Month: November 2016

Last night we got the statement Mr Sneddon read out at last Thursday’s council meeting. I am currently taking advice on this. I have also asked him for some clarification on points within it. At this stage I am making no comment but there are aspects of it I am very unhappy with. Here it is:

STATEMENT

Members will be aware that four senior officers of the council took the exceptional step of submitting a complaint to the Commissioner for Ethical Standards in Public Life in Scotland in respect of concerns about the behaviours of Cllr Michael Breslin. The complaint was investigated by the Commissioner for Ethical Standards in Public Life in Scotland who concluded that he had breached paragraph 3.3 and paragraphs 2 and 20 of Annex C of the National Code of Conduct for Elected Members. The Commissioner submitted a report on his findings to the Standards Commission for Scotland which decided to hold a hearing which subsequently took place on 20th September 2016 and on 19th October 2016. The Council received a written copy of the decision on 26th October 2016 and is obliged to consider that decision within 3 months of that date. The report is included within today’s agenda pack. The decision of the Commission was that Cllr Breslin had been found in breach of paragraph 3.3 and paragraphs 2 and 20 of Annex C of the National Code of Conduct for Elected Members in relation to one of the six allegations referred to it by the Commissioner and as required by the Ethical Standards in Public Life etc Scotland Act, 2000 imposed a sanction which was to censure Cllr Breslin.

There has been a level of interest in the hearing and its outcome and a significant volume of correspondence during and since the hearing process. For the most part officers have not responded to the majority of this correspondence whilst mindful that the due process is for the report to be considered by Council. However given the nature of the allegations that have been made and personal attacks targeting officers undertaking duties as employees of this council, as Chief Executive and Head of the Paid Service I need to address some remarks to council prior to its consideration of this matter.

Firstly, the steps taken by the four officers involved were not taken lightly but came at the culmination of a series of behaviours by the councillor that were viewed as undermining the proper conduct of the management of the council’s operations and that had resisted many attempts by officers prior to that stage to improve working relationships. My intention is not to seek to open up the specific matters cited in the complaint but rather to indicate why, at the end of a long process, these exceptional measures were considered. I wish to be clear and unequivocal that suggestions that the action was politically motivated or coordinated are inaccurate and untrue – any repetition of such allegations given this clear statement will be a deliberate misrepresentation. For the sake of clarity, no elected member was a party in the decision to submit a complaint or to drafting the terms of the complaint. Equally, any suggestion that it was linked to any prior political complaint is inaccurate and untrue.

Officers as employees of the council, your employees, are precluded from publicly criticising elected members even when to do so would be in defence of their own position. This is particularly difficult when they in turn are subject to public criticism by elected members – that is why the relevant sections of the Elected Members Code of Conduct were established. It provided a clear statement of expected behaviours and a recourse for employees who are subjected to behaviours or public comments to which they have no right of reply. It is a right for individuals including employees to

make a complaint to the Commissioner in such matters when all other attempts to resolve matters have been tested to submit a complaint. It is a protection for officers who otherwise would have no such protection as regards their reputation and wellbeing in undertaking their employment.

This system also provides protection to elected members against groundless complaints in that, before a matter can be put to the Standards Commission, it has to have been investigated by the Commissioner and determined by him that the Code has been breached. If the Commissioner is of the view there has been no breach, he has no basis to put a report to the Commission.

Recent communications have suggested that the outcome has been an exoneration of the elected member or a vindication of his behaviours. It has even been represented as a percentage of guilt as if that justified the behaviours. The outcome as recorded by the Commission in their findings is that a number of breaches of the National Code of Conduct put to them by the Ethical Standards Commissioner were not found to have been established and that one of the breaches put forward by the Commissioner was found and a sanction imposed which hopefully members will reflect on.

Recent communications have also called for the payment of compensation to Cllr Breslin which has been rejected by the four officers involved in the complaint. There are no grounds for any compensation to be paid by officers who exercised their rights in an attempt to secure protection from a procedure that ultimately confirmed a breach of the national code. There was no requirement for the council to sanction the making of the complaint and no such approval was requested. Indeed such a requirement would potentially remove the protection offered by the code. As such any suggestion that the Council should pay compensation to Cllr Breslin is equally not appropriate to these circumstances.

There have also been recent calls for an independent enquiry into the conduct of the four officers in making the complaint. Again, I would highlight that there are no grounds for any such action and to consider doing so would clearly penalise officers exercising their rights to protection under the code. To do so, would send a message to your employees that they can be subjected to threatening or intimidatory behaviours or public criticism which they are unable to answer and if they seek protection they would risk being the subject of investigation. This is not the message Argyll and Bute Council wants to send to its employees.

Yes this could have been avoided. Members will be aware from the exchange of correspondence copied to them that Cllr Breslin indicated a willingness to apologise to the Commissioner’s office and on being advised of this I contacted him. An offer to apologise was however caveated by a requirement for officers to apologise to him which was unacceptable in the context of the complaint. It is a matter of regret that this situation has been reached and the need for the good and effective working relationships that are enjoyed between the overwhelming majority of elected members and council officers to be extended to all has never been greater. Following consideration of this matter, I and the other officers in this council will continue to work towards that improvement with the hope that these efforts will be reciprocated by all members.

This is the only statement that will be made on this matter by officers. It is intended to clearly set out this position without any emotional reaction to statements that have been made in email or social media and does not allow for any misrepresentation. Copies of the statement will be circulated to all elected members and other parties for their information. I would now invite the council to consider the report from the Standards Commission before them.

 

I have witnessed lots of poor behaviour at council meetings but Thursday past topped the lot. Item 15 on the agenda was the report from the Standards Commissioners about the complaint made against me by the senior officers, Sneddon, Loudon (now CEO with Cosla), Hendry and Milne.

I had asked Mr Sneddon to have some input to any covering paper to the Standards report due to the biased manner in which the council, and Cosla, focussed solely on the 1 finding against me, ignoring the 14 findings in my favour. He didn’t agree to this but there was no covering paper on Thursday. Instead, Mr Sneddon read out a fairly lengthy prepared statement with which I may well have issues. However, I can’t comment because I have yet to receive a copy of that statement. I wrote to him yesterday asking if I could see it, for comment, prior to it going out. We’ll see if he agrees to this.

Anyway, when I did get a chance to speak after Mr Sneddon’s statement, I departed almost completely from what I had intended to say. I made little reference to the background and context to the complaint in order to see if a softer approach might get the more decent members of the administration to sit on their hands and not vote on the motion submitted by Cllr Mulvaney. The motion and the SNP amendment are at the link below. In the event, there was no decency shown and the administation voted as a block, as they always do.

There’s no point in giving you a blow by blow account of what was said but you’ll get a flavour of the vitriolic mince from what one councillor said. He said that in me saying the case was a victory, he suggested that if someone was tried for 4 murders and found not guilty of 3 of these, that person was still a murderer. Indeed, indeed.

The National has a good piece on what happened in today’s edition which you can read at this link:

http://www.thenational.scot/politics/14929668.Exclusive__SNP_group_slams_council_for_failing_to_support_inquiry_into_Breslin_case/

The successful motion from Mulvany and the defeated amendment from the SNP Group are at this link: motion-and-amendment

My last point today is to make it clear that this was a major victory for democracy but the councillors in the administration of Argyll & Bute clearly don’t see it that way, the poor souls. Here is the advert I placed in the Dunoon Observer this week which won’t make me popular with some of these folks.

 

I have today issued the following to all councillors and the press. You won’t be suprised to know that the 7 complainants have still not replied the questions asked of them. No more needs to be said I think:

 

Statement by Councillor Michael Breslin

On 26 October 2016 the Standards Commission for Scotland issued their written judgement on the complaints made against me by the then 4 most senior officers in Argyll & Bute Council. These officers, Mrs Loudon, Mr Sneddon, Mr Hendry and Mrs Milne made a total of 15 separate complaints against me. These complaints were made in May 2015 while an earlier complaint, again with 15 elements to it, was under investigation. That earlier complaint was made by the 3 most senior councillors in the council, Cllrs Walsh, E Morton and Scoullar.

The earlier complaint was rejected in its entirety by the Commissioner for Ethical Standards in Public Life in Scotland (CESPLS). CESPLS rejected 9 of the 15 elements to the 2^nd complaint and 5 of the remaining 6 were rejected by the Standards Commission. In total, therefore, 1 element of the 2 complaints was upheld out of 30, a success rate of 3%.

 In defending myself from what I consider to be vindictive and politically motivated complaints, I have spent some £12k. This has been mitigated by a crowd funder that raised a net £5.5k and huge thanks go to the many people who contributed to this.

The one element that was upheld was, in my view, the most absurd of all 30 and I have carefully considered an appeal against it to the Sheriff Principal. In summary:

• A prominent Edinburgh legal firm had offered to take the appeal for me on a pro bono
• What I was found guilty of was “enabling” an email to be leaked to the press but there was not a shred of evidence to support this.
• The Commissioner for Ethical Standards never asked who I copied the email to, never mind interview them. For this and other reasons, I consider CESPLS to have been negligent.
• Legal aid was not possible for the appeal.
• I asked the Standards Commission for Scotland to waive any claim against me for their legal costs if I lost my appeal. These costs could have run into 5 figures.
• The Standards Commission refused despite my argument that it was in the public interest for my appeal to be heard to establish what standard of evidence was required before a finding could be made against anyone.

The financial risk, therefore, of proceeding with the appeal was too great when measured against the benefits of being cleared of a minor finding against me. I have therefore dropped my appeal.

There are huge questions over this whole affair that require to be answered:

• I have proof that some of the same group of officers who lodged the 2^nd complaint helped the 3 councillors with the 1^st
• I have proof that it was councillors who gave a free hand to officers to launch the 2^nd
• All seven complainants have repeatedly refused to answer questions asked of them. Their actions will have cost the public purse tens of thousands of pounds, exact figures to follow.
• That is why the Scottish Government is being asked to carry out an independent enquiry into these 2 complaints to establish if there was an anti-democratic conspiracy.

This affair has left a stain on our democracy in Scotland.

It is essential the matter is independently investigated and that I am compensated

for the time, strain and costs over the last 25 months.

It’s rare that I put out two posts in the same day, but today was extraordinary even by the fruitcake standards of some of our councillors. This requires no explanation and was sent to the same group as shown in the earlier post.

I didn’t expect to be coming back to everyone so soon. I had worked on the basis that I’d give everyone the coming weekend to consider how bad a position they were in.

Unfortunately, Cllr E Morton has issued a mostly false statement to the press this week and which has appeared in The Buteman today. Her words, taken from the summary we get each week of how we have responded to press enquiries, were as follows:

Provided quote from Cllr Ellen Morton. Saying this is excellent news for council tax payers across Argyll and Bute. Mr McMillan had been questioning the operation of Rothesay Harbour and seeking damages of £350,000. With our offer that he consent to both petitions being dismissed, on the basis that we had answered each of his points, both in terms of law and fact, being accepted by Mr McMillan the court then issued a ruling which determined all matters in our favour. Our harbour staff have been fully vindicated – they have, and continue to, operate Rothesay Harbour in a fit and proper manner.

This statement is nonsense and much of it is untrue. This isn’t the first time Cllr Morton has resorted to issuing stuff that isn’t true but let me tell you why this particular rubbish is untrue. The reason this is important is because the scandal of Rothesay Harbour was 100% of the 1^st nasty and vindictive complaint by Cllrs Walsh, E Morton and Scoullar and a goodly chunk of the 2^nd complaint by Messrs Sneddon, Loudon, Hendry and Milne. Maybe she thought this was a way of getting payback for the complaints against me.

Mrs Morton’s statement is baloney for the following reasons:

• It is highly debatable that it’s “excellent news for council tax payers”  because we do not yet know what defending the action cost us. I have asked Mr Hendry for the legal costs because, perhaps conveniently, they were not available for the paper to our P&R committee. We will only know if it’s excellent news once we know the full facts, and there are a lot of them. It is also the case that we have spent a small fortune not just in defending the case but in getting surveys carried out and reports written during the time prior to the claim being formalised against us. It has also taken up a huge amount of officer time over several years.
• We denied  the allegations Mr McMillan was making but his allegations and our denial were never proven in court because the matter never went to a proof. The case for both sides remains unproven.
• Mr McMillan never accepted any of our arguments so that is a false statement.
• Our harbour staff have not been vindicated for the same reason: the case never went to a proof. Interestingly, the same vindication garbage is emanating from Rothesay Harbour.
• The court issued no ruling because it never went to a proof. The case was dropped by mutual agreement.
• It is my view that there have been, and remain, a number of concerns about the operation of the harbour in Rothesay so the fit and proper claim is also unproven.
• There was an enormous loss to the council’s area in the many years Mr McMillan had to berth his vessel in Ardrossan. Some of this time was unavoidable but most of it was an avoidable loss to the island of Bute and to Argyll & Bute. It runs to a very large sum of money, with crew and provisioning of the vessel having to be made from Ayrshire.

The truth is that we offered to settle the case prior to it going to a proof with both parties agreeing to meet their own costs. Mr McMillan agreed to this because, had he gone to a proof, he could have been liable for court costs in the region of £250k, give or take £50k. He could not afford to take this risk but we were prepared to risk public funds in taking it to a proof. His view is that the matter was settled out of court. The attached seems to confirm this, ie neither party won and both paid their own costs.

The triumphalist drivel emanating from Cllr E Morton gives a completely distorted picture of events. She should never have said it to herself, never mind the media.

Cllr E Morton should correct this and apologise for putting out nonsense in all our names. Attached is the offer we made to settle the matter which confirms what I have said above.

 My role and that of other councillors was simple: we argued that Mr McMillan’s case appeared to be strong so why not sit down and try and settle this by mediation or arbitration. That would have been the most cost effective manner of settlement in our view.  Sadly, mediation or arbitration was flatly rejected by officers who seem to think that the bottomless pit of money to defend cases is theirs and not that of the public purse.

I truly despair of the depths we are taking this council to under this so called leadership.

The attachment to the email is at this link: fax-re-settlement

 

I have long known that the 2 complaints against me were the result of elected members and officers colluding with each other to silence me or even force me out of the council. Their silence to my list of questions meant I had to produce the evidence I have held bit by bit. Here was yesterday’s email to councillors and others.

I note that the silence continues so, having given proof that the 1^st complaint had officer involvement, we need to look at the 2^nd one where officers claim they made the complaint themselves with no political input.

Let me take you back to the special council meeting in February 2015 when the kibosh was firmly put on the community buyout of Castle Toward. In my evidence to the Standards Commissioner, I made it clear that the 2^nd complaint had a political genesis. An extract from my statement to the commissioner stated:

The motion referred to, from Cllrs Mulvaney and McAlpine, was clearly well prepared in advance and, as I stated above, was probably known about by all or a large number of the administration councillors. This widens the scope of any enquiry there may be into this.

The key element of the motion that I wish to draw to your attention is as follows:

3 months or so later, the 2^nd complaint was made, an unlikely coincidence I suggest. This, to me, clearly demonstrates political involvement and proves there is a direct link between the motion and the 2^nd complaint. If there is no link, just what was the monitoring officer doing given his “instruction” and why did he never speak to me given that it was me that clause 4 in the motion was aimed at?

So, I think my point is well made: there was political involvement in both complaints.

• Is anyone now willing to reply to my list of questions?
• Are any of the administration councillors willing to spill the beans publicly?
• Surely one of the administration councillors will have the decency to tell me, even confidentially, what was discussed and when?

Regards to one and all.

 

The list of questions continues to be ignored. Heads are in the sand and there is clearly a belief that by ignoring the questions they will eventually go away. They won’t. Here is today’s email on the subject:

From: Breslin, Michael
Sent: 08 November 2016 09:45
To: Freeman, George; #All Councillors
Cc: Sneddon, Cleland; Hendry, Douglas; Milne, Pippa; sally.loudon@cosla.gov.uk; gordon@argyllmedia.co.uk; editor@obantimes.co.uk; craig.borland@newsquest.co.uk; Campbeltown Courier (Editorial) (editor@campbeltowncourier.co.uk); news@buteman.com; lesley@feistyproductions.co.uk; mghannan@btopenworld.com; Russell MW (Michael), MSP (Michael.Russell.msp@parliament.scot); doneill@north-ayrshire.gov.uk
Subject: RE: Councillor Mike Breslin hails victory in landmark free speech case [NOT PROTECTIVELY MARKED]

Another day, continuing silence and another piece in The National.

Clear evidence of collusion between officers and elected members in the 1^st complaint is produced yet Mrs Milne asserts that no inferences can be drawn from a refusal to reply to the list of questions. Mrs Loudon tells me that the response from Cosla was a professional reaction in response to a media enquiry raised with us and that We do not intend to make any further response

Remarkable stuff. It is clear an independent enquiry is now essential.

http://www.thenational.scot/politics/snp-group-add-to-calls-for-independent-probe-into-silenced-councillor-mike-breslin.24527

The following, sent to all councillors and the complainants earlier, needs no introduction:

I am sorry to have to email you all again but I am not giving up on this. I am also now copying in Cllr David O’Neill in his capacity as political leader of Cosla.

I wanted to give Cllr Walsh the maximum time to reply but he hasn’t done so. I thought it only fair to ask everyone involved so on  31 October I emailed the 4 complainants and Cllrs Walsh, E Morton and Scoullar. I asked them the following:

I asked Cllr Walsh a series of questions which he has declined to answer. You have all seen the list sent on 26 October. Do any of you wish to offer a response to any of these questions please?

The normally loquacious Cllr Scoullar said:

No thank you

Len

Mrs Milne replied saying, among other things:

Dealing with the list of 16 questions set out in your email of 26^th October at 19.51 hours, these were addressed specifically to the Leader of the Council and it is entirely a matter for him whether he replies to any or all of them.  It would not be appropriate for officers to become involved in this matter by expressing views on what are, in essence, political questions. 

These are not political questions at all in my view but that clearly was the view of Mrs Milne and perhaps others. Nobody else replied at all.

The problem for Cllrs Walsh, Scoullar and E Morton and at least some of the 4 complainants is that they all know something that I have known since October 2014. When Cllrs Walsh, E Morton and Scoullar sent in their nasty and vindictive complaint dated 3 October 2014 it was clear from the complaint that they had had the assistance of officers in compiling it.

Why did none of the 7 reply to say this? This, after all, was what I was asking for in some of the questions below. Instead, we have had no proper responses.

Having given them all the chance to reply, I can now confirm that these 3 councillors had the assistance of at least some of the complainants in the 2^nd complaint in order for them to be able to submit the 1^st complaint. Here are some extracts from that 1^st complaint that confirm this:

This demonstrates collusion/cooperation/involvement  between officers and councillors in the 1^st complaint so is someone now going to come clean and reply to all the questions? My advice to all concerned in both complaints is to think very hard about this over the weekend.