NGUYEN and LOCAL GOVERNMENT STANDARDS PANEL
[2020] WASAT 1
•2 JANUARY 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION: NGUYEN and LOCAL GOVERNMENT STANDARDS PANEL [2020] WASAT 1
MEMBER: DR B DE VILLIERS, MEMBER
HEARD: 3 DECEMBER 2019
DELIVERED : 2 JANUARY 2020
FILE NO/S: CC 1266 of 2019
BETWEEN: HUGH NGUYEN
Applicant
AND
LOCAL GOVERNMENT STANDARDS PANEL
Respondent
ATTORNEY GENERAL OF WESTERN AUSTRALIA
Intervener
Catchwords:
Local government - Review of decision of Local Government Standards Panel - Minor breaches - Improper use of office - Intent to cause detriment - Use of official email account - Detriment suffered - Turns on own facts
Legislation:
Local Government (Rules of Conduct) Regulations 2007 (WA), reg 7(1)(b)
Local Government Act 1995 (WA), s 5.110(6), s 5.125
State Administrative Tribunal Act 2004 (WA), s 29(3)(a), s 31
Result:
Review dismissed
Decision affirmed
Representation:
Counsel:
| Applicant | : | In Person |
| Respondent | : | Mr T Ledger |
| Intervener | : | Mr T Ledger |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | State Solicitor's Office |
| Intervener | : | State Solicitor's Office |
Case(s) referred to in decision(s):
R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13
Ryan and Local Government Standards Panel [2009] WASAT 154
Treby and Local Government Standards Panel [No 2] [2010] WASAT 81
Yates and Local Government Standards Panel [2012] WASAT 59
REASONS FOR DECISION OF THE TRIBUNAL:
Background
This proceeding concerns a review of a decision by the Local Government Standards Panel (Panel). The Panel found on 10 May 2019 that Councillor Hugh Nguyen (applicant) had committed a minor breach of reg 7(1)(b) of the Local Government (Rules of Conduct) Regulations 2007 (WA) (LG Regulations) and the City of Wanneroo Policy Manual Council Member Code of Conduct (Council Member Code of Conduct) dated 26 June 2018. The Panel imposed a penalty that the applicant apologise to the complainant (Mr Peter Le) during a meeting of the City of Wanneroo Council (Council) or in the alternative, publish an apology in a newspaper.
The applicant seeks a review of the decision and the penalty imposed by the Panel. The essence of the proceeding does not concern a finding of fact but rather an assessment of the conduct of the applicant in order to determine if his email correspondence (the Nguyen emails) sent via his official Council email account in response to two emails of complaint (complaint emails) made by the complainant, was improper and intended to cause detriment to the complainant.
It is agreed that the applicant responded to the complaint emails via his official Council email account; that the applicant replied to persons to whom the complaint emails had been copied; and that the applicant added additional names to the respective Nguyen emails he sent. The assessment for the Tribunal to make is whether the conduct of the applicant constituted a minor breach as envisaged by the Local Government Act 1995 (WA) (LG Act). It is agreed that the complaints are to be treated as a single complaint rather than a separate complaint for each of the Nguyen emails in question.
The Panel was not an active party to the proceeding since it had completed its function as a complaint body; R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13. The Attorney General of Western Australia sought to intervene and leave was granted. The intervener assisted the Tribunal and did not act on behalf of the Panel; Treby and Local Government Standards Panel [No 2] [2010] WASAT 81.
Issue
At the commencement of the proceeding before the Tribunal the parties agreed on the following issues in an effort to reduce the scope of questions to be determined by the Tribunal:
Did the First Nguyen email dated 15 October 2018, the Second Nguyen email dated 5 November 2018 and the Third Nguyen email dated 6 November 2018 intend to cause determent to the complainant and did the sending of the Nguyen emails constitute an improper use of the office of the applicant?
Materials
The Panel filed its s 24 Bundle and the intervener provided its statement of issues, facts and contentions dated 27 September 2019. The applicant filed his reply dated 4 November 2019 to the statement of issues, facts and contentions of the intervener. The intervener also provided, at the request of the Tribunal, a summary in table form of the persons who received the Nguyen Emails from the applicant in his response to the complaint emails. The Intervener also provided to the Tribunal, albeit after the hearing, the standard Guidelines that should be followed when a complaint is received.
Essential agreed facts
The essential facts as set out in paras 4-18 of the intervener's statement of issues, facts and contentions dated 27 September 2019 are not in dispute. For the sake of brevity those can be summarised as follows:
1)The applicant is an elected councillor of the City of Wanneroo (City);
2)The applicant and the complainant share an interest in and support for the Westnam United Soccer Club (Westnam United SC);
3)The applicant has supported the efforts of the Westnam United SC to improve its amenities and to obtain support from the City for such a venture;
4)A petition was to be tabled at a Council meeting to enlist support for improved amenities for Westnam United SC;
5)The applicant expected that he would be the councillor responsible for tabling the petition;
6)The applicant was informed via an initial email from the complainant (the initial Le email) dated 15 October 2018, that the Mayor of the City would table the petition at the Council meeting. The initial Le email was also copied to various other persons.
7)The applicant sent the First Nguyen email in response to the initial Le email and copied it to the same persons who had been copied into the initial Le email. The name and email address of the Mayor of the City (Mayor), Tracey Rodgers was also added as a recipient to the First Nguyen email.
8)On 5 November 2018, the complainant lodged a complaint (First Complaint email) to the Chief Executive Office of the City (CEO) against the applicant. The First Complaint email was copied to several persons.
9)The applicant replied to the First Complaint email via the Second Nguyen email dated 5 November 2018. The Second Nguyen email was copied to persons who had not received a copy of the First Complaint email.
10)On 5 November 2018, the complainant sent a Second Complaint email to the CEO. The Second Complaint email was copied to several persons.
11)The applicant sent the Third Nguyen email dated 6 November 2018 and included the names of persons who had not received a copy of the Second Complaint email.
12)The complainant sent the Third Complaint email on 6 November 2018.
13)The respondent found on 9 April 2019 that the applicant had committed one breach of reg 7(1)(b) of the LG Regulations. On 24 July 2018 the respondent imposed a penalty on the applicant requiring him to make a public apology to the complainant.
Statutory framework
The applicant is seeking a review of the Panel's decision pursuant to s 29(3)(a) and s 31 of the State Administrative Tribunal Act 2004 (WA). Under s 5.125 of the LG Act the person who made the complaint as well as the person about whom the complaint was made, can seek a review of the Panel's decision.
The hearing is a hearing de novo. This means the information that was available to the Panel as well as any additional information that has since become available, may be taken into account. Although there is no onus of proof on the intervener, the Tribunal must as far as factual disputes are concerned be satisfied that a certain factual finding can be made on the basis of the civil test meaning that it is more likely than not that a certain fact exists. If there are competing versions of an event, the Tribunal must be satisfied that one is more likely to be the correct version. The intervener is not under any burden but assists the Tribunal in its determination of facts upon which the ultimate decision can be based.
Neither the Council nor the complainant was a party to this proceeding.
The LG Act
Section 5.110(6) of the LG Act provides that the Tribunal is to deal with a minor breach by dismissing the complaint or ordering that the person is publically censored, or the person apologises publically, and/or the person undertakes training.
Regulation 7(1)(b) of the LG Regulations provides as follows:
(1)A person who is a council member must not make improper use of the person's office as a council member –
…
(b)to cause detriment to the local government or any other person.
Council Member Code of Conduct
Clause 2.1 of the Council Member Code of Conduct states:
It is a requirement of this Code that Members observe the general principles referred to in Regulation 3(1) of the Rules of Conduct Regulations.
General principles to guide the behaviour of Members include that a person in his or her capacity as a Member should
…
(g)treat others with respect and fairness[.]
Clause 2.3(d) of the Council Member Code of Conduct provides that:
A Member must:
(d)make no allegations which are improper or derogatory (unless true and in the public interest) and refrain from any form of conduct, in the performance of the Member's role, which may cause any reasonable person unwarranted offence or embarrassment.
Contentions
The submissions of the parties can be summarised as follows.
The intervener
The intervener contended that:
1)the first, second and third email of the Nguyen emails constituted an improper use of the office of the applicant since the Nguyen emails objectively breached the standards expected of a councillor;
2)the intention of the inner mind of the applicant when the Nguyen emails were sent is not relevant. The conduct of the applicant must be assessed in the context of events surrounding the Nguyen emails and the role of a councillor.
3)the Nguyen emails constituted a breach because:
a)they were copied to persons who had no direct interest in the dispute;
b)they used inflammatory language and showed lack of respect to the complainant;
c)the contents of the Nguyen emails were not justified in light of the surrounding circumstances;
d)they were likely to cause embarrassment to the complainant; and
e)viewed in their totality the Nguyen emails constituted an improper use of the applicant's office.
4)the Nguyen emails were intended to cause detriment to the complainant by casting his character and motivation actions in a negative light and circulating the opinion of the applicant to a wider audience.
The applicant
The applicant contended that:
1)in the Nguyen emails he merely replied to the same persons to whom the complainant had directed emails or to persons who had a direct interest in the matter. That was not an unreasonable thing to do since those persons had been drawn into the dispute by the complainant and the applicant had to defend his reputation;
2)he accepted that he added names to the Nguyen emails but said those persons had to be made aware that he rejected the nature of the complaints;
3)the context within which he responded to the initial Le email is relevant in order to assess the flavour of communications that form the basis of this proceeding:
a)there is a long history and evidence of animosity and jealousy towards the applicant on the part of the complainant;
b)the complainant had been conspiring with other councillors to undermine the work of the applicant;
c)the complainant had sought to embarrass the applicant by asking the Mayor to table the petition;
d)the complainant was sarcastic and disingenuous by asking that the applicant continue his support for the Westnam United SC while in fact the applicant had played a leading role in the endeavour; and
e)the complaint emails sent by the complainant were clearly aimed to cause damage to the reputation and good name of the applicant.
Therefore the applicant did not use his office for an improper manner and did not intend to cause detriment to the complainant.
Consideration
The Tribunal shall deal with the complaint, evidence and submissions under several headings.
Whether names were 'added' into the Nguyen emails in response to the complaint emails
Some discourse arose during the hearing as to whether the applicant had 'added' names into the Nguyen emails in which he responded to the complaint emails.
It was accepted that in regard to the initial Le email, the applicant replied to all of those who had been copied into the initial Le email and that he also 'added' in the name of Mayor Roberts to the First Nguyen email.
It is further accepted by the applicant that when he responded to the complaint emails in the Second and Third Nguyen emails, he did not merely reply to all recipients of the complaint emails, but added some names and removed some of the names of the original recipients of the complaint emails. In doing so he made a conscious decision as to who should receive his responses to the respective complaint emails.
The applicant sought to explain that he did not 'copy' in those additional persons but merely added their names into the recipient list of the Second and Third Nguyen emails. It is not clear to the Tribunal why he sought to draw a distinction between copying names into an email recipient list and adding names into the recipient list. In practice it is a matter of semantics but the effect is the same namely, that persons who had not received the original complaint mails received the responses he made to the complaint emails. Regardless, it establishes the fact that the applicant added a name or names to the list of recipients of each of Nguyen emails he sent in response to the First and Second complaint emails. The denial of the applicant that he had 'copied' in the additional persons but rather that he merely 'added' additional names into the Nguyen email responses to the complaint emails, reflects a reluctance to demonstrate insight or remorse into the nature of his conduct.
Whether Nguyen emails considered as one or more complaints
Three complaint emails were sent to the City in regards to the conduct of the applicant. The respondent took into consideration the initial Le email as well as the three complaint emails and the three Nguyen emails. Ultimately the respondent made a finding in regards to all of the email correspondence, but in the penalty, proposed words to the effect that only referred to the First Nguyen email dated 15 October 2018.
The Tribunal asked the parties whether in their view, each complaint should be treated as a separate complaint or whether the Nguyen emails should be treated as a single possible transgression. The Tribunal considered all of the Nguyen emails the subject of the proceeding and is of the view that those should be treated holistically as a single incident rather than as three separate complaints. The Second Complaint email and the Third Complaint email arose, in effect, from the First Complaint email; the complaint emails arose in a short space of time; and the complaint emails are based on the same facts.
The First Nguyen email dated 15 October 2018 - response to the initial Le email dated 15 October 2018: improper use of the office
The Tribunal will first make known its finding and then give the reasons for the finding.
The applicant's use of the official Council email account to respond to the initial Le email was an improper use of the office of the applicant. The Tribunal finds so for the following reasons:
i)The initial Le email, properly read, informed the applicant that the Mayor would be tabling a petition to the Council and that it was hoped that the applicant would support 'our development'. The First Nguyen email response by the applicant to this email was disproportionate, unfounded, unprofessional and not becoming of an elected councillor.
ii)If the applicant took issue with the statement that the Mayor would table the petition, the appropriate action would have been to take the matter up with the Mayor. The applicant demonstrated his lack of appreciation of the internal functioning of the Council by directing his email to the complainant and several other persons. The applicant conceded during the hearing that the process of tabling petitions is a matter for the Council and that the public cannot determine who tables a petition. It is usually the elected councillor who promoted a matter who would table a petition, but it may also be the Mayor. Objectively and reasonably there was nothing untoward in the initial Le email.
iii)The description by the applicant of the initial Le email as being inappropriate, immature, conniving (statement of evidence para 29) and unnecessary can in itself be described with those same words. If the applicant felt that a response to Mr Le was necessary, the wording chosen ought to have been professional, appropriate and mature. The applicant's own words fell well short of the test employed by the applicant.
iv)The proposition that the initial Le email was 'sarcastic and provocative' is not supported by the facts before the Tribunal. The applicant may, in his personal capacity, be aware of some animosity from Mr Le, but there is nothing in the initial Le email that an objective and reasonable person would construe as inappropriate, sarcastic or an attempt to cause harm to the reputation of the applicant. The opinion of the applicant that Mr Le was 'hell bent' to get to the applicant is not supported by the materials before the Tribunal.
v)There is no reasonable justification for the applicant to have included other persons into the email thread of the First Nguyen email. The strong impression of the Tribunal is that the applicant so wanted to claim credit for the support of Westnam United SC that he failed to demonstrate insight into the procedure by which public submissions are to be dealt with in the Council. He could have, but did not, discuss the tabling of the petition with the Mayor of the City but in the heat of the moment responded in an inappropriate manner. Even if he took issue with the initial Le email, the wording he chose and the sending of that wording to other persons in an email from the official Council email account were an improper use of the office.
Second Nguyen email dated 5 November - response to the First Complaint email dated 5 November 2018: improper use of the office
The applicant's use of the official Council email account to respond to the First Complaint email was an improper use of the office of the applicant. The Tribunal finds so for the following reasons:
i)The First Complaint email was directed at the CEO of the City and not to the applicant. The applicant ought to have known that it is improper to use the official Council email account to respond directly to a person lodging a complaint to the CEO about the conduct of the applicant or to write to any other person about the complaint.
ii)The applicant ought to have known that a complaint received ought to be investigated by the CEO and/or Mayor of the City and/or the Panel and that he would be given an opportunity to give his perspective. The applicant demonstrated a serious lack of knowledge or appreciation about how to respond to complaints by engaging the complainant directly.
iii)The decision of the applicant to respond to the First Complaint email in the Second Nguyen email and to include several persons in that emailed response in an effort to clear his name, not only reflected negatively on the Council office to which he has been elected, but also failed to address the merits of the complaint and took aim at the complainant by the personal nature of the applicant's comments in describing him as 'jealous or envious or both'. This was unbecoming and unprofessional conduct for an elected Council representative and potentially brought the entire Council into disrepute. The applicant failed to accept, even during the hearing, that the standard imposed on a councillor is higher than the standard expected of a disgruntled member of the public.
iv)The use of the official Council email account to respond to the First Complaint email was improper. Even if the applicant appreciated the support he received from Mr Ted Nguyen (a committee member of the Westnam United SC), the applicant should have asked Mr Nguyen to convey such appreciation he had for the applicant directly to the office of the CEO. The applicant ought not to have used his official Council email account to launch an attack on the character of a member of the public who lodged a complaint with the CEO. This is disrespectful and presumptuous.
Third Nguyen email dated 6 November 2018 - response to the Second Complaint email dated 5 November 2018: improper use of the office
The applicant's use of the official Council email account to respond to the Second Complaint email was an improper use of the office of the applicant. The Tribunal finds so for the following reasons:
i)The Second Complaint email was directed to the CEO and not to the applicant. The applicant ought to have known that it is improper to use the official Council email account to respond directly to a person lodging a complaint to the CEO about the conduct of a councillor.
ii)The applicant ought to have known that a complaint received ought to be investigated by the CEO and/or Mayor and/or the Panel and that he would be given an opportunity to give his perspective. The applicant demonstrated a serious lack of knowledge about how to respond to complaints by engaging the complainant directly.
iii)The decision of the applicant to respond to the Second Complaint in the Third Nguyen email and to include several persons in that email response in an effort to clear his name, not only reflected negatively on the Council office to which he has been elected but also failed to address the merit of the complaint and took aim at the complainant by the personal nature of his comments in describing the complainant as ungrateful, political, jealous or envious or both. This is unbecoming and unprofessional for an elected Council representative.
iv)The wording used by the applicant in the Third Nguyen email to describe the complaint as being 'quite despicable, unprofessional and highly inappropriate' is in itself improper and unacceptable. A member of the public who lodges a complaint must be treated with respect and not accused of a personal or political vendetta by the person who is the subject of the complaint. The use of the office of a councillor for such a barrage is entirely inappropriate; it risked bringing the entire Council into disrepute; and the Tribunal is surprised that the applicant who has a long record as elected representative and who is a legal practitioner, would engage in such inappropriate correspondence.
v)It appears as if the applicant, in responding via each of the Nguyen emails, became emotionally more agitated and in effect lost his ability to reflect logically on the wisdom of his responses. As a result he took each of the complaint emails personally; he did not allow the complaint to be properly investigated; and he chose to use his official Council email account to respond immediately to the complainant.
vi)The wording used by the applicant in the Third Nguyen email dated 6 November 2018 to describe the complaint made in the Second Complaint email as 'part of an elaborate, calculated, politically and personally motivated conspiracy', is void of reality. It must be taken into account that the thread of emails began with the initial Le email which merely informed the applicant that the petition would be tabled by the Mayor and that the applicant's support for the venture is sought. Within a short space of time, by 6 November 2018, the wording of the Nguyen emails had degenerated into abuse and name calling by the applicant in a manner entirely unfitting to the Council office to which he has been elected and was not in proportion to the content of the emails sent by the complainant.
vii)The suggestion by the applicant that the complainant, who according to the applicant, is a legal practitioner who may be the subject of a complaint to the Legal Practice Board due to his 'underhanded' activities, is not only inappropriate, but is potentially defamatory. When read with the statement of evidence submitted by the applicant in this proceeding it is clear that the applicant had completely overreacted; that he has lost his sense of proportion; and that he had become so personally involved that he failed to distinguish his persona and ego from the status of the office in which he serves.
In summary, the applicant's use of his official Council email account was improper since he breached the standards expected of a person in the position of a councillor by reasonable persons with knowledge of the duties, powers and authority of that person's position as councillor and the circumstances of the case. The content of the Nguyen emails was discourteous, disproportionate, unjustified and improper.
The conduct of the applicant breached the Council Member Code of Conduct in that it did not show respect to the complainant; was not the standard expected of a person in his position; and was so wrongful and inappropriate that an imposition of a penalty for a minor breach is justified. The explanations offered by the applicant are self-serving; lack insight; are based on speculation and assertions; and have been bolstered by the applicant defending his ego at high cost to the very reputation he sought to protect.
Detriment intended to be suffered by another person pursuant to reg 7(1)(b) of the LG Regulations
The applicant stated that he never intended to cause detriment to the complainant but that he merely wanted to respond and defend his honour and good reputation. Detriment is not to be limited to actual loss or injury suffered. Detriment includes non-financial loss, humiliation, embarrassment, and harassment; see Yates and Local Government Standards Panel [2012] WASAT 59 at [71]; and Ryan and Local Government Standards Panel [2009] WASAT 154. In order for a finding to be made the conduct must either have been intended for a person to suffer detriment or for the person making the statement to be reckless indifferent that detriment was probable or like as a consequence of the conduct.
The Tribunal finds that in each of the Nguyen emails sent by the applicant in response to the complaint emails, the element of detriment has been established. The Tribunal finds so for the following reasons:
i)The applicant included in the Nguyen emails, persons other than the complainant. In doing so the personal and potentially defamatory nature of the applicant's communications were made known to a larger audience. Properly considered the applicant could have responded in a courteous and professional manner.
ii)The applicant used in his email responses language that was entirely disproportionate to the nature or specifics of the complaint and in doing so he either intended to cause detriment to the complainant or he was recklessly indifferent that detriment was probable or likely as a consequence of the email responses.
iii)The applicant in effect threatened the complainant that a complaint may be lodged with the Legal Practice Board. In his statement of evidence the applicant said that a formal complaint will be lodged against the complainant for his 'disgraceful, unethical, despicable' conduct (para 25).
iv)The applicant not only responded to persons who were included in the complaint emails, but also added additional names in what the Tribunal finds was an attempt to discredit, embarrass and cause detriment to the complainant.
v)The applicant made derogatory comments about the personal life of the complainant in his email responses and continued to make further potentially defamatory remarks in his evidence to the Panel and to the Tribunal.
In summary, the Tribunal finds that it is more likely than not that the applicant had in his email responses intended to humiliate and denigrate the complainant and for the complainant to suffered detriment as a result of those email communications.
Training manual or Guidelines about complaints
The Tribunal requested the intervener to provide to the Tribunal any training manual and guidelines that may be available to assist councillors in Western Australia in dealing with complaints. The intervener was not able to locate any such material prior to the hearing and the applicant also said that as far as he is aware, the City does not have a training manual to guide councillors on the process of responding to complaints of the nature considered in this proceeding. The applicant also said that he is not aware of guidelines in this regard.
This is surprising since it would be expected that councillors should be made aware of the process by which a complaint can be lodged and how such a complaint should be responded to. It is extraordinary for the person who is the subject of the complaint, as happened in this case, to respond directly to a member of the public who made the complaint and in the process, also send that email response to other nonrelated persons.
While the person the subject of a complaint should be given the opportunity to respond to a complaint, it is not proper for that person to engage the complainant directly as happened in this case. Proper corporate governance would, as a general principle, require that when a complaint is received, an acknowledgement of receipt is sent; an internal process commences whereby the councillor the subject of the complaint is invited to respond to the complaint; and a final decision ultimately sent to the complainant by a person other than the councillor against whom the complaint was made. If the councillor is vindicated then a dismissal of the complaint should suffice and not entail the barrage of emails and counter-allegations as had occurred in this matter. The absence of internal guidelines is surprising but such absence does not mean the conduct of the applicant in this matter can be excused. A councillor with proper understanding of the role and functions of a councillor would be aware or ought to be aware that a complaint directed to the Mayor and CEO should be addressed by those functionaries and not by the person the subject of the complaint.
It was highly improper for the applicant to respond to a complaint that was directed at the CEO and Mayor and which had been only copied to him. He ought to have allowed the complaint process to run its course and for the complaint to be properly investigated. The fact that the applicant responded in the manner in which he did, shows a lack of understanding of the conduct expected of a councillor. It is proper that the applicant should be directed to attend a training course to gain insight into the functions and responsibilities of a councillor.
The Tribunal recommends to the Council that it adopts a procedure to make it clear to councillors, staff and members of the public how complaints against a councillor are to be dealt with. Following the hearing, the intervener provided to the Tribunal, the Guidelines and draft letters to facilitate an investigation into a complaint which have been developed by the Department of Local Government (Department). It therefore seems as if a process to deal with complaints has been established by the Department but that this process has either not been adhered to by the City or that councillors have not been made aware of it. The availability of the Guidelines does not impact on the outcome of this proceeding.
Insight and remorse of the applicant
The Tribunal carefully considered the oral and written response of the applicant to the complaint, both in regard to the email correspondence, the submissions made to the Panel and the oral evidence given to the Tribunal.
The Tribunal was struck by the lack of insight and remorse of the applicant to comprehend the improper manner in which he had responded as an elected councillor to the complaint emails. This observation by the Tribunal is based on the following:
•The manner in which the applicant interpreted the initial Le email was influenced by a belief of a purported conspiracy against him by the complainant and other persons, including other councillors. Due to this belief, the applicant attributed a meaning to words that was not reasonable to the reasonable person reading the email. The response of the applicant in the First Nguyen email was unwarranted, misdirected and unsubstantiated and potentially affected the reputation and good standing of the entire Council.
•The Second and Third Nguyen emails issued via the official office Council email account of the applicant displayed a high level of vitriol, egoism and arrogance that was unbecoming of a public officer and also showed a lack of insight into how to deal with members of the public, especially those who make complaints. The applicant used his official Council email account in an attempt to settle a personal score and in the process conducted himself in a manner that was unbecoming of an elected councillor. He then went on and in the evidence before the Tribunal made comments about the complainant and other persons that may be considered to be defamatory in nature and which lacked relevance in the proceeding.
•The applicant has shown a lack of understanding of the need to keep separate the functions of his role as an elected councillor and his personal disagreements with other persons. In doing so he not only used his standing as an elected councillor in an attempt to settle a personal dispute, but also demonstrated a propensity to focus on his own status and position in society in a manner than can best be described as egoistic. The Tribunal was surprised that even with the benefit of hindsight the applicant failed to see that he overreacted and that he should have discussed the initial Le email and subsequent complaint emails with the Mayor or CEO instead of engaging with the complainant directly.
•The applicant failed to have insight that the standard expected of an elected councillor when dealing with the public, is higher than the standard expected of the public dealing with a councillor. When in public office one can expect unmeritorious complaints of various nature and criticism that may be unfair. When responding to those an elected person must be measured, thick-skinned, try to de-escalate a situation and deal with a matter on its merit and not on the basis of emotions or anger. The applicant appeared to be overly sensitive and the manner in which he construed the initial Le email and then responded to the subsequent complaint emails was entirely unmeritorious and ultimately caused him to be the subject of a disciplinary proceeding. Although the applicant says he was principally motivated to protect his integrity, he has now caused harm to the very integrity he sought to defend.
•In his evidence to the Panel and before the Tribunal, the applicant spoke in a derogatory manner about some fellow councillors in that they wanted to 'derail' and 'highjack' his initiatives and that they were regularly 'ambushing' him. He described their conduct as a 'disgrace'. He suggested that fellow councillors were part of a conspiracy against him and that the complainant was 'aided and abetted' by Councillors Treby and Zappa who are seeking to smear, bully and harass him. The applicant described Councillor Treby as a 'manipulative, conniving and scheming individual' (para 38). He says Councillors Trebby and Zappa 'envy' his popularity (para 38). Although there is no complaint against the applicant for the comments he made about fellow councillors, those comments are indicative of his state of mind which, when he received the initial Le email, caused a complete overreaction and an abuse of his elected office in responding. Some of the comments he made to the respondent and Tribunal may in fact give rise to further complaints and even legal action against the applicant.
The strong impression of the Tribunal is that the applicant lacks insight into the impropriety of his conduct and failed to show remorse for the nature and content of the Nguyen emails regardless of the substantial time that has expired since those incidents.
In summary, the Tribunal finds that the elements required to find a breach of reg 7(1)(b) of the LG Regulations have been met and that the applicant committed a minor breach by sending the First Nguyen email dated 15 October 2018, the Second Nguyen email dated 5 November 2018 and the Third Nguyen email dated 6 November 2018. The finding of the respondent should therefore be affirmed.
Penalty
The applicant has indicated that if a penalty is imposed it should be in the nature of training. The Tribunal invited the applicant and the intervener to submit a proposal as to how an order requiring training could be structured. The intervener submitted that an apology as ordered by the respondent should be affirmed.
The Tribunal finds that a two-fold penalty must be imposed on the applicant, namely additional training as well as a public apology to the complainant.
Training is required since the applicant clearly does not have a proper understanding of the role of a public representative when interacting with members of the public who may be critical of his performance. He further does not exhibit an understanding of the manner in which a reasonable investigative process operates, namely that the person the subject of the complaint does not engage with the complainant if the complaint was directed to the Mayor or CEO. Some training in regards to conflict management and the importance of orderly corporate governance of a local council would benefit the applicant.
The public apology is justified due to the unmeritorious comments made to the complainant, the fact that those were circulated to a wider audience through an official Council email account and the detriment that had been intended.
Orders
1.The application to review the decision of the Local Government Standards Panel is dismissed.
2.The decision is varied in accordance to the terms below.
3.The applicant shall by not later than 1 April 2020 at his own cost undertake:
(a)The training course for Elected Members called Stage 2 'Dealing with Conflict'; or
(b)A training course with substantially similar learning outcomes provided by a registered training organisation.
4.The applicant shall by not later than 1 April 2020 publicly apologise to Mr Peter Le, as specified in paragraphs (a) and (b) below:
(a)On the ordinary council meeting occurring on or before 1 April 2020, the applicant shall attend the relevant ordinary council meeting; and
(i)ask the presiding person for his or her permission to address the meeting to make a public apology to the public;
(ii)make the apology immediately after Public Question Time or during the Announcements part of the meeting, or at any other time when the meeting is open to the public, as the presiding person thinks fit; and
(iii)address the Council and public as per Attachment A of this order, without saying any introductory words before the address, and without making any comments or statement after the address as per Attachment A.
ATTACHMENT A
'I advise this meeting that:
(i) Three complaints were made to the Local Government Standards Panel, in which it was alleged that I contravened the Local Government (Rules of Conduct) Regulations 2007 (WA) when I wrote a discourteous and inappropriate email to Mr Peter Le and copied in various other parties on 15 October 2018; 5 November 2018; and 6 November 2018.
(ii) The Panel found that I acted improperly and breached Regulation 7 of the said Conduct Rules in that my comments were in breach of the City's Council Member's Code of Conduct; and were not of the standard of conduct that would be expected of a person in the position of councillor.
(iii) I sought a review by the State Administrative Tribunal of the decision and penalty of the Panel. The review was dismissed and the finding of the Panel was affirmed. I was ordered to attend an applicable training course in conflict management and to publically apologise to Mr Le.
(iv) I accept that I should not have made the improper and discourteous comments regarding Mr Peter Le; that I should not have used my office for purposes of the comments; and that I should not have sent the comments to persons other than Mr Le. I now apologise to Mr Peter Le'.
(b)If the applicant fails or is unable to comply with the requirements of paragraph 4(a) of the order above, then on or before 1 April 2020 the applicant shall cause the following notice of public apology (Attachment B) to be published in no less than 10 point print, as a one-column or two-column display advertisement in the first 10 pages of the Wanneroo Community Times newspaper as per Attachment B.
ATTACHMENT B
PUBLIC APOLOGY BY COUNCILLOR HUGH NGUYEN
(i) Three complaints were made to the Local Government Standards Panel, in which it was alleged that I contravened the Local Government (Rules of Conduct) Regulations 2007 (WA) when I wrote a discourteous and inappropriate email to Mr Peter Le and copied in various other parties on 15 October 2018; 5 November 2018; and 6 November 2018.
(ii) The Panel found that I acted improperly and breached Regulation 7 of the said Conduct Rules in that my comments were in breach of the City's Council Member's Code of Conduct; and were not of the standard of conduct that would be expected of a person in the position of councillor.
(iii) I sought a review by the State Administrative Tribunal of the decision and penalty of the Panel. The review was dismissed and the finding of the Panel was affirmed. I was ordered to attend an applicable training course in conflict management and to publically apologise to Mr Le.
(iv) I accept that I should not have made the improper and discourteous comments regarding Mr Peter Le; that I should not have used my office for purposes of the comments; and that I should not have sent the comments to persons other than Mr Le. I now apologise to Mr Peter Le.'
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR B DEVILLIERS, MEMBER
2 JANUARY 2020
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