Re and Local Government Standards Panel - [2017] WASAT 84

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: LOCAL GOVERNMENT ACT 1995 (WA)

CITATION: RE and LOCAL GOVERNMENT STANDARDS PANEL [2017] WASAT 84

MEMBER: MS C WALLACE (SENIOR MEMBER)

HEARD: 2 MARCH 2017

DELIVERED : 15 JUNE 2017

FILE NO/S: DR 296 of 2016

BETWEEN: ELIZABETH RE
Applicant
AND
LOCAL GOVERNMENT STANDARDS PANEL
Respondent

Catchwords:

Local Government - Rules of Conduct - Minor breach - Whether discussion between councillor and staff member constituted improper use of office - Whether intended to cause detriment

Legislation:

Local Government (Rules of Conduct) Regulations 2007 (WA), reg 7(1), reg 7(1)(b)
Local Government Act 1995 (WA), s 5.104, 5.105(1), s 5.106, s 5.107, s 5.108, s 5.109, s 5.110A, s 5.110, s 5.110(6), s 5.110(6)(b)(i), s 5.125(1)
State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(2), s 29(1), s 29(3)

Result:

Application for review allowed

Summary of Tribunal's decision:

Councillor Re (applicant) is a member of the council with the City of Stirling (City). She applied to the Tribunal for a review of a decision of the Local Government Standards Panel (respondent) which found that she had committed a minor breach pursuant to reg 7(1)(b) of the Local Government (Rules of Conduct) Regulations 2007 and s 5.104 and s 5.105(1) of the Local Government Act 1995 and the decision that she should be sanctioned by way of being publicly censured. The finding of minor breach was based on a discussion which took place between the applicant and a City staff member in the evening of 14 April 2015, during which it was alleged that the applicant acted in an aggressive and intimidating manner and thus improperly used her office as a council member to cause detriment to the City staff member.
The Tribunal did not find that the applicant's conduct constituted a breach of the standard of conduct which would be expected of a person in her position. The evidence before the Tribunal failed to establish that the applicant acted in an aggressive or intimidating manner towards the City staff member. The Tribunal found that the discussion which took place was unplanned and unanticipated and was brief and during which the applicant became upset and was comforted by the City staff member. The Tribunal also found that, on an objective basis, it could not be found that the applicant intended to cause any detriment to the City staff member, and indeed none was suffered by her due to the discussion which occurred between them.
The Tribunal therefore allowed the review and set aside the decisions of the respondent and substituted thereof a decision dismissing the complaint.

Category: B

Representation:

Counsel:

Applicant: Julias Skinner
Respondent: Julian Misso

Solicitors:

Applicant: Borello Graham Lawyers
Respondent: State Solicitor's Office

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

Hipkins and Local Government Standards Panel [2014] WASAT 48
Robbins v Harness Racing Board [1984] VR 641
Treby and Local Government Standards Panel [2010] WASAT 81; (2010) 73 SR (WA) 66

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The applicant, Councillor Re, is a member of the council with the City of Stirling (City). On 30 March 2016 the Local Government Standards Panel (respondent) found that the applicant had breached reg 7(1)(b) of the Local Government (Rules of Conduct) Regulations 2007 (Regulations) and thus had committed a 'minor breach' pursuant to s 5.104 and s 5.105(1) of the Local Government Act 1995 (LG Act). On 2 August 2016 the respondent ordered, pursuant to s 5.110(6)(b)(i) of the LG Act, that the applicant be publicly censured for the minor breach. The applicant seeks review of both the decision finding that a minor breach had occurred and the decision in respect of the appropriate sanction to be imposed by this Tribunal. The Attorney General of Western Australia intervened in the proceeding.

Background

The decision of the respondent was made in respect of a complaint lodged with it on 18 June 2015 relating to a discussion that occurred on the evening of 14 April 2015. The incident itself will be dealt with in further detail later in these reasons but in essence related to a discussion between the applicant and Ms Shonay Mitkus, the City's then Acting Coordinator of Civic and Hospitality Services. The discussion related to a memorandum issued to the applicant dated 10 April 2015 (Memorandum) by Ms Bernadine Tucker, the City's Manager of Governance and Council Support, in which she noted, amongst other things, 'I have also been informed that you spoke to the Acting Coordinator Civic and Hospitality Services on Wednesday night and complained about the food and accused the Acting Coordinator of failing in their duty of care. As I have advised you previously, any staffing complaints must be raised with me in the first instance. It is inappropriate for you to discuss staffing matters with the staff themselves' (Exhibit B page 19).
The discussion which took place on 14 April 2015 raised matters which included whether Ms Mitkus was aware of the Memorandum received by the applicant. The respondent found that Ms Mitkus became distressed at the conclusion of the discussion and also when she recounted the nature of the discussion to others at the City. The respondent was satisfied that each of the essential elements of a contravention of reg 7(1)(b) of the Regulations had been established on the basis that:
a)The applicant made an improper use of her office as council member in that:
i)she had previously been advised by Ms Tucker that she must not talk with the City staff, which included Ms Mitkus;
ii)she had previously been advised by the Mayor that any staffing complaints must be raised with him in the first instance and not with the staff member in question;
iii)the applicant ignored those instructions and directly questioned Ms Mitkus, who had recently been employed by the City, in relation to a previous incident involving the applicant and Ms Mitkus; and
b)The applicant engaged in the discussion on 14 April 2015 in the belief that detriment would be suffered by Ms Mitkus (by feeling intimidated by the applicant) in that:
i)the applicant was an experienced councillor;
ii)Ms Mitkus had only been in the employ of the City at that time for approximately two weeks;
iii)if it had been proper for the applicant to discuss the relevant information with Ms Mitkus it could have been done in a manner which was not aggressive; and
iv)the inevitable consequence of the applicant acting in an aggressive manner towards Ms Mitkus is that she would feel intimidated and would likely endeavour to avoid future conflict with the applicant.
(Exhibit B pages 13 and 14)

Relevant statutory provisions

Section 5.104 of the LG Act enables regulations to be made prescribing rules of conduct for council members.
Relevantly in the current proceeding, reg 7(1) of the Regulations made pursuant to s 5.104 of the LG Act provides as follows:
Securing personal advantage or disadvantaging others
(1)A person who is a council member must not make improper use of the person’s office as a council member
(a)to gain directly or indirectly an advantage for the person or any other person; or
(b)to cause detriment to the local government or any other person.
It is reg 7(1)(b) of the Regulations which is in issue in this proceeding.
Section 5.105(1) of the LG Act provides:
(1)A council member commits a minor breach if he or she contravenes
(a)a rule of conduct under section 5.104(1); or
(b)a local law under this Act, contravention of which the regulations specify to be a minor breach.
The standard of proof in relation to findings of a breach is that it was more likely that the breach occurred than it did not occur: s 5.106 of the LG Act. Section 5.107 to s 5.110 of the LG Act sets out the procedure for dealing with alleged minor breaches by council members including the process to be undertaken by the respondent in determining whether a minor breach has in fact occurred.
Section 5.110(6) of the LG Act provides that the respondent may deal with a minor breach by:
(a)dismissing the complaint; or
(b)ordering that
(i)the person against whom the complaint was made be publicly censured as specified in the order; or
(ii)the person against whom the complaint was made apologise publicly as specified in the order; or
(iii)the person against whom the complaint was made undertake training as specified in the order;
or
(c)ordering 2 or more of the sanctions described in paragraph (b).

History of the proceeding at the Tribunal

The applicant lodged her application pursuant to s 5.125(1) of the LG Act with the Tribunal on 29 September 2016. The proceeding was set down for directions hearings on 20 October and 18 November 2016 and was listed for final hearing on 2 March 2017. The Tribunal received into evidence at the hearing the following documents:
•Exhibit A applicant's application to the Tribunal;
•Exhibit B respondent's section 24 bundle of documents;
•Exhibit C meeting minutes of the planning and development committee dated 14 April 2015;
•Exhibit D Code of Conduct of the City of Stirling;
•Exhibit E witness statement of Shonay Ann Mitkus dated 6 February 2017;
•Exhibit F marked plan;
•Exhibit G aerial photographs 1 and 2;
•Exhibit H witness statement of Jaclyn Lee Farrow dated 19 December 2016;
•Exhibit I witness statement of Bernadine Tucker dated 20 January 2017;
•Exhibit J memorandum to councillors dated 10 April 2015 entitled 're: Friday night dinners';
•Exhibit K witness statement of Elizabeth Re dated 24 February 2017;
•Exhibit L article appearing in the Stirling Times dated 3 October 2016;
•Exhibit M email dated 24 April 2015 together with attachments; and
•Exhibit N email dated 20 March 2015 addressed to the applicant.
At the hearing the Tribunal also had the benefit of receiving oral evidence from Ms Mitkus, Ms Farrow, Ms Tucker and Ms Re. Given the lateness of the day when the hearing concluded the Tribunal programmed the filing of written closing submissions and submissions in reply. The final written submissions were received by the Tribunal on 13 April 2017 and the decision was reserved as of that date.

Issue to be determined by the Tribunal

The review preceding is a hearing de novo (s 27(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act)) with the purpose of the review being to produce the correct and preferable decision at the time that the original decision was made (s 27(2) of the SAT Act). In dealing with this matter the Tribunal has the same functions and discretions exercisable by the original decisionmaker (s 29(1) of the SAT Act). The Tribunal may either affirm the decision being reviewed; or vary the decision being reviewed; or set aside the decision being reviewed and substitute its own decision or refer the matter back to the original decisionmaker for reconsideration (s 29(3) of the SAT Act).
The Tribunal therefore undertakes the same considerations as the respondent with the benefit of any new and/or additional information and the essential issue remains as it was when the complaint was originally considered by the respondent. That is, whether the applicant's conduct on the evening of 14 April 2015 constituted a breach of reg 7(1)(b) of the Regulations.
It was common ground between the parties that the applicant was a council member on 14 April 2015 and that the events the subject of the complaint involved a use by the applicant of her office as a council member. The Tribunal accepts that these facts are established and what is in dispute between the parties and which are the issues which require determination by this Tribunal are as follows:
1)whether the events the subject of the complaint constitute an 'improper use' of the applicant's office as a council member;
2)whether the applicant engaged in the relevant conduct with the intent or belief that it would cause 'detriment' to another person; and
3)if the Tribunal finds that the events the subject of the complaint did constitute an improper use of the applicant's office as a council member and that the applicant engaged in the conduct with the intent or belief that it would cause detriment to Ms Mitkus, what is the appropriate penalty to be imposed, if any.

Relevant facts

The applicant has been a councillor at the City for over a decade having been first elected in 2005 and then re-elected in 2009 and 2013. The applicant is therefore a councillor with significant experience.
Ms Mitkus has been employed by the City since 1 December 2014. In her first few months with the City she was responsible for organising citizenship ceremonies held by the City. As of 23 March 2015 Ms Mitkus became the Acting Coordinator of Civic and Hospitality which became her permanent role with the City as of 1 April 2015. She took over this position from David and Gail Phelan, who resigned from those positions after a significant number of years with the City. Ms Tucker has been employed by the City as the Manager of Governance and Council Support since September 2014. There were tensions from early 2015 in the interactions between the applicant and Ms Tucker (Exhibit M).
On 8 April 2015 the City held an Order of Australia civic function at its administration complex. This was the first event at which Ms Mitkus was responsible for coordinating catering and hospitality. The function was attended by councillors of the City, including the applicant, members of the City's executive management, members of the Order of Australia Association and recipients of Order of Australia awards and their guests. It was a large function at which approximately 90 people were in attendance.
At the conclusion of the event, at approximately 8.30 pm, the applicant was attending to the printing of a document for a ratepayer and entered an office which was occupied by Ms Mitkus and another staff member searching for copy paper. Ms Mitkus and the other staff member initiated conversation with the applicant in respect of the event which had just concluded and asked for her feedback.
There is some difference in the recollection of Ms Mitkus and the applicant as to the nature of the feedback which was given. However, there is also some consistency in their evidence and the Tribunal is able to find that the applicant gave feedback about the food, and also in respect of the applicant needing to find attendees outside who were unable to access the venue. This feedback could be seen as either negative or constructive in nature. The applicant also praised the service provided by the staff and noted that it was of a very high standard as usual (T:3738 and 117118; 02.03.17; Exhibit E page 2; Exhibit K page 8).
Ms Mitkus gave evidence that the applicant raised a number of criticisms which included in respect of the standard and volume of food and that Ms Mitkus and the other staff member had 'failed in our duty of care' by not ensuring that invited guests were not lost. In respect of this last point, Ms Mitkus stated that the applicant warned her that the City's Director Community Development, Mr Holland, may write a complaint and that the applicant herself may also say something about the matter (Exhibit E page 2). The applicant denied criticising the standard of the food and also denied alleging that Ms Mitkus had failed in her duty of care and that she and Mr Holland may take matters further (T:117118; 02.03.17).
On 9 April 2015, Ms Mitkus met with Ms Tucker to convey her understanding of the comments made by the applicant the previous day and informing her that she may receive a complaint from either Mr Holland and/or the applicant in respect of the Order of Australia event hosted the previous evening. Ms Tucker informed Ms Mitkus that she would address the matter (Exhibit E page 2).
The following day on 10 April 2015, Ms Tucker prepared an internal memorandum to the applicant entitled 'Civic and Hospitality Services' (Exhibit B page 28). The Memorandum raised some fairly minor matters in respect of special requests at Friday night dinners at the City including the choice of chocolates and wine. The Memorandum is set out in full below:
Dear Councillor Re
It has recently come to my attention that at the Friday night dinners, you request different chocolates and wine to that being provided to the rest of the Councillors and guests. Additionally, you have been requesting the City's Chef to prepare you a different meal on the night, to what is on the menu simply because you do not like the menu being offered.
In discussions with the Mayor and Deputy Mayor, these requests will no longer be acceded to. Baci chocolates will no longer be provided upon request and you will need to select a wine from the assortment provided. Should any of your guests have specific dietary requirements, this must be advised a week prior to their dinner in writing to the Acting Coordinator Civic and Hospitality Services.
I have also been informed that you spoke to the Acting Coordinator Civic and Hospitality Services on Wednesday night and complained about the food and accused the Acting Coordinator of failing in their duty of care. As I have advised you previously, any staffing complaints must be raised with me in the first instance. It is inappropriate for you to discuss staffing matters with the staff themselves. Further, should you have complaints regarding the standard of food being served, you are to raise this with the Mayor or myself, not the staff.
Bernadine Tucker
Manager
Governance and Council Support
A similar internal memorandum was issued to all other City councillors which was copied to Ms Tucker and sent from the Mayor (Exhibit J) which stated, amongst other things:
It has also been brought to my attention that some Councillors have been requesting the City's Chef prepare them a different meal on the night, to what is on the menu simply because they do not like the menu. Please note this will no longer be occurring. If Councillors have special dietary requirements this must be advised a week prior to their dinner in writing to the Acting Coordinator Civic and Hospitality Services.
…
If Councillors have further suggestions regarding improving Councillor lunches and/or dinners I welcome feedback on how they can be improved.
The above memorandum differs to the one tailored to the applicant in that nothing is stated regarding wine and chocolate choices. Also, although the councillors are being informed that they cannot request a different meal on the night at Friday dinners, the selected wording appears less direct. The memorandum to the other councillors was also softened by the invitation of suggestions to improve the City lunches and dinners. No such invitation was extended to the applicant. Although Ms Tucker gave evidence that she could not recall authoring this memorandum (T:89; 02.03.17), the Tribunal does not accept that given the timing of the drafting of the two memorandums and the similarity of the Mayors memorandum to that drafted by Ms Tucker and sent to the applicant.
Ms Tucker conceded in evidence that requests are often made by councillors for different chocolates and wine to be provided at Friday night dinners, and often those requests are acceded to without any issue (T:85; 02.03.17).
On 14 April 2015 at 6 pm the City hosted a Planning and Development Committee meeting which the applicant attended. Prior to the meeting, the applicant participated in a buffet dinner at the City which took place between 5 pm and 6 pm. Ms Mitkus was working that evening hosting the drinks in the bar area, and then worked with another catering staff member in the dining room during the course of the buffet dinner. Once the meal concluded at 6 pm and the committee meeting commenced, Ms Mitkus and another staff member began clearing away the food and empty plates in the dining room.

During the course of the committee meeting the applicant excused herself due to a conflict of interest in respect to a particular agenda item. The applicant walked back towards the dining room, on her evidence, because she had left her jacket there and wished to retrieve it. The applicant's evidence is that she recovered her jacket and observing Ms Mitkus in the dining room cleaning up decided to approach her. Noone else was present at the time.
Although there is conflicting evidence between Ms Mitkus and the applicant as to what was said during this brief discussion, there is some agreement between them that the following matters were raised:
a)The applicant referred to the Memorandum which she had received from Ms Tucker and asked whether Ms Mitkus was aware of the Memorandum. Ms Mitkus informed the applicant that she was not aware of the Memorandum and if she had any concerns she should discuss them with Ms Tucker or with the Mayor.
b)The applicant informed Ms Mitkus that the Memorandum alleged that the applicant had complained and ordered Ms Mitkus around and that the applicant was sorry if her feedback from the Order of Australia event had upset Ms Mitkus. The applicant informed Ms Mitkus that she was simply providing feedback which Ms Mitkus had sought from her following her attendance at the function.
c)The applicant informed Ms Mitkus that she required special food orders because she was lactose intolerant and had certain food allegies and asked Ms Mitkus if she was aware of this, to which Ms Mitkus responded 'no, I didn't know'.
d)The applicant raised with Ms Mitkus that she felt bullied and/or under attack from both the Mayor and Ms Tucker and that she was very upset.
(T:41-46 and 118-119; 02.03.17)
Although there are some discrepancies between the evidence of the applicant and Ms Mitkus as to the full details of their conversation, there is some significant commonality in that they both gave evidence that the applicant became quite distraught and was of the opinion that the Memorandum she had received was a form of bullying by Ms Tucker targeted at the applicant. Whilst Ms Mitkus gave evidence that the applicant said to her that the contents of the Memorandum 'must have come from you' she conceded that the applicant did not directly blame her for the issuing of the Memorandum, but she felt blamed (T:4648; 02.03.17). There was certainly some empathy shown by Ms Mitkus towards the applicant during this conversation and in evidence she admitted that she apologised to the applicant and encouraged her to speak to either the Mayor or Ms Tucker in order to resolve the matter (T:48; 02.03.17). The evidence is also clear that although their voices may have been raised, that neither the applicant nor Ms Mitkus were shouting and they were standing about a metre apart (T:45; 02.03.17).
At this point Ms Farrow arrived at the dining room to let the applicant know that she was able to return to the committee meeting. Ms Farrow did not hear any of the conversation which was taking place between the applicant and Ms Mitkus, although she gave evidence that Ms Mitkus was visibly upset. Although Ms Farrow focussed in her evidence on whether Ms Mitkus was visibly upset, the evidence of both the applicant and Ms Mitkus was that the applicant was extremely upset during and at the conclusion of the discussion (T:45 and 119; 02.03.17). Not because of anything Ms Mitkus had said, but because of the content of the discussion itself. Yet that is not something which is borne out by Ms Farrow's evidence.
At the hearing, Ms Farrow stated 'I could see her body shaking' when referring to Ms Mitkus (T:78; 02.03.17). This detail was not provided in either the written statement Ms Farrow gave immediately subsequent to the event (Exhibit B page 10), nor in her signed witness statement (Exhibit H). Given the significant intervening period of time since the event took place, the Tribunal does not accept that this is an accurate recollection. It certainly is a significant matter which would have been apparent to Ms Farrow at the time of the event and was of sufficient importance that, if correct, ought to have been included in her statement. The allegation that Ms Mitkus was shaking, is evidence that neither Ms Mitkus nor the applicant gave. The Tribunal therefore does not accept that Ms Mitkus was shaking during her interaction with the applicant.
It is important at this point to refer to evidence Ms Farrow also gave that Ms Tucker and others at the City have instructed staff not to be alone in their duties and to 'always stay in pairs' (T:7576; 02.03.17). Ms Farrow explained that the need for companionship is to ensure that staff members have a witness if the need arises to make a formal complaint. Ms Farrow accepted in questioning that this instruction, directed by those in management and leadership roles at the City, inevitably leads to an expectation by staff that they will find themselves in untoward situations requiring witnesses. In the Tribunal's view, this is likely to influence how staff will interpret and observe situations including the circumstances of this review proceeding.
The applicant, upon being interrupted by Ms Farrow, left the dining room to enter the ladies restroom. The applicant's evidence was that she needed to regain her composure and calm herself prior to rejoining the committee meeting (Exhibit K paragraph 50). Consistent with the evidence of the applicant, Ms Mitkus followed the applicant and waited outside the ladies restroom, understanding that the applicant was visibly upset and wanting to make sure that she was alright. Ms Mitkus could have left the dining room and walked away from the situation, particularly if she was feeling under attack from the applicant or bullied by her. However, she decided to remain in the location and indeed to check on the welfare of the applicant (T:50; 02.03.17).
Ms Farrow then reentered the committee meeting and informed two officers of the City, being Jessica Cringle and Regan Clyde, words to the effect that the applicant was 'having a go at Shonay' (T:72; 02.03.17). This information was then passed to Ms Tucker who immediately left the committee meeting to intercept what she thought at that time was a heated exchange occurring between the applicant and Ms Mitkus. On the evidence of all involved what took place next only elevated and exacerbated the situation rather than diffused it.
Ms Tucker intercepted the applicant and Ms Mitkus as they were standing outside of the ladies restroom and Ms Mitkus was taking steps to ensure that the applicant was okay because she still appeared to be upset (T:49; 02.03.17). The content of the discussion at this point was in regard to the applicant being upset and Ms Mitkus showing some empathy to her and encouraging her to try and resolve the matter directly with the Mayor and/or Ms Tucker.
Ms Tucker arrived in a rush at this point because in her mind one of her staff members was under attack from the applicant. I find Ms Mitkus' witness statement contains the most detail of the conversation, albeit brief, which then took place between the applicant and Ms Tucker (Exhibit E pages 4 - 5). Ms Tucker approached and asked the applicant whether there was a problem. The applicant said that she did not wish to speak to Ms Tucker and referred to her as a 'bully'. This statement appears to have been repeated (Exhibit E paragraph 40 and 41). Ms Tucker in response repeatedly told the applicant that she was not permitted to speak to her staff (T:93; 02.03.17).
Although Ms Tucker gave evidence that the conversation was not heated, the Tribunal does not accept that. The Tribunal finds that the conversation was heated with raised voices which necessitated Ms Farrow closing the doors of the meeting room because members of the public were in attendance and could overhear (Exhibit H paragraph 23). It was following the verbal altercation between the applicant and Ms Tucker that Ms Mitkus became visibly upset and started to cry and shake. There was no evidence from Ms Mitkus that she was in this state prior to the intervention by Ms Tucker and prior to the interaction which occurred between Ms Tucker and the applicant (Exhibit E paragraph 42).
During the very brief exchange between the applicant and Ms Tucker the applicant called Ms Mitkus back, who had at that time walked away, asking her if she had 'ever abused' her. Ms Mitkus responded in the negative (T:32; 02.03.17). Her witness statement states at this point that she was 'terrified and did not know what to do' (Exhibit E paragraph 44). Although Ms Tucker had no recollection of Ms Mitkus returning and the exchange between Ms Mitkus and the applicant (T:96; 02.03.17), the Tribunal prefers the evidence of Ms Mitkus and the applicant in this regard.
Ms Tucker then returned to the meeting which was about to conclude. The applicant did not return to the meeting because she was distressed following her exchange with Ms Tucker. Ms Mitkus went to her office where Ms Tucker asked her to wait so that she and the Mayor could meet with her once the meeting concluded to discuss the events of the evening. Ms Mitkus was upset and crying when discussing the situation with Ms Tucker and the Mayor later that evening (T:5253; 02.03.17).
There was a further very brief exchange between Ms Mitkus and the applicant in the carpark when staff and councillors were leaving for the evening. The applicant was driving through the carpark towards the exit with her window down because she had just stopped to talk to another staff member. She passed Ms Mitkus who was walking to her parked vehicle. The applicant apologised to Ms Mitkus for upsetting her. Ms Mitkus believed that what she heard was 'I'm sorry you set me up' and thus she responded by saying 'Councillor Re, I did not set you up' (Exhibit E paragraphs 56 and 57). The applicant then corrected Ms Mitkus and said 'no, I'm sorry I upset you' (Exhibit E paragraph 59). Ms Mitkus gave evidence that she did not believe the applicant was being sincere in this regard. Although she conceded that it was conceivable that she misheard the applicant in the first instance (T:59; 02.03.17). The Tribunal accepts that the applicant did apologise to Ms Mitkus for upsetting her and that what the applicant said was misheard in the first instance by Ms Mitkus. Whether or not the apology was sincere is immaterial to the proceeding.
The complaint of minor breach the subject of this proceeding was made on 18 June 2015 in respect of the event of 14 April 2015. Although a complaint was also made in respect of the conversation which took place between the applicant and Ms Mitkus on 8 April 2015, that complaint was dismissed by the respondent and does not form part of this review proceeding.
The decision of the respondent was given on 30 March 2016 and the sanction decision was made on 2 August 2016. As previously mentioned, the sanction imposed was that the applicant be publicly censured by publication of a notice in both the West Australian newspaper and a local newspaper. Indeed publication of the censured notice was made in the West Australian on 30 September 2016. Unfortunately by the time the City became aware of the review proceeding, it had already arranged for the publication of the notice and could not withdraw it. No similar censure notice was published in the local paper. However, the local newspaper, being the Stirling Times, was aware of the publication of the censure notice and published a front page article relating to the matter on 3 October 2016 (Exhibit L).
Lastly, it is important to note that although Ms Mitkus gave evidence that immediately following the events of 14 April 2015 she considered resigning from her position (T:61; 02.03.17), she did not at any time take any steps of that kind. Ms Mitkus therefore remains a permanent employee of the City. She gave evidence to the Tribunal that she continues to remain courteous in all of her interactions with the applicant (T:62; 02.03.17).

Meaning of 'improper use' in reg 7(1)(b) of the Regulations

In Treby and Local Government Standards Panel [2010] WASAT 81; (2010) 73 SR (WA) 66 (Treby), Pritchard DCJ (as her Honour then was) set out a useful discussion as to the meaning of 'improper' in the context of reg 7(1) of the Regulations at [26] - [33]. Her Honour referred to the Shorter Oxford English Dictionary meaning of 'improper' and noted that it includes 'unsuitable' and 'inappropriate'. Her Honour then went on to summarise, at [29] [33], what the case law suggested as to the meaning of 'improper' in this particular context. It is useful to set out that analysis below:
First, impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the [councillor] by reasonable persons with knowledge of the duties, powers and authority of his position as a councillor and the circumstances of the case.
Secondly, impropriety does not depend on a councillor's consciousness of impropriety. It is to be judged objectively and does not involve an element of intent.
Thirdly, impropriety may arise in a number of ways. It may consist of an abuse of power, that is, if a councillor uses his or her position in a way that is inconsistent with the discharge of the duties arising from that office or employment. Alternatively, impropriety will arise from the doing of an act which a councillor knows or ought to know that he has no authority to do.
Fourthly, in the case of impropriety arising from an abuse of power, a councillor's alleged knowledge or means of knowledge of the circumstances in which the power is exercised and his purpose or intention in exercising the power will be important factors in determining whether the power has been abused.
Fifthly, a councillor's use of his or her office can be improper even though it is for the purpose or with the intention of benefiting the Council.
In Hipkins and Local Government Standards Panel [2014] WASAT 48 (Hipkins) at [9] Senior Member McNab, when considering the meaning of 'improper', referred to the decision of O'Bryan J in the Supreme Court of Victoria in Robbins v Harness Racing Board [1984] VR 641 at [646] where his Honour noted that for behaviour to be 'improper' it must be such 'that a rightthinking person would regard the conduct as so wrongful and inappropriate in the circumstances that it calls for the imposition of a penalty'.
In both Treby and Hipkins, it was emphasised that what will be deemed as improper in any particular case will be contextdriven, requiring consideration not only of the statutory and formal context of a local government councillor's duties and responsibilities, but also requiring a full consideration of the particular relevant surrounding factual matrix.

Did the exchanges which took place on 14 April 2015 constitute the applicant making improper use of her office as a council member?

The City of Stirling Code of Conduct (Exhibit D) at page 9 sets out the following:
All elected Members and Employees must treat each other and the members of the public in a respectful, professional, fair and courteous manner at all times in the workplace. Conduct should contribute towards creating and maintaining a supportive working environment.
…
Inappropriate behaviour in the workplace is taken extremely seriously and will not be tolerated.
…
Employee / Elected Member Relationships
Elected Members and Employees' roles are determined in the Act.
(a)Role of Elected Members
Elected Members:
•    are the strategic decision makers in local government rather than managers or administrators;
•    must refrain from dealing directly with Employees about administrative matters; and
•    must refrain from publically criticising Employees in a way that may bring their professional reputations into disrepute.
The third paragraph of the Memorandum which has been more fully set out in these reasons at [22] certainly appears consistent with the above excerpt from Exhibit D, in that Ms Tucker informed the applicant that raising complaints directly with employees is not appropriate.
The intervener submitted that the applicant's conduct was indeed improper as it did not conform to the standards of conduct that can reasonably be expected of a councillor in the applicant's position. The intervener contended that the applicant set out intentionally to confront Ms Mitkus about the complaint which she had made against her to Ms Tucker and vented her frustration at her in a way which intimidated and distressed her. In so acting, the intervener submits that the applicant failed to have regard to Ms Tucker's request not to raise operational matters directly with staff members and, accordingly, her conduct fell below the reasonable standard of conduct to be expected of a highly experienced elected member of the City council. Thus the intervener seeks a finding by the Tribunal that it is more likely than not that the applicant made use of her office to intimidate Ms Mitkus and therefore made improper use of her office for the purposes of reg 7(1)(b) of the Regulations.
The Tribunal does not accept that contention for the following reasons:
a)The Tribunal is not able to find, on the basis of the evidence before it, that the applicant deliberately sought out Ms Mitkus in order to confront her. The uncontested evidence of the applicant was that she left the committee meeting due to a conflict of interest and decided to return to the dining room to retrieve her jacket. Although the intervener submits that the Tribunal should find this evidence to be untruthful, the Tribunal is not so satisfied. The Tribunal finds that the applicant crossing paths with Ms Mitkus was unplanned and unexpected and the discussion that followed arose by chance.
b)The applicant began the very brief discussion with Ms Mitkus by apologising to her if she had upset her by the feedback she gave following the Order of Australia event. In the Tribunal's view, apologising to a staff member whom a councillor believes they have upset does not constitute an improper use of their office.
c)Although the conversation then flowed on to the contents of the Memorandum the Tribunal finds that discussion was brief in nature, unplanned, and not conducted in a threatening way by the applicant in respect of Ms Mitkus. In this regard the Tribunal notes that the evidence of all witnesses was that there was no shouting and that although the discussion was upsetting to the applicant, the Tribunal does not find that the applicant was being aggressive or intimidating in her manner towards Ms Mitkus.
d)Although Ms Farrow gave evidence that Ms Mitkus was shaking in fear during the discussion with the applicant (T78; 02.03.17) the Tribunal does not find that to be a reliable recollection (see [31]). As previously noted, the Tribunal's view is that the evidence in this regard may have been tainted due to staff having been instructed to 'always stay in pairs' so they have a witness if a complaint is made. Ms Farrow confirmed that such an organisational culture leads to an expectation by staff that they will find themselves in situations where a witness is required (T:7576; 02.03.17).
e)Although the Tribunal finds that the applicant was agitated and upset, it was clear on the evidence before the Tribunal that the applicant was upset and agitated by the contents of the Memorandum and because she felt that she was being unfairly treated by Ms Tucker.
f)It is difficult for the Tribunal to reconcile Ms Mitkus' evidence that she was 'terrified' and intimidated by the applicant in circumstances where she did not seek to leave the situation but, rather, pursued the applicant when she left the dining room. Rather than leaving the situation, Ms Mitkus decided to check on the applicant's welfare. She conceded in evidence that she could have chosen to leave the situation (T:50; 02.03.17).
g)Although the Tribunal accepts that by the conclusion of the evening Ms Mitkus was indeed in a highly distressed state, the Tribunal's view is that this was significantly contributed to by the heated confrontation which took place between the applicant and Ms Tucker, which Ms Mitkus observed.

In the Tribunal's view the applicant was not raising a complaint with Ms Mitkus during this conversation. The conversation was unplanned and commenced with an apology. Although it would have been more appropriate for the conversation to have taken place between the applicant and Ms Tucker, the Tribunal accepts that there has been an irretrievable breakdown in the relationship between the applicant and Ms Tucker whereby she felt that she had no such recourse. Although the intervener contended that the breakdown in the relationship between the applicant and Ms Tucker extended to Ms Mitkus, thus implying some intent on the part of the applicant to act adversely to Ms Mitkus, there was no supportive evidence in that regard. At its highest it is supposition based on the applicant's knowledge that Ms Tucker and Ms Mitkus had previously worked together for another employer.
Although the finding at first instance was that the applicant was 'aggressive' in the discussion with Ms Mitkus (Exhibit B page 80), the Tribunal is unable to make that finding on the evidence before it. The applicant was certainly upset at Ms Tucker and visibly so to the point where Ms Mitkus was concerned for her, but the Tribunal does not find that she was aggressive towards Ms Mitkus either physically or by shouting at her.
In summary, the Tribunal does not find that the applicant's conduct constitutes a breach of the standard of conduct that would be expected of a person in the applicant's position by reasonable persons with knowledge of the duties, powers and authority of her position as a councillor and knowing the full circumstances of the case.
It was certainly unfortunate that the Memorandum issued by Ms Tucker was in the terms that it was because, in the Tribunal's view, it was inflammatory and added to the chain of events which took place. Although the Tribunal accepts that Ms Tucker was acting appropriately in expecting councillors not to raise complaints directly with staff, the issuing of the Memorandum in the context of feedback being requested from a staff member (and therefore being provided by the applicant), does not fit well. Indeed, Ms Tucker conceded in her oral evidence at the hearing that Ms Mitkus ought not to have asked for feedback from the applicant because to do so could lead to negative feedback and/or criticisms being raised directly with staff (T:83; 02.03.17).
This full factual context is important, as the cases to which the Tribunal has referred establish. What prompted the Memorandum being issued was not the applicant deliberately raising complaints directly with staff. As one may expect when feedback is sought, it may comprise of both positive and negative characteristics. The applicant did not independently offer those views; they were actively sought from her. None of that context shows through in the wording Ms Tucker chose to use in the Memorandum. It was largely for this reason that the applicant was distraught on 14 April 2015. She certainly felt targeted by Ms Tucker.
The Tribunal also does not find that the applicant made improper use of her office as a council member in relation to the very brief exchange between the applicant and Ms Mitkus in the carpark. The Tribunal does not accept that the applicant said words to the effect of 'you set me up' to Ms Mitkus. The Tribunal finds that, rather, the applicant said to Ms Mitkus words to the effect 'I'm sorry I upset you' (see [40] above). That finding does not support a conclusion in respect of improper conduct on the part of the applicant.

Meaning of 'detriment' in reg 7(1)(b) of the Regulations

In Treby at [94] [96] the Tribunal discussed the meaning of the word 'detriment'. The Tribunal found that the word 'detriment' is loss or damage done or cause to, or sustained by, any person or thing. The Tribunal went on to note that the Shorter Oxford English Dictionary sets out the meaning of 'loss' as the 'diminution of one's possessions or advantages; detriment or disadvantage involved in being deprived of something, or resulting from a change of conditions', while 'damage' means 'loss or detriment to one's property, reputation etc' and 'harm done to a thing or person'. Her Honour also noted that a contravention of reg 7(1)(b) does not depend on actual detriment being suffered by a person but it must be established that the councillor believed that the intended result of their conduct would be that the other person would suffer detriment.
Given that the Tribunal has not found improper use of office as a council member by the applicant, it is unnecessary for the Tribunal to consider whether the remarks made by the applicant and the way she conducted herself during the discussion with Ms Mitkus was more likely than not to cause detriment. However, the Tribunal notes in any event that it is not able to find on the evidence that it was more likely than not that the applicant intended to cause detriment or was recklessly indifferent to the probable or likely consequence of detriment to Ms Mitkus.
Whilst in hindsight the applicant conceded that the conversation ought not to have occurred (T:153; 02.03.17), in the Tribunal's view the inference is not open to be made objectively that the applicant intended detriment to Ms Mitkus. Although Ms Mitkus was visibly upset later on in the evening, that followed a heated verbal altercation between the applicant and Ms Tucker which had a significant impact on Ms Mitkus (T:53; 02.03.17; paragraph 42 Exhibit E). Ms Mitkus also gave evidence to the effect that there was no lasting detriment to her by the incident in that she continued to be employed by the City, in a permanent position, and continued to cross paths with the applicant and those interactions remained professional and courteous (T:62; 02.03.17).

Concluding remarks

Given the findings of the Tribunal, clearly no sanction should result. It is therefore regrettable that the sanction decided by the respondent in the first instance has already, to a large extent, been imposed.
The application for review should therefore be allowed.

Orders

For the reasons set out above, the Tribunal's orders will be:
1.The application for review is allowed.
2.The decisions of the Local Government Standards Panel are set aside and in substitution thereof there will be a decision dismissing the complaint.

I certify that this and the preceding [61] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS C WALLACE, SENIOR MEMBER