Complaint Number: LA/As/2054
Date case started: 13 Sep 2017
Decision issued: 08 Dec 2017
Allegation against: Councillor Jim Gifford
Complaint Categories: 7.11, 7.12
Nature of allegation
Breach of the provisions in the Councillors’ Code of Conduct set out in section 7 of the Code - Taking Decisions on Quasi-Judicial or Regulatory Applications.
Decision by Commissioner
Decision that Councillor Gifford had not contravened the Councillors’ Code of Conduct.
Complaint no. LA/As/2054 concerning an alleged contravention of the Councillors’ Code of Conduct by Councillor Jim Gifford of Aberdeenshire Council
1. Complaint number LA/As/2054 alleged a contravention of the Councillors’ Code of Conduct (“the Code”) by Councillor Jim Gifford (“the respondent”).
2. It was alleged that the respondent hadcontravened the Code, and in particular, section 7 – Taking Decisions on Quasi-Judicial or Regulatory Applications, paragraphs 7.11 and 7.12.
3. The person complaining (“the complainer”) Councillor Alexander Duncan made complaint on behalf of A C Duncan & Co. He alleged that the respondent had failed to declare a non-financial interest when he participated as a substitute member of Aberdeenshire Infrastructure Committee at its special meeting of 3 February 2017. The meeting had been convened to hear planning application APP/2013/2779 which concerned permission to erect a wind turbine, equipment cabin and vehicular access at premises near Turriff. The firm A C Duncan & Co, in which the complainer had a registered interest, was the applicant.
4. The allegation was based on the respondent’s prior participation in a special meeting of Aberdeenshire Infrastructure Services Committee on 1 December 2016 which had solely concerned the planning application. It was said that the respondent had declared an interest at this meeting in that he knew one of the partners of the applicant, namely the complainer (Councillor Duncan), but had failed to make such a declaration at the meeting on 3February 2017, at which a decision to refuse the application had been made.
5. The complainer indicated that, during the period between these meetings, the respondent had made a complaint about his conduct in regard to the planning application. He added that the respondent had also spoken very strongly against the application at the meeting of 3 February and had voted for its refusal.
6. The complainer questioned the respondent’s motives and impartiality because the respondent was, at that time, leader of the opposition in the Council, having previously been Council leader. The complainer and his partner in the applicant business would have found the decision to refuse their planning application more acceptable had the respondent not been present at the meeting.
7. The respondent refuted the allegations. I had to consider, therefore, whether the respondent’s actions amounted to a breach of the Code as alleged.
8. A special meeting of the Infrastructure Services Committee had taken took place on 3 February 2017 to hear the planning application, following an earlier site visit. The Committee had consisted of 13 members including the respondent who had again attended as a substitute committee member that day. Committee membership mirrored that of 1 December 2016, the only exception being the participation of a further substitute member. The approved minute records no declarations of interest or transparency intimations and provided that the meeting had heard from three parties. The minute records that the committee agreed to refuse the planning application as it was contrary to several Council and Scottish Government planning policies.
9. I noted that Paragraph 64 of the Guidance on the Code issued by the Standards Commission for Scotland encourages councillors to demonstrate public transparency on occasions where they may wish to recognise and explain to a meeting that they have considered any matter and reached the conclusion that the objective test set out in paragraph 5.3 of the Code is not met.
10. The respondent had not made a declaration of (non-financial) interest at the meeting of 1 December 2016. The minute showed that he had in fact made a transparency intimation, as had all the other committee members that day, stating that although he knew the applicant (complainer) as a fellow elected member he would continue to participate in the meeting. The assertion on which the complainer based the allegation of failure to declare an interest at the meeting of 3 February 2017 was therefore inaccurate.
11. The respondent’s complaint concerning the complainer’s conduct (LA/As/1963) pre-dated his participation in the special meeting of the Infrastructure Services Committee on 1 December 2016. The assertion that the respondent had made the complaint subsequent to his participation was therefore inaccurate, albeit I considered this was most likely due to the complainer having received formal notification of the existence of the complaint on 12 January 2017.
12. The respondent’s complaint specifically related to the complainer’s conduct as an elected member in regard to his actions associated to the historic decision making process on the planning application. There was no comment on the planning application itself.
13. I considered that the respondent’s position was accurately reflected in the transparency intimation which he had made prior to participating in the 1 December 2016 meeting. He had made the intimation in terms of paragraph 64 of the Standards Commission’s guidance, signifying that he had considered his position and did not believe there to be any other reason which should preclude his participation in related decision making on the planning application. In addition, I considered the timing of this intimation to be relevant in that it post-dated the respondent’s complaint concerning the complainer and had taken place prior to his participation in the decision making process on the planning application.
14. I did not agree with the complainer’s view that making a complaint about his conduct could give rise to a non-financial interest on the part of the respondent. The complainer’s firm was the applicant in the planning application. The respondent’s complaint related to the complainer’s actions as a councillor, as opposed to the merits of the application itself. I therefore concluded that there was no evidence to suggest that the respondent had breached paragraph 7.12 of the Code.
15. The allegation that the respondent had demonstrated a lack of impartiality in his consideration of the planning application was based solely on the complainer’s opinion of the impact of the respondent’s complaint about him and his alleged opposition to the planning application during the meeting. The planning application had been refused by that committee.
16. Paragraph 7.11 of the Code provides that councillors proposing to take part in a decision process must not give grounds to doubt their impartiality. This provision specifically directs that councillors must not make public statements on a pending application, be seen to prejudge their decision, indicate their support or opposition to a proposal or declare their voting intention prior to the relevant meeting. Notwithstanding the complainer’s perception, there was no evidence available to me that suggested that the respondent had engaged in any such conduct during his involvement in the decision making process on the planning application.
17. Additionally, there was no evidence that Councillor Gifford’s position or standing as a councillor had influenced the decision of other committee members. Accordingly, I found no evidence which could legitimately support the allegation that the respondent failed to observe the provisions of paragraph 7.11 of the Code. I found therefore, that the respondent had not breached paragraph 7.11 of the Code.
18. Having considered the information that arose from my investigation, I concluded that, Councillor Gifford had not contravened the Councillors’ Code of Conduct.
91 Haymarket Terrace
8 December 2017