Councillor breached Code of Conduct by acting anonymously through Twitter, independent investigator finds

A former Cabinet member for housing at Southwark Council breached the local authority’s Code of Conduct by acting anonymously through a Twitter account, an independent investigation by law firm Bevan Brittan has found.

After his exposure in the local press as being behind the anonymous account (@SouthwarkYIMBY), Cllr Leo Pollak resigned his cabinet role in February 2021 and read out an apology at a full council meeting.

He also referred himself to the monitoring officer, while one of the campaigners mentioned made a complaint in March 2021 about him to the council.

The complainant was offended by the use of the word ‘nimby’ and what was described as the aggressive tone of a tweet that read: “This is pathetic nimbyism. Looking at the planning documents it’s clear a lot of consultation with estate residents has gone into these proposals. Does the controller of this twitter account live on the estate?”

David Kitson, the partner at Bevan Brittan appointed by Southwark to investigate the actions of Cllr Pollak, concluded in a report – albeit it was “very finely balanced” – that the Code applied to tweets sent in 2020 and 2021 through the account about two local housing developments at Priory Court and the Elim Estate.

The report found that the Code also applied in relation to other tweets and retweets that referred to schemes and developments in which the councillor had been involved in his official capacity.

The Code was not found to have applied in relation to the residue of tweets by the account as these were more general in nature.

The Bevan Brittan report said: “It must be made very clear that we do not condone the councillor’s behaviour. Seeking to use an anonymous account through which to comment on social housing and housing developments, and to challenge others commenting on the same, is certainly not appropriate in the circumstances.”

However, Mr Kitson determined that the content of the tweets to which the Code applied was not such as to result in a breach of the Code.

He said: “The content of the tweets that referred to specific developments and schemes in which the councillor had been involved in a formal capacity (mainly retweets), are generally inoffensive and uncontroversial.

“With reference to the tweets regarding Priory Court and the Elim estate ballcourt, the content was at times provocative, but did not amount to breach, Those with whom the councillor was engaging had voluntarily chosen to involve themselves publically in matters of public concern, and the enhanced protection afforded by Article 10, as well as the higher thresholds of tolerance expected, applied to both the councillor and those third parties.”

The report did find, however, that by acting anonymously Cllr Pollak had breached the Code.

Mr Kitson said: “By his own admission, one of the reasons that the councillor sought to use the account was to address what he believed to be false statements about the Priory Court and Elim estate ballcourt developments which he felt could significantly undermine them, and which he had not been able to address adequately using his named account. In other words his intention in this respect was the same, both when he was acting overtly using his named account, and when he was acting covertly, and that was to address misinformation, and influence public opinion and support for the developments.”

Cllr Pollak also stated that he and other council members had been subjected to aggressive and provocative behaviour in response to their activities in the past. He said he was concerned about his safety and that of his family.

“Although again we must make it clear that we do not condone the councillor’s behaviour, which he himself states was inappropriate and contrary to the Code, we accept that these concerns were genuine and go towards mitigation for his actions,” the report said.

“Indeed notwithstanding the higher threshold of tolerance required by those in public office, there is and has been for some time a growing national concern in relation to behaviour towards public figures, and whether a change in the law is required.”

Mr Kitson said that in relation to two anonymous comments made in support of the planning application for development of the Elim estate ballcourt, Cllr Pollak denied that he had made them, “and we did not find evidence other than supposition to conclude otherwise”.

The Bevan Brittan partner noted that the councillor had clearly acknowledged at all stages that his actions were not appropriate. “He has also repeatedly expressed remorse, including via the statement he made to council, and by way of his self-referral through the standards regime.

“It should also be noted that the councillor resigned his role on Cabinet, a role which he is passionate about, and has suffered public criticism and condemnation for his actions, including significant personal hardship and turmoil. In our opinion any sanctions that could be applied in relation to this matter fall significantly short of the consequences that have resulted quite independently of this process.”

Mr Kitson said Cllr Pollak was “clearly passionate” about social housing and the significant issues arising in this context. “Seeking to further his views by way of anonymous postings through the account was ill considered and inappropriate, which he wholeheartedly acknowledges. It is likely that the councillor will have learnt a number of valuable lessons from this unfortunate episode.”

In light of this the report did not recommend that any further action was required. “Further we are of the opinion that this matter can reasonably be resolved without the need for a hearing, which in our view would not be in the public interest nor a beneficial use of council resources.”

In his draft report provided to the complainant and Cllr Pollak, Mr Kitson had originally concluded that the Code did not apply to the councillor’s tweets as a whole.

The final report said: “Our view that the councillor’s behaviour in acting covertly was both inappropriate and ill-considered has not changed, however this is now considered to be a breach of the Code on the basis that we are now of the opinion that the Code did apply in certain respects, however it remains our view that no further action is required in consequence of this report.”

It said this change from its initial position on application of the Code came about because the firm had to consider “very technical and difficult areas of law, with a lack of authoritative precedent on when the code applies.

“Considerations and arguments have been finely balanced throughout, and in this context we determined of our own volition to revisit and give further in depth thought to the issue of whether the code applied, and if so to what extent.”

Mr Kitson’s report is due to be considered at a meeting of Southwark’s Audit, Governance and Standards (Conduct) Sub-Committee on 10 January.

Mark Smulian