Complaint Number: LA/I/2006
Date case started: 23 Feb 2017
Decision issued: 09 Aug 2017
Allegation against: Councillor Chris McEleny
Complaint Categories: 3.1, 3.3, 3.5, 3.16
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 Councillor Chris McEleny had not contravened the Councillors’ Code of Conduct.
NOTE OF DECISION WEB VERSION
Complaint no. LA/I/2006 concerning an alleged contravention of the Councillors’ Code of Conduct by Councillor Chris McEleny of Inverclyde Council
1. Complaint number LA/I/2006 alleged a contravention of the Councillors’ Code of Conduct (“the Code”) by Councillor Chris McEleny (“the respondent”).
2. It was alleged that the respondent hadcontravened the Code, in particular, paragraphs 3.1, 3.3, 3.5 and 3.16 of the Code and paragraph 20 of Annex C to the Code
3. The person complaining (“the complainer”), alleged thatthe respondent issued a tweet on social media in which he was alleged to have criticised the minority Labour Administration for using council resources for party political and campaigning purposes. He was also alleged to have shown disrespect towards senior officers of the Council.
4. The background to the complaint centred on a decision taken by the Council at its Policy and Resources Committee meeting on 15 November 2016 to issue letters to householders within Council tax bands E to H explaining an increase to the level of council tax payable in the future. A press release was issued by the Council on 24 January 2017 advising of the issue of the letter.
5. Following the press release, the respondent wrote to the Council’s Corporate Communications Manager expressing his opposition to the letter pointing out that in his opinion it was a waste of resources claiming it to be nothing but electioneering by the Labour administration. The Communication Manager replied to the respondent reminding him of the earlier decision taken by the Council’s Policy and Resources Committee and also that funding had been provided by the Scottish Government to meet the costs of these actions.
6. On 28 January 2017, the respondent posted a tweet on his personal social media account, @SNPChris, in the following terms: “Labour in Inverclyde using Council resources to send out letters complaining about council tax going up whilst calling on the Scot Gov to raise tax”.
7. The same day the Council’s Monitoring Officer (“MO”) received an email from the Council leader, complaining about the respondent’s tweet. The MO thereafter carried out an investigation into the facts and then wrote to the respondent on 30 January 2017. His email set out requirements on councillors under the Councillors’ Code of Conduct. In particular he addressed the provisions of paragraphs 3.1, 3.3, 3.5 and paragraph 20 of Annex C and paragraph 3.16. In respect of each paragraph, he set out what was expected of the respondent and where he considered that the respondent had failed to adhere to the requirements of the Code. He concluded his email by setting out a number of actions which he required the respondent to undertake immediately. These were:
· immediate removal of the tweet from his Twitter account;
· sending an apology to the Council’s Chief Financial Officer (“CFO”) in respect of any misinterpretation that officers had in some way been complicit in the wrongful use of council resources for party political or campaigning activities;
· advising the Labour group secretary either directly or through the MO of his actions to remove the unjustified tweet and the offer of an assurance or apology to officers including the Chief Financial Officer.
Finally, he offered to meet with the respondent to resolve the issue as a matter of urgency.
8. The same day the respondent replied to the MO’s email in which he set out 10 points in explanation of his actions. He stated as follows:
· “If you’re going to censure my right to free speech on social media please do not do so under the heading of Private;
· Inverclyde Council is using council resources to write to houses to tell them council tax is going up because of the Scottish Government;
· The Scottish Labour party are calling on the Scottish Government to raise tax;
· I have nothing but respect for the chief financial officer. I ask you to immediately withdraw any accusation that I have in any way questioned the integrity of this first class council official;
· You have no right to ask me to apologise to the Inverclyde Council Labour party group. I am particularly concerned as to what makes it appropriate for you to advise this;
· You have stated on various occasions that you do not understand Twitter so it is clear you are acting under the advice and direction of the council leader;
· I am concerned with the consistency of your role as monitoring officer, as you recently deemed that the council leader accusing me of criminal activity during a public meeting didn’t merit any of the retractions or apologies that my tweet on a private twitter account of a political nature demand;
· Your commentary on the politics of who voted for what and when at a committee is not relevant and wholly inappropriate;
· You have failed to respond to my email of 26 January regarding comments the council leader made about a personal employment issue that we have had extensive dialogue regarding. I am concerned that there appears to be priority depending upon- as some people put it – how strenuously the council makes a request;
· The tweet was clearly of a political nature and I request that you withdraw your comments and issue me with an immediate apology.”
9. There then followed a further email from the MO replying to the 10 points of the respondent’s earlier email and also pointing out that, while the respondent had rights of freedom of expression under Article 10 of the European Convention on Human Rights (“ECHR”), that did not extend to comments which were unacceptable or unjustified. On this basis and on advice published by the Standards Commission for Scotland, he concluded that the actions of the respondent fell short of the standards required of a councillor.
10. The MO considered that the respondent’s comments that he was ‘acting under the advice and direction of the council leader’, as set out in paragraph 8 above, to be wholly objectionable and unjustified.
11. When the respondent met the MO prior to a committee meeting, he handed an envelope to the MO saying: “there’s your apology”. It transpired that the envelope contained copies of emails from 2015, on a subject which did not relate to the respondent’s tweet. At interview, the respondent advised that the emails in the envelope related to the points in his email of 30 January as set out in paragraph 8 above.
12. The MO briefed the complainer on what had occurred and had copied him into the exchange of emails between him and the respondent. The complainer wrote to the respondent on 2 February 2017 pointing out that, in his 10 point email of 30 January, the respondent had made at least three allegations of partisan or inconsistent treatment by the MO, a statement which the complainer found to be unacceptable. He sought an early meeting with the respondent, which took place on 9 February 2017.
13. At the meeting on 9 February, the respondent indicated that he would not take any corrective action and, according to the complainer’s account, accused him of being wrapped around the finger of the Council leader, a statement which the complainer alleged was disrespectful towards himself. The respondent has subsequently advised that he stated that it was the perception of the man in the street that the complainer was wrapped around the leader’s finger, a view which was not his.
14. The complainer advised at interview that he had warned the respondent that if he did not remove the tweet, he would have no option but to refer the matter to the Standards Commission. In response, the respondent was alleged to have uttered words to the effect of ‘go ahead then.’
15. The respondent considered that his email of 30 January 2017 was justified as the MO had demanded action without hearing his side of the argument.
16. The complainer alleged the respondent’s tweet and emails to the MO showed disrespect towards the Labour Administration, the CFO and the MO. He also considered that the tweet implied that officers had wrongly utilised council resources for party political activities.
17. I had to consider whether the actions of the respondent amounted to a breach of the Code.
18. The complaint focused on section 3 of the Code dealing with General Conduct. In this context, I required to establish whether the statements and comments attributed to the respondent were made by him in his capacity as a councillor. The tweet was posted on the respondent’s personal social media account, @SNPChris. While I accepted that this was personal to the respondent, its title and the subject matter of the entry would in all probability lead the public to conclude that this was Councillor McEleny who was making the statement. In respect of the exchange of emails with the complainer and MO the designation on his emails show the respondent as a councillor. I was therefore satisfied that the various provisions of the Code applied to the behaviour of the respondent.
19. The complainer alleged that the respondent failed to comply with the terms of paragraph 3.1 of the Code. In support of this allegation he drew my attention to the wording of the tweet, namely “Labour in Inverclyde using Council resources to send out letters complaining about council tax going up whilst calling on the Scot Gov to raise tax”. He claimed that this wording was disrespectful towards officers. In his email to the respondent, the MO specifically requested an apology be given to the CFO who had issued the letter. Both complainer and MO were of the opinion that the wording crossed the line of acceptable comment.
20. Paragraph 3.1 requires that a councillor must observe the provisions of section 3 of the Code in all situations where he or she is acting as a councillor. As already noted, I concluded that the respondent was acting as a councillor when he posted the tweet. This paragraph sets the scene for the application of good behaviour in a number of different situations, whether at a meeting or as in this case acting alone in relation to Council business. The issue was whether the wording displayed disrespect towards an identifiable person or persons. The complainer, supported by the MO, was of the view that the wording was disrespectful of the Labour Administration and also implied disrespect towards the CFO. As regards the Labour Administration, the wording was clearly critical. However, the statement was made in a political environment on a matter of public administration, and notwithstanding the views of the MO, I was satisfied that it was therefore within the scope of statements which attract the protection of Article 10 of the ECHR, in line with the Court’s decision in Heesom v the Public Services Ombudsman for Wales (2014). I did not therefore consider that it could be regarded as showing disrespect in terms of part 3 of the Code. I also noted that no individual was identified in the tweet. In my opinion, and in line with decisions made by the Standards Commission for Scotland, it would not be appropriate to treat the critical reference to the collective actions of the Council’s Administration as a failure to comply with the requirements of part 3 of the Code. Accordingly I did not find that the respondent had breached paragraph 3.1 of the Code.
21. Paragraphs 3.3 and 3.5, as supported by paragraph 20 of Annex C deal with the relationship between councillors and employees. The thrust of these paragraphs is trust and mutual respect. The complainer alleged the respondent’s tweet and subsequent comments made in relation to the investigation by the MO showed disrespect towards the CFO, the MO and himself. According to the complainer, the terms of the tweet impugned the CFO for improperly using council resources. However, as I already indicated, no individual was identified in the wording of the tweet. The only group of people to which reference was made was the Administration of the council, identified as “Labour in Inverclyde”. I did not accept that this implied any criticism of the CFO which could be considered to involve a breach of paragraphs 3.3 or 3.5 of the Code.
22. The complaint also deals with comments made by the respondent about the MO. In particular, the complainer drew my attention to the respondent’s email of 31 January. Here the respondent challenged the role of the MO alleging that he was acting “under the advice and direction of the council leader”. He also allegedly criticised the MO by challenging his right to ask for an apology be given to the Labour group and asked what made it appropriate to seek such an apology. Finally, he criticised the MO for failing to respond to a previous unrelated email suggesting that there appeared to be a priority depending on how strenuously the Council made a request for action.
23. Paragraph 3.3 requires councillors to respect employees and the role they play. In this context, the complainer suggested that the challenge to the MO was unwarranted. He wrote to the respondent on 2 February, where he claimed “there were at least three allegations of partisan or inconsistent treatment by the MO”. The basis of this challenge appeared to have been the exchange of emails between the respondent and MO on 30 and 31 January 2017. I examined these documents and did not consider that the wording of the respondent’s email of 31 January could be regarded as being disrespectful. As a councillor, the respondent is entitled to question officers and seek answers or explanations in respect of what he perceived to be inconsistencies of approach and a political matter, namely the request for an apology to the Labour group. I did not consider the language of the respondent’s email could be deemed disrespectful. There was no excessive language.
24. The complainer considered that the respondent’s statement that he was wrapped around the Leader’s finger was disrespectful and in breach of the provisions of paragraph 3.3 of the Code. I noted the respondent’s account of the meeting on 9 February 2017 at which only he and the complainer were in attendance. The respondent’s position was that he was commenting on how matters were perceived by others. The evidence was contradictory as to whether the respondent’s statement was, in itself, disrespectful of the complainer. In the circumstances, there was no basis for a finding of a breach of the Code.
25. I therefore found that the respondent had not breached the terms of paragraph 3.3 of the Code.
26. Turning to the allegation of a breach of paragraph 3.5 and paragraph 20 of Annex C I was again referred to the tweet. The complainer claimed the tweet suggested that officers colluded with the Labour Administration in using council resources for party political activities. There was no mention of any officer in the tweet. The decision to issue the letter about the council tax changes was taken by councillors at the Policy and Resources Committee on 15 November. The tweet started, “Labour in Inverclyde….” There was no reference to anyone else being responsible for the issue of the letters.
27. As I already indicated in paragraphs 20 and 21, the tweet was posted in a political environment by the respondent using his social media account. The terms of paragraph 20 of Annex C deal with obligations on councillors not to raise matters relating to the conduct or capability of employees in public. I accepted that the tweet was publicly available. However, there was no reference to officers in the tweet, and while the complainer considered that there was an implied reference that officers were responsible for issuing the letter, I was not persuaded that such an implication could extend to criticism of any officer.
28. In the absence of any direct reference to any employee in the tweet, which was the only communication from the respondent which was made public, I found that the respondent had not breached the terms of paragraph 3.5 and paragraph 20 of Annex C of the Code.
29. Finally, the complainer referred me to paragraph 3.16 of the Code, which restricts councillors’ use of council resources for official duties and not for party political or campaigning activities. The complainer claimed it was wrong of the respondent to suggest that council resources had been utilised for party political or party campaigning activities.
30. The only reference which is relevant to this part of the Code is the wording in the tweet. The respondent was the one alleging misuse of council facilities: no such allegation had been made by the complainer. Accordingly, I found that the respondent had not breached paragraph 3.16 of the Code.
31. Having considered the information that arose from my investigation, I concluded that, Councillor Chris McEleny had not contravened the Councillors’ Code of Conduct.
91 Haymarket Terrace
9 August 2017