responsibility of officers, the respondent has not contravened the Code of Conduct (paragraph 3.3);

5.23 This issue raises questions regarding the ability, or otherwise, of a local member to input into the formal democratic decision making processes of a Council on local ward matters and I consider it a matter that requires review and I am making a recommendation to the Council in that regard.

Lydia Trust

5.24 This issue centres on the suggestion by the respondent of an alleged misuse of a significant amount of public funds in the payment of benefits. In addition, the respondent contrasts the handling of this issue with the matter raised in Safehaven which fell into the same category of services. The respondent felt that he had direct knowledge of the matter and made vigorous representations about the situation. He stated he wanted the matter to be the subject of an audit investigation. The Chief Executive instructed an Internal Audit investigation which found no evidence that Council officers had acted improperly. The respondent refused to accept this conclusion and described it as a "whitewash". He raised this matter at Scottish Executive level. The Department for Work and Pensions, (on whose behalf the Council operate the benefits system), also queried the position as did the Council's External Auditors, as a result of the respondent's actions. Whilst it is open to any councillor to raise funding or policy issues at Government level, the respondent referred directly to the Chief Executive as having presided over this "shameless and deliberate waste of public money" and went on criticise the Chief Executive's actions towards him. His comments also included a reference to "incompetence". It is clear that the Chief Executive and Council officers investigated the matter and provided detailed advice and a professional assessment to the respondent which he chose not to accept. I consider they had discharged their duty in this matter. I do not consider the respondent was mindful of his obligations regarding the reputation of the Chief Executive in his approach to the Scottish Executive. It was such that it was disrespectful and unnecessarily impugned his reputation to the extent prohibited by the Code, in the context of Article 10(2) and I make a finding to that effect.

5.25 The respondent raised concerns about this matter as he was entitled to do and the matter was investigated by the Internal Audit Section of the Council. In seeking to pursue this matter and to have his concerns addressed, I have come to the conclusion, in the particular circumstances, that this did not constitute engaging in matters of operational management.

5.26 In respect of this issue I make the following findings:

(i) as regards the suggestion that there has been a failure to respect Council employees and the role they play, the respondent has contravened the Code of Conduct, (paragraphs 3.2 and 3.4), by his failure to respect the reputation of the Chief Executive for the reasons set out in paragraph 5.24 hereof;

(ii) as regards the suggestion that there has been an attempt to engage in matters of operational management which are the responsibility of officers, the respondent has not contravened the Code of Conduct, (paragraph 3.3).

Safehaven

5.27 This issue highlights a particular divergence of view between the respondent and senior officers of the Council. The respondent wished the Council to do business with a facility which he felt provided a successful programme for dealing with drug rehabilitation. The facility had not achieved registration with the statutory regulator, (which task he considered a responsibility of the Council). In addition, the existing policy of the Council was that such work should not be done in such a type of facility. The respondent made heated and repeated representations in support of the facility and its operator. He invoked the involvement of a Scottish Minister and an MP. He criticised the Director of Social Work, Housing and Health. He stated that the Director "cannot hide her bias". He inferred that the Director had "Bad Blood" towards the project. In so doing, I consider that the respondent was not mindful of his obligations regarding the reputation of the Director and impugned her integrity to a Scottish Minister and the local MP. It was such that it was disrespectful and unnecessarily impugned her reputation to the extent prohibited by the Code, in the context of Article 10(2) and I make a finding to that effect.

5.28 The respondent was well aware that to use the facility in question, a change of Council policy was required. He had spoken to the Leader of his political grouping on the Council about the project, (whose position was that he remained to be convinced about the project before there was a possibility the Labour Party Group would support a change in policy).

5.29 In connection with the respondent's support for the Safehaven project, it is clear there was a concerted effort on his part to seek a change in Council policy that this particular facility should, in fact, be used in future, instead of the current arrangements. He did this by repeatedly engaging with Council officers and other interested parties. I consider he was entitled to seek a change in Council policy. The Director was implementing the approved policies of the Council as envisaged in the Code. He should have been more mindful of this responsibility on her part and concentrated more of his efforts in the political sphere to seek the policy change he wanted. In my view, however, his actions in this instance do not equate to an interference in operational matters.

5.30 In respect of this issue I make the following findings:

(i) as regards the suggestion that there has been a failure to respect Council employees and the role they play, the respondent has contravened the Code of Conduct, (paragraphs 3.2 and 3.4) by his failure to respect the reputation of the Director of Social Work, Housing and Health, for the reasons set out in paragraph 5.27 hereof;

(ii) as regards the suggestion that there has been an attempt to engage in matters of operational management which are the responsibility of officers, the respondent has not contravened the Code of Conduct, (paragraph 3.3).

Woodhill Developments

5.31 This issue relates to the difficulties involved with a particular planning application in the respondent's ward. The respondent was extremely critical of how that matter had been handled by officials and sought to rectify the situation on behalf of the applicant. As can be seen from the consideration of the evidence, the respondent had a valid point to make.

5.32 In so doing he submitted detailed representations, was extremely rude about how several named planning officers had conducted the matter and demanded that they be disciplined for gross misconduct. Councillors must be able to criticise Council processes from their local experience of how service users have found them to be. That may very well involve having to criticise the officers concerned who have operated these processes. Councillors should however be scrupulous in differentiating the relay of the necessary information about failures in processes from the responsibility which rests solely with managers to manage the staff concerned. It is for the relevant council manager to determine such matters and this was done in this case when it was determined that no cause for disciplinary proceedings arose in the particular circumstances. There was no evidence before me that the respondent had publicly named the officers outwith the Council which would have been inappropriate having regard to the terms of the Code. Ultimately, the respondent wrote to the First Minister and the Minister for Justice to criticise the Chief Executive for his failure to take disciplinary action. He wrote to Brian H Donohoe MP and stated that the Chief Executive was in "dereliction of his duties". I do not consider the respondent was mindful of his obligations regarding the reputation of the Chief Executive in this matter by virtue of his comments to the First Minister, the Minister for Justice and the local MP. It was such that it was disrespectful and unnecessarily impugned his reputation to the extent prohibited by the Code, in the context of Article 10(2), and I make a finding to that effect.

5.33 One officer considered that he was being bullied by the respondent in the e-mail communications by virtue of the extensive use of capitalisation in e-mails. I note that the Council's E-mail policy, which is aimed at staff, makes no specific reference to this aspect. I consider that the respondent has a very particular style of writing in which the use of capitalisation is an integral part. It is not confined to the issue of e-mail correspondence to specific persons which might have tended to support such a proposition. His use of capital letters can also reasonably be described as haphazard. I do not consider that this writing style of the respondent amounted to bullying.

5.34 I consider that the respondent was fully entitled to criticise the planning processes operated by officers in relation to this matter. The Chief Executive and the Monitoring Officer concede that the particular application had not been handled as efficiently as they would have wished. In recognition of that position, the Council met a significant part of the cost of a subsequent planning application. They agreed the respondent was correct to highlight these concerns. It is my assessment that by doing so and making representations on the need for the matter to be resolved, the respondent did not seek to interfere in operational matters.

5.35 In respect of this issue I make the following findings:

(i) as regards the suggestion that there has been a failure to respect Council employees and the role they play, the respondent has contravened the Code of Conduct, (paragraphs 3.2 and 3.4), by his failure to respect the reputation of the Chief Executive for the reasons set out in paragraph 5.32 hereof;

(ii) as regards the suggestion that there has been an attempt to engage in matters of operational management which are the responsibility of officers, the respondent has not contravened the Code of Conduct, (paragraph 3.3).

Homeless Budget

5.36 The respondent considered that the budgetary resources allocated to Homelessness had not been spent appropriately. He received information which led him to this conclusion. He sought detailed information on specific projects. He accused officers of the mis-use of public funds. He complained to a Scottish Minister. Officers considered that the budget allocations had been spent properly and at interview pointed out that budget monitoring reports were submitted to the relevant Council committee for scrutiny and approval. In particular, committee approval was required for budget virement to change budgetary allocations. Officers of the Council charged with budgetary responsibilities consider that there are very robust monitoring and approval processes in existence in place. That communication to a Scottish Minister also refers to the matter of budgetary expenditure on homelessness. I do not consider the respondent was mindful of his obligations regarding the reputation of the Chief Executive in his approach to the Scottish Executive. It was such that it was disrespectful and unnecessarily impugned his reputation to the extent prohibited by the Code, in the context of Article 10(2), and I make a finding to that effect.

5.37 Councillors perform a critical scrutiny role in relation to the operations of the authority and the budgetary resources they have allocated to the respective services. It is a feature of all Councils that members have the opportunity to perform such a role and this is usually done through their committee work. In this instance the respondent did not use that mechanism but sought information on an individual basis. I consider that the respondent was entitled to request the information he sought. Indeed, it can be said that the recent introduction of the Freedom of Information Act, which gives public rights to much more extensive information being made available from Council records, underscores that right. I do not consider that that constitutes an interference in operational matters.

5.38 In respect of this issue I make the following findings:

(i) as regards the suggestion that there has been a failure to respect Council employees and the role they play, the respondent has contravened the Code of Conduct (paragraphs 3.2 and 3.4), by his failure to respect the position and reputation of the Chief Executive for the reasons set out in paragraph 5.36 hereof;

(ii) as regards the suggestion that there has been an attempt to engage in matters of operational management which are the responsibility of officers, the respondent has not contravened the Code of Conduct, (paragraph 3.3).

Staffing Disciplinary Matter

5.39 In considering this particular issue, regard must be had to the proper role of a councillor in staffing matters. As a member of the Authority, which is the employer of all Council staff, the individual councillor is responsible for putting in place the employment policies and procedures to be followed by Council managers (and may also have responsibility for senior appointments or dealing with Staffing and Grievance Appeals processes). A councillor therefore fulfils an "employer role". As the Code makes clear it is the responsibility of managers to then operate the policies and procedures.

5.40 In this instance, the respondent felt that a staffing disciplinary process against an individual member of staff was wrong and should not be continued. He made trenchant representations to the Chief Executive in that regard. He was critical of the steps taken by managers to investigate the complaint. He indicated that he was a supporting witness for the employee in question in any proceedings. He requested information on the process under the Freedom of Information Act. He made public comment in the press about the cost of the disciplinary investigation and went on to comment on the resultant assessment of the evidence which he considered had been gathered.

5.41 In matters of employment law there is a critical need to follow due process, which is what the employees of the Council were doing in this matter. The fact that the respondent supported the member of staff and would be a supporting witness was something he was entitled to do but in such circumstances he should not have sought to be otherwise involved in the management processes and in attempting to stop the procedure. By also making public press comment criticising the Council as an employer for a current action which was underway in terms of approved policy, such action could readily be interpreted as an attempt to undermine those members of staff who had the responsibility to undertake those duties.

5.42 The final adjudication of this matter has still to take place and, on the evidence I have ingathered to date, it is not possible to reach a conclusion on the respective positions of the complainant and respondent on this issue. (If the position of the employee in question is upheld, then the respondent's argument that he was raising legitimate concerns about an employee may be found to have merit. If, on the other hand, the matter is concluded in favour of the Council, I would consider that the complainant's position on this issue may prevail). Accordingly, I make a finding that there is insufficient evidence to conclude that there has been a breach of the Code.

Contract Awards

5.43 In considering this particular issue, it should be noted that the respondent was seeking to pursue a change of policy in the award of Council contracts. That was an entirely legitimate aim on his part and he pursued it in an appropriate manner by contacting the political leadership of the Council. Whilst such a suggestion on his part may be considered very surprising in such an experienced councillor, who should have gained a better understanding of competition law relating to Council services, he was entitled to raise it. In addition, he did not make specific allegations about any named officer which would have had the potential of being damaging to reputation.

5.44 In respect if this issue I make the following findings:

(i) as regards the suggestion that there has been a failure to respect Council employees and the role they play, the respondent has not contravened the Code of Conduct,(paragraphs 3.2 and 3.4);

(ii) as regards the suggestion that there has been an attempt to engage in matters of operational management which are the responsibility of officers, the respondent has not contravened the Code of Conduct,(paragraph 3.3);