PRIVATE AND CONFIDENTIAL

Case Reference: ESC.69.10

Report of an investigation under Section 59 of the Local Government Act 2000

by Justin Thorne, Principal Lawyer, appointed by monitoring officer for Isle of
Wight Council into an allegation concerning Cllr David Pugh.

DATE: 25th October 2010

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Contents

1 Executive summary
2 CUr David Pugh's official details
3 The relevant legislation and protocols
4 The evidence gathered
5 Summary of the material facts
6 Reasoning as to whether there have been failures to comply with
the Code of Conduct
7 Findings

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1 Executive summary

1.1 It is alleged by Cllr's Bacon, Lumley and Welsford by letter 9th March
2010 that Cllr David Pugh ("Cllr Pugh") breached the code of conduct,
namely:

1.1.1 Para 3(1) - You must treat others with respect (Rachael
Bushby in relation to events within the ball at the table)
1.1.2 Para 3(2)(b) - You must not bully any person (Rachael
Bushby in relation to events within the ball at the table)
1.1.3 Para 3(2)(c ) - You must not intimidate or attempt to
intimidate any person who is likely to be a complainant or
witness (Rachael Bushby in relation to events within the
ball at the table)
1.1.4 Para 3(2)(d) - You must not do anything which
compromises or is likely to compromise the impartiality of
those who work for, or on behalf, your authority (Rachael
Bushby and the Isle of Wight Council Communication
department)
1.1.5 Inserted Upon review - Para 5 - You must not conduct
yourself in a manner which could reasonably be
regarded as bringi;ng your office into disrepute (Isle of
Wight Radio Interview - 23 rd February 2010)
1.1.6 Para 6(a) - You must not use or attempt to use your
position as a member to confer on or secure for yourself
or any other person, an advantage or disadvantage. (Isle
of Wight Council Communication department)
1.1.7 Para 6(b) (ii) - You must when using or authorising the
use by others of the resources of your authority ensure
that such resources are not used improperly for political
purposes. (Isle of Wight Council Communication
department)

1.2 The Assessment Sub Committee of the Ethical Standards Committee

has referred the allegations for investigation.

1.3 On the 12th February 2010 the Leader attended the Chairman's Ball at
Cowes Yacht Haven with a guest, Rachael Bushby ("Rachael"). At the
end of the evening an exchange occurred between Cllr Pugh and
Carole Dennett that was captured on film and subsequently posted on
and internet video sharing website called "You Tube". The complaint
alleges a number of breaches not all of which have been referred for
investigation. No matters that relate to conduct outside the Chairman's
Ball, including the exchange that was captured on film, forms part of
breaches of the code of conduct that were referred for investigation.
The exchange outside the venue I have referred to as the "non referred
incident" within this report.

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1.4 During the course of the investigation it is apparent that the alleged
br~aches can be broken down into discrete parts. These can be
summarised as:

1.4.1 Cllr Pugh behaviour and conduct towards Rachael during

the evening of 12th February 2010 and whether this
amounted to unacceptable behaviour or undue influence
or bullying. This to include whether he explicitly or
implicitly threatened to use his executive powers to force
a course of action for his own advantage or others
disadvantage.

1.4.2 Cllr David Pugh behaviour and conduct post the event
towards communication officers, principally Gavin Foster
and Claire Robertson, and whether this amounted to
unacceptable pressure or improper influence upon their
normal proper officer·,duties. This to include whether he
explicitly or implicitly threatened to use his executive
powers to force a course of action for his own advantage
or others disadvantage.

1.4.3 In the alternative to overt pressure upon council officers

or 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 any

interaction or discussions with Council officers in relation
to media management post the 12th February 2010.

1.4.5 Whether his comment "these things happen" on an Isle

of Wight Radio interview amounts to bringing the Council
into disrepute.

1.5 There have been no breaches of the code of conduct identified as result
of my investigation.

1.6 I do not believe there is sustainable evidence to conclude on the

balance of probabilities that any overt or covert pressure was placed
upon Rachael to act in a particular manner.

1.7 I have seen no evidence to suggest that CUr Pugh treated Rachael with
anything other than respect during the evening in question or post this
event.

1.8 In relation to the use of or interaction with the Isle of Wight

Communication department I have found no evidence of a breach. I
believe that it is quite proper that officers sought to moderately manage
media from the week beginning 15th February. I do not find that any
such action was excessive or improper.

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1.9 I further believe that it was proper to seek to establish whether any
further 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 caused
harm to his office or the authority. I do not believe that his comment
diminished his office or the Council to a sufficient degree that would
breach the code of conduct.

2 Cllr David Pugh's official details

2.1 CUr David Pugh was elected to office on 4th June 2009 for a term of 4
years. CUr David Pugh is also a member of Shanklin Town Council

2.2 CUr David Pugh currently serves on the Cabinet, Full Council, and
Employment Committee and is Leader of the Council.

2.3 Cllr David Pugh gave a written undertaking to observe the Code of
Conduct on 8th June 2009.

2.4 Cllr David Pugh has received the following training on the Code of
Conduct

2.4.1 10th May 2005

2.4.2 7th February 2007
2.4.3 19th June 2007
2.4.4 27 th October 2008
2.4.5 23 rd February 2009
2.4.6 9th June 2009

3 The relevant legislation and protocols

3.1 This investigation is carried out under powers given to the monitoring
officer by the Local Government Act 2000 and the Standards
Committee (England) Regulations 2008. The investigation has been
delegated by virtue of s82a of the act.

3.2 The Isle of Wight council has adopted a Code of Conduct in which the
following 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 any
person who is likely to be a complainant or witness
• Para 3(2)(d) - You must not do anything which compromises or is
likely to compromise the impartiality of those who work for, or on
behalf, your authority
• Para 5 - You must not conduct yourself in a manner which could
reasonably 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 a
member to confer on or secure for yourself or any other person, an
advantage or disadvantage.
• Para 6(b)(ii) - You must when using or authorising the use by others
of the resources of your authority ensure that such resources are not
used improperly for political purposes.

4 The evidence gathered

4.1 I have taken account of oral evidence from:

4.1.1 Davina Fiore (Monitoring Officer) on 25th March 2010

4.1.2 CUr Geoff Lumley on 8th April 2010
4.1.3 Gavin Foster on 13th April 2010
4.1.4 Claire Robertson on 7th May 2010
4.1.5 David Holmes on 10th May 2010
4.1.6 Carole Dennett on 14th May 2010
4.1.7 Cllr Jonathon Bacon on 17th May 2010
4.1.8 Rachael Bushby on 20 th May 2010
4.1.9 Cllr Chris Welsford on 8th June 2010
4.1.10 CUr David Pugh on 10th June 2010
4.1.11 Jason Kaye on 18th June 2010

4.2 I have also taken account of documentary evidence obtained from:

4.2.1 Davina Fiore - emails

4.2.2 Rachael Bushby - various papers supplied
4.2.3 Carole Dennett - letter setting out her position
4.2.4 Gavin Foster - emails, Ventnor Blog, statement
4.2.5 Cllr David Pugh - Emails to communication department
between 12th February and 28th February 2010, Letter in
reply to interview, Information obtained from Subject
Access Request 1, SBC online article 11 th July 2007
4.2.6 CUr Jonathon Bacon - Private Eye article "Disputin'
Pughtin"
4.2.7 Isle of Wight Gazette - dated 19th February 2010 and 5th
March 2010

5 Summary of the material facts

Matters 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 February
2010.

1 Under 57 Data Protection Act 1998

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5.3 The ball was a paid ticket event.

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5.5 The attendees at the ball included, so far as is material, Cllr David
Pugh, 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. This
table was also occupied by David Holmes, Carole Dennett and Andrew
Turner MP. Cllr Pugh and Rachael were seated on another table.

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II

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 the
Monday 15th February.

5.16 Gavin Foster also received an email enquiry from the County Press on
17th February 2010.

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

2 Rachael Bushby Interview transcript page 6-7

3 David Holmes Interview Transcript page 4
4 Rachael Bushby Interview Transcript page 9

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

5.26 Cllr Pugh contacted on Sunday 14th February to notify him

of what had occurred but I have no evidence to suggest that he asked
for anything to be done.

5.27 I find that Cllr Pugh did seek advice from the monitoring officer as to
whether he had breached the code of conduct and it is following this
advice that he determined he was acting in a private capacity in respect
of 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. I
note that this occurred after the Communication team had already
received an enquiry from the Telegraph.

5.29 I believe that received unsolicited calls from Jason Kaye

and that he only instigated a call to Jason Kaye to return a missed call. I
judge ap'proximately 12 calls were made";or received relating to this
incident in the days after the event.

I note the Isle of Wight Radio interview on/the 23 rd February 2010 was
arranged to discuss the proposed budget. I note that the comment "these
things happen" is agreed. At the time of the interview the complaint letter had
not been made and the media coverage surrounded the non-referred incident
outside the ball of CUr David Pugh swearing at Carole Dennett. I accept that
any reference to the events of 12th February would have been purely in
relation to this incident.

5 ESC.69.1 0 Decision notice

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

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

6.1 The adopted code of conduct and its enabling primary act is in my view
there to promote the highest standards of behaviour in public life.

6.2 Officers of the Council can expect a certain standard of respect from
members, and more particularly from the leader of the Council.

6.3 Bullying can be characterised as behaviour that may be offensive,

intimidating, malicious, insulting or humiliating which attempts to
undermine, hurt or humiliate an individual or group. It can have a
damaging effect on a victim's confidence, capability and health.

6.4 Bullying concJuct can involve behaving in an abusive or threatening

way, or making allegations about people in public, in the company of
t~eir colleagues, throu~h the press or in blogs, (but within the scope of
the Code of Conduct).

6.5 It may happen once or be part of a pattern of behaviour, although minor

isolated incidents are unlikely to be considered bullying. It is also
unlikely that a member will be found guilty of bullying when both parties
have contributed to a breakdown in relations

6.6 Bullying is, in my view, whether Cllr Pugh's conduct amounted to

bullying or harassment in the ordinary connotation of those terms. In
addressing this question it is the cumulative effect of the conduct which
has to be considered rather than the individual incidents relied on; also
of relevance if this is satisfied, is did CUr Pugh know, or ought he
reasonably to have known, that his conduct might cause the other,
namely Rachael Bushby, harm

6.7 This test applied, I have looked at CUr Pugh's conduct as a whole, so
far is relevant, in assessing whether his behaviour and conduct was
such 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 person

threatening 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 refrains
from doing something which they would have done.

6.12 The focus of this investigation is whether Cllr Pugh's conduct has
breached the code of conduct and once I determine that no action
attributable to Cllr Pugh has occurred that has' caused the aile ed
remarks then I need 0 no further.

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 Para 3(2)(d) - You must not do anything which compromises or is
likely to compromise the impartiality of those who work for" or on
behalf, your authority
Para 6(a) - You must not use or attempt to use your position as a
member to confer on or secure for yourself or any other person,
an advantage or disadvantage.
Para 6(b)(ii) - You must when using or authorising the use by
others of the resources of your authority ensure that such
resources are not used improperly for political purposes.

6.16 I note that there were discussions between CUr Pugh and the
monitoring officer and communication officer? I also note that
discussions were subsequently had between andiDavina
Fiore. I also note that there were a series of telephone conversations
between the communication officer and at least 2 witnesses Band
media 9 . The subject of these conversations was to discuss the non
referred incident that occurred on Friday 12th F,ebruary.

6.17 The complaints relating to the communication department are in simple

terms, that the once Ethical Standards Assessment Sub Committee
determination, and indeed CUr Pugh position, that the shouting incident
was outside the auspices of the code of conduct, the use of any
communications resourGe, including officer time';" was not appropriate
and such use amounted to a breach.

6.18 This is a matter of principle as to whether it is proper use of council

resources to do anything in reaction to the non-referred incident as this
was CUr Pugh acting in a private capacity.

6.19 A breach of the code may involve overt inappropriate pressure being
placed upon an officer in a manner designed to intimidate another such
as behaviour referred to in 7.5 above.

6.20 The breach of paragraph 6a of the code has apparent links to CUr
Pugh's position. In addition as I understand the complaint, contributing
to 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 Council
and as such he would not have to place overt pressure as an ostensibly
polite request would have the same effect due to his executive power.

6.21 I have reviewed the evidence as to what occurred and the interaction
between Cllr Pugh and officers as well as between officers. It is agreed
that resources were used to comment on and react to the non-referred
incident.

7 Gavin Foster
8 Carole Dennett and Jason Kaye
9 Telegraph, County Press,

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6.22 The complaint alleges that this action sought to "bury 10" the story
although it also refers to "suppressing 11", as do witnesses refer to the
wish to "suppress". It is noted that the story was already known to the
media and therefore it would not possible for this to happen as this term
is about stopping information from entering the public arena when in
fact the story had already entered such.

6.23 I do believe that the purpose of the phone calls and communications by
the communication department were for the purpose of managing the
media reports and ascertaining the facts of what had occurred. I also
believe that there were little if any proactive measures taken post the
decision that the non-referred incident was a private matter. I have also
found no evidence of overt pressure to do this. There is no evidence
that Cllr Pugh sent any email or gave any instructions whatsoever to
any officer asking for any action to be taken.

6.24 I also note that there was released a YouTube video and note that
national 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 er
trirSbe returning a call or answering a call.
6.26 I do believe that this WqS partly to assess what had occurred and to
some degree seeking to manage adverse media impact on the Council.
This would I agree also have the affect of managing the media impact
upon Cllr Pagh personally.

6.27 I do not however agree that what has occurred in this instance amounts
to a breach of the code. I believe that it is quite proper for a
communication officer to make efforts to find out what had occurred in
relation to an incident involving a councillor. I think this is heightened
as the incident involved the leader of the Council and a member of the
MP's staff.

6.28 The Council does have an active media department that seeks to
maintain a positive public image of the Council.

6.29 I believe that the potential for adverse publicity for the council as a
result of the incident was actual at the time of the communication
officer's involvement. I believe the actions were limited and reactive.

6.30 I believe that is quite proper that officers sought to moderately manage
this by making enquiries. I do not find that any such action was
excessive or improper and, central to my investigation, was not
instigated by Cllr Pugh either by express or implied direction.

10 Page A 11 of ESC report

11 Page A 12 of ESC report

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Para 5 - You must not conduct yourself in a manner which could
reasonably be regarded as bringing your office into disrepute

6.31 Whether CUr Pugh has brought his office into disrepute is an objective
test and the judgement as to whether it has been breached must be
made having regard to all the circumstances of the case.

6.32 The Oxford English Dictionary defines disrepute as a "lack of good

reputation or respectability". Therefore anything which could reasonably
be regarded by an objective observer as diminishing a member's office
or authority or which harms or could harm the reputation of the member
or 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 "these
things happen" during an Isle of Wight radio interview on 23 rd February
2010.

6.34 As above, I am of view that his conduct including while being

interviewed during discharge of his official duties such as radio debate
should seek to promote the highest standards of behaviour in public life.

6.35 I note that the interview questioning could only have been referring to
the published version of events that had been made as of 23 rd
February. It's my view that this was mainly about his conduct recorded
on YouTube and not any matter on which I investigated.

6.36 I am mindful that the radio interview was by invitation and that the
substantive issue of the interview was about the forth coming budget
decision. I am also mindful that there were other persons were
attending to take part on the debate.

6.37 It is not surprising that there was a question about the recent incident
give'n the recent media attention.

6.38 I am of opinion that this remark to a question about the incident does
not show the highest level of reverence to the matter. Whilst I recognise
the swearing incident is not subject to my investigation it is of relevance
as to whether such a remark during a radio response to those events
and what he said was an appropriate response or indeed in itself
breaches paragraph 5 of the code.

6.39 In my view it might have been more appropriate to not comment at all
rather provide such a short reply.

6.40 I'm of the opinion that such a remark is at least unfortunate. However
being unfortunate is not a test that I have applied. I do not believe his
comment caused harm to his office or the authority. I do not believe that
his comment diminished his office or the Council to a sufficient degree
that 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 and
confidence in the Councillor, his office or the Council. Cllr Pugh's action
did not amount to a breach.

7 Findings

In relation to Para 3(1) - You must treat others with respect (Rachael
Bushby 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 events
within the ball at the table) and Para 3(2)(c) - You must not intimidate or
attempt to intimidate any person who is likely to be a complainant or
witness (Rachael Bushby in relation to events within the ball at the
table), I find the following:

7.2 I do not believe there is sustainable evidence to conclude on the

balance of probabilities that any overt or covert pressure was placed
upon Rachael to act in a particular manner.

7.3 Whilst I accept the non-referred incident may have been of the type of
behaviour that may cause concern, I have seen no evidence to suggest
that he treated Rachael with anything other than respect during the
evening in question.

7.4 I have seen no evidence that CUr Pugh's actions or conduct towards
Rachael amounted to intimidatory behaviour. I have heard no evidence
of any particular behaviour that would amount to intimidation or even a
series of actions that might cumulatively amount to such.

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

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7.5 I believe all her actions were voluntary and no action attributable to Cllr
Pugh has been evidenced in my enquiry. I believe her actions in
attending and leaving with him are consistent with a relationship.

In relation to Para 3(2)(d) - You must not do anything which

compromises or is likely to compromise the impartiality of those who
work for, or on behalf, your authority; Para 6(a) - You must not use or
attempt to use your position as a member to confer on or secure for
yourself or any other person, an advantage or disadvantage; and Para
6(b)(ii) - You must when using or authorising the use by others of the
resources of your authority ensure that such resources are not used
improperly for political purposes, I find the following

7.6 I believe that is quite proper that officers sought to moderately manage
media enquiries during the week beginning 15th February. I do not find
that any such actions were excessive or improper.

7.7 I further believe that it was proper to seek to establish whether any
further adverse publicity would be made by key witnesses to the event.

7.8 I do not find that Cllr Pugh has breached these paragraphs of the code
of conduct.

In relation to Para 5 - You must not conduct yourself in a manner which

could reasonably be regarded as bringing your office into disrepute, I
find the following;

7.9 I do not believe Cllr Pugh's comment caused harm to his office or the
authority. I do not believe that his comment diminished his office or the
Council to a sufficient degree that would breach the code of conduct.

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