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Agenda item

NDC0124

Purpose: To make a determination as to whether a breach of the Code of Conduct has occurred after considering the Investigator’s report about a complaint received from Councillor Tony Vickers (Complainant) in respect of Councillor Ross Mackinnon (Subject Member) from West Berkshire Council submitted on 25 January 2024.

Should the Committee determine that a breach of the Code of Conduct has occurred they will need to determine an appropriate sanction.

Minutes:

The Committee considered a report (Agenda Item 4) concerning a complaint regarding an alleged breach of the West Berkshire Council Code of Conduct.

The Committee was required to determine whether a breach of the Code had occurred after considering the Investigator’s report about a complaint received from Councillor Tony Vickers (Complainant) in respect of Councillor Ross Mackinnon (Subject Member) of West Berkshire Council (WBC) submitted on 25 January 2024.

Should the Committee determine that a breach of the Code had occurred they would need to determine an appropriate sanction.

Presentation from Independent Investigator

The Independent Investigator, Mr Richard Lingard, presented his report and highlighted the following points:

·       The information shared by the Complainant had not been intended to be viewed by the Opposition party and was sent to them in error.

·       The Subject Member agreed to delete the e-mail on the first occasion it was sent, doing, in the Complainant’s words, ‘the decent thing’. The Subject Member did not however do so on the second occasion when being aware it was not meant for him.

·       Mr Lingard did not agree there was public interest in disclosing the information and was done for political gain.

·       Mr Lingard felt the WBC Code of Conduct had been breached as a result of the disclosure of confidential information.

Questions of the Independent Investigator

Mr Lingard made the following points in response to questions from Committee Members:

·       He had produced his report and formed his views based on the information he had available to him at the time of the investigation. However, the determination rested with the Committee who could form a different view if, for example, they considered that the matter had become in the public interest.

·       Mr Lingard drew Members’ attention to the definition of confidentiality in paragraph 5.9 of his report. This included ‘information confided should not be used or disclosed further, except as originally understood by the confider’. The mistaken sharing of the information should not have resulted in it being taken advantage of.

·       The fact that the information had been shared on two occasions did not make it any more acceptable to release it publicly.

Mr Lingard made the following points in response to questions from the Complainant:

·       He accepted the point that Councillor Vickers had believed the e-mail group to have been corrected and the fact that it was not was due to a system error. Mr Lingard did however feel that Councillor Vickers could have exercised more caution when resending the e-mail.

Mr Lingard made the following points in response to questions from the Subject Member:

·       He felt that Councillor Mackinnon was aware that the information shared should have been considered as confidential, having used the words ‘I’m sure you didn’t intend to send it to us’ when the e-mail was sent on the first occasion.

·       In reference to the second occasion, Councillor Mackinnon had made the point during the investigation that ‘it gave the Conservatives a very good insight into the internal thinking of the Lib Dems’.

·       In terms of the definition of confidentiality, Mr Lingard did not consider the definition used in the Constitution, rather statutory provisions and common law.

Complainant presentation:

Councillor Jeff Brooks, speaking as the witness for the Complainant, made the following points:

·       He put to Mr Lingard that it was the system which had let down Councillor Vickers and it was not carelessness that had led to the e-mail being sent to the wrong recipients, particularly when an assurance had been given that the e-mail group had been updated. Members should be able to rely on the Council’s IT systems.

Mr Lingard was aware and agreed this was an unfortunate set of circumstances and Councillor Vickers was not at fault. He made clear that the matter before the Committee was the conduct of Councillor Mackinnon.

Committee Members did not ask questions of the Complainant.

Subject Member presentation:

Councillor Mackinnon made the following points:

·       He reiterated that when he received the e-mail on the first occasion, he deleted it and informed Councillor Vickers of the fact, although it would have been politically useful.

·       He did not delete the second e-mail, but neither did he use it or plan to use it. This changed when it became apparent to Councillor Mackinnon that the approach of the Administration appeared to conflict with the points that Councillor Vickers had made in his e-mails. Councillor Mackinnon therefore considered it to be in the public interest, at the same time as accepting that the information was advantageous to the Conservative Group and disadvantageous to the Liberal Democrats.

·       Councillor Mackinnon stated the e-mail contained no personal information or information relating to a business. He therefore questioned, and felt there was a greater need for clarity on, what was considered confidential.

Questions of the Subject Member:

Councillor Mackinnon made the following points in response to questions from Committee Members:

·       He understood, from the first e-mail, that Councillor Vickers had used an out of date e-mail group and made him aware of that.

·       On the second occasion, he did not inform Councillor Vickers, but took no action until the time referenced in his presentation. Councillor Mackinnon did not believe it fell to him to give Councillor Vickers notice on a second occasion. 

(The meeting was adjourned at 6.55pm to consider if a breach had occurred. The meeting reconvened at 8.00pm.)

Councillor Howard Woollaston confirmed that after careful consideration of both the written evidence submitted and the oral evidence given at the hearing, the Committee found that, in respect of the complaint made by Councillor Tony Vickers on 25 January 2024, Councillor Ross Mackinnon had breached WBC’s Code of Conduct.

In reaching that decision, the Committee resolved that they concurred with the Investigator’s finding that Councillor Mackinnon breached paragraph 4.2(c) of the Council’s Code of Conduct:

4.2  Councillors and Co-Opted Members must not:

(c)  Disclose information given to them in confidence or information acquired by them which they believe or are aware is of a confidential nature except where:

(i)    they have the consent of a person authorised to give it;

(ii)   they are required to do so by law;

(iii) the disclosure is made to a third party for the purpose of obtaining professional legal advice;

(iv) the disclosure is reasonable and in the public interest;

(v)  the disclosure is made in good faith and in compliance with the reasonable requirements of the Council or its professional advisers.

(The meeting was adjourned at 8.02pm to consider the sanctions to be applied. The meeting reconvened at 8.12pm.)

Councillor Woollaston confirmed that, in his capacity as Vice-Chairman of the Governance Committee, he would send a formal letter to Councillor Mackinnon indicating that Councillor Mackinnon had failed to comply with West Berkshire Council’s Code of Conduct (Paragraph 4.2(c)).

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