david pugh - valentine's party 2010 incident investigation - report_e_copy_redacted as released to...

8/8/2019 David Pugh - Valentine's Party 2010 Incident Investigation - Report_E_Copy_Redacted as Released to Public

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PRIVATE AND CONFIDENTIAL

Case Reference: ESC.69.10

Report of an investigation under Section 59 of the Local Government Act 2000by Justin Thorne, Principal Lawyer, appointed by monitoring officer for Isle ofWight Council into an allegation concerning Cllr David Pugh.

DATE: 25th October 2010

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Contents1 Executive summary2 CUr David Pugh's official details3 The relevant legislation and protocols4 The evidence gathered5 Summary of the material facts6 Reasoning as to whether there have been failures to comply with

the Code of Conduct7 Findings -

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1 Executive summary1.1 It is alleged by Cllr's Bacon, Lumley and Welsford by letter 9th March2010 that Cllr David Pugh ("Cllr Pugh") breached the code of conduct,namely:

1.1.1 Para 3(1) - You must treat others with respect (RachaelBushby in relation to events within the ball at the table)1.1.2 Para 3(2)(b) - You must not bully any person (RachaelBushby in relation to events within the ball at the table)1.1.3 Para 3(2)(c ) - You must not intimidate or attempt tointimidate any person who is likely to be a complainant orwitness (Rachael Bushby in relation to events within theball at the table)1.1.4 Para 3(2)(d) - You must not do anything whichcompromises or is likely to compromise the impartiality ofthose who work for, or on behalf, your authority (RachaelBushby and the Isle of Wight Council Communicationdepartment)1.1.5 Inserted Upon review - Para 5 - You must not conductyourself in a manner which could reasonably beregarded as bringi;ng your office into disrepute (Isle ofWight Radio Interview - 23rd February 2010)1.1.6 Para 6(a) - You must not use or attempt to use yourposition as a member to confer on or secure for yourselfor any other person, an advantage or disadvantage. (Isleof Wight Council Communication department)1.1.7 Para 6(b) (ii) - You must when using or authorising theuse by others of the resources of your authority ensurethat such resources are not used improperly for politicalpurposes. (Isle of Wight Council Communicationdepartment)

1.2 The Assessment Sub Committee of the Ethical Standards Committeehas referred the allegations for investigation.1.3 On the 12 th February 2010 the Leader attended the Chairman's Ball atCowes Yacht Haven with a guest, Rachael Bushby ("Rachael"). At theend of the evening an exchange occurred between Cllr Pugh andCarole Dennett that was captured on film and subsequently posted onand internet video sharing website called "You Tube". The complaintalleges a number of breaches not all of which have been referred forinvestigation. No matters that relate to conduct outside the Chairman'sBall, including the exchange that was captured on film, forms part ofbreaches of the code of conduct that were referred for investigation.The exchange outside the venue I have referred to as the "non referredincident" within this report.

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1.4 During the course of the investigation it is apparent that the allegedb r ~ a c h e s can be broken down into discrete parts. These can besummarised as:

1.4.1 Cllr Pugh behaviour and conduct towards Rachael duringthe evening of 12 th February 2010 and whether thisamounted to unacceptable behaviour or undue influenceor bullying. This to include whether he explicitly orimplicitly threatened to use his executive powers to forcea course of action for his own advantage or othersdisadvantage.1.4.2 Cllr David Pugh behaviour and conduct post the eventtowards communication officers, principally Gavin Fosterand Claire Robertson, and whether this amounted tounacceptable pressure or improper influence upon theirnormal proper officer,duties. This to include whether heexplicitly or implicitly threatened to use his executivepowers to force a course of action for his own advantageor others disadvantage.1.4.3 In the alternative to overt pressure upon council officersor Rachael Bushby, whether by reason of his position,his conduct may be seen objectively as improper.

1.4.4 As a matter of pri.nciple whether he should have had anyinteraction or discussions with Council officers in relationto media management post the 12 th February 2010.1.4.5 Whether his comment "these things happen" on an Isleof Wight Radio interview amounts to bringing the Councilinto disrepute.

1.5 There have been no breaches of the code of conduct identified as resultof my investigation.1.6 I do not believe there is sustainable evidence to conclude on thebalance of probabilities that any overt or covert pressure was placedupon Rachael to act in a particular manner.1.7 I have seen no evidence to suggest that CUr Pugh treated Rachael withanything other than respect during the evening in question or post thisevent.1.8 In relation to the use of or interaction with the Isle of WightCommunication department I have found no evidence of a breach. Ibelieve that it is quite proper that officers sought to moderately manage

media from the week beginning 15 th February. I do not find that anysuch action was excessive or improper.

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1.9 I further believe that it was proper to seek to establish whether anyfurther adverse publicity would be made by key witnesses to the event.1.10 I do not believe CUr Pugh's comment on Isle of Wight Radio causedharm to his office or the authority. I do not believe that his commentdiminished his office or the Council to a sufficient degree that wouldbreach the code of conduct.

2 Cllr David Pugh's official details2.1 CUr David Pugh was elected to office on 4th June 2009 for a term of 4years. CUr David Pugh is also a member of Shanklin Town Council2.2 CUr David Pugh currently serves on the Cabinet, Full Council, andEmployment Committee and is Leader of the Council.2.3 Cllr David Pugh gave a written undertaking to observe the Code ofConduct on 8th June 2009.2.4 Cllr David Pugh has received the following training on the Code ofConduct

2.4.1 10th May 20052.4.2 7th February 20072.4.3 19

thJune 20072.4.4 27 th October 20082.4.5 23 rd February 20092.4.6 9th June 2009

3 The relevant legislation and protocols3.1 This investigation is carried out under powers given to the monitoringofficer by the Local Government Act 2000 and the StandardsCommittee (England) Regulations 2008. The investigation has beendelegated by virtue of s82a of the act.3.2 The Isle of Wight council has adopted a Code of Conduct in which thefollowing paragraphs are included:

Para 3(1) - You must treat others with respect Para 3(2)(b) - You must not bully any person Para 3(2)(c ) - You must not intimidate or attempt to intimidate anyperson who is likely to be a complainant or witness Para 3(2)(d) - You must not do anything which compromises or islikely to compromise the impartiality of those who work for, or onbehalf, your authority Para 5 - You must not conduct yourself in a manner which couldreasonably be regarded as bringing your office into disrepute

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Para 6(a) - You must not use or attempt to use your position as amember to confer on or secure for yourself or any other person, anadvantage or disadvantage. Para 6(b)(ii) - You must when using or authorising the use by othersof the resources of your authority ensure that such resources are notused improperly for political purposes.

4 The evidence gathered4.1 I have taken account of oral evidence from:

4.1.1 Davina Fiore (Monitoring Officer) on 25th March 20104.1.2 CUr Geoff Lumley on 8th April 20104.1.3 Gavin Foster on 13th April 20104.1.4 Claire Robertson on 7th May 20104.1.5 David Holmes on 10th May 20104.1.6 Carole Dennett on 14th May 20104.1.7 Cllr Jonathon Bacon on 17th May 20104.1.8 Rachael Bushby on 20th May 20104.1.9 Cllr Chris Welsford on 8th June 20104.1.10 CUr David Pugh on 10 th June 20104.1.11 Jason Kaye on 18th June 20104.2 I have also taken account of documentary evidence obtained from:

4.2.1 Davina Fiore - emails4.2.2 Rachael Bushby - various papers supplied4.2.3 Carole Dennett - letter setting out her position4.2.4 Gavin Foster - emails, Ventnor Blog, statement4.2.5 Cllr David Pugh - Emails to communication departmentbetween 12 th February and 28 th February 2010, Letter inreply to interview, Information obtained from SubjectAccess Request1, SBC online article 11 th July 20074.2.6 CUr Jonathon Bacon - Private Eye article "Disputin'Pughtin"4.2.7 Isle ofWight Gazette - dated 19th February 2010 and 5thMarch 2010

5 Summary of the material factsMatters of fact of which witnesses appear not to disagree or comment.

5.2 The chairman's ball was held at Cowes Yacht Haven on 12th February2010.1 Under 57 Data Protection Act 1998

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5.3 The ball was a paid ticket event.II5.5 The attendees at the ball included, so far as is material, Cllr DavidPugh, Rachael Bushby, Carole Dennett, Jason Kaye, David Holmes.5.6 Jason Kaye attended the ball as a photographer but due to the absence

of a guest at table 14 he joined table 14 at the start of the meal. Thistable was also occupied by David Holmes, Carole Dennett and AndrewTurner MP. Cllr Pugh and Rachael were seated on another table.III I

5.14 Cllr Pugh spoke with Davina Fiore on Monday 15th February 2010.5.15 Gavin Foster had telephone conversations with a reporter at the

Telegraph, Carole Dennett and Jason Kaye about the incident on theMonday 15th February.5.16 Gavin Foster also received an email enquiry from the County Press on17th February 2010.

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Matters of fact of which witnesses do not agree and on which I have formedan opinion

2 Rachael Bushby Interview transcript page 6-73 David Holmes Interview Transcript page 44 Rachael Bushby Interview Transcript page 9

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5.25 I do believe that a number of conversations were had post the eventinstigated by different persons.

5.26 Cllr Pugh contacted on Sunday 14th February to notify himof what had occurred but I have no evidence to suggest that he askedfor anything to be done.

5.27 I find that Cllr Pugh did seek advice from the monitoring officer as towhether he had breached the code of conduct and it is following thisadvice that he determined he was acting in a private capacity in respectof the non referred incident outside the event.5

5.28 I find that officers, including Davina Fiore and __ discussed how the Council should react to media enquiries. Inote that this occurred after the Communication team had alreadyreceived an enquiry from the Telegraph.5.29 I believe that received unsolicited calls from Jason Kayeand that he only instigated a call to Jason Kaye to return a missed call. Ijudge ap'proximately 12 calls were made";or received relating to thisincident in the days after the event.I note the Isle ofWight Radio interview on/the 23 rd February 2010 wasarranged to discuss the proposed budget. I note that the comment "thesethings happen" is agreed. At the time of the interview the complaint letter hadnot been made and the media coverage surrounded the non-referred incidentoutside the ball of CUr David Pugh swearing at Carole Dennett. I accept thatany reference to the events of 12th February would have been purely inrelation to this incident.

5 ESC.69.10 Decision notice

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6 Reasoning as to whether there have been failures to comply withthe Code of Conduct

Para 3(1) - You must treat others with respect (Rachael Bushby inrelation to events within the ball at the table)Para 3(2)(b) - You must not bully any person (Rachael Bushby inrelation to events within the ball at the table)Para 3(2)(c ) - You must not intimidate or attempt to intimidate anyperson who is likely to be a complainant or witness (Rachael Bushby inrelation to events within the ball at the table)

6.1 The adopted code of conduct and its enabling primary act is in my viewthere to promote the highest standards of behaviour in public life.6.2 Officers of the Council can expect a certain standard of respect frommembers, and more particularly from the leader of the Council.6.3 Bullying can be characterised as behaviour thatmay be offensive,intimidating, malicious, insulting or humiliating which attempts toundermine, hurt or humiliate an individual or group. It can have adamaging effect on a victim's confidence, capability and health.6.4 Bullying concJuct can involve behaving in an abusive or threateningway, ormaking allegations about people in public, in the company of

t ~ e i r colleagues, t h r o u ~ h the press or in blogs, (but within the scope ofthe Code ofConduct).6.5 It may happen once or be part of a pattern of behaviour, although minorisolated incidents are unlikely to be considered bullying. It is alsounlikely that a member will be found guilty of bullying when both partieshave contributed to a breakdown in relations6.6 Bullying is, in my view, whether Cllr Pugh's conduct amounted tobullying or harassment in the ordinary connotation of those terms. Inaddressing this question it is the cumulative effect of the conduct whichhas to be considered rather than the individual incidents relied on; also

of relevance if this is satisfied, is did CUr Pugh know, or ought hereasonably to have known, that his conduct might cause the other,namely Rachael Bushby, harm6.7 This test applied, I have looked at CUr Pugh's conduct as a whole, sofar is relevant, in assessing whether his behaviour and conduct wassuch as to fall short of that expected standard to officers.6.8 In my view intimidation is by way of threat to another that the personthreatening will commit an act or use means unlawful against that other

6 Standards Board for England guidance

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person and that as a result the other person does or indeed refrainsfrom doing something which they would have done.

6.12 The focus of this investigation is whether Cllr Pugh's conduct hasbreached the code of conduct and once I determine that no actionattributable to Cllr Pugh has occurred that has' caused the aile edremarks then I need 0 no further.

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Para 3(2)(d) - You must not do anything which compromises or islikely to compromise the impartiality of those who work for" or onbehalf, your authorityPara 6(a) - You must not use or attempt to use your position as amember to confer on or secure fo r yourself or any other person,an advantage or disadvantage.Para 6(b)(ii) - You must when using or authorising the use byothers of the resources of your authority ensure that suchresources are not used improperly fo r political purposes.

6.16 I note that there were discussions between CUr Pugh and themonitoring officer and communication officer? I also note thatdiscussions were subsequently had between andiDavinaFiore. I also note that there were a series of telephone conversationsbetween the communication officer and at least 2 witnesses Bandmedia9. The subject of these conversations was to discuss the nonreferred incident that occurred on Friday 12th F,ebruary.6.17 The complaints relating to the communication department are in simpleterms, that the once Ethical Standards Assessment Sub Committeedetermination, and indeed CUr Pugh position, that the shouting incidentwas outside the auspices of the code of conduct, the use of anycommunications resourGe, including officer time';" was not appropriateand such use amounted to a breach.6.18 This is a matter of principle as to whether it is proper use of councilresources to do anything in reaction to the non-referred incident as thiswas CUr Pugh acting in a private capacity.6.19 A breach of the code may involve overt inappropriate pressure beingplaced upon an officer in a manner designed to intimidate another suchas behaviour referred to in 7.5 above.6.20 The breach of paragraph 6a of the code has apparent links to CUrPugh's position. In addition as I understand the complaint, contributingto the possible intimidation of officers, that being alleged breach of

3(2)d and 6b(ii), is the fact that CUr Pugh is the leader of the Counciland as such he would not have to place overt pressure as an ostensiblypolite request would have the same effect due to his executive power.6.21 I have reviewed the evidence as to what occurred and the interactionbetween Cllr Pugh and officers as well as between officers. It is agreedthat resources were used to comment on and react to the non-referredincident.

7 Gavin Foster8 Carole Dennett and Jason Kaye9 Telegraph, County Press,

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6.22 The complaint alleges that this action sought to "bury10" the storyalthough it also refers to "suppressing11", as do witnesses refer to thewish to "suppress". It is noted that the story was already known to themedia and therefore it would not possible for this to happen as this termis about stopping information from entering the public arena when infact the story had already entered such.

6.23 I do believe that the purpose of the phone calls and communications bythe communication department were for the purpose of managing themedia reports and ascertaining the facts of what had occurred. I alsobelieve that there were little if any proactive measures taken post thedecision that the non-referred incident was a private matter. I have alsofound no evidence of overt pressure to do this. There is no evidencethat Cllr Pugh sent any email or gave any instructions whatsoever toany officer asking for any action to be taken.6.24 I also note that there was released a YouTube video and note thatnational media enquiry was made on 15th February.6.25 I believe that the phone calls to the editor of the gazette __ were instigated by the editor and not a council 0 ertrirSbe returning a call or answering a call.6.26 I do believe that this WqS partly to assess what had occurred and tosome degree seeking to manage adverse media impact on the Council.This would I agree also have the affect of managing the media impactupon Cllr Pagh personally.6.27 I do not however agree that what has occurred in this instance amountsto a breach of the code. I believe that it is quite proper for acommunication officer to make efforts to find out what had occurred inrelation to an incident involving a councillor. I think this is heightenedas the incident involved the leader of the Council and a member of theMP's staff.6.28 The Council does have an active media department that seeks tomaintain a positive public image of the Council.6.29 I believe that the potential for adverse publicity for the council as aresult of the incident was actual at the time of the communicationofficer's involvement. I believe the actions were limited and reactive.6.30 I believe that is quite proper that officers sought to moderately managethis by making enquiries. I do not find that any such action wasexcessive or improper and, central to my investigation, was notinstigated by Cllr Pugh either by express or implied direction.

10 Page A 11 of ESC report11 Page A12 of ESC report

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Para 5 - You must not conduct yourself in a manner which couldreasonably be regarded as bringing your office into disrepute6.31 Whether CUr Pugh has brought his office into disrepute is an objective

test and the judgement as to whether it has been breached must bemade having regard to all the circumstances of the case.6.32 The Oxford English Dictionary defines disrepute as a "lack of goodreputation or respectability". Therefore anything which could reasonablybe regarded by an objective observer as diminishing a member's officeor authority or which harms or could harm the reputation of the memberor his authority will bring that office or authority into disrepute.6.33 As noted above, it is accepted by Cllr Pugh that he did say "thesethings happen" during an Isle of Wight radio interview on 23rd February2010.6.34 As above, I am of view that his conduct including while beinginterviewed during discharge of his official duties such as radio debateshould seek to promote the highest standards of behaviour in public life.6.35 I note that the interview questioning could only have been referring tothe published version of events that had been made as of 23rdFebruary. It's my view that this was mainly about his conduct recordedon YouTube and not any matter on which I investigated.6.36 I am mindful that the radio interview was by invitation and that thesubstantive issue of the interview was about the forth coming budgetdecision. I am also mindful that there were other persons wereattending to take part on the debate.6.37 It is not surprising that there was a question about the recent incidentgive'n the recent media attention.6.38 I am of opinion that this remark to a question about the incident doesnot show the highest level of reverence to the matter. Whilst I recognise

the swearing incident is not subject to my investigation it is of relevanceas to whether such a remark during a radio response to those eventsand what he said was an appropriate response or indeed in itselfbreaches paragraph 5 of the code.6.39 In my view it might have been more appropriate to not comment at allrather provide such a short reply.6.40 I'm of the opinion that such a remark is at least unfortunate. Howeverbeing unfortunate is not a test that I have applied. I do not believe hiscomment caused harm to his office or the authority. I do not believe that

his comment diminished his office or the Council to a sufficient degreethat would breach the code of conduct. I have found no conduct when

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judged as whole that would materially reduce public trust andconfidence in the Councillor, his office or the Council. Cllr Pugh's actiondid not amount to a breach.

7 Findings

In relation to Para 3(1) - You must treat others with respect (RachaelBushby in relation to events within the ball at the table), Para 3(2)(b) You must.not bully any person (Rachael Bushby in relation to eventswithin the ball at the table) and Para 3(2)(c) - You must not intimidate orattempt to intimidate any person who is l ikely to be a complainant orwitness (Rachael Bushby in relation to events within the bal l at thetable), I f ind the fol lowing:7.2 I do not believe there is sustainable evidence to conclude on thebalance of probabilities that any overt or covert pressure was placedupon Rachael to act in a particular manner.7.3 Whilst I accept the non-referred incident may have been of the type ofbehaviour that may cause concern, I have seen no evidence to suggestthat he treated Rachael with anything other than respect during theevening in question.7.4 I have seen no evidence that CUr Pugh's actions or conduct towardsRachael amounted to intimidatory behaviour. I have heard no evidence

of any particular behaviour that would amount to intimidation or even aseries of actions that might cumulatively amount to such.

12 Jason Kaye's Ventnor blog comment 23rd February 2010

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