Mazza and Local Government Standards Panel - [2009] WASAT 165

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: LOCAL GOVERNMENT ACT 1995 (WA)

CITATION: MAZZA and LOCAL GOVERNMENT STANDARDS PANEL [2009] WASAT 165

MEMBER: JUDGE J PRITCHARD (DEPUTY PRESIDENT)

HEARD: 13 JULY 2009

DELIVERED : 25 AUGUST 2009

FILE NO/S: DR 89 of 2009

BETWEEN: JAMES DINO MAZZA
Applicant
AND
LOCAL GOVERNMENT STANDARDS PANEL
Respondent
ATTORNEY GENERAL OF WESTERN AUSTRALIA
Intervenor

FILE NO/S :DR 32 of 2009

BETWEEN :SHIRE OF MENZIES
Applicant
AND
JAMES DINO MAZZA
Respondent

Catchwords:

Local Government - Rules of Conduct - Information acquired in closed meeting of Council - Whether closure of information was a breach of Rules of Conduct - Whether information disclosed was in the public domain - Minor breach - Words and phrases: 'public domain'

Legislation:

Local Government (Administration) Regulations 1996 (WA), reg 29(1)(c), reg 29(2)
Local Government (Rules of Conduct) Regulations 2007 (WA), Pt 2, reg 6, reg 6(2), reg 6(2)(b), reg 6(3)(c), reg 7(1)(b), reg 7(2)
Local Government Act 1995 (WA), Pt 5, Div 9, s 5.23(1)(a), s 5.23(2)(a), s 5.23(2)(b),s 5.23(3), s 5.94, s 95(3), s 5.104(1), s 5.106, s 5.110, s s 5.110(6)(b), s 5.117, s 5.118(1), s 5.120, s 107(1), s 107(2), Sch 5.1 cl 2
State Administrative Tribunal Act 2004 (WA), s 29(3)(c)(ii), s 29(5), s 31(1)

Result:

For DR 89 of 2009:
The decision of the Local Government Standards Panel is varied
For DR 32 of 2009:
The proceedings are dismissed

Category: B

Representation:

DR 89 of 2009

Counsel:

Applicant:     Self-represented
Respondent:     Mr C Bydder
Intervenor:     Mr C Bydder

Solicitors:

Applicant:     Self-represented
Respondent:     State Solicitor's Office
Intervenor:     State Solicitor's Office

DR 32 of 2009

Counsel:

Applicant: Mr BW Searle (Representative)
Respondent: Self-represented

Solicitors:

Applicant: Self-represented
Respondent: Self-represented

Case(s) referred to in decision(s):

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The Shire of Menzies referred to the Tribunal an alleged failure by a former councillor, Mr Mazza, to comply with orders made by the Local Government Standards Panel. The orders followed the Local Government Standards Panel's finding that Mr Mazza had breached the Local Government (Rules of Conduct) Regulations 2007 (WA) by disclosing information he had obtained during a closed meeting of the Council of the Shire of Menzies. The orders imposed two sanctions: Mr Mazza was publicly censured, and he was ordered to apologise publicly in accordance with terms set out in the orders. Subsequently, Mr Mazza sought a review of those orders by the Tribunal.
The Tribunal considered whether a breach had occurred and, if so, what sanction should be imposed. The Tribunal determined that there was a breach, but that it would vary the decision of the Local Government Standards Panel in relation to the sanction. The Tribunal determined that the correct and preferable decision was to impose the public censure ordered by the Local Government Standards Panel, but not to impose the requirement for a public apology. In light of the Tribunal's determination in relation to the review proceedings, the proceedings in relation to compliance with the Panel's orders were rendered redundant.

The proceedings before the Tribunal

On 18 July 2008, the Local Government Standards Panel (respondent) made a finding that Mr James Dino Mazza (applicant) had committed a breach of reg 6(2)(b) of the Local Government (Rules of Conduct) Regulations 2007 (WA) (Rules of Conduct Regulations). On 8 October 2008, the respondent made orders imposing sanctions on the applicant by way of punishment for that breach (respondent's orders).
By an application dated 16 December 2008, the Shire of Menzies (Shire) referred to the Tribunal an alleged failure by the applicant to comply with the respondent's orders. The proceedings in relation to this application are referred to herein as the compliance proceedings.
Subsequently, the applicant filed an application, dated 5 March 2009, for a review of the respondent's orders (referred to herein as the review proceedings). The applicant is in effect seeking a review of the respondent's finding that he breached the Rules of Conduct Regulations, together with a review of the punishment imposed upon him pursuant to the respondent's orders.
Having regard to the possibility that exists in a review proceeding that the Tribunal may invite the decisionmaker to reconsider the decision (s 31(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act)) and to the fact that the powers of the Tribunal on a review include the power to set aside the decision that is being reviewed and to send the matter back to the decisionmaker for reconsideration (s 29(3)(c)(ii) of the SAT Act), the respondent quite properly did not play an active part in the review proceedings, other than to file a document setting out the issues and facts it considered arose in the review proceedings, and to place relevant documents before the Tribunal. However, the Tribunal was assisted by the intervention of the Attorney General of Western Australia (intervenor) who acted as a contradictor in the review proceedings.

Statutory framework

It is convenient to commence by noting the statutory framework for complaints concerning the conduct of members of councils.
Section 5.104(1) of the Local Government Act 1995 (WA) (LG Act) permits regulations to be made prescribing rules that council members are required to observe. Those rules are known as the rules of conduct for council members. A council member commits what is known as a 'minor breach' if he or she contravenes a rule of conduct made under s 5.104(1) of the LG Act.
Part 2 of the Rules of Conduct Regulations contains the rules of conduct referred to in s 5.104(1) of the LG Act. Of relevance to the present case is reg 6, which provides:
(1)In this regulation -
closed meeting means a council or committee meeting, or a part of a council or committee meeting, that is closed to members of the public under section 5.23(2) of the Act;
confidential document means a document marked by the CEO to clearly show that the information in the document is not to be disclosed;
non-confidential document means a document that is not a confidential document.
(2)A person who is a council member must not disclose -
(a)information that the council member derived from a confidential document; or
(b)information that the council member acquired at a closed meeting other than information derived from a non‑confidential document.
(3)Subregulation (2) does not prevent a person who is a council member from disclosing information -
(a)        at a closed meeting; or
(b)to the extent specified by the council and subject to such other conditions as the council determines; or
(c)        that is already in the public domain; or
(d)        to an officer of the Department; or
(e)        to the Minister; or
(f)to a legal practitioner for the purpose of obtaining legal advice; or
(g)        if the disclosure is required or permitted by law.
A person who has reason to believe that a council member has committed a minor breach may complain of the breach by sending to the officer designated as the complaints officer by the local government concerned (pursuant to s 5.120 of the LG Act) a complaint setting out the particulars of the complaint referred to in s 5.107(2) of the LG Act: see s 5.107(1) of the LG Act.
A complaint of a minor breach is dealt with by a standards panel appointed by the Minister under cl 2 of Sch 5.1 to the LG Act. In the case of a complaint which does not involve a recurrent breach of the LG Act, a standards panel is required to make a finding as to whether the breach alleged in the complaint occurred: s 5.110(2)(a) of the LG Act.
The LG Act provides some guidance on how a determination should be made that a breach has occurred. Section 5.106 of the LG Act provides:
A finding that a breach has occurred is to be based on evidence from which it may be concluded that it is more likely that the breach occurred than that it did not occur.
If a standards panel finds that a council member has committed a minor breach, then after giving the council member an opportunity to make submissions about how that breach should be dealt with, the standards panel is to deal with the breach in accordance with s 5.110(6) of the LG Act.
In the event that a council member fails to comply with an order made by a standards panel under s 5.110(6) of the LG Act, the Chief Executive Officer of the local government concerned is to refer that failure to the Tribunal: s 5.118(1) of the LG Act. The Tribunal may, if it is satisfied that the person failed to comply with the order, make an order of the kind described in s 5.117(1)(a)(iv) or s 5.117(1)(a)(v) of the LG Act. The compliance proceedings brought by the Shire in the present case were referred to the Tribunal pursuant to s 5.118(1) of the LG Act.
The LG Act permits a party to apply for a review of a decision (including a decision to make an order) made by a standards panel: s 5.125 of the LG Act. The Applicant's application was brought pursuant to that section. In dealing with that application the Tribunal is exercising its review jurisdiction.
It is also convenient to note at this point that ordinarily all council meetings are to be open to members of the public: s 5.23(1)(a) of the LG Act. However, a council may close a meeting, or part of a meeting, to members of the public if the meeting deals with certain matters, including, amongst others, a matter affecting an employee or employees, or the personal affairs of any person: s 5.23(2)(a) and s 5.23(2)(b) of the LG Act. Subsection 5.23(3) of the LG Act requires that a decision to close a meeting or part of a meeting, and the reason for the decision, be recorded in the minutes of the meeting.
Section 5.94 of the LG Act confers a right to inspect a variety of documents, including any confirmed minutes of council meetings and such other information relating to a local government as may be prescribed: s 5.94(n) and s 5.94(u)(ii) of the LG Act. However, the right to inspect information contained in confirmed minutes of council meetings does not apply if the meeting or that part of the meeting to which the information refers was closed to members of the public, or in the CEO's opinion, could have been closed to members of the public but was not closed: s 5.95(3) of the LG Act.
Unconfirmed minutes of council meetings have been prescribed as documents also subject to this right of inspection: reg 29(1)(c) of the Local Government (Administration) Regulations 1996 (WA) (Administration Regulations). However, reg 29(2) of the Administration Regulations makes clear that the right of inspection does not extend to the inspection of information in unconfirmed minutes if the meeting or that part of the meeting to which the information refers was closed to members of the public.

Factual background

On 18 February 2008, the then Chief Executive Officer of the Shire made a complaint under s 5.107 of the LG Act (complaint). The complaint alleged that the applicant, who was a member of the Council of the Shire of Menzies (Council), had disclosed to a third party information which the applicant had acquired during a closed session of an Ordinary Council Meeting on 28 February 2008 (February meeting). The information in question was that the Deputy Chief Executive Officer (Deputy CEO) of the Council, Mr Brad Pepper, had resigned from his position as the Shire's Deputy CEO (the relevant information). The complaint alleged that the applicant's disclosure of the relevant information constituted a breach of reg 6(2)(b) and a breach of reg 7(1)(b) of the Rules of Conduct Regulations.
The complaint was considered by the respondent on 18 July 2008. In its reasons for its findings at para 9, the respondent concluded that:
there is evidence from which it may be concluded that it appears more likely than not that Cr Mazza:
(a)was a Council member as at 28 and 29 February 2008;
(b)attended at the OCM [Ordinary Council Meeting] and, during a closed part of the OCM, aurally acquired the relevant information from the CEO; and
(c)disclosed the relevant information to Mr Lansdown at Woolworths, Kalgoorlie at some time on 29 February 2008 prior to 4.00pm.
The respondent concluded that the applicant had not committed a breach of reg 7(2) of the Rules of Conduct Regulations.
The respondent noted that reg 6(2) of the Rules of Conduct Regulations did not prevent a council member from disclosing information that was already in the public domain. The respondent determined that information 'in the public domain', in the context of the confidentiality provisions in the LG Act and the Administration Regulations, meant information that was 'public knowledge'. The respondent concluded that:
as a consequence of sections 5.23, 5.94 and 5.95, regulations 29 and 29A of the Administration Regulations and regulation 6, and the meaning of the term 'in the public domain', the information in relation to a closed part of a Council meeting that by virtue of regulation 6 a Councillor is not permitted to disclose publicly (including to any elector or ratepayer) is:
(a)any information in a document marked by (or on behalf of) the CEO to clearly show that the information in the document is not to be disclosed, except for any information that is public knowledge at the time of the Councillor's disclosure;
(b)anything said during the closed part of the meeting, except for:
(i)so much of what is said that is public knowledge at the time of the Councillor's disclosure; and
(ii)otherwise, only to the extent specified by Council and subject to such other conditions as Council determines; and
(c)any information referred to in section 5.94 which deals with anything in respect of which a meeting has been closed under section 5.23, except for such of that information that Council has resolved be available for inspection.
The respondent then concluded that:
The relevant information was information that:
(a)Councillor Mazza acquired at a closed meeting other than information derived from a non-confidential document;
(b)Was not information in the public domain;
(c)Council had not resolved be available for inspection by any person; and
(d)More likely than not was disclosed by Councillor Mazza to Mr Lansdown at Woolworths, Kalgoorlie at some time on 29 February 2008 prior to 4.00pm.
On 8 October 2008, the respondent made the respondent's orders which set out the punishment it had determined should be imposed on the applicant in respect of his breach of reg 6 of the Rules of Conduct Regulations. Two sanctions were imposed. The first sanction imposed by the respondent was that the applicant be publicly censured in the following circumstances and terms:
1.James Dino Mazza, a member of the Council of the Shire of Menzies, be publicly censured as specified in paragraph 2 below.
2.Within the period of 29 days to 43 days from the day following the date of service of this Order on him, the Chief Executive Officer of the Shire of Menzies arrange the following Notice of Public Censure to be published in the 'Public Notices' or 'Local Government Notices' section of a Saturday edition of 'The Western Australian' newspaper, in no less than 10 point print:
NOTICE OF PUBLIC CENSURE
The Local Government Standards Panel hereby publicly censures JAMES DINO MAZZA, a member of the Council of the Shire of Menzies, for his conduct on 29 February 2008 when he wrongly disclosed information he acquired during a closed part of a Council meeting, and thereby committed a breach of regulation 6(2)(b) of the Local Government (Rules of Conduct) Regulations 2007.
Quentin Harrington, Clive Robartson & John Lyon
LOCAL GOVERNMENT STANDARDS PANEL
The second sanction imposed by the respondent was that the applicant apologise publicly, either by giving an apology at the next Ordinary Council Meeting of the Shire, or by publishing a written apology in the Public Notices or Local Government Notices section of a Saturday edition of the West Australian newspaper. In the first case, the terms of the apology were specified in the respondent's orders in the following terms:
(a)James Dino Mazza shall request the presiding person for his/her permission to address the meeting immediately following Public Question Time or during the Announcements part of the meeting or at such time during the meeting when it is open to the public as the presiding member thinks fit, for the purpose of James Dino Mazza making a public apology to his fellow Shire Councillors; and
(b)subject to the said presiding person giving such permission, at the time permitted by the said presiding person James Dino Mazza shall verbally address the Shire's council as follows, without him making any comment or statement after his address:
'I advise this meeting that a complaint has been made by Mr Peter Crawford, when he was the Chief Executive Officer of the Shire, to the Local Government Standards Panel about my conduct as a member of this Council. The Local Government Standards Panel has considered Mr Crawford's complaint and has made a finding that on 29 February 2008 I wrongly disclosed information that I acquired at a closed part of a council meeting, and thereby committed a breach of regulation 6(2)(b) of the Local Government (Rules of Conduct) Regulations 2007. I sincerely apologise to my fellow Shire Councillors for my conduct.'
In the alternative case, the circumstances and terms of the apology to be published were:
within 14 days after the next Shire of Menzies Ordinary Council Meeting immediately following the date of service of this Order on him, James Dino Mazza causes the following Notice of Public Apology to be published in the 'Public Notices' or 'Local Government Notices' section of a Saturday edition of 'The Western Australian' newspaper, in no less than 10 point print:
NOTICE OF
PUBLIC APOLOGY
I, JAMES DINO MAZZA, am a member of the Council of the Shire of Menzies. The Local Government Standards Panel has made a finding that that [sic] on 29 February 2008 I wrongly disclosed information that I acquired during a closed part of a council meeting, and thereby committed a breach of regulation 6(2)(b) of the Local Government (Rules of Conduct) Regulations 2007.
I sincerely apologise to my fellow Shire Councillors for my conduct.
JAMES DINO MAZZA
It is not in dispute that the applicant was publicly censured, in compliance with the respondent's orders, but that the applicant did not provide an apology in compliance with the respondent's orders.
The applicant subsequently resigned from his position as a member the Council.

Issues in the review proceedings

In its statement of issues and facts, the respondent contends that the following issues arise in the review proceedings:
1.Was the Applicant a council member of the Shire on 28 and 29 February 2008?
2.If issue 1 is answered in the affirmative, did the Applicant acquire information at a Shire council meeting on 28 February 2008 that the Shire's then deputy chief executive officer, Mr Brad Pepper, had tendered his resignation ('the information')?
3.If issue 2 is answered in the affirmative, was the Shire council meeting closed to members of the public under section 5.23(2) of the Local Government Act 1995 (WA) ('the Act') at the time the Applicant received the information?
4.If issue 3 is answered in the affirmative, did the Applicant disclose the information on 28 or 29 February 2009?
5.If issue 4 is answered in the affirmative:
(a)was the information derived by the Applicant from a document that was not marked by the Shire's chief executive officer to clearly show that the information in the document was not to be disclosed;
(b)was the information disclosed only to the extent specified by the council and in accordance with such conditions as the council determined; and
(c)was the information already in the public domain when it was disclosed?
6.If each sub-issue of issue 5 is answered in the negative, how should the Applicant's breach be dealt with under section 5.110(6) of the Act?

In his statement of issues, facts and contentions, the intervenor adopts the issues identified by the respondent, and submits that issues 1 to 4 should be answered in the affirmative and each sub-issue of issue 5 should be answered in the negative.
The applicant does not contend that other issues arise in the review proceedings. At the commencement of the hearing, the applicant indicated that there was no dispute in respect of several issues identified by the respondent, namely:
(a)that he was a council member of the Shire on 28 and 29 February 2009;
(b)that he did disclose the relevant information on 28 or 29 February 2009 (to Mr Lloyd Lansdown);
(c)that he did not contend that issue 5(a) in the respondent's statement of issues and facts should be answered yes; and
(d)that he did not contend that issue 5(b) in the respondent's statement of issues and facts should be answered yes.
Accordingly, the issues in dispute in the review proceedings are confined to issues 2, 3 and 5(c) identified in the respondent's statement of issues and facts.
The intervenor relies on evidence from Mr Peter Crawford, the then Chief Executive Officer (CEO) of the Shire and from Mr Stephen Tonkin, the then Shire President of the Shire, both of whom were present at the February meeting, and on evidence from Mr Bradley Pepper, the then Deputy CEO of the Shire who was present at part of the February meeting. The applicant gave evidence on his own behalf and called evidence from Mr Kevin Pusey and Ms Jillian Dwyer, both councillors who were present at the February meeting.
There is no dispute that the applicant became aware of the relevant information during the course of the February meeting. What is in dispute is when the applicant acquired the relevant information during the February meeting, and the circumstances in which he acquired the relevant information.
Before turning to address these issues, it is appropriate to briefly mention the evidence concerning the circumstances which led to Mr Pepper submitting his resignation on 28 February 2008. It is not in dispute that during the morning session of the February meeting, the Council had discussed financial matters. Mr Pepper had been asked questions by some councillors, including Mr Pusey and the applicant, concerning the financial statements provided to the February meeting. Mr Pusey and the applicant considered that there were some discrepancies in the statements which had been presented to the meeting. Mr Pepper left the meeting to obtain further information in response to these questions. He returned to the meeting and shortly thereafter left the meeting again. Mr Pepper's evidence was that after leaving the February meeting on the second occasion, he wrote his letter of resignation and left it on Mr Crawford's desk.
There is some dispute in the evidence about the circumstances which led to Mr Pepper leaving the February meeting on the second occasion and tendering his resignation. Mr Crawford recalled that after leaving the February meeting for the first time, Mr Pepper returned with some papers. He then directed the councillors' attention to the papers. Mr Crawford recollected that Mr Pepper said words to the effect that 'if you add up the figures they will add up'. Mr Crawford's evidence was that 'Cr Pusey replied with words to the effect that he asked the questions and Brad was to do the adding up'. Mr Pepper's evidence was that Mr Pusey would not accept his efforts to explain that he had made an error in the calculations. Mr Pepper said that he (Mr Pepper) became annoyed at this and looked out the window to keep calm, and that when there was a break in the meeting he left the Council chamber.
In contrast, the applicant and Mr Pusey both gave evidence that Mr Pepper threw down some papers on the table, and told them that they could work the issue out for themselves, and that he then left the meeting. Mr Crawford denied that Mr Pepper threw anything onto the table.
Mr Tonkin's evidence was that although 'Mr Pusey's manner can be gruff, I saw nothing inappropriate in the way that he questioned Brad. The discussion became heated and Brad was unable to answer Cr Pusey's questions.' Mr Tonkin also gave evidence that after Mr Pepper's resignation, Mr Crawford:
intimated that Brad [Pepper] had been treated unreasonably and in a way that showed a lack of trust in the Shire's senior management - that is, Peter [Crawford] and Brad [Pepper]. I asked Peter how Councillor Pusey could have asked the question of Brad in a better way but I do not believe that I received a credible answer.
For present purposes it is not necessary to make findings as to precisely what occurred in this part of the Council meeting. However, the evidence suggests that there was a degree of friction between the applicant and Mr Pusey, on the one hand, and Mr Crawford and Mr Pepper on the other hand, about issues concerning the management of the Council's finances. The existence of this friction was not explored sufficiently in the evidence to permit any finding to be made as to whether it had coloured any of the witnesses' recollections of other events during the February meeting. There was nothing in the demeanour of any of the witnesses which suggested that their evidence was unreliable. Nevertheless, in relation to those issues where there exists a conflict in the evidence of Mr Crawford and Mr Pepper on the one hand, and the applicant and Mr Pusey on the other hand, and where Mr Tonkin and Ms Dwyer gave evidence on the same issues, I place greater weight on the evidence of Mr Tonkin and Ms Dwyer, together with any corroborating documentary evidence.

Was the February meeting closed to members of the public under s 5.23(2) of the LG Act at the time the applicant received the relevant information?

Evidence of the witnesses concerning the closed session

The intervenor's case is that the relevant information was disclosed to the applicant (and other councillors) only once during the February meeting, and that when that occurred, the council meeting was closed to members of the public (closed session). The applicant's case is that the relevant information was disclosed by Mr Crawford to councillors during both the morning and afternoon sessions of the February meeting and that, on each occasion, the relevant information was disclosed when the Council meeting was in open session. The applicant's case is that the Council went into closed session only once during the February meeting and in that closed session councillors discussed an unrelated issue, namely the conduct of a review of the CEO's performance (CEO's review).
Mr Crawford's evidence was that he found Mr Pepper's letter of resignation when he returned to his desk at lunchtime. His evidence was that he then saw Mr Pepper who was adamant about his intention to resign. Mr Crawford said that he asked Mr Pepper to keep the relevant information confidential. Mr Crawford then sought out the Shire President, Mr Tonkin, advised him of Mr Pepper's resignation, and obtained his agreement to discuss the issue with councillors in a closed session of the Council during the February meeting. Mr Crawford's evidence was that he did not disclose the relevant information to anyone else before the February meeting went into closed session.
Mr Crawford's evidence was that he wanted to advise councillors of the relevant information during a closed session because when Mr Pepper had tendered his resignation in December, he had been talked out of it, but not before 'the whole town found out'. (In December 2007, Mr Pepper tendered a letter of resignation from his position as the Deputy CEO. However, he had been persuaded to withdraw his resignation a day or two later.) Mr Crawford considered that he had a better chance of getting Mr Pepper to retract his resignation on this occasion if the relevant information was kept confidential.
Mr Crawford's evidence was that later in the afternoon of 28 February 2008, the Council went into closed session, and at that point he informed the councillors that he had just received Mr Pepper's resignation. He advised the councillors that he:
had a very slim chance of getting Brad to retract his resignation and needed every bit of luck to make this chance work. Until they had heard further from me, I asked that the matter be kept extremely confidential and not divulged to any other person under any circumstances.
Mr Crawford said that he asked councillors twice during the closed session to give him their assurance that the relevant information would be kept confidential, and that all councillors, including the applicant, had given him that assurance.
Mr Crawford's evidence was that the closed session of the Council during the February meeting did not deal with a review of his performance. That issue was, he recalled, dealt with after the closed session had finished. The discussion of the CEO's review was recorded in handwritten notes made by Ms Dwyer which appear in the minutes of the February meeting (February minutes).
Mr Tonkin gave evidence that Mr Crawford spoke to him during the morning tea break and advised him that Mr Pepper had tendered his resignation. Mr Tonkin said that he did not disclose the relevant information to any other person prior to when the Council went into closed session later during the course of the February meeting.
Mr Tonkin's evidence was that during the afternoon session of the February meeting, Mr Crawford requested that the meeting go into closed session, and a motion was passed for that to occur. It was Mr Tonkin's impression that everyone at the meeting agreed to go into a closed session. Mr Tonkin's evidence was that while the meeting was in closed session, Mr Crawford advised the councillors of the relevant information. Mr Tonkin did not recollect anyone actually saying that the relevant information was to be kept confidential. However, at the conclusion of the closed session, he was left with the clear understanding that the relevant information was to be kept confidential, in light of the statutory obligation on councillors to keep confidential any information obtained in a closed session of a council meeting.
The applicant's case is that the Council was not in a closed session when the relevant information was provided to him and to the other councillors. The applicant's evidence was that the Council went into closed session once in the course of the February meeting, but that the only business discussed during that closed session was the CEO's review.
Mr Pusey also gave evidence that the discussion which took place in the closed session of Council during the February meeting pertained solely to the CEO's review. Mr Pusey's recollection was that members of Council were aware that the review had to be organised, and there was a general consensus that councillors needed to discuss how this should be done. Mr Pusey said that the discussion in closed session was instigated by him at the end of the February meeting in the course of councillors' reports.
The applicant also gave evidence that after the closed session had finished, and prior to the conclusion of the February meeting, Mr Crawford advised the councillors of the relevant information and asked for it to be kept confidential, so that he could try to convince Mr Pepper to change his mind and retract his resignation. The applicant was firm in his recollection that the relevant information was disclosed, and the request for confidentiality made, during an open session of the February meeting. I note that other than on the issue of whether the February meeting was in closed session at that time, the applicant's evidence as to what was said is consistent with the evidence of Mr Crawford and Mr Tonkin.
The applicant also called Ms Jillian Dwyer, a member of the Council who was present at the February meeting, to give evidence. Ms Dwyer's evidence was that she recalled that the Council did go into closed session at some stage during the February meeting. Ms Dwyer also recollected that Mr Crawford told the councillors that Mr Pepper had resigned. She recollected that he asked the councillors to keep this information to themselves. Ms Dwyer's evidence was that she was under the impression that the Council was in closed session at the time that the relevant information was discussed. Ms Dwyer was not sure if the Council was in closed session when she took notes of the discussion concerning the CEO's review.
For the reasons outlined earlier, I give greater weight to the evidence of Mr Tonkin and Ms Dwyer than I do to the evidence of Mr Crawford, the applicant and Mr Pusey. The evidence of Mr Tonkin and Ms Dwyer as to whether the Council was in closed session when Mr Crawford told councillors the relevant information is consistent with the evidence given by Mr Crawford, and inconsistent with the evidence given by the applicant and Mr Pusey.
In addition, the version of events for which the intervenor contended is also supported by the documentary evidence before the Tribunal.

The February minutes

The February minutes are in the bundle of documents provided by the respondent to the Tribunal.
Item 16 of the February minutes deals with 'Confidential Business to be heard behind Closed Doors'. This item in the February minutes states:
16.CONFIDENTIAL BUSINESS TO BE HEARD BEHIND CLOSED DOORS.
COUNCIL DECISION  ITEM 15
MOVED Cr Tucker  SECONDED Cr Dwyer
That Council move behind closed doors to discuss confidential business on staffing matters.
Carried 6 / 0
3.29 pmThe Deputy Chief Executive Officer and Manager-Works and Services left the Chambers
COUNCIL DECISION  ITEM 15
MOVED Cr Dwyer  SECONDED Cr Tucker
That Council return from behind closed doors.
Carried 6 / 0
No Resolution of Council was made behind closed doors
No notes are included in the February minutes as to what was discussed while the Council was in closed session. That is consistent with the fact that discussions held in closed session are intended to be confidential.
The February minutes go on to state:
3.40 pmThe Meeting was adjourned
3.53 pmThe meeting was reconvened
3.55 pmThe CEO left the Chambers
The CEO left the Chambers while Council discussed the impending performance appraisal of the CEO. The following notes were compiled by Cr Dwyer at the request of the Chairman
There then follows some handwritten notes of a discussion about how the CEO's review was to be conducted, culminating in a note to the effect that the Council decided to engage an outside consultant to conduct that review. At 4.18 pm the CEO returned to the Chambers. There then follows a note of the formal resolution of the Council to engage an outside consultant to conduct the CEO's review.
The February minutes lend support to the evidence given by Mr Tonkin, which is consistent with the evidence of Mr Crawford, that there was only one closed session during the February meeting. The February minutes also support the conclusion that although the CEO's review was discussed at the February meeting, that discussion did not take place in closed session. Had the discussion of the CEO's review occurred in closed session, as the applicant contends, one would not expect to see notes of that discussion appear in the minutes. Indeed, that would have defeated the object of the closed session. When this was raised with Mr Pusey in crossexamination, he conceded it was 'not common' for notes of discussions held behind closed doors to be included in the minutes of a council meeting.

Confirmation of the February minutes

It is not in dispute that the February minutes were confirmed by Council at its meeting on 20 March 2008. The intervenor provided the Tribunal with a copy of the minutes of the February meeting which were confirmed by the Council at its meeting on 20 March 2008 (confirmed minutes). The confirmed minutes, in relation to those matters outlined above, are identical in their terms to the February minutes.
The February minutes were confirmed with two corrections. Those corrections did not relate to the discussion in closed session, or to the notes of the discussion concerning the CEO's review. The nature of the corrections made to the February minutes is, however, telling. One of the corrections pertained to a spelling error in the name of one of the councillors. The other correction pertained to the numerical split of a vote taken on an issue. The nature of these corrections tends to suggest that the councillors conducted a relatively thorough review of the February minutes before confirming their accuracy. In that context, it would be remarkable if no councillor noticed that notes of a discussion which (on the applicant's case) had taken place in closed session had been erroneously included in the February minutes. That omission would be all the more remarkable given that the notes of that discussion were handwritten and more readily identified in the typed minutes.
The applicant's explanation for the inclusion in the February minutes, and the confirmed minutes, of notes concerning the CEO's review, was that 'as far as we were concerned, Brad Pepper and the CEO were on their way and there was no point causing more disruption to Council' by seeking that this error be corrected. In the context of the other errors which were corrected, however, that explanation appears implausible.
When it was put to Mr Pusey under cross-examination that the inclusion in the February minutes of notes concerning the CEO's review suggested that that issue was not discussed in closed session as he recollected, Mr Pusey's explanation was that this was 'probably the first time I'd seen a record of notes having been kept of a closed session discussion' and he wasn't sure why that had been done. Mr Pusey suggested that incompetence was probably the reason why councillors had confirmed the February minutes notwithstanding that they contained notes of the closed session. Mr Pusey's evidence was that he had not seen any reason to question Mr Crawford or Ms Dwyer about why the notes were included even though during his 13 years as a councillor he had never seen notes taken in a closed session discussion. Mr Pusey accepted that there was nothing in the February minutes to suggest that the Council had authorised the disclosure of notes taken during a closed session in this case.
Again, having regard to the nature of the corrections made to the February minutes when they were confirmed, Mr Pusey's explanation for the inclusion of notes of what he said was a closed session discussion in relation to the CEO's review is not compelling. The stronger inference is that the CEO's review was discussed while the Council was in open session and that was why notes of that discussion were included in the February minutes.

Inaccuracies in the February minutes

The applicant also submits that the February minutes were inaccurate and should not be relied upon to support the version of events contended for by the intervenor. He points to several examples of inaccuracies in the February minutes. First, item 16 of the February minutes indicates that after the motion for the Council to go into closed session, at 3.29 pm 'the Deputy Chief Executive Officer and Manager - Works and Services left the Chambers'. The applicant's evidence was that this was an error because Mr Pepper, the Deputy CEO, had left the February meeting several hours prior to the Council going into closed session.
It was not suggested by any of the other witnesses (with the exception, perhaps, of Mr Crawford) that Mr Pepper was present immediately prior to the Council going into closed session. In my view, the minutes contain an error in so far as they suggest, in respect of item 16, that Mr Pepper was present immediately prior to the Council going into closed session.
The applicant's evidence was that in fact it was the CEO, Mr Crawford, who left the Council Chambers prior to the closed session discussion. The applicant points to the fact that the handwritten notes taken by Ms Dwyer were taken during a period when the CEO, Mr Crawford (who had been the minute-taker during the February meeting) had left the meeting. As a result, the applicant submits, it could not have been the case that Mr Crawford gave the councillors any information, including the relevant information, during the closed session. That explanation does not accord with the balance of the February minutes, which indicate that at 3.55 pm, some time after the conclusion of the closed session discussion, the CEO left the Chambers while Council discussed the CEO's review.

The applicant highlights other errors in the February minutes, for example that item 9.6 purported to record a resolution for the adoption of the financial statements to 31 December 2007, when in reality the statements adopted were those to 31 January 2008 (the adoption of the statements to 31 December 2007 having been recorded earlier in the minutes at item 9.1).
In my view, the existence of errors of the kind to which the applicant points does not suggest that the February minutes are so inaccurate as to be generally unreliable. Minor errors of the kind identified by the applicant are not surprising in the context of lengthy minutes which deal with the discussion of numerous issues over the course of a daylong meeting. In any event, notwithstanding his contention that the February minutes are 'riddled with inaccuracies', the applicant also contends that the February minutes can be interpreted with sufficient confidence to reach the conclusion that he did not acquire the relevant information in a closed session of the February meeting.

The agenda for the February meeting

The intervenor submitted that the agenda for the February meeting supported the version of events for which he contended. Under the heading 'Confidential business to be heard behind closed doors' the agenda for the February meeting indicates 'nil' items for discussion. At least when that agenda was prepared, therefore, it was not anticipated that there would be any confidential business to discuss behind closed doors at the February meeting. That is entirely consistent with the version of events given by Mr Tonkin and by Mr Crawford, which was that the decision to go into closed session was a response to an unexpected development which arose on the day of the February meeting, namely the resignation of Mr Pepper.
The applicant gave evidence that it had been intended that a discussion about the CEO's review would be held in closed session at the February meeting.
There is evidence to suggest that the CEO's review was intended to be discussed at the February meeting. The minutes of the Council's meeting on 20 December 2007, which the intervenor also provided to the Tribunal indicate (at item 13.2.7) that the CEO's performance appraisal was to be carried out in February 2008. However, this evidence does not suggest that it was anticipated that the discussion of the CEO's review would be conducted in closed session. Had it been intended to hold a discussion about the CEO's review in closed session, one would expect to see that indicated in the agenda for the February meeting.

Conclusion

Having regard to the evidence of Mr Tonkin and Ms Dwyer, which is consistent with the evidence of Mr Crawford, to the content of the February minutes and the agenda for the February meeting and to the confirmation of the February minutes, I find that it is more likely than not that the applicant acquired the relevant information during a closed session of the Council at the February meeting.

Was the relevant information disclosed to the applicant during the February meeting when the council was in open session?

It is necessary to deal with a related contention which formed part of the applicant's case. Both the applicant and Mr Pusey gave evidence that after Mr Pepper left the February meeting on the second occasion, Mr Crawford also left the meeting and returned shortly thereafter. The applicant and Mr Pusey gave evidence that upon his return to the meeting, Mr Crawford told the councillors that 'we have a problem - the Deputy CEO has just resigned'.
It was put to Mr Tonkin in cross-examination that after the morning tea break Mr Crawford told the councillors that 'there was a problem with Bradley [Pepper]'. Mr Tonkin's evidence was that he did not recall that being said at the meeting.
The applicant said that there was no discussion of Mr Pepper's resignation when it was announced by Mr Crawford, and that no one asked any questions of Mr Crawford, or made any comment, about the resignation. It seems highly unlikely that had Mr Crawford made an announcement of the significance for Council of the resignation of its Deputy CEO, that there would not have been any discussion whatsoever.
The applicant's recollection is inconsistent with that of Mr Pusey. Mr Pusey gave evidence that after Mr Crawford's announcement that Mr Pepper had resigned, there was a discussion for approximately five minutes, in an open meeting of the Council, as to what was to happen. Present at the time were the President of the Shire, the councillors, Mr Crawford and the Manager of Works and Services (Mr Ray Pepper), although Mr Pusey accepted that no members of the public were present at the time. Mr Pusey's evidence was that the response to Mr Pepper's resignation was a matter for Mr Crawford as the CEO, and not for the Council itself, so councillors simply acknowledged that the CEO would let them know what happened.
There is no reference in the February minutes to the relevant information being discussed in the course of the morning. It also seems somewhat unlikely that a discussion of five minutes' duration in relation to this issue would not have merited a mention in the minutes.
The applicant also contended that after Mr Crawford returned to the Council Chambers following the closed session discussion (which the applicant said concerned the CEO's review) Mr Crawford again told the councillors the relevant information. The applicant said that Mr Crawford used 'virtually the same words' as he had on the previous occasion, and that there was, again, no discussion whatsoever in relation to this announcement. No other witness attested that this (further) announcement took place. Again, it seems highly unlikely that had Mr Crawford made an announcement of the significance for Council of the resignation of its Deputy CEO, that there would not have been any discussion whatsoever. In addition, it seems highly implausible that Mr Crawford would have made the same announcement twice, and in the same terms, and without discussion on either occasion.
These reservations lead me to prefer the evidence of Mr Tonkin, which is consistent with that of Mr Crawford, to the evidence of the applicant and Mr Pusey on the question whether the relevant information was discussed in the course of the February meeting other than in closed session. I find that the relevant information was not acquired by the applicant in the course of discussions held in open session during the February meeting.

Was the relevant information already in the public domain when it was disclosed by the applicant?

By virtue of reg 6(3)(c) of the Rules of Conduct Regulations, the applicant would not have been in breach of reg 6(2)(b) of those Regulations if, when he disclosed that information to Mr Lansdown, it was already in the public domain. That raises for consideration the question of whether the relevant information was in the public domain by the time the applicant disclosed the relevant information to Mr Lansdown. It is not in dispute that this disclosure took place on 29 February 2008.
The intervenor submits that for the purposes of reg 6(3)(c) of the Rules of Conduct Regulations, the expression 'public domain' should be given its ordinary and natural meaning. The intervenor submits that the ordinary and natural meaning of that expression is set out in the Oxford Dictionary Online which defines 'public domain' as meaning '[t]he state or condition of belonging or being generally available to all, esp. through not being subject to copyright. Chiefly in the public domain'.
It is the applicant's submission that the relevant information was not acquired by council members during a closed session of the Council and therefore always remained within the 'public domain'. However, had the relevant information not been acquired by the applicant during a closed session of the Council, no obligation to keep that information confidential would have arisen under reg 6(2) of the Rules of Conduct Regulations and therefore no issue would have arisen of the application of reg 6(3)(c) of those Regulations.
To the extent, if at all, that the applicant's submission may properly be understood as a submission concerning the construction of reg 6(3)(c) of the Rules of Conduct Regulations, the submission appears to imply that the expression the 'public domain' should be construed to mean 'all information other than information which becomes subject to an obligation that the information be kept confidential'. I am unable to accept this submission. That construction fails to afford any significance to the presence of the word 'public' in the expression 'public domain'.
In my view, the expression 'public domain' in reg 6(3)(c) of the Rules of Conduct Regulations should be given the ordinary and natural meaning for which the intervenor contends.
The intervenor contends that it is more likely than not that the relevant information was not in the public domain.
There is evidence that the relevant information was disclosed to one person, apart from the members of the Council, on 28 February 2008. Mr Pepper's evidence was that at some stage on 28 February 2008, after he had left his resignation on Mr Crawford's desk, he spoke to Mr Quenton Seinor, the Shire's depot services manager and told him that he had resigned. Mr Pepper asked Mr Seinor to keep that fact quiet and Mr Seinor said that he would. Mr Seinor's evidence about his conversation with Mr Pepper was entirely consistent with Mr Pepper's, except that Mr Seinor recollected that their conversation took place on Friday, 29 February 2008. On this issue, I prefer the evidence of Mr Pepper, who gave evidence about his conversation with Mr Seinor in the context of his evidence of other events on the day of the February meeting, and of events which occurred on Friday, 29 February 2008.
Mr Pepper also gave evidence that he did not recall telling anyone that he had resigned apart from Mr Seinor and possibly Mr Pepper's parents. Mr Seinor's uncontested evidence was that until he was approached in June 2009 to make a statement in relation to the review proceedings, he had not revealed to any other person that Mr Pepper had told him that he had resigned.
Other than the members of Council present at the February meeting, and Mr Crawford, the only persons who knew of the relevant information at the time that it was disclosed by the applicant to Mr Lansdown on 29 February 2008 were Mr Pepper, Mr Seinor and possibly Mr Pepper's parents. The relevant information was not generally available to members of the public and knowledge of the relevant information by Mr Seinor, and possibly Mr Pepper's parents, did not make it so. I therefore find that it is more likely than not that the relevant information was not in the public domain when it was disclosed by the applicant to Mr Lansdown.

Conclusion

Having regard to the evidence before the Tribunal, and to s 5.106 of the LG Act, I am satisfied that it is more likely than not that the applicant breached reg 6(2)(b) of the Rules of Conduct Regulations by disclosing the relevant information to Mr Lansdown on 29 February 2008, when the applicant had acquired that information at a closed meeting of the Council on 28 February 2008.

Sanction for the minor breach

The respondent found that the seriousness of the potential consequences to the Shire of the applicant's disclosure of the relevant information was such that two of the sanctions set out in s 5.110(6)(b) of the LG Act should be imposed in respect of the minor breach. The respondent accepted that although Mr Pepper had withdrawn his resignation by the time the complaint came to be considered by the respondent, the likely consequences had he not done so would have included that the Shire would have lost Mr Pepper's services, due in part to the applicant's disclosure of the relevant information, and that the Shire would have faced difficulty and expense in engaging someone else to replace Mr Pepper.
The respondent also took into account the fact that the applicant had not previously been found to have committed any minor breach under Pt 5 Div 9 of the LG Act.

The parties' submissions

The Tribunal heard submissions from the Shire in relation to the question of the punishment which should be imposed in the event that the Tribunal upheld the respondent's decision. It is the Shire's submission that the Tribunal should take into account the 'extraordinary circumstances' under which the applicant was operating at the time when the minor breach occurred. Amongst the papers the respondent placed before the Tribunal is a letter dated 1 January 2009 written by the applicant to the respondent. In this letter the applicant indicates that when he was advised that a complaint had been made against him by the Shire, his sister and his wife were both suffering serious and lifethreatening illnesses. The Tribunal understands that these were the 'extraordinary circumstances' to which the Shire referred in its submission.
The Shire submits that given that the applicant has resigned from the Council, no further punishment should be imposed on him, apart from the public censure (which has already been carried out in compliance with the respondent's orders).
The intervenor submits that the sanctions imposed by the respondent should be affirmed.
The applicant does not seek to make submissions in relation to the question of punishment other than to maintain the position that no punishment should have been imposed because he had not breached the Rules of Conduct Regulations.

The seriousness of the minor breach in this case

The maintenance of the confidentiality of a council's closed session discussions is a serious obligation. The unauthorised disclosure of closed session discussions by a council member has the potential to undermine the trust and confidence of council members in each other and in that sense, has the potential to impair the efficacy of a council's deliberations. An unauthorised disclosure of information acquired in a closed session is, therefore, a serious matter.
A key factor in the decision of the respondent to impose two sanctions on the applicant was the respondent's acceptance of the likely consequence of the applicant's disclosure of the relevant information, had Mr Pepper not retracted his resignation. Whether the applicant's disclosure of the relevant information would have had the consequences upon which the respondent relied depended on two factors: first, whether the disclosure of the relevant information would impact on the likelihood of Mr Pepper retracting his resignation, and secondly, the difficulty which would have been experienced by the Shire in seeking to engage another Deputy CEO.
As to the first factor, Mr Crawford gave evidence that he spent much of Friday, 29 February 2008 trying to persuade Mr Pepper to withdraw his resignation. However, by Saturday, 1 March 2008, Mr Pepper had discovered that the applicant had disclosed the relevant information to Mr Lansdown, who had in turn disclosed it to Mr Seinor, who had in turn relayed it to Ms McAllan, the Shire's customer services officer. Mr Crawford's evidence was that Mr Pepper 'was extremely annoyed at this news and advised me that if that was the way the councillors treated confidential business in Council, then he wanted no part of the organisation and his resignation was confirmed'.
However, this evidence is at odds with the evidence of Mr Pepper which was that he did not remember being concerned that his resignation had been made public and 'probably didn't care if the whole town knew'.
In any event, Mr Pepper did retract his resignation, some two or three weeks before his notice period had expired. His evidence was that he retracted his resignation after he was assured by Mr Tonkin, that the councillors were happy for him to stay on. Mr Pepper ultimately ceased employment with the Shire on 31 October 2008.
As to the second factor, Mr Crawford's evidence was that 'in the employment market prevailing in February and March 2008, it would have been almost impossible to replace Brad [Pepper] as Deputy Chief Executive Officer. This would have caused the Shire to experience extreme hardship in the financial management of the Shire's operations'. There is some evidence which casts doubt on the likelihood of that consequence occurring.
In the applicant's letter to the respondent dated 1 January 2009, the applicant disputes any claim that Mr Pepper's resignation would have caused any difficulty for the Council's operations. The applicant contends that when Mr Pepper ultimately resigned from his employment with the Council 'a temporary replacement was able to be arranged almost immediately and much of the work then intended to be performed by the Deputy CEO is now performed by professional accountants from Perth'.
It is not possible to reconcile these two views and in the absence of any corroborating evidence, I am unable to prefer one view over the other. Accordingly, I do not place weight on this second factor.
For these reasons, in my view the minor breach committed by the applicant cannot be viewed as being of the same degree of seriousness as that attributed to it by the respondent.
In my view, the correct and preferable decision is that the minor breach committed by the applicant warranted the imposition of a public censure only. In reaching that conclusion I have relied on the following considerations.
A public censure of the kind ordered by the respondent is a significant sanction. It involves a high degree of public admonition of the conduct of the applicant. That was all the more so in this case for two reasons. First, the Shire is a relatively small community. A public censure of the kind imposed on the applicant would very likely have become widely known by persons residing in the Shire. Secondly, the terms of the censure which were specified in the respondent's orders did not identify the nature of the information which had been disclosed by the applicant. As a result, it would not have been possible for those seeing the censure notice to gauge the seriousness of the applicant's conduct or the consequences of that conduct.
I have also taken into account the fact that the applicant resigned as a member of the Council following the respondent's finding that he had committed a minor breach. Although he appears to have resigned voluntarily, the loss of his standing in the community as a councillor was nevertheless a consequence of the minor breach.
In addition, the applicant has not previously committed a breach of Pt 5 Div 9 of the LG Act.
I am unable to give much weight to the 'extraordinary circumstances' that the Shire submitted the applicant was operating under at the time when the minor breach occurred. The applicant did not make submissions as to how these circumstances had affected him at the time the minor breach occurred, or thereafter. However, it is apparent that from the applicant's letter to the respondent of 1 January 2009 that these circumstances did impact on the applicant's response to the complaint. This ameliorates the impression (that would otherwise have been created by the applicant's response to the complaint) that the applicant lacks any contrition for the minor breach.
In these circumstances, the imposition of one sanction from those permitted under s 5.110(6)(b) of the LG Act is appropriate and an adequate reflection of the degree of seriousness of the minor breach.
As the public censure has already been imposed, it is not necessary to take any further action against the applicant.

Conclusion

It follows that I would vary the decision of the respondent only in relation to the punishment imposed for the minor breach committed by the applicant. I would impose only the public censure ordered by the respondent, and would not impose a requirement to give a public apology.

The compliance proceedings

The decision of the Tribunal in relation to the review proceedings, and the operation of that decision, having regard to s 29(5) of the SAT Act, renders the compliance proceedings redundant. The compliance proceedings should be dismissed.

Order

In DR 89 of 2009:
1.The decision of the Local Government Standards Panel of 8 October 2008 is varied by deleting orders 3, 4 and 5.
In DR 32 of 2009:
1.The proceedings are dismissed.

I certify that this and the preceding [116] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE J PRITCHARD, DEPUTY PRESIDENT