1. WHO WE ARE AND WHAT WE DO
The Ethical Standards in Public Life etc. (Scotland) Act 2000 (“the 2000 Act”) established the Standards Commission for Scotland (“the Standards Commission”), and an investigatory role which is now performed by the Commissioner for Ethical Standards in Public Life in Scotland (“the Commissioner”). The Commissioner is appointed by the Scottish Parliament and conducts investigations independently of the Parliament and the Scottish Ministers.
The 2000 Act requires the Scottish Ministers to issue a Code of Conduct for councillors and a Model Code of Conduct for members of devolved public bodies. The most recent version of the Councillors’ Code of Conduct was issued on 21 December 2010. A new version of the Model Code came into effect in 2014. Public bodies are required to adopt their own code of conduct, based closely on the Model Code.
The Commissioner receives and where appropriate, investigates complaints about the conduct of councillors and members of the boards of public bodies. The Commissioner is also responsible for investigations into certain types of complaint alleging a breach of the Code of Conduct for MSPs. Link to: MSP complaints
Complaints will only be investigated if they allege a breach of the relevant code of conduct. An initial assessment will be made to determine if the complaint appears to be relevant. This means that the complaint meets all of the following tests:
It relates to someone who is covered by a relevant Code of Conduct.
It alleges conduct which could, if established, amount to a breach of the Code.
It is received within a reasonable period – normally 12 months – of the alleged circumstances.
Where an investigation has been conducted and the Commissioner considers that there is evidence of a breach, a proposed report will be issued to the person(s) against whom the complaint has been made. Any comments will be taken into account. The Commissioner may decide to make further enquiries, determine in the light of the comments that there has been no breach, or adhere to his initial view.
Breach reports are forwarded to the Standards Commission. If the Standards Commission decides to hold a public hearing, the Commissioner or his representative will attend the hearing and present the evidence for the alleged breach.
Link to: Standards Commission
2. WHO YOU CAN COMPLAIN ABOUT
Councillors – you can complain about misconduct by a councillor in any of Scotland’s 32 local authorities. Where more than one councillor is alleged to be involved in the conduct about which the complaint is made, all should be named.
Members of public bodies – you can complain about misconduct by a member or members of a public body designated under the 2000 Act. A full list of the relevant public bodies is available from the Standards Commission’s web-site. They include, amongst others:
National public bodies
National park authorities
Further education colleges
Regional transport partnerships
Integrated Joint Boards
3. WHAT WE CAN INVESTIGATE
The following are examples of misconduct that could constitute a breach of one of the relevant Codes of Conduct. The list is not exhaustive:
-failure to register financial or non-financial interests;
-failure to declare financial or non-financial interests at business meetings;
-inappropriate acceptance of gifts or hospitality,
-misuse of council or public body facilities;
-disrespect towards employees, other councillors or members, or towards members of the public in certain circumstances;
-breach of confidentiality;
-demonstrating bias or pre-judgement before taking decisions on individual applications (for example planning and licensing applications).
4. WHAT WE CANNOT INVESTIGATE
The following are examples of complaints which are outside the remit of the Commissioner and which cannot therefore be investigated:
-complaints about the failure of a council or public body to meet service standards;
-complaints about misconduct by an employee of a council or of a public body;
-complaints about misconduct by a community councillor;
-complaints about conduct in a private, or non-official, capacity;
- complaints alleging only a breach of the Code’s key principles
5. WHAT YOUR COMPLAINT SHOULD INCLUDE
Your complaint must be made in writing, be signed by you and include the following:
-the name of the councillor or board member you are complaining about;
-the name of the council or public body on which the person serves;
-a description of the circumstances of your complaint including the date or dates on which the alleged misconduct occurred and, if known, the details of any witnesses;
-any evidence or documents which support your complaint;
-your name, address, telephone number and email address.
It is also helpful if you can indicate which part(s) of the Code you feel have been breached. Paragraph 2.1 of the Code and to the Guidance issued by the Standards Commission for Scotland make it clear that contravention of one or more of the key principles will not in itself constitute a breach of the Code. A complaint cannot be upheld unless it is established that it involves a contravention of one or more of the substantive sections of the Code).
You can complain by letter or by using the complaint form available from the Commissioner’s Office (which you can download from the website).
Link to: Complaint form
6. HOW WE INVESTIGATE AND DECIDE YOUR COMPLAINT
Initial Office Assessment
The complaint will be acknowledged and allocated a reference number in the Commissioner’s database / complaints management system.
At this stage the Commissioner will decide if the complaint is relevant and admissible.
A complaint will normally be relevant if:
the complaint describes conduct, behaviour or other circumstances which (if established on the balance of probabilities) could amount to a breach of the applicable Code.
A complaint will normally be admissible if it:
contains the information sought in the complaint leaflet (“What your complaint should include”);
is generally made within 12 months from the date on which the complainer could reasonably have become aware of the matters complained about; and
relates to conduct, behaviour or other circumstances occurring after the relevant Code of Conduct came into force.
No investigation will take place if the complaint is found not to be relevant or if the Commissioner considers that, in all the circumstances, including the proper use of public funds, it would not be in the public interest to make any further enquiry.
If the Commissioner decides that the complaint is not relevant or that it should not be investigated further, the Commissioner will write to advise the complainer and, if contact has been made during initial assessment, the respondent (the person against whom the complaint has been lodged) and the relevant council or public body.
In some cases, the initial assessment will involve the Commissioner issuing a letter indicating that he is not minded to pursue an investigation unless the complainer is able to supply additional information. If that is not received within a stated period, the file will be closed.
The ethical standards legislation requires that complaints should be submitted in writing and signed. The Commissioner will not normally progress an anonymous complaint. However, the name of the complainer may be withheld in certain, limited circumstances.
The Commissioner is a ‘prescribed person’ under the Public Interest Disclosure Act 1998. The Act provided protection for employees who pass on information concerning wrongdoing in certain circumstances. For further information see: Whistleblowing
Each complaint which proceeds beyond the Initial Office Assessment is allocated to an Investigating Officer. If it appears that the complaint may be relevant and admissible the respondent will normally be told and advised that a complaint has been made, the substance of the complaint and the name of the complainer.
In most cases, the Commissioner will ask the respondent, senior officers of the council or public body, or any other person who can help, to provide further information or documents. At any stage of the process the Commissioner may request the complainer to clarify or provide further information about the complaint.
The Investigating Officer will invite any person who appears to have information relevant to the complaint to provide that information or relevant documents. It may also be necessary for the Investigating Officer to interview witnesses. Where reasonable and practicable, these interviews will be conducted locally. Contact will be made in advance, giving notice of the proposed time, date and location of the interview. Special arrangements will be made for vulnerable witnesses, any witness who indicates that they have particular needs, and anyone involved in a whistleblowing complaint. Witnesses may be accompanied at interview unless the Commissioner takes the view that this would prejudice the investigation, for instance where the accompanying person is or may be a witness in the case.
If, without reasonable excuse, any person obstructs the Commissioner in the performance of his functions, the Commissioner may certify that conduct to the Court of Session. The Court of Session may then deal with the person as if any such conduct as occurred had taken place in relation to a case coming before the Court.
Withdrawal of a Complaint
If at any point during the process, a complainer wishes to withdraw a complaint, it will be a matter for the Commissioner to decide whether to terminate or complete the investigation. In making a decision on whether or not to agree to the complaint being withdrawn, the Commissioner will take into account the stage which the investigation has reached, the public interest in terminating or concluding it, and the wishes of any other person who has complained about the conduct in question.
Investigations will be completed as soon as possible consistent with a full and proper evaluation of all the relevant facts and circumstances of the complaint. The Commissioner will try to complete the investigation within 3, and certainly no more than 6, months of the start of the investigation. However, this will depend on a number of factors outwith the Commissioner’s control including the availability of witnesses, the complexity of the complaint and on how quickly the parties involved provide the Commissioner with information which has been requested. If it is not possible to complete the investigation within 3 months, the Commissioner will advise the Standards Commission, the council and the councillor or member against whom the complaint has been made.
Investigation outcome: Finding of No Breach or No Further Action
Having reviewed the results of the further investigation by the investigating officer, the Commissioner may find:
that there has been no breach of the Code; or
that the nature and materiality of the evidence is such that, in all the circumstances including the public interest, the complaint should not be further pursued.
The Commissioner will record findings and conclusions in a decision letter or Note of Decision and will inform the complainer, the respondent, the council or public body and any other person whom the Commissioner considers appropriate.
Investigation outcome: Finding of Breach
Where the Commissioner finds that a councillor or member has contravened the Code, they will be invited to comment on a proposed Report to the Standards Commission. A copy of the proposed Report will also be given to the council or public body, for their comments.
The proposed Report will incorporate the details of the complaint, the parts of the Code to which the complaint refers, a summary of the relevant evidence and the Commissioner’s findings and conclusions that the councillor or member has contravened the Code. The proposed Report may include appendices showing details of those interviewed and documents relied upon.
The Commissioner will consider any comments received in relation to the proposed report. Where appropriate, adjustments will be made to the report in response to the comments received. In exceptional circumstances, when the comments disclose a material fact which has not been uncovered by the investigation, the Commissioner may decide not to proceed to submit a report to the Standards Commission. Otherwise, the Commissioner will prepare a final Report and submit it to the Standards Commission. The Commissioner will also give the final Report to the councillor or member and the council or public body. The complainer will be advised that a Report has been submitted to the Standards Commission.
The Next Step
At this point the investigation is completed and it is a matter for the Standards Commission to decide whether to:
direct the Commissioner to carry out further investigation;
hold a public Hearing; or
take no action.
Further information about the Standards Commission and hearings procedures is available from its website: www.standardscommissionscotland.org.uk
7. WITNESS POLICY
Link to:Witness policy
8. HOW WE DEAL WITH YOUR COMPLAINT – An overview
The flow chart summarises how the Commissioner for Ethical Standards in Scotland will process your complaint. For full details please see our Investigation Procedures (which you can download from our website).
9. HOW WE PROCESS PERSONAL DATA
Link to: Privacy statement