Complaint Number: LA/Mo/1893
Date case started: 06 Apr 2016
Decision issued: 05 Jun 2017
Allegation against: Former Councillor Allan Wright and Former Councillor Douglas Ross
Complaint Categories: 3.1, 3.2, 3.4
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 Former Councillors Allan Wright and Douglas Ross have not contravened the Councillors’ Code of Conduct.
NOTE OF DECISION WEB VERSION
Complaint no. LA/Mo/1893 concerning an alleged contravention of the Councillors’ Code of Conduct by Former Councillor Allan Wright and Former Councillor Douglas Ross of Moray Council.
1. Complaint number LA/Mo/1893 alleged a contravention of the Councillors’ Code of Conduct (“the Code”) by Former Councillor Allan Wright and Former Councillor Douglas Ross (“the respondents”).
2. It was alleged that the respondents hadcontravened the Code, in particular, paragraphs 3.1, 3.2 and 3.4 of the Code.
3. The person complaining (“the complainer”) alleged that:
3.1 Councillor Wright was reported in the “Press and Journal” on 29 October 2015 saying that he had suggested that the Council should “pull funding” if the Moray Leisure Centre continued to resist joining a scheme relating to entry charges;
3.2 Councillor Wright sent an email on behalf of himself, Councillor Ross and another director nominated by the Council to the Company Manager (Mr A), in relation to a suspension the company manager had imposed on a swimming instructor (Mr B) for breaching health and safety instructions, indicating in the email that the penalty imposed was too severe and should be reduced from 3 months to 1 month. The complaint was that, by sending this email, both Councillors Wright and Ross were interfering in operational management and acting beyond their role as Directors;
3.3 The conduct of Councillors Wright and Ross at board meetings was not in the best interests of the company in that they did not respect the Chair;
3.4 Councillors Wright and Ross insisted on an investigation and on a meeting of Directors after the swimming instructor (Mr B) had made a complaint of gross misconduct against the Company Manager (Mr A);
3.5 The swimming coach approached a leisure centre employee saying that he was “building a case” against the leisure centre management and asking if the employee would speak to Councillor Ross who would be interested in anything derogative towards the senior management.
4. In relation to the first part of the complaint, Councillor Wright provided sufficient evidence in relation to the article reported in the paper to show that he was misquoted in the Press and Journal. This part of the complaint could not therefore amount to a breach of the Code. In respect of this part of the complaint, I found that there was no breach by Councillor Wright of paragraph 3.1 of the Code.
5. In relation to the second part of the complaint, both Councillor Wright and Councillor Ross confirmed that the intention behind the email sent by Councillor Ross on 2 November 2015 had been to provide advice to Mr A, in order to defuse the situation that had arisen from the outcry on social media following the suspension of Mr B.
6. It is clear from the evidence that there was a lack of clarity surrounding the governance arrangements within Moray Leisure Limited. Paragraph 2.4 of the Advice Note for Councillors on ALEO issued by the Standards Commission acknowledges that, whilst governance in ALEO’s can be complex, it also needs to be strong and effective. The Commission’s Guidance points out that representation on ALEO’s by councillors can help ensure that they are being properly run.
7. I was satisfied that, in sending the email of 2 November 2015, Councillors Wright and Ross believed they were acting in the interests of the company and were trying to avoid reputational damage being caused to the company. These were legitimate concerns for the Councillor Directors on the board of Moray Leisure Ltd.
8. The email sent to Mr A on 2 November 2015 was not of a threatening nature. Taken as a whole, I considered that its terms were advisory in nature. In particular, the use of the words “should be reduced” and “We hope you will heed this advice” did not convey an instruction. In my opinion, the respondents were not acting outside their role as directors in relation to the suspension imposed on Mr B.
9. In respect of this part of the complaint, I found there was no breach of part 3.4 of the Code of Conduct by Councillor Wright or by Councillor Ross.
10. In relation to the third part of the complaint, it was clear that Councillors Ross and Wright had exhibited behaviour at the meeting of November 2015 which was challenging of the way in which the company had been run. I considered whether there was a breach of paragraph 3.2 of the Code, in particular in terms of respect shown towards the Chair. There was no recording of the meeting and there was no challenge made to their behaviour at the meeting. The nature of a Board meeting where contentious issues are being discussed is that directors will wish to express their view, some more forcibly that others. In the circumstances presented, I did not find that there was sufficient evidence to establish that Councillors Ross and Wright failed to respect the Chair of the meeting. I therefore concluded that Councillor Wright and Councillor Ross were not in breach of paragraph 3.2 of the Code at the board meeting in November 2015.
11. In relation to the fourth part of the complaint, Councillor Wright and Councillor Ross explained in their responses and at interview why they felt an investigation was necessary into the claim of gross misconduct made by Mr B. There was no process in place for dealing with complaints of gross misconduct and they considered that the matter should be investigated fully. They believed that as Directors they had a duty to act when there was a governance matter requiring to be addressed. I was of the view that, as directors of the company, and in line with paragraph 3.4 of the Code, Councillors Wright and Ross were entitled to scrutinise the company’s policies and procedures, to ensure that there were adequate policies in place and that they were being applied in a reasonable and effective manner. It was not therefore unreasonable of them to ask for an investigation to be carried out when the complaint of gross misconduct against the company manager was received.
12. In the circumstances of this complaint, I concluded that requesting an investigation be carried out did not amount to engaging in direct operational management of the company in breach of paragraph 3.4 of the Code. In my opinion, Councillors Wright and Ross were acting within their remit and their actions did not amount to a breach of the Code.
13. In relation to the fifth part of the complaint, there was insufficient evidence to support this part of the complaint. The information provided was hearsay and the allegation was denied by Councillor Ross. I concluded that the circumstances narrated did not amount to a breach of the Code of Conduct by Councillor Ross.
14. Having considered the information that arose from my investigation, I concluded that Former Councillor Allan Wright and Former Councillor Douglas Rosshad not contravened the Councillors’ Code of Conduct.
91 Haymarket Terrace
5 June 2017