Commissioner for Ethical Standards in Public Life in Scotland

Commissioner for Ethical Standards in Public Life in Scotland REPORT Complaint number LA/Fi/2044 concerning an alleged contravention of the Councillors Code of Conduct by Councillor Tim Brett of Fife Council Commissioner for Ethical Standards in Public Life in Scotland Thistle House, 91 Haymarket Terrace, Edinburgh EH12 5HE T: 0300 011 0550 E: info@ethicalstandards.org.uk W: http://www.ethicalstandards.org.uk/ I.4.1 01-04-11

CONTENTS 1.0 Introduction 2.0 Outline of the Complaint and the Response 3.0 The Investigation 4.0 Consideration of the Evidence 5.0 Findings and Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E The Complaint The Response List of Persons Interviewed Fife Council Pre-Election Period Guidance The respondent s representations on the Proposed Report

1.0 Introduction 1.1 Complaint number LA/Fi/2044 alleges a contravention of the Councillors Code of Conduct ( the Code ). The Code was issued by the Scottish Ministers in terms of section 1 of the Ethical Standards in Public Life etc. (Scotland) Act 2000 ( the 2000 Act ) and came into effect on 1 May 2003. A revised edition of the Code was issued on 21 December 2010. 1.2 The complaint has been lodged by ( the complainer ) who alleges a contravention of the Code by Councillor Tim Brett ( the respondent ). The respondent is an elected member of Fife Council ( the Council ). 1.3 It is alleged that the respondent has contravened the Councillors Code of Conduct, and, in particular, the provisions regulating the Use of Council Facilities set out in paragraph 3.16 of the Code. Paragraph 3.16 of the Code states: 3.16 The Council will normally provide facilities to assist councillors in carrying out their duties as councillors or as holders of a particular office within the Council. This may involve access to secretarial assistance, stationery and equipment such as telephones, fax machines and computers. Such facilities must only be used in carrying out Council duties in accordance with your relevant Council s information technology, communications and member support policies or for incidental personal use as authorised by your Council and not related in any way to party political or campaigning activities. Where the Council recognises party political groups, assistance to such groups is appropriate in relation to Council matters but must not extend to political parties more generally and you should be aware of and ensure the Council complies with the statutory rules governing local authority publicity. 1.4 The respondent has signed a declaration of acceptance of the office of councillor under the Local Authorities (Councillors) (Declaration of Acceptance of Office) (Scotland) Order 1990, as amended, in terms of which he has undertaken to meet the requirements of the Councillors Code of Conduct in the performance of his functions in that office. 1.5 For the purpose of this investigation, I was assisted by Mr Jon Miller, Investigating Officer. 1.6 This Report has been prepared for submission to the Standards Commission for Scotland in terms of section 14(2) of the 2000 Act. The Report was submitted in proposed form to the respondent for any representations. The respondent s response is set out in Appendix E. The respondent has confirmed that he accepts all the points made in the proposed Report. 2.0 Outline of the Complaint and the Response The Complaint 2.1 The complaint is set out in a letter dated 22 June 2017, together with attachments, which are attached as Appendix A. The complainer alleges that on 26 April 2017, while campaigning on behalf of the Scottish Liberal- Democrat party in relation to the Local Government and Parliamentary

elections, the respondent used his council-provided email identity and computer equipment to send an email to the chair of the Community Trust [also referred to as the Trust or as ] which contained a request for assistance in delivering party political or campaigning leaflets. The Response 2.2 The response is set out in a letter dated 31 July 2017 which is attached as Appendix B. The respondent accepts that he sent the email in question under explanation that it was intended to be a personal note to the recipient. The respondent acknowledges that he should not have used his council email address and tenders an apology for so doing. 3.0 The Investigation 3.1 To establish the background to the complaint, the Investigating Officer sought and received information from the Council. 3.2 Having considered the documentary evidence, the Investigating Officer proceeded individually to interview the complainer, the respondent and relevant witnesses. The interviews took place on 19 and 26 September 2017. A list of those interviewed is attached as Appendix C. 4.0 Consideration of the Evidence 4.1 The respondent, Councillor Tim Brett, has been a councillor for 14 years and is the leader of the Liberal-Democrat group on the Council. He represents the Tay Bridgehead ward which includes the housing development. Councillor Brett is convener of the Scrutiny Committee, and a member of North-East Fife Area Committee, North-East Planning Committee, Policy and Co-ordination Committee, Rates Review Committee, and Health and Social Integration Joint Board. 4.2 The Council provides elected members with computer equipment and an official email address for their use in the course of their role as councillors. 4.3 The respondent stood successfully for re-election at the Local Government elections held on 4 May 2017. He also assisted in the election campaign for the Liberal-Democrat candidate for the Parliamentary election on 8 June 2017. On 1 February 2017 guidance (Appendix D) was issued to councillors by the chief executive of Fife Council in regard to political neutrality during the pre-election periods. The guidance included the following paragraphs in regard to the use of council facilities and resources by elected members: Facilities and resources provided by the Council for elected members to help them carry out their duties must never be used for party political or campaigning activities. This includes computer equipment, telephones, stationery, secretarial support and mailing facilities. This is not an exhaustive list and elected members should check if they are not sure what is appropriate. Communications by elected members to their constituents are also subject to restrictions, except where they are in response to particular issues initiated by constituents themselves. Use of Council facilities for unsolicited mailings during this period should be made with extreme

caution. To avoid any suggestion that actions may be motivated by the forthcoming election, elected members should not issue communications in a form, style or frequency which they have not used before. The respondent acknowledges that he received this guidance. 4.4 The complainer,, is a resident of, a housing development in North-East Fife comprising in excess of 100 residential properties. is a director of the Community Trust which represents the interests of the majority of the householders. The Trust is a non-political body governed by a management committee which meets on a bi-monthly basis and communicates with its wider membership by means of email. For some weeks prior to April 2017 the respondent had been assisting the Trust in regard to the realignment of a public footpath. In so doing he had engaged in an exchange of emails with the chair of the Trust,. This correspondence was sent from the respondent s official email address <Cllr.Tim.Brett@fife.gov.uk> under the subject heading Re-alignment of Footpath at. 4.5 The exchange of emails immediately prior to 27 April, all of which bear the above subject heading, and serve to show the context of the complaint, reads as follows: 24 April 2017, 15:24 The respondent to the Council Access Officer I m aware that there has been consultation on the re-alignment of the footpath round the proposed new manager s house at. I ve recently met with representatives of the Residents Association [in fact the Community Trust] and they have asked if it would be possible for them to see the comments that have been made about this. Would that be possible? I assume that a paper will be coming to the North East Fife Area Committee after the elections? 25 April 2017, 09:31 Council Access Officer to the respondent I ve been asked by a number of people and I m not able to give the info out as we don t ask for permission when they put comments in. However all comments will be attached to the committee report and they will be redacted so people cannot be identified. This info will be put up on line prior to committee. I hope that helps? 25 April 2017, 12:16 The respondent to the Council Access Officer Yes, thanks..do you have a target date when this will be coming to committee? 25 April 2017, 12:25 Council Access Officer to the respondent June Committee, after the elections. 25 April 2017, 12:35 The respondent to, this is the answer re the path realignment...you will be able to see the comments once the Committee papers are made public. Can you share this with [the Trust secretary] 25 April 2017, 20:10 to the respondent

Tim Thanks for the information, we will just have to wait until the next access forum meeting. Also thanks for meeting us last Friday, it was good to catch up and your suggestion on how to approach the play area development will be very useful. We have a committee meeting in May when we can formalise our approach to Parkhill. Will keep you informed. Regards, 4.6 The email on which this complaint is founded was sent to by the respondent on 26 April 2017 at 12:33. It is also headed Re-alignment of footpath at and reads: Thanks, dare I ask if you and any friends/neighbours would help deliver leaflets in your part of as that would be a tremendous help? We are choosing our candidate [for the Parliamentary elections] tomorrow night. Tim 4.7 did not reply to the respondent s email. At interview he stated that he regarded it as a personal request to himself, albeit one which he felt was inappropriate and had no intention of actioning. He did however notify the other members of the management committee, including the complainer: 26 April 2017, 15:42 Tim Brett is looking for volunteers to deliver leaflets for them, I m assuming it s for the General election, not the Council Elections, [the Trust secretary] is this something we can put out to residents or does [it] show bias? 4.8 Several notes of dissent were raised and, on the afternoon of 26 April, emailed them as follows: It was a serious request from Tim Brett which I felt had to be at least considered. For the record I agree with the responses, minefield! 4.9 That evening the complainer expressed his own reaction to the respondent s request in an email to his fellow committee members: I haven t seen Tim s request, but my understanding is that he has asked to use its membership database to engage in party political communication & recruitment of activists. (An activist is any person who participates in political representation). properly engages with our community on matters of community interest, in accord with our constitution, and without political shade. We are currently in 2 legally defined campaign periods, comprising the Short Campaign for Local Elections, and the Long Campaign period in Westminster Elections. I want fellow members to understand that if we had used our contacts to send out a political recruitment message, during this period then there would have been significant consequences for, and potentially for the political party who exploited. Our activity on behalf of the party would need to be recorded as Contribution-in-Kind, because it provided a campaign service. It would have to be recorded in the returns made by the Election Agent.

There are proper routes for political recruitment & campaign communications. These include; the party membership register and records of the door canvassing contacts such as refers to. has a legitimate interest in community matters, but not in party political matters. If we had agreed to Tim s request, we would have lost our Chair, our Secretary & much of our committee. Tim knows this If we do respond, it is important to explain that we engage on community matters, but not to assist party political matters. touches on the working relationship with councillors. This is something we can discuss after the elections, because it raises a fair question as to whether we engage evenly across the available representation. In effect, those we talk to, will by default become the ones we perceive as helpful. People are absolutely free to hold personal preferences, but the must be politically neutral. In my view we have just dodged a bullet. 4.10 The following morning sent a further email to his committee members which he hoped would draw a close to the matter: For the record you will see the attached string of email between myself and Tim Brett mostly about the core path. The last one is the one in question and in my mind was a simple request for help delivering leaflets, not looking for activists or any other political involvement. In passing the request on there seems to have been more read into the request than intended. The consensus view is not to get involved, so the matter should be left at that. I ll inform Tim Brett along those lines. 4.11 The complainer was concerned as to the content and implications of the respondent s request and, acting independently of the Trust, he emailed the Councillor Brett in the following terms: 27 April 2017, 14:07 The complainer to the respondent Subject: Appropriate Election Communications Dear Tim, As a Board member of Community Trust, I was asked yesterday if would approve a request to recruit residents as activists for the distribution of your Party & candidate election leaflets. This would have involved the use of the contents data to send invitations on your behalf across the entire community. properly engages with our community on matters of community interest, in accord with our constitution, and without political shade. And you will be fully aware that there are 2 formal campaign periods in force. My fellow members understand that if we had used our contents data to send out a political recruitment message on your behalf, during this period then there would have been significant consequences for.

There are proper routes for political recruitment & campaign communications. These include; your party membership register and records of the door canvassing contacts. And I note in your recent letter, that 1000 homes have been locally surveyed, which should provide sufficient contacts for this purpose. As an experienced candidate, you will fully understand the risk to had done this. if it My understanding is that the request will be declined. But I wanted [to] make clear I believe it was an inappropriate request. And I would be concerned if it emerged that any similar requests were being made elsewhere, or had progressed into effect. If there has been some misunderstanding, I am sure it can be clarified. 4.12 The respondent did not reply to the complainer s email. 4.13 At interview, the respondent explained that he had assisted the Trust in regard to several issues relating to the development. He had attended a management committee meeting but mainly engaged in email correspondence with the chair,. The respondent stated that in his role as a councillor he had met on a number of occasions but this acquaintance did not extend to friendship or social interaction. The respondent had not knowingly met the complainer. 4.14 The respondent said that his most recent involvement with the Trust had been in relation to the realignment of a public footpath. This issue had been ongoing for about six months and he was liaising with the council access officer in an effort to achieve a solution. 4.15 In regard to the request for assistance in delivering election leaflets, the respondent did not dispute that this was campaigning literature on behalf of either or both the Liberal-Democrat campaigns in the Local Government or Parliamentary elections. The respondent explained that as Leader of the Liberal-Democrat group he had been particularly busy: We were coming up to the climax of the campaign and I was introducing a new colleague. I would be sending emails, very busy in the campaign, and other people needing help. I would be dashing around. 4.16 Asked if he maintained a clear demarcation between his council duties and his party political role when sending emails, the respondent replied in the affirmative. Nonetheless, he advised that on this occasion the existing email correspondence with about the footpath was on his computer, and he had made no conscious effort to amend the subject title or to send the email from his private address. He had, in effect, simply added the leaflet delivery request to the existing chain of correspondence. Emails sent from his council computer automatically showed his identity as an elected member. 4.17 The respondent stated at interview that he had intended the request to be directed toward as an individual, and that he did not intend it to be interpreted as seeking access to the Trust membership records. The respondent contended that the complainer was mistaken in attributing a political motivation to the request.

4.18 At interview, the complainer explained that he had been associated with the Trust and its forerunner as a residents association for about ten years. He had interpreted the respondent s request as applying to the management committee as a whole given its plurality of expression. He regarded the intended circulation to be ambiguous and pointed to the fact that the chair had himself opted to share the request with the committee. 4.19 The complainer informed the Investigating Officer that he held the position of second officer in the local SNP branch. He asked that it be noted that he had not alerted the media to the respondent s request and that he had waited until the elections had passed before lodging his complaint with the Commissioner. The crux of the matter in the complainer s view was that the respondent had sent an email relating to the election campaign using his identity as a councillor and that there was no need for it to have been sent in this manner. 4.20 The chair of the Trust accepted at interview that the respondent had been helpful on various issues and that accordingly he was their primary elected member contact. He confirmed that his relationship with the respondent did not amount to a social friendship. had thought it appropriate to seek the views of his committee when he received the request for help in delivering leaflets, and said that he would probably have done likewise if the email had originated from the respondent s private email address. The consensus view of the committee was that acceding to the request could indicate political bias and accordingly no action had been taken. Despite a reference in one of his emails to notifying the respondent of that decision had not in fact done so. 4.21 The respondent has admitted in his written response to the complaint that he made a serious, albeit inadvertent, mistake in using his council email account to send the request. He tenders an apology gives an undertaking that there will no recurrence, in the following terms: As indicated in the correspondence, I sent an email to on 26 April asking if he, or any friends and neighbours, would be able to help deliver leaflets for my party in his part of. This was a personal note to but I acknowledge that I should not have sent this using my Councillor e-mail and I would like to apologise to the Commission and to for doing this. I can only think that this was a particularly busy time in the run-up to the Council Elections and I had been in correspondence with about another matter at. I recognise that I have made a serious, albeit inadvertent, mistake in using my Fife Council email account to send the email in question and, again, would apologise for this. I would want to give the Commission an undertaking that I will be much more careful in future and will not use my Councillor e-mail address for any political purposes. 5.0 Findings and Conclusion 5.1 The complainer alleges that Councillor Tim Brett has contravened the Councillors Code of Conduct, as outlined in paragraphs 1.3 and 2.1 of this Report.

5.2 The complaint alleges that on 26 April 2017, while campaigning on behalf of the Scottish Liberal-Democrat party in relation to the Local Government and Parliamentary elections, the respondent used his council-provided email identity and computer equipment to send an email to the chair of the Community Trust which contained a request for assistance in delivering party political or campaigning leaflets. 5.3 The underlying facts of the complaint are not in dispute and the respondent has fully admitted his failure to comply with the restriction on the use of council facilities for party political or campaigning purposes. 5.4 The salient point here is that the respondent was provided by the Council with computer equipment and an email account for use in his role as an elected member. By means of that equipment and using his official email identity, the respondent made a request for assistance in the distribution of election literature. That is undisputed. I find accordingly that the respondent has breached the terms of paragraph 3.16 of the Councillors Code of Conduct. 5.5 I note that the fact that the email request was sent within a chain of emails about an existing issue in which the respondent was legitimately rendering assistance to the Community Trust, and under the guise of the subject heading relating to that matter, meant that it could have been interpreted either as an inadvertent lapse or as an attempt to exploit the relationship. 5.6 A further element is the timing of the request in the run-up to both the Local Government and Parliamentary elections. The respondent had been alerted to the constraints on political activity in a guidance note issued by the Council chief executive, and that in itself should have served as a warning to take extra care during the election periods. 5.7 In relation to LA/Fi/2044, I have come to the conclusion that, having regard to the findings in section 5 and in particular paragraphs 5.3 and 5.4 of this Report, Councillor Tim Brett has contravened the Councillors Code of Conduct. Thistle House 91 Haymarket Terrace Edinburgh EH12 5HE 15 November 2017 Bill Thomson Commissioner