Complaint Number: LA/Fi/1866
Date case started: 06 Jul 2016
Decision issued: 06 Mar 2017
Allegation against: Councillor Bryan Poole
Complaint Categories: 3.15, 3.16, 6.3
Nature of allegation
Breach of the provisions in the Councillors’ Code of Conduct set out in section 3, General Conduct and Section 6, Lobbying and Access to Councillors and Annex C, Protocol for Relations between Councillors and Employees in Scottish Councils.
Decision by Commissioner
Decision that Councillor Bryan Poole had not contravened the Councillors’ Code of Conduct.
Complaint no. LA/Fi/1866 concerning an alleged contravention of the Councillors’ Code of Conduct by Councillor Bryan Poole of Fife Council.
1. Complaint number LA/Fi/1866 alleged a contravention of the Councillors’ Code of Conduct (“the Code”) by Councillor Bryan Poole (“the respondent”).
2. It was alleged that the respondent hadcontravened the Code, in particular, the provisions set out in section 3, General Conduct and Section 6, Lobbying and Access to Councillors and Annex C, Protocol for Relations between Councillors and Employees in Scottish Councils.
3. The person complaining (“the complainer”) Councillor Fay Sinclair, alleged a disclosure of confidential information in breach of paragraph 3.15 of the Code, actings by the respondent giving rise to child protection issues, bullying and intimidating conduct by the respondent towards the complainer, use of Council facilities by the respondent contrary to paragraph 3.16 of the Code, actings prejudicial to the right to lobby in terms of paragraph 6.3 of the Code and a contravention of paragraph 16 of Annex C to the Code: Protocol For Relations Between Councillors and Employees in Scottish Councils.
4. The incidents giving rise to the complaint arose primarily from a dispute over education issues at the by-election at which the complainer was elected for the SNP. The respondent is an Independent Councillor but is the Council’s spokesperson for Education, Children, Young People and Families. The submission of the complaint to me was preceded by a complaint about the respondent from the complainer’s group leader to the Council’s Chief Executive which was not upheld. The individual parts of the complaint are dealt with in the order set out above.
(i) disclosure of confidential information by the respondent in relation to the secondary school the complainer’s children would be attending contrary to paragraph 3.15 of the Code.
5. This part of the complaint arose from the publication on a Facebook site of an email from the complainer in which the complainer mentioned the secondary school which her children would be attending. The respondent was not the person who published the email. However, he did forward it to a local newspaper and it was subsequently referred to in the correspondence columns of that newspaper by the Labour opponent of the complainer. His letter, published in the newspaper, drew attention to his own Facebook site, on which the complainer’s email could be seen. The respondent denied sending it to him. In these circumstances, it is quite possible that it was passed on by the newspaper.
6. The complainer had published on her Facebook site the fact that her children would be attending the school in question. Her Facebook site was open to the public, so the information was effectively in the public domain. In those circumstances, I considered that the information could no longer be regarded as confidential. The complainer advanced three arguments against this view. The first was that she had not given permission for the respondent to pass on the information; the second was that the respondent had passed on the information before the date of the post on her Facebook site; and the third was that the information had reached a much wider audience on her Labour opponent’s Facebook site than on her own. With regard to the first argument, I considered that the issue was not one of permission but whether or not there was a disclosure of confidential information. In my opinion, there was no disclosure of confidential information because the information was already in the public domain. With regard to the second argument, the relevant date was the date when the information appeared: there was no doubt it had been posted on the complainer’s Facebook site before it subsequently appeared on her Labour opponent’s site. The third argument about the size of the audience was not relevant to the issue of confidentiality.
7. In my view, any quality of confidentiality had been lost by publication of the information on the complainer’s Facebook site. I found therefore that the respondent did not breach paragraph 3.15 of the Code.
(ii) the creation of a child protection issue as a result of the respondent taking photographs of posts on the complainer’s Facebook site which included her children.
8. The respondent took photographs of pictures on the complainer’s Facebook site which included her children. Although she never saw the actual photographs, she said she was caused “great fear and alarm through his accessing, copying and distributing photographs of” her children. She felt “deeply uncomfortable” at the process he must have gone through to produce the photographs and considered involving the police in a matter which caused her “immediate” concern for the safety of herself and her children. She also considered it particularly inappropriate for someone in the position of the respondent, as the holder of the Council’s portfolio for children, to have done what he did.
9. The respondent explained that he had a specific reason for taking the photographs, which was to enable him to respond to the complaint which he knew was to be lodged against him with the Council’s Chief Executive. All the photographs included the complainer as well as her children. The only person to receive the photographs was the Council officer who was investigating the complaint. The respondent did not “distribute” the photographs beyond that.
10. There is no provision of the Code which is directly in point with this part of the complaint. I was satisfied that the respondent had given an account of his conduct which constituted a perfectly reasonable explanation for what he did. Taken at face value, there was no indication of an intention to behave in a way which constituted a threat to child protection.
11. Accordingly I found no breach of the Code in respect of this part of the complaint.
(iii) bullying and intimidating of the complainer by the respondent putting posts on the complainer’s Facebook site.
12. The complainer considered that the practice of the respondent placing posts on her Facebook site in response to anything she said about education matters was bullying and intimidating. It is clear that the Code does not seek in any way to restrict political engagement, even of a robust nature. The posts by the respondent which were referred to confined themselves to matters which were political issues in response to public statements by the complainer. I would be very reluctant to reach any adverse conclusion in respect of such activity unless there was some other factor which introduced an issue which could outweigh the important principle of freedom to engage in political debate. The point was made in evidence on behalf of the complainer that it was not the practice of politicians to place posts on their opponents’ Facebook site. Even if there was such an understanding amongst Fife councillors, I considered that the respondent was engaged in legitimate political activity which could not be described as bullying and intimidating. I therefore found that there was no breach of the Code in this respect.
(iv) the improper use of Council facilities by the respondent for political purposes contrary to paragraph 3.16 of the Code in respect of the respondent’s use of his Council email account to correspond with the complainer about election issues.
13. The complainer pointed out that the respondent used his Council email facility to reply to her in respect of a letter sent by her to him on education issues. She argued that, in the context of the by-election, his reply was in effect campaigning for her Labour opponent, which would be a breach of paragraph 3.16 of the Code read with paragraph 36 of the Guidance. The respondent replied that he was not a member of a political party and was simply doing his job as the Council spokesman for Education, Children, Young People and Families. The Council does not have a policy on the use of Council facilities and therefore no further guidance could be obtained in that direction.
14. When a member of the Administration of a council defends the council’s record there will always be difficulty separating that from advocating on behalf of the party in power. That is particularly so in the course of a by-election campaign. In terms of the Standards Commission’s Guidance, which refers in turn to the Prohibition on Party Political Publicity, it is clear that a line would be crossed where a councillor specifically called on the public to vote in a particular way. The letter written by the respondent certainly defended the record of the Council and the administration in respect of education and was critical of certain SNP councillors. However, it did not specifically or by implication call on electors to vote in a particular way in the by-election. It was also not an unsolicited letter addressed to the electorate. In terms of the complainer’s own argument, it was, in part, a response to an issue raised by a constituent. In all the circumstances, and even noting that the respondent did pass it on to the Press, I did not consider that his actions could be described as electioneering. I was satisfied, on balance, that the respondent did not cross the line and did not use council facilities for party political or campaigning purposes and accordingly did not breach paragraph 3.16 of the Code.
(v) disclosure of confidential information received from a constituent to the detriment of the right of constituents to lobby in terms of paragraph 6.3 of the Code.
15. The thrust of the complaint here was that the respondent received confidential information from the complainer as a constituent and disclosed that information. According to the complainer this would dissuade other constituents from coming forward and exercising their right to lobby. Whilst I was not at all sure that the complainer’s arguments could ever amount to a contravention of paragraph 6.3, over and above paragraph 3.15, I did not have to consider that possibility as I had already found that the respondent did not disclose confidential information. On that basis I found that the respondent did not breach paragraph 6.3 of the Code.
(vi) breach of paragraph 16 of Annex C to the Code which states that “When performing their local representative role, councillors will be seen as representing the Council and should act in accordance with the principles of the Code of Conduct for Councillors and this protocol”.
16. The complainer referred to paragraph 16 of Annex C to the Code in response to a letter from the Investigating Officer pointing out, in respect of the original complaint, that a breach of the Key Principles does not on its own constitute a breach of the Code. The point made by the complainer was that paragraph 16 appears to place a specific obligation on councillors to conform to the “principles of the Code of Conduct”, implying that a failure to do so will constitute a breach of the Code. However, I did note that paragraph 16 appears in a section of the Code entitled “Protocol for Relations between Councillors and Employees in Scottish Councils”. I do not consider that it is appropriate to take it out of that context and use the statement in isolation. In any event, it is by no means clear that the word “principles” in Paragraph 16 is meant to be the same as the Key Principles in Section 2 of the Code. Additionally, in my opinion, the phraseology of Paragraph 16 is not sufficient to overcome the explicit wording of paragraph 2.1 of the Code and paragraph 8 of the Guidance which make it clear that a breach of the Key Principles is not to be a breach of the Code. Accordingly I found that there has been no breach of paragraph 16 of Annex C to the Code.
17. Having considered the information that arose from my investigation, I concluded that, the matters raised against Councillor Bryan Poole did not amount to a contravention of the Councillors’ Code of Conduct.
91 Haymarket Terrace
6 March 2017