ABERDEEN CITY
COUNCIL REPORT by CRAWFORD J LANGLEY AS MONITORING
OFFICER INTO THE ACTIONS OF DAVID
MAITLAND: In terms of S 5 of the Local
Government and Housing Act 1989 it is my statutory
duty to report to the Council in the event that, in
my opinion the actions or proposed actions of the
Council may result in illegality or
maladministration.
While I am not
required to report on instances where I do not
consider there to be a risk of illegality or
maladministration, logic and openness both demand
that I should report on a serious matter which I
have investigated.
While my conclusion
is that the Council's own actions are sound, there
has been a clear breach of the Code of Conduct by
one member and a potential breach (on a different
issue) by another. I will address the issue of the
action to be taken in relation to the Members
concerned later in this report.
The facts are
straightforward.
Immediately prior
to the Planning Committee Meeting on Thursday 8th
August 2002, Councillor Cassie approached Hazel
Spalding seeking advice as to his position at the
meeting since Councillor Maitland had contacted him
seeking to ascertain his voting intentions on the
Kingswells Stadium and indicating that in exchange
for a favourable vote, the reservations which
certain of his colleagues held about another
proposed development in Councillor Cassie's Ward at
Garthdee could be overcome. (There is a significant
issue in relation to the implication of block
voting in planning matters which I address
later).
Councillor Cassie
did not indicate his voting intention and in fact
voted against the stadium development as had been
his considered intention.
The advice given by
Mrs Spalding, who consulted myself was that the
meeting of the Planning Committee should proceed
and that Coucillor Cassie should vote according to
his views on the planning merits of the
application. An investigation would be undertaken
by myself as Monitoring Officer. I am aware that
some people outside the Council have queried the
propriety of proceeding with that meeting.
Such a decision is
always a matter of balance but, given (a) that it
was, at that stage an unsupported allegation by one
Councillor against another (b) that to stop
consideration of the matter might interfere with
the investigation of the complaint and most
importantly (c) if the investigation did reveal any
impropriety, it would have been possible to take
action to prevent implementation of the decision, I
felt that the course of action which we adopted was
the correct one.
As Councillor
Cassie was about to go on holiday, it was agreed
with him that the investigation would proceed on
his return.
The fact that
additional evidence became available the following
day and that this would almost certainly not have
been available had the meeting not proceeded,
provides some retrospective justification for my
thinking on point (b).
On Monday 12th
August Councillor Matthew Duncan contacted Hazel
Spalding to say that he had been at a civic
function the previous Friday (i.e. the day after
the Planning Committee) at which Councillor
Maitland had been making comments about the
consequences for Councillor Cassie and his Ward as
a result of his decision to vote against the
Stadium.
Councillor Duncan
also indicated that having heard that Councillor
Cassie had been approached, he had devised a means
of recording such a conversation and put this into
operation when occasion presented itself at the
function.
I took further
detailed statements from Councillors Cassie and
Duncan and from Councillor Cassie's wife.
On the basis of
these I came to the preliminary view that there had
been a clear and substantial breach of the Code of
Conduct by Councillor Maitland.
In reaching this
conclusion I did not rely on the tape recording
obtained by Counicllor Duncan as I have
reservations as to the evidential value of such
clandestine recordings. Irrespective of the
legality of the recording, however, there is an
ethical issue in relation to the Code of Conduct
which touches on the ability of members of the
Council to discuss business with each other without
the fear or suspicion that the conversation may be
being recorded.
It is my intention
to submit a report on Councillor Duncan's actions
to the Standards and Scrutiny Committee. My
concerns over the tape do not however, affect the
validity of the statement made by Councillor Duncan
nor do they diminish the seriousness of what
Councillor Maitland attempted to do. I have in fact
heard the tape and there is nothing on it which I
have not established by other means.
Having established
this preliminary view, fairness required that I put
these allegations to Councillor Maitland and give
him an opportunity to respond.
I also regarded it
as my duty to advise Councillor Ironside as Leader
of the Labour Group, of my findings since
irrespective of any action which the Council might
take against Councillor Maitland he would be
subject to discipline by the Labour Group/Labour
Party.
At a meeting on
15th August 2002, during part of which Councillor
Maitland was accompanied by Councillor Ironside, I
put the allegations to Councillor Maitland who did
not attempt to deny them, expressed remorse for
what his actions might do to the reputation of the
Labour Group and immediately intimated his
intention to resign. He also gave me the names of a
number Councillors he had approached as to their
voting intentions. I have subsequently inquired of
every member of the Council as to whether they
received any approach from Councillor Maitland in
relation to either the decision of the Planning
Committee or the decision taken at this
meeting.
No attempt had been
made to influence the vast majority of
members.
Members indicated
that they had been approached by Counicllor
Maitland prior to the Planning Committee, but only
Councillor Cassie had been offered any sort of
inducement to vote in a particular way. Of these
members 8 were members present at the Planning
Committee, of which 3 were contacted on procedural
matters only, 2 indicated that they were favourably
dispensed to the application, 4 that they were
undecided and 2 that it was a planning matter which
should not be the subject of prior
discussion.
Of these approached
subsequent to the meeting of the Planning
Committee, only one (who had been approached at the
civic function on the Friday evening) indicated
that Councillor Maitland had predicted unfortunate
consequences in relation to certain personal
interests outwith the Council were he to vote
against the proposal. While I have details of these
interests, it would be improper for me to detail
these in an open report as they refer to personal
business interests. The potential consequences were
of a commercial nature. The significance lies not
in what the interests are but in the fact that in
approaching Counillor Cassie and this other
Councillor, Councillor Maitland sought to utilise
enticements related to their particular
circumstances.
The issue upon
which I have primarily to report is whether any
illegality or maladministration surrounds the
decision of the Planning Committee.
From what I have
said so far it should be clear that Councillor
Maitland made a blatant, unjustified and
unjustifiable attempt to interfere with the proper
working of that Committee.
He did not,
however, succeed, through the unwillingness of
those approached to vote in a manner contrary to
their conscience. Councillor Cassie who at that
stage was under most pressure voted against the
application. A number of those approched also had
indicated a predisposition to vote the application
.
There can, in my
opinion, be no doubt therefore, that the decision
of the Planning Committee is sound both in law and
procedure.
While for the
purposes of assessing the effect on the Committee
decision, it is not necessary for me to inquire
into Councillor Maitland's motives, I think that
fairness demands that I reiterate what certain news
editors have criticised me for saying, namely, that
I have come across no evidence that his actions
were in any way criminal or motivated by the
prospect of personal financial gain, nor have any
of those within the Council who are particularly
critical of him suggested this.
My impression is
that given his stated intention to secure a
unanimous decision on the application, his actions
were due to the "enthusiasm" or "an abundance of
exuberance" for a project in which he passionately
believed.
It was, however,
over enthusiasm of gigantic, unprecedented and
inexplicable proportions which took it way beyond
the realms of acceptable conduct. To attribute it
to over &endash; enthusiasm does not however, in
any way diminish the seriousness of what he
attempted to do and had he not chosen to resign the
Standards and Scrutiny Committee would have
required to decide what sanctions to impose.
Had I been asked
for a recommendation on that aspect, I would almost
certainly have suggested that the matter be
referred to the Standards Commission recently
established under the Ethical Standards in Public
Life Etc. (Scotland) Act 2000 and which possesses
powers of suspension and disqualification not open
to the Council.
The fact that
Councillor Maitland immediately chose to resign and
that his political group suspended him in the event
that he did not resign indicates that others share
my view of the seriousness of the matter. By
resigning Councillor Maitland has voluntarily
accepted a penalty commensurate with the gravity of
what he has done but of a severity which the
Council under its existing powers could not have
imposed.
While as indicated
above, I am aware of no evidence of criminal
activity on the part of Councillor Maitland, I am
not an expert in criminal investigation and I have
referred the matter to Grampian Police for such
action as they wish to take.
As I have already
indicated, the innuendo of Councillor Maitland's
comments to Councillor Cassie and borne out by his
subsequent remarks to Councillor Duncan was that he
could deliver the votes of his colleagues in the
Labour Group in relation to a planning application
for leisure facilities in Garthdee.
If he or any other
member were capable of doing so this would amount
to a very serious breach of the rules for the
consideration of planning applications.
As members will be
aware, a similar allegation, not restricted to the
Labour Group was made at the time of the Tesco
planning application and was shown to be totally
unfounded as can be demonstrated by an examination
of the voting figures on virtually any planning
application. In the course of my current
investigation, not even Councillor Maitland's major
critics have suggested that there is any substance
in these allegations. It is also significant that
two members of the Labour Group who had been
approached by Councillor Maitland in relation to
the stadium application have confirmed that they
told him that their voting intentions were a
personal matter.
I also must comment
on the propriety of the Council proceeding to
consider the planning application relating to the
Stadium this afternoon. In my opinion as Monitoring
officer, there is nothing to prevent such
consideration. Indeed it could be argued to be
dereliction of a statutory duty as planning
authority not to do so.
As I have indicated
there is no evidence that any member, of the
Planning Committee whether approached by Councillor
Maitland or not voted otherwise than in accordance
with his/her view of the planning issues of the
application.
The decision of the
Planning Committee is, however, only one aspect of
the material to be considered by members this
afternoon. You have a duty to consider that
decision, the reports and any points raised in
debate and come to a considered decision on whether
proper planning of the area requires the
application to be granted or refused.
There is no
obligation on any member of the Planning Committee
to vote as he or she did at the Committee meeting
provided that the change of opinion is governed by
planning considerations.
It may also be
helpful if I formally put on record the advice
given informally at the Planning Committee, namely,
that you cannot rewrite the planning application
and grant part and refuse part.
On a number of
occasions the Courts have held that it is the duty
of the Planning Authority to consider and reach a
decision on the application before it; that
fairness both to the applicant to objections and
particularly those who have not objected to the
overall package but might object to one component
if implemented alone, requires the application be
granted or refused as a whole.
In conclusion I
would wish to thank all Members of the Council who
have given me full co-operation during my
investigation.
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