Complaint Number: LA/PK/1996
Date case started: 03 Feb 2017
Decision issued: 02 Jun 2017
Allegation against: Councillor Tom Gray
Complaint Categories: 3.2, 7.1, 7.2, 7.3, 7.4, 7.12
Nature of allegation
Breach of the provisions in the Councillors’ Code of Conduct set out in section 3 (General Conduct) and 7 (Taking Decisions on Quasi Judicial or Regulatory Applications) of the Code.
Decision by Commissioner
Decision that Councillor Tom Gray had not contravened the Councillors’ Code of Conduct.
Complaint no. LA/PK/1996 concerning an alleged contravention of the Councillors’ Code of Conduct by Councillor Tom Gray of Perth and Kinross Council
1. Complaint number LA/PK/1996 alleged a contravention of the Councillors’ Code of Conduct (“the Code”) by Councillor Tom Gray (“the respondent”).
2. It was alleged that the respondent hadcontravened the Code, in particular, paragraph 3.2 dealing with general conduct and paragraphs 7.1 to 7.4 and 7.12 dealing with quasi - judicial or regulatory applications.
3. The persons complaining (“the complainers”), alleged that, when chairing a meeting of the Council’s Development Management Committee, he had spoken in an aggressive manner describing the proceedings as a waste of time and a non-event. He was alleged to have demonstrated bias in favour of a proposed development and in having an interest should have withdrawn from the meeting and taken no part in the determination of the application.
4. At the conclusion of the hearing, the respondent moved approval of the application and made reference to ‘a waste of time and a non-event’. This was considered by the complainers to be disrespectful in terms of paragraph 3.2 of the Code. They also considered that the actions and statement of the respondent indicated bias in favour of the applicant, which is contrary to paragraphs 7.1 to 7.4 of the Code. Finally, the complainers considered that the respondent had an interest in the application which, in terms of paragraph 7.12, should have required his withdrawal from the meeting, which he did not do.
5. I had to consider whether the actions and statements made by the respondent amounted to a breach of the Code.
6. The first allegation was that the respondent showed disrespect towards the objectors to the planning application.
7. In this regard I made the following findings of fact:
· The respondent chaired the hearing at which objectors and the applicant’s representative addressed the members of the committee.
· Questions were asked by most members of the committee, including the respondent. The applicant’s representative was asked considerably more questions than those representing the objectors.
· At the conclusion of the hearing, the respondent moved approval of the application. This motion was seconded by Councillor Giacopazzi.
· The respondent, at this point, referred to a poultry farm near his home which he claimed had no detrimental effect on his property.
· The respondent admitted that he had used the words ‘waste of time’ and ‘a non-event’ when summing up after moving the motion to approve the application.
8. Paragraph 3.2 of the Code requires councillors to show respect towards colleagues, council employees and members of the public attending a meeting. In this case the allegation was that the respondent’s reference to the hearing as a waste of time and a non-event was disrespectful towards those present, particularly the members of the public who were presenting objections to the proposed development.
9. The respondent denied that he made an aggressive outburst. He did not consider the application out of the ordinary. He considered that he had acted in a reasonable way given the number of parties who had addressed the committee that day.
10. The crux of the complaint was the allegedly aggressive outburst, ‘this is a waste of time and a non-event’. In my view such words were not offensive, nor were they directed at any particular person attending the meeting. The officers who were interviewed all stated that in their view the comments from the respondent were not exceptional and that the respondent did have a tendency to be quite vocal when addressing the committee. According to the committee legal adviser, on this occasion he was a bit more animated, although he considered the respondent’s actions to be passionate rather than aggressive.
11. I recognised that there appeared to have been an element of frustration in the manner in which the respondent behaved. I was satisfied, however, that when making his remarks the respondent was addressing the meeting as the proposer of the motion to approve the application. He was not directing criticism to any particular individual.
12. In addition, the respondent was alleged to have raised the issue of a poultry farm near his property, after the main part of the debate, at a point when the complainers considered no-one could challenge his remarks. It would have been possible for a challenge to the respondent’s remarks to have been made when other councillors were tabling and speaking to the amendment. No such challenge was made. The Interim Head of Planning confirmed the respondent’s practice was often to add an explanation of why members should support the motion he was tabling
13. I considered all the evidence presented and the statements from witnesses interviewed. While there was no doubt as to what the respondent said, there were contrary views as to whether what he had said and the manner of how he had said it could be regarded as disrespect. On the balance of probabilities, I accept there was no intention on the part of the respondent to be disrespectful towards anyone. He had been the convener of the committee for five years and was experienced in handling hearings. The complainers accepted at interview that they and the other objectors had had an opportunity to make submissions to the Committee
14. I therefore concluded that, in all the circumstances, the behaviour of the respondent did not amount to a breach of paragraph 3.2 of the Code.
15. The complainers also alleged that the complainer breached the terms of paragraphs 7.1 to 7.4 of the Code. Section 7 deals with quasi judicial and regulatory applications. The work of the council’s Development Management Committee when determining planning applications falls within the scope of this part of the Code.
16. Paragraph 7.1 provides an introduction of the scope of this part of the Code, while paragraph 7.2 of the Code requires councillors, when considering applications such as that before the committee on 16 November, to take account of different points of view. Paragraph 7.3 similarly requires councillors to ensure that parties are dealt with fairly and are seen to act fairly in such matters. Finally, paragraph 7.4 requires councillors to avoid any impropriety or the suspicion of impropriety which might lead to a legal challenge.
17. In this regard I made the following findings of fact:
· The evidence taken at interview from the committee clerk’s notes and the statements made by the Interim Head of Planning, the legal adviser and the committee clerk did not identify any examples of bias or pre-determination.
· The respondent played a small part in the questioning of those who spoke at the hearing.
· The respondent listened to the submissions made by the objectors and by the applicant’s representative and asked questions .
· All those who wished to contribute to the hearing had been given an opportunity to do so.
18. In terms of paragraph 7.2 of the Code, the respondent’s duty was to take account of different points of view. The Code does not require the respondent to accept the views expressed, merely to take account of them when finally arriving at a decision. The hearing lasted two hours and there were contributions from almost all councillors present. Accordingly, I concluded that the respondent had not breached paragraph 7.2 of the Code.
19. To constitute a breach of paragraph 7.3, there must be evidence that the respondent showed bias or pre-determination in his actions. His motion to approve the application was supported by his statement to the committee that, in comparing this proposed poultry farm to one near his own property, there were no issues. His statement at interview went further in that he did not consider the application was extraordinary. The respondent’s motion to approve the application was the first recorded point at which he had expressed a view either way on this application. To establish bias or pre-determination there must be evidence of a councillor having adopted a position for or against an application prior to all the relevant information being presented. In this case there is no evidence of such behaviour by the respondent. Accordingly, I did not consider that the respondent’s actions amounted to bias or pre-determination and therefore I concluded that his actions did not amount to a breach of paragraph 7.3 of the Code.
20. The terms of paragraph 7.4 are limited to circumstances where decisions might be legally challenged. The decision to approve the application was taken in accordance with the Council’s standing orders and a majority of councillors voted in favour of approving the application. There was no evidence that any action taken by the respondent could have been regarded as improper and therefore constituted the basis of a legal challenge to that decision. In the circumstances, I concluded that the respondent had not breached paragraph 7.4 of the Code.
21. Finally, the complainers alleged that the respondent had breached paragraph 7.12 of the Code. This part of the Code deals with councillors who have either a financial or non-financial interest in a matter which is before them for determination. In cases where an interest is evident the councillors should declare such interest and withdraw from the meeting
22. In this case, it was alleged that the respondent had a personal agenda. Neither of the complainers who were interviewed could provide any evidence of an interest which would have required the respondent to declare it and withdraw. As there was no evidence of the respondent having had a declarable interest, I concluded that there had been no breach of paragraph 7.12 of the Code
23. Having considered the information that arose from my investigation, I concluded that, Councillor Tom Gray had not contravened the Councillors’ Code of Conduct.
91 Haymarket Terrace
2 June 2017