Complaint Number: LA/Fi/1930
Date case started: 26 Oct 2016
Decision issued: 07 Apr 2017
Allegation against: Councillors Fay Sinclair and Brian Goodall
Complaint Categories: 3.1, 3.2
Nature of allegation
Breach of the provisions in the Councillors’ Code of Conduct set out in section 3 (General Conduct) of the Code.
Decision by Commissioner
Decision that Councillors Fay Sinclair and Brian Goodall have not contravened the Councillors’ Code of Conduct.
Complaint no. LA/Fi/1930 concerning an alleged contravention of the Councillors’ Code of Conduct by Councillors Fay Sinclair and Brian Goodall of Fife Council
1. Complaint number LA/Fi/1930 alleged a contravention of the Councillors’ Code of Conduct (“the Code”) by Councillor Fay Sinclair and Brian Goodall (“the respondents”).
2. It was alleged that the respondents hadcontravened the Code, in particular, the provisions set out in section 3, General Conduct.
3. The person complaining (“the complainer”) Councillor Bryan Poole, alleged thatthe respondents pursued a complaint against him on the basis of a breach of confidentiality when they knew that the information in question was already in the public domain and that the first respondent, Councillor Fay Sinclair, had deliberately removed evidence to that effect, being a post on her Facebook page.
4. The first respondent stood as the SNP candidate at the Fife Council by-election in May 2015 for the ward of Dunfermline South. During her campaign she wrote to the complainer, the Independent member for Cupar and also the Administration spokesperson for Education, Children, Young People and Families, raising questions about the Administration’s plans for the replacement of two secondary schools. Before replying to those questions, the complainer asked in what capacity the first respondent was writing, whether as a parent or as a candidate in the by-election. She replied, by an email of 7 April 2015, that she was writing in both capacities and pointed out that her children were due to attend one of the schools in question, which she specified.
5. The complainer subsequently replied in some detail and decided to copy his reply to a local newspaper in order to ensure that the information in his letter was not used selectively for political purposes. Attached to his email to the newspaper was the first respondent’s email of 7 April 2015, in which she mentioned the secondary school her children would be attending.
6. On 23 April 2015, an article appeared in the Dunfermline Press which was based on the complainer’s email to the first respondent. The article did not refer to the first respondent’s email.
7. The first respondent was successful in the by-election. Several weeks after the election, the defeated Labour candidate wrote a letter to the local newspaper saying that if readers wanted to know more about the issue of the secondary schools they could go to his Facebook page where they would find the correspondence between the first respondent and the complainer. That correspondence included the email of 7 April 2015 from the first respondent in which she specified the secondary school her children would be attending.
8. The respondents assumed that the correspondence had been passed on to the defeated Labour candidate by the complainer. The second respondent, who is also a member of the SNP, representing Dunfermline South and Leader of the SNP group on Fife Council, lodged a complaint with the Chief Executive of the Council against the complainer. The main part of the complaint was that the complainer had been responsible for the disclosure of confidential information relating to the first respondent, being the identity of the secondary school her children would be attending.
9. During the course of the complaint investigation, it became clear that the first respondent had previously mentioned in a Facebook post of 24 April 2015 the secondary school which her children would be attending. In preparing his response to the complaint, the complainer noticed that this post had been removed.
10. The complaint to the Chief Executive was not upheld, but no explicit finding was made on the merits of the case.
11. The first respondent considered that there had been a breach of the Councillors’ Code of Conduct on the part of the complainer and submitted a complaint to that effect to me. That complaint was dismissed (LA/Fi/1866).
12. Prior to that decision being made, the complainer raised his complaint against the respondents. He considered that both respondents were aware of the post of 24 April 2015 by the first respondent which contained information about the secondary school which the first respondent’s children would attend. The complainer’s views was that this post by the first respondent nullified the complaint against him, that both respondents were aware of this, and therefore had acted in bad faith. He also alleged that the first respondent had deliberately removed her post of 24 April 2015 because of the effect it would have had on her complaint.
13. Both respondents had alleged that the conduct by the complainer had gone beyond the mere release of the email and had included doing so without the permission of the first respondent and in such a way that it would achieve much wider circulation. They thought it was part of a campaign of bullying and intimidation by the complainer against the first respondent. The first respondent accepted that she must have removed the post but could not remember doing so. She insisted that she had been open and co-operative in respect of the investigation.
14. I considered that there were two matters for me to address. The first was whether the prior publication of the first respondent’s post had nullified her complaint. If it had, then it could be argued that the complaint had been lodged in bad faith. If it had not, the respondents could not be said to have acted in bad faith in pursuing their complaint against Councillor Poole. The second issue was whether the first respondent could be said to have deliberately removed her earlier post with a view to misleading the investigation of the complaint against Councillor Poole.
15. With regard to the first matter, it was clear that the respondents thought there was more to their claim than just the mere release of the email of 7 April 2015 by the complainer. As far as they were concerned, there were at least three other aspects. The first was that it had been done without the consent of the first respondent and without any prior intimation to her. The second was that the respondents considered that the release of the email by the complainer had been done in such a way as to ensure it received much wider and less sympathetic circulation than the same information contained in her Facebook post of 24 April 2015 would have had. The third was the suggestion that it was part of a pattern of intimidatory behaviour by the complainer which the respondents felt was contrary to the Code. Even though I did not agree with that analysis – because in my view the issue in respect of the Code of Conduct was a breach of confidentiality which could not be sustained if the information was already in the public domain and because I found that there had been no intimidatory behaviour - I was satisfied that they did not consider the prior publication by the first respondent of the information in question nullified the complaint and therefore they could not be considered to have acted in bad faith by proceeding with it.
16. The second issue was the removal of the Facebook post, of 24 April 2015, by the first respondent. She made no attempt to deny it and accepted that she was the only one who could have done it. She had no recollection of having done so and no explanation except to surmise that she might have done it as part of a modification in her behaviour in response to the complainer copying pictures of her and her children from her Facebook page. I considered it to be inconceivable that she was trying to mislead the investigation. She was bound to have known that the complainer would refer to it and quite reasonably from his perspective would use it to discredit her and her case. She was frank when addressing this issue at interview and although I had no explanation for her actions I had no reason to conclude that she was deliberately trying to mislead.
17. Having considered the information that arose from my investigation, I concluded that, Councillors Fay Sinclair and Brian Goodall had not contravened the Councillors’ Code of Conduct.
91 Haymarket Terrace
7 April 2017