Complaint Number: LA/Fi/1859
Date case started: 13 Apr 2016
Decision issued: 30 Sep 2016
Allegation against: Councillor Joe Rosiejak
Complaint Categories: 2.1, 3.2, 3.3, 3.4, 3.5, 3.8, 3.11, 3.12, 3.16, 3.19, 4.1
Nature of allegation
Breach of the provisions in the Councillors’ Code of Conduct set out in section 2 (key principles) section 3 (general conduct), section 4 (register of interests) and Annex C of the Code.
Decision by Commissioner
Decision that Councillor Joe Rosiejak had not contravened the Councillors’ Code of Conduct.
Complaint no. LA/Fi/1859 concerning an alleged contravention of the Councillors’ Code of Conduct by Councillor Joe Rosiejak of Fife Council
1. Complaint number LA/Fi/1859 alleged a contravention of the Councillors’ Code of Conduct (“the Code”) by Councillor Joe Rosiejak (“the respondent”).
2. It was alleged that the respondent had contravened the Code, in particular, 2.1 dealing with key principles, paragraphs 3.2, 3.3, 3.4, 3.5, 3.8, 3.11, 3.12, and 3.16, dealing with general conduct and paragraphs 19 and 20 of Annex C dealing with relations with employees, as well as paragraph 4.1 in connection with the registration of interests.
3. The person complaining (“the complainer”), alleged that the respondent had made disrespectful comments about fellow councillors and employees when communicating with a constituent using Council provided equipment. He was also alleged to have used his position as a councillor to influence the approval of a grant to a youth organisation, and had accepted numerous offers of hospitality in Canada and USA while stating that he was a councillor.
4. The complaint related to the actions of the respondent in connection with a youth group’s application for Council funding for an overseas trip and his comments about fellow councillors and employees. In the course of this, the respondent was alleged to have shown disrespect towards colleagues and an employee and used Council provided equipment for non-Council purposes.
5. The complainer’s son had accompanied the respondent on a trip to Canada and USA in October 2012, the purpose of which, according to the respondent, was to observe the American Presidential Election process. Both before and after this visit, the respondent entered into a regular exchange of communications with the complainer’s son by email and text.
6. Examination of the extracts of emails, texts and Facebook entries provided by the complainer demonstrated that these were sent and received through Council equipment, using the respondent’s Council email address.
7. In the course of these exchanges, the respondent was alleged to have made disrespectful comments about other councillors. In connection with the grant application, the complainer alleged that the respondent had made disrespectful comments in the email exchanges about an officer of the Council.
8. In investigating this complaint, I only considered the content of the email, text and Facebook exchanges between the respondent and the complainer’s son in so far as they touched on aspects of behaviour which were covered by the terms of the Code.
9. The volume of evidence provided by the complainer demonstrated a regular and at times extremely informal manner displayed by the respondent. In his response, he admitted that he had an easy way of speaking and did not consider he had been disrespectful towards anyone.
10. On the use of Council provided equipment, the respondent explained that as long as it was in connection with the community, it was acceptable to use the Council’s equipment.
11. The respondent confirmed that his visits to Canada and the USA were personal and nothing to do with his position as a councillor, and that any hospitality received was not in his capacity as a councillor.
12. I required to assess whether the behaviour of the councillor amounts to a breach of the Code.
13. The complainer alleged a breach of paragraph 3.2 of the Code. Reference was made to comments made by the respondent in a Facebook exchange on 13 February 2013, where he stated, “could you shut the labour and snp councillors up at a budget meeting if you can you could make a fortune.” Later he stated in response to a question about the tory councillors, “They are worst”. The Code requires respect to be shown to colleagues. While I accepted that the words used by the respondent could have been considered to be inappropriate when sent to a member of the public, I noted that there was no councillor named in this exchange. The respondent admitted his manner of speaking could be informal. Equally there could be a degree of robust interaction between politicians, which had been judicially recognised in the application of Article 10 of the European Convention of Human Rights. The respondent stated that his comments were not intended to be personal. In the circumstances, I concluded that these comments did not amount to a breach of paragraph 3.2.
14. The complainer alleged disrespect towards an employee in contravention of paragraphs 3.2, 3.3 and paragraph 20 of Annex C. In a text to the complainer’s son on 23 January 2013, the respondent wrote, “I have spoken to [name] re his email too you do nothing we will just wait jobs worth”. In terms of each of these provisions, the Code requires that respect and trust be shown towards employees and that a councillor should not publicly raise matters relating to their conduct or capability. Other than the use of the words ‘jobs worth’, there did not appear to be any other evidence provided by the complainer which would add weight to the allegation of disrespect towards employees. In the context of the relaxed and informal tone of the email exchanges, and in the absence of any indication of malice or an intention to disseminate the comment more widely, I did not consider that the use of the term ‘jobs worth’, while clearly being uncomplimentary, could have amounted to a breach of these provisions of the Code., Accordingly I found there had been no breach of paragraphs 3.2, 3.3 and paragraph 20 of Annex C to the Code.
15. The complainer alleged that the respondent breached paragraph 3.4 of the Code, which deals with the distinction between the policy and strategy role of councillors and the operational management role of employees. The respondent was alleged to have personally arranged for Council employees to create posters for a cake sale and car washing on behalf of the Dunfermline Youth Study Exchange Group. I did not consider that, even if the respondent had in fact instructed the posters, this could have been deemed to be direct operational management. Therefore I found that there had been no breach of this part of the Code.
16. The respondent was alleged to have accepted hospitality in connection with his visits to Canada and the USA in contravention of paragraph 3.8 of the Code. In addition, the complainer alleged a breach of paragraphs 3.11 and 3.12 in this connection. The respondent advised that all his connections with North America were in a personal capacity and not on behalf of the Council. I noted that, in his email of 2 September 2012, he had described himself as a councillor. Nevertheless, there was no evidence that his visit was undertaken, approved, or funded as a councillor. The Council’s Committee Services Manager confirmed this statement by the respondent. In the circumstances therefore I did not accept that the respondent’s behaviour amounted to a breach of paragraphs 3.8, 3.11 or 3.12 of the Code.
17. The complainer also alleged that the respondent’s use of Council provided equipment had breached paragraph 3.16 of the Code. This provides that facilities provided by a council should only be used in carrying out council duties in accordance with its relevant information technology, communications and member support policies or for incidental personal use as authorised by the council. The documents which the complainer submitted in support of her complaint contained a large number of email and texts which passed between the respondent and her son between May 2011 and April 2013. The emails all originated from the respondent’s Council email address. In his response to questions about his use of Council provided phone and iPad, the respondent confirmed that he used the Council equipment in these emails, texts and Facebook entries. He advised that it was common for councillors and officers to use such equipment for non Council business.
18. When questioned on this point, the committee services manager advised that the Council did not have a specific policy on use of equipment for personal use, but that personal use should be ancillary to that for Council business. The Code does make reference to a council’s relevant policies on use of such facilities. In this case, the absence of any such policy provided a degree of difficulty in assessing whether this particular provision had been contravened.
19. The respondent confirmed his support for the youth group and also in his capacity as a scout commissioner, which he viewed as supporting his community. Having regard to these facts, I required to consider whether such use could be considered as ancillary to his role as a councillor. There was no evidence that the respondent had authorisation from the Council to use his phone etc for such a lengthy period. Nevertheless, in the absence of any policy which could be said to have been ignored or abused, I did not consider that the evidence provided by the complainer demonstrated inappropriate use of this equipment. Therefore, I did not find that the respondent’s use amounted to a breach of paragraph 3.16 of the Code.
20. The complainer referred me to paragraph 3.19 of the Code. This relates to seeking preferential treatment for the councillor, friends colleagues or employees. In this context, the allegation was that the respondent used his position as a councillor to influence the officers in awarding the grant to the youth group. When questioned on this, the committee services manager advised that he did not consider that the officer through whom the grant application had been passed, would have entertained any form of pressure from the respondent as, if such had occurred, he would have immediately referred the matter to his superiors for action. The evidence which the complainer referred me to was a text message from the respondent to the complainer’s son on 23 January 2013, as shown in paragraph 14 above, and a Facebook entry the same day, in which the respondent stated, “Had strong words with [name] jobs worth official”. Given the evidence of the committee services manager, I did not consider this indirect comment is sufficient to demonstrate pressure on an employee. As such I did not accept there had been a breach of this part of the Code.
21. The complainer also referred to paragraph 4.1 of the Code. This is an introduction to section 4, which deals with registration of interests. It does not in itself establish any obligation to be adhered to. Nevertheless, had the respondent been in receipt of hospitality when visiting Canada and the USA, the respondent would have required to register this with the Council. As I had already concluded in paragraph 16 above, such hospitality was received in a personal capacity. Therefore, there could be no breach of this paragraph.
22. Finally, the complainer referred me to paragraph 19 of Annex C to the Code. This deals with relationships between councillors and employees in social surroundings. I was unable to identify any evidence in support of this allegation. The committee services manager confirmed the respondent’s background in working with officers in Dunfermline, but was doubtful if that extended outwith the office environment. I did not therefore consider that the respondent’s behaviour amounted to a breach of paragraph 19.
23. The complainer had referred to the key principles of duty, leadership and respect, as set out in paragraph 2.1 of the Code. Paragraph 2.1 of the Code and the Guidance issued by the Standards Commission for Scotland make it clear that section 2 provides a context for and underpins the Code. However contravention of any of the key principles does not in itself constitute a breach of the Code. In order to constitute a breach, there must be contravention of one or more of sections 3 to 7 and Annex C of the Code.
24. Having considered the information that arose from my investigation, I concluded that, Councillor Joe Rosiejak had not contravened the Councillors’ Code of Conduct.
91 Haymarket Terrace
30 September 2016