Story of failed bid to oust Borders council leader

by OUR LOCAL GOVERNMENT EDITOR

The former chief executive of Scottish Borders Council told a senior councillor there would be no conflict of interest if he took part in a debate and voted against a motion to have him removed from the leadership of the local authority, it has been confirmed.

Following the advice in March 2022 from Netta Meadows, the SBC chief who left her £136,000 a year post in mysterious circumstances three months later, Tory councillor Mark Rowley avoided having to resign by voting against the motion to get rid of him as leader. He survived by the narrowest of margins...16 votes to 15 with two abstentions.

But at the subsequent local government elections in May 2022 Mr Rowley was 'replaced' as Conservative Group leader by Councillor Ewan Jardine who remains in the top post.

One of Mr Jardine's first duties was to announce Ms Meadows' sudden departure after just 15 months in the job. He said at the time: "She has and continues to be a true leader. We wish Netta all the best in her future venture".

In the wake of the failed bid to force Mr Rowley to stand down, complaints about his participation in the proceedings were lodged with Scotland's Ethical Standards Commissioner (ESC) together with six other allegations that he failed to declare his employment as a Strategy Manager with South of Scotland Enterprise during council meetings.

As we reported last week, a hearing of the Standards Commission for Scotland upheld three of the complaints after they were handed an investigation report by the ESC. However, the claims that Mr Rowley should not have participated in the 'resignation' debate were not upheld. He was suspended from attending council meetings for a month.

The Commission's written decision, now available on the watchdog's website, states that the ESC’s representative had explained that, at the Council meeting on March 10, 2022, an opposition member [ex-Councillor Davie Paterson, from Hawick] raised an urgent motion calling on Mr Rowley to resign as Leader of the Council “given he is now employed by South of Scotland Enterprise”. 

Minutes of the meeting record that elected members asked the Council’s Chief Legal Officer to provide guidance on the Code of Conduct. The official had highlighted that the objective test, to be applied by elected members to identify whether they had a declarable interest, concerned how the public might perceive any potential interest.

The Commission's panel hearing the complaints were advised that when there was a vote on whether the Respondent [Mr Rowley] should resign, he had taken part, with the motion being rejected by 16 votes to 15 with two abstentions. 

According to the 18-page written decision: "The Council’s Monitoring Officer had advised that the Council did not have any written policy or guidance on the issue of whether councillors should vote on motions regarding their own position. The Monitoring Officer said that while such votes were exceptionally rare, she was aware of two previous occasions where councillors had voted on motions that concerned their specific roles or positions."

It therefore appeared that Council practice endorsed councillors being able to participate in such motions. 

"The ESC’s representative acknowledged the position in respect of the Council’s past practice but argued that the Respondent had a financial interest in the matter given he would lose his entitlement to an additional allowance if he was no longer Council Leader - the post carried a full year allowance of £37,213 in 2022 - and should, therefore, have declared an interest, withdrawn from the meeting and refrained from taking part in any voting on the motion."

In support of this contention, the ESC’s representative argued that members of the public, with knowledge of the Respondent’s financial interest, would reasonably regard this as sufficiently significant as to be likely to influence his discussion and decision-making on the motion. 

Mr Rowley's position was that he should be able to contribute to the discussion, given he was central to the motion and, had it passed, he would have been obliged to resign, which would have resulted not only in a loss of income but also political and reputational damage. And he had been given advice by the Council’s former Chief Executive to the effect he was able to take part. The ESC’s representative advised that it had not been possible to verify that contention. 

In his response to the ESC, Mr Rowley explained the resignation motion had generated significant media interest. 

He claimed that misleading salary scales had been quoted during the meeting and that there had been no opportunity to correct this. Mr Rowley said that one of the complainers had chaired the meeting and, as evidenced by the minutes, had invited him to speak, had allowed the Clerk to call his name and invited him to vote. 

The written report adds: "The Respondent acknowledged that it was his personal responsibility to adhere to the terms of the Code and accepted that he could not rely on the advice of others. The Respondent nevertheless noted that no one present at the meeting (including senior Council officers) had suggested he could not take part in the discussion or decision-making on the matter. 

"The Respondent indicated he had considered “natural justice” dictated that he be allowed to take part in consideration of the motion, given he was the only individual present who was in a position to answer any questions raised. His view had been that the motion was, in effect, a device to amend the Council’s Scheme of Administration and list of appointments."

Mr Rowley noted that it was customary for all elected members to vote on positions and portfolio appointments, in terms of the Scheme of Administration. This included voting on who should be appointed to remunerated roles. He claimed that if every potential appointee declared an interest, there would not be enough elected members present to form a quorum. 

"The Respondent explained, therefore, that he had not viewed his consideration of the motion to be any different to a vote on such matters and had not concluded, therefore, that he had a declarable interest. His thinking had been that, as he was central to the issue, he did not understand how the Council could make an informed decision in respect of it without his involvement. 

"He had found the process deeply embarrassing and awful but had not agreed with the suggestion made by the Complainer that the best thing he could do would be to resign and avoid facing the motion at the meeting. The Respondent stated that the then Chief Executive had advised that it was appropriate and important that he be involved in the discussion and consideration of the motion." 

Mr Rowley had accepted that he could be affected financially, politically and reputationally, and he had a personal interest in the matter. He reiterated, however, that his decision to take part was not based on these factors and, instead, was based on what was best for the administration of the Council. The Respondent noted that there was always a political or financial impact when a councillor was appointed or removed from a role and, as such, elected members could not remove themselves from such decision-making on that basis alone. 

"The Respondent advised that he found it painful to recall the Council meeting in March 2022 and the debate on the motion calling on him to resign and noted that not many people are subjected to an hourlong debate about whether they should retain their job. 

"He said it was clear that his contribution was crucial to the discussions, particularly as false information about his role and remuneration had circulated in the press and repeated during the debate. At no stage, had any officers or other elected members suggested that he should not take part in the discussion or voting on the motion."

Commission panel members found that Mr Rowley failed to declare a financial interest and took part in the discussion and decision on a motion that he should resign as Leader of the Council.  

"The Panel accepted the ESC’s position that, on a strict reading of the Code, it could be argued that, as he had a financial interest in the role and could be affected both politically and reputationally by the decision, the Respondent’s connection was sufficiently significant as to meet the objective test. 

"The Panel noted, however, that it could equally be argued that other councillors, who potentially could have been nominated to take the Respondent’s place, could also be said to have an interest. Equally, opposition party councillors who could benefit politically from the success of the motion could be said to have an interest. 

"It was further noted that it was normal practice for councillors to take part in the discussions and voting on their appointments to various roles and committees within local authorities. In the circumstances, the Panel concluded that the Respondent did not have a declarable interest and had not breached the Code by taking part in the voting on the motion about whether he should resign as Leader."