SHANNON and LOCAL GOVERNMENT STANDARDS PANEL
[2020] WASAT 50
•13 MAY 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION: SHANNON and LOCAL GOVERNMENT STANDARDS PANEL [2020] WASAT 50
MEMBER: MS P LE MIERE, MEMBER
HEARD: 28 FEBRUARY 2020
DELIVERED : 13 MAY 2020
FILE NO/S: CC 554 of 2019
BETWEEN: KERI SHANNON
Applicant
AND
LOCAL GOVERNMENT STANDARDS PANEL
Respondent
ATTORNEY GENERAL FOR WESTERN AUSTRALIA
Intervener
Catchwords:
Local government - Rules of conduct - Minor breaches - Abuse of power - Acting outside of authority - Intention to cause detriment - Correct and preferable decision
Legislation:
Local Government (Rules of Conduct) Regulations 2007 (WA), reg 3, reg 7(1), reg 7(1)(b), reg 10(3)
Local Government Act 1995 (WA), s 5.102, s 5.104, s 5.105(1), s 5.106, s 5.107s 5.110, s 5.110(6), s 5.125
State Administrative Tribunal Act 2004 (WA), s 25(2), s 27(1), s 27(2), s 29(1), s 29(3), s 29(3)(c)(ii), s 31(1), s 37(1), s 61, s 62(3)
Result:
Application allowed in part
Category: B
Representation:
Counsel:
| Applicant | : | Mr GJ Douglas |
| Respondent | : | N/A |
| Intervener | : | Ms JM Vincent and Mr MW McIlwaine |
Solicitors:
| Applicant | : | Douglas Cheveralls Lawyers |
| Respondent | : | N/A |
| Intervener | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Chief Executive Officer, Department of Local Government and Communities and Scaffidi [2017] WASAT 67 (S)
Treby and Local Government Standards Panel [2010] WASAT 81
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 12 September 2018 Corinne MacRae a former Councillor of the Town of Cambridge (Town) lodged a formal complaint with the Local Government Standards Panel (Panel) against Kerri Shannon the Mayor of the Town (applicant). The complaint alleged a minor breach of the Local Government (Rules of Conduct) Regulations 2007 (WA) (Regulations).
The complaint was that the applicant had made use of her office as Mayor to cast aspersions on the professional conduct of two former employees in an announcement (Announcement) at an ordinary meeting of the Council of the Town (Council) held on 28 August 2018 (Council Meeting). On 27 March 2019 the Panel found that the applicant had committed one minor breach of reg 7(1)(b) of the Regulations when she made the Announcement (Finding).
On 23 May 2019 the Panel handed down its penalty decision in respect of the Finding (Penalty Decision). The penalty was that the applicant was required to make a public apology at a meeting of the Council as set out below:
1.Mayor Keri Shannon, a Councillor for the Town of Cambridge (Town), publicly apologise to the Town's former employees who she referred to in her Mayoral Announcement during the Council Meeting on 28 August 2018.
2.At the Town's first ordinary council meeting Mayor Shannon attends after the expiration of 28 days from the date of service of this Order on her Mayor Shannon shall:
(a)ask the presiding person for his or her permission to address the meeting to make a public apology to the Town's former employees;
(b)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;
(c)address the Council as follows, without saying any introductory words before the address, and without making any comments or statement after the address:
"I advise this meeting that:
(i) A complaint was made to the Local Government Standards Panel, in which it was alleged that I contravened regulation 7(1)(b) of the Local Government (Rules of Conduct) Regulations 2007 when I made an announcement at the council meeting on 28 August 2018 in which I referred to two former Town employees.
(ii) The Panel found that by behaving in this manner I made improper use of my office as Councillor with the intention of damaging the former employees thereby committing one breach of regulation 7(1)(b) of the Local Government (Rules of Conduct) Regulations 2007.
(iii) I accept that I should not have acted in such a manner towards the former employees and I apologise to the parties concerned for having done so."
3.If Mayor Shannon fails or is unable to comply with the requirements of paragraph 2 above she shall cause the following notice of public apology 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 Western Suburbs Weekly newspaper.
PUBLIC APOLOGY BY MAYOR KERI SHANNON
A formal complaint was made to the Local Government Standards Panel alleging that I contravened a provision of the Local Government (Rules of Conduct) Regulations 2007 when I made an announcement at the council meeting on 28 August 2018 in which I referred to two former Town employees.
The Panel found:
(1) I committed one breach of regulation of 7(1)(b) of the Rules of Conduct Regulations when I made the announcement and referred to the former employees.
(2) By behaving in this way to the former employees I failed to meet the standards of conduct expected of a councillor
I apologise to the parties concerned for acting in such a manner.
On 10 April 2019 the applicant lodged an application for review of the Finding and Penalty Decision (Decisions) with the Tribunal. The review of the Panel's Decisions is within the Tribunal's review jurisdiction (see s 5.125 of the Local Government Act 1995 (WA) (LG Act)).
On 17 June 2019 the Tribunal stayed the Panel's Decisions until further order (s 25(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
On 22 October 2019 the Tribunal added the Attorney General of Western Australia as Intervener to the proceedings.
Following various procedural steps, the matter was heard by the Tribunal on 19 December 2019 and 28 February 2020.
Background facts
In December 2017 concerns were raised by members of the public and councillors regarding the Town's application of the reduced setback in the Town's streetscape policy which was inconsistent with the Town's planning scheme.
Following receipt of advice in January 2018, the Council passed a motion to engage independent lawyers, Hall & Wilcox Lawyers on 7 February 2018 to investigate issues of potential legal non-compliance at the Town, specifically related to the application of a minimum setback in the Town's streetscape policy without regard to the criteria imposed by the town planning scheme (Investigation).
On 9 April 2018 the Investigation was widened to consider the validity of other delegations of authority under various other statutes, required by the Town's administration.
On 6 June 2018 the final Investigation report by Hall & Wilcox Lawyers was received (Report). This was considered at a special meeting of Council held on 14 June 2018.
At this meeting the Report was received and the Council decided to:
•Request the Acting Chief Executive Officer to prepare a report detailing how the recommendations will be implemented and submit a report to Council by no later than 24 July 2018;
•Authorises the Acting Chief Executive Officer to implement the recommendations contained within the confidential investigation report, detailed in (1) above subject to conditions detailed in the Council Report;
and resolved to:
(a)The confidential investigation report (which is subject to Legal Professional Privilege) shall not be released to the public until all employee matters arising from the Report are resolved, and subject to the confidential conditions determined by counsel;
(b)The Mayor be authorised to issue a comprehensive media statement detailing the salient facts contained within the confidential investigation report by Hall & Wilcox Lawyers, and the actions to be implemented to address areas of noncompliance as a matter of priority.
On 24 July 2018 at a further Confidential Council meeting the Council approved the implementation plan for the recommendations in the Report (Implementation Plan) and noted additional non-compliance matters.
Additionally it authorised the applicant to make public the salient facts contained in the Report.
The applicant says that pursuant to the authorisation of the Council at its meetings of 14 June 2018 and 24 July 2018 she made the Announcement.
Legislation
This review proceeding is a hearing de novo (s 27(1) of the SAT Act) with the purpose of the review being to produce the correct and preferable decision (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 decision maker for reconsideration (s 29(3) of the SAT Act).
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.
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 (as it was prior to amendment in July 2019) 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).
Issues to be determined by the Tribunal
It was common ground between the parties that the applicant was a Council member and Mayor on 28 August 2018 and that the events the subject of the complaint involved a use by the applicant of her office as a councillor. The Tribunal accepts that these facts are established and the issues in dispute between the parties and which require determination by this Tribunal are as follows:
•In making the Announcement did the applicant make improper use of her office as a council member?
•Was the announcement made by the applicant to cause detriment to any other person?
•What sanction should be imposed on the applicant in the event the Announcement did constitute an improper use of the applicant's office as a council member with the intent or belief that it would cause detriment to the two employees?
Hearing
As is appropriate in reviews of this type, the Panel did not play an active role in the proceeding due to the possibility that exists in review proceedings that the Tribunal may invite the Panel to reconsider its decision (s 31(1) of the SAT Act) or remit the matter back to the Panel for reconsideration (s 29(3)(c)(ii) of the SAT Act). The Panel's role was therefore confined to producing the s 24 bundle of documents and supplementary bundle of documents.
In view of the Panel's limited participation in the hearing, the Tribunal was ably assisted by the intervention of the Attorney General for Western Australia (intervener) pursuant to s 37(1) of the SAT Act who acted where necessary as a contradictor to the case presented by the applicant.
The Tribunal received into evidence at the hearing the following documents:
•Exhibit 1 - respondent's s 24 bundle of documents dated 25 June 2019;
•Exhibit 2 - respondent's supplementary bundle of documents dated 9 September 2019;
•Exhibit 3 - applicant's bundle of documents dated 28 August 2019, revised 9 September 2019;
•Exhibit 4 - applicant's statement of issues facts and contentions dated 7 October 2019;
•Exhibit 5 - intervener's statement of issues facts and contentions dated 9 September 2019;
•Exhibit 6 - witness statement of Mayor Kerri Liona Shannon dated 5 December 2019;
•Exhibit 7 - Hall & Wilcox Investigation Report - Town of Cambridge 22 June 2018;
•Exhibit 8 - witness statement of Denise Ribbands dated 4 December 2019;
•Exhibit 9 - John Giorgi statement dated 4 December 2019;
•Exhibit 10 - one page document- Risk Management Tables; and
•Exhibit 11 two page document of Mayoral Announcement with handmade amendments.
At the commencement of the hearing an issue arose as to the possible publication of confidential information contained in the Report as a consequence of possible reporting of the proceedings by the press. The Tribunal therefore made a suppression order pursuant to s 62(3) of the SAT Act, with respect to documents concerning various confidential council meetings, emails pertaining thereto and matters in the Report not previously made public.
The intervener assisted the Tribunal by writing to the two former employees referred to in the Announcement and informed them of the proceedings so as to enable them to consider whether they wished to make any submissions to the Tribunal regarding publication of their names or any matter that would identify them.
Neither of the former employees appeared at the hearing. On the recommencement of the part heard hearing on 28 February 2020 one of the former employees copied the intervener into an email he attempted to send to the Tribunal (it was sent to the wrong email address). The Tribunal read the copy of the email sent to the intervener. The Tribunal was not able to discern from the email if the employee was making an application for non-publication pursuant to s 62(3) or s 61 of the SAT Act.
However on the assumption that that was what he was attempting to do the Tribunal found that the employee had not provided any or any sufficient information to persuade the Tribunal that it should take the unusual step of closing the hearing or making a non-publication order.
At the hearing the Tribunal had the benefit of receiving oral evidence from the applicant and John Giorgi, the Chief Executive Officer (CEO) of the Town.
Following the hearing on 28 February 2020, the Tribunal reserved its decision.
Facts
The following facts are agreed:
1)The applicant was elected mayor of the Town in October 2015, and has remained an elected councillor of the Town since that date.
2)The applicant made the Announcement at the Council Meeting.
3)In relation to the Announcement, the intervener:
(a)notes that a point of order was called by Councillor Powell during the course of the Announcement; and
(b)says that the announcement was made:
(i)without notice;
(ii)during agenda item 8 'Announcements by the Mayor without discussion';
…
(iv)at a time when [Mr J L and Mr B J] were not employed by the Town (the former employees); and
(v)in the presence of members of the public and a representative the Post newspaper.
4)On 1 September 2018, the Post newspaper published an article that reported on the Announcement.
5)On 12 September 2018 Ms Corinne McRae submitted a complaint that the applicant committed a minor breach of the Regulations.
6)By email 5 October 2018 the Department of Local Government, Sport and Cultural Industries forwarded the complaint made by Ms McRae to the applicant.
At hearing the applicant sought to put into contention and to prove to the Tribunal that the former employees had in fact engaged in the conduct she attributed to them of in the Announcement.
The Tribunal determined that it was not appropriate to make findings regarding the conduct of the former employees particularly as they were not parties to the proceedings.
The Tribunal suggested, and it was agreed by the parties that the Tribunal would proceed on the basis that it was sufficient for the purposes of the proceedings for it to determine if the applicant had a reasonable belief that what she had said about the former employees was true.
Applicant's submissions
1)At all relevant times the statements in the Announcement were true and based on a reasonable belief.
2)The details regarding the Report (Exhibit 7) and the Implementation Plan were provided in good faith and for a proper purpose.
3)The decision of the Council of 14 June 2018 required the Announcement be made and the following matters had been the subject of a media article in the Post newspaper:
•the cost increase regarding the heat pumps in the Bold Park Aquatic Centre;
•the latent defects at the surf club and Wembley Sports Park; and
•the performance bench marking.
4)The statements in the Announcement regarding the steps taken to remedy governance failures were necessary to protect the reputation of the Town.
5)Further it was necessary to refer to the former employees and issues in relation to their performance to give context to decisions of the Town and ensure the public was not misled given the recent media reports in the Post regarding related issues.
6)The reference to Mr L by name was done in order to delineate his actions as acting CEO from those of Mr Giorgi who was appointed acting CEO on 9 June 2018.
7)In making the Announcement she used her position as mayor for the business of the Town and was therefore making proper use of her office.
8)The Announcement did not breach the Town's code of conduct or reg 10(3) of the Regulations as both Mr J and Mr L were former employees of the Town.
9)Detriment had been caused to the Town by the actions of the former employees in failing to report relevant matters to the Town.
10)The Announcement was prepared to satisfy the decisions of Council to provide a statement of the salient facts to the public in order to protect the Town's reputation.
11)By describing the actions of former employees, who held senior executive positions at the Town in the Announcement, no improper use was made of her office and in accordance with reg 3 of the Regulations had acted with integrity and accountability.
12)The expressions used with respect to the former employees were not offensive or objectionable. The Announcement was directed at the actions of the former employees, and were made in good faith and with proper grounds.
13)The only reasonable inference the Tribunal can make from the Announcement is that it was made to reinforce the Council's view that the departure of the senior executive staff was a positive outcome in terms of good governance practices.
14)Protection of the Town's reputation was a relevant consideration in making the Announcement as Mayor of the Town. The intention was to protect the interests of its residents and to do so by protecting the reputation of the Town.
15)The Announcement was not a criticism of the conduct of the former employees and at worst was a statement that the actions of one of the former employees, a senior staff member was less than desirable.
16)The Tribunal should not find the former employees suffered any detriment from the Announcement as it merely described their own actions.
Intervener's submissions
1)In essence, there were more appropriate ways of achieving the same or similar end that the applicant sought to achieve than by making the Announcement in the form it took.
2)It is significant that the applicant's expressed intention was to ensure that the public were provided with information as to what had gone wrong in the Town and to explain why Mr L was not a suitable person to be made the CEO; ts 184, 28 February 2020.
3)What is improper in any particular circumstance is context driven, requiring a consideration of the statutory and formal context of a councillor's duties and responsibilities but also a full consideration of the unique factual circumstance of each case; ts 177, 28 February 2020.
The intervener made general observations about the applicant's conduct in making the Announcement and also addressed the individual statements in the Announcement.
The intervener helpfully broke down the statements made by the applicant in the Announcement into 11 separate statements and made submissions as to how in making each statement she improperly made use of her office and caused detriment to the former employees in doing so.
The Tribunal will deal with them in that manner.
Statement 1
Now that the Director of Projects has left, we are finding a range of significant issues with the projects that he undertook that were not disclosed to the council at that time. He significantly under estimated the heat pumps and work required for heating at Bold Park aquatic centre. He gave practical completion of building projects when significant defects were known to him, but not disclosed to Council.
Improper use:
1)It was improper of the applicant to make these statements in the context of her simply not knowing why the heat pumps were underestimated or why practical completion was given; ts 188, 28 February 2020. That had the applicant had more information about the reasons for underestimation of the cost of the heat pumps etc. it may not have been improper to make the statements.
Intended detriment:
2)The evidence of the intended detriment by the applicant to Mr J in making statements is her expressed intention of making the statements(s) to justify to the residents and public generally why the former director of projects had not been appointed or was not suitable to be appointed as the acting CEO. This necessarily means the applicant deliberately made statements about Mr J that reflected negatively on his performance in the role of projects management.
Statement 2 and 3
Similarly now that the Director of Corporate Services, Mr [L], has left the Town's employment we can be open and transparent with ratepayers and acknowledge that Mr [L's] performance as Acting CEO was less than desirable
A perfect example was despite Mr [L] being given a council decision that he was to implement performance benchmarking in February 2018 for Q3, Mr [L] just simply did not comply.
Improper use
3)It was not for the applicant to make statements about a former employee's performance in their role at the Town as the applicant was not responsible for managing employees, supervising them or determining whether they had breached policies or duties to the Town.
Intended detriment
4)The intention to cause detriment is found in the applicant's expressed intention of making the statements to make the residents think less favourably of Mr L in terms of his performance.
Statement 4
Furthermore in my opinion, Mr [L] used his appointment as acting CEO to actively thwart the Town's continued conduct of the Hall & Wilcox investigation. He allowed the calling of a special council meeting to consider a motion to stop the investigation, which on its face was 'out of order' under the Standing Orders. This is probably because Mr [L] had become aware that the Council had expanded the scope of its investigation to include the statutory delegations, a matter for which he was responsible.
Improper use
5)It was improper for the applicant to speculate on Mr L's motivation in using his position to 'actively thwart the Town's continued conduct of the Hall & Wilcox investigation'.
6)The description of the calling of a special council meeting to consider a motion to stop the Investigation as being 'out of order' meant the applicant was saying it was clearly in breach of standing orders. This is improper because the applicant was decisively saying the motion was out of order rather than expressing an opinion that might or could have been out of order.
Intended detriment
8)The applicant stated that she made the statements to explain the delay in the delivery of the Report. That her intention was to show that Mr L had been the cause of the delay and she appreciated when she made the statements that this could damage his reputation.
Statement 5
When Hall and Wilcox sought Position Descriptions for certain employees, Mr [L] delayed providing them. The Position Descriptions requested included his own substantive position.
Improper use
9)The applicant made the statement that Mr L had delayed providing position statements to Hall & Wilcox Lawyers but did so without knowing if there was a legitimate reason for the delay, for example he was on leave or there were other pressing Town commitments.
Intended detriment
10)Again the applicant agreed this was to explain the delay in the provision of the Report. That she was seeking to show it was the actions of Mr L that had contributed to the delay.
Statement 6
Ultimately the Hall and Wilcox report made recommendations about show - that a show cause notice be issued to Mr [L], however this was not necessary given his resignation.
Improper use
11)The improper use (as the Tribunal understands it) is making public that a show cause letter had been recommended by the Report to be issued to Mr L. The fact that the applicant had been authorised by the Council to make public salient features of the Report does not give the applicant ‘carte blanche' to refer to whatever she likes.
Intended detriment
12)Is evidenced by the evidence of the applicant that she understood that members of the public would understand that it was not a good thing to be on the receiving end of a 'show cause letter' from your employer and the purpose in making the Announcement was so the public would understand that there had been failures by staff at the Town but that they had now left.
Statement 7
In the last week at the Town, Mr [L] refused to answer any questions about his actions while being Acting CEO. He refused to answer any questions at an exit interview.
Improper use and intended detriment
13)The inference in this statement is that Mr L was obliged to answer questions and had not done so or that in not answering questions he had something to hide. The applicant agreed she did not know why Mr L refused to answer questions at the exit interview.
14)It was an improper use of the applicant's office to make a statement about an employee that suggested he was obliged to answer questions in circumstances where the applicant did not assert he was so obliged.
Statement 8
Mr [L] appears to have deleted some emails from his inbox and wiped his telephone prior to leaving despite the fact that he was breaching the IT policy that he introduced as Director of Corporate Services in April 2018.
Improper use
15)It was not for the applicant to determine if the Town's IT policies had been breached and therefore not a proper use of her office to make statements that he had or to determine if he had done so.
Intended detriment
16)The applicant said 'I think that people, when they read that, kind of went, well, yes, he is probably not a great guy to be the acting CEO'; ts 123, 19 December 2019). This shows the applicant intended to cause detriment to Mr L's reputation.
Statement 9
Senior executives at Councils, in particular the Directors, should realise they have a duty of fidelity in the performance of their role. They are required at all times to honestly, faithfully and diligently perform their duties. I know they say 'culture eats strategy for breakfast' but I have never seen such protectionism and deliberate behaviour to prevent scrutiny.
Improper use and intended detriment
17)This statement that refers to 'Senior executives' rather than Mr L and Mr J by name but in this instance the public would have known to whom the applicant was referring. The statements cast the employees in a less than favourable light and that was her intention.
Statement 10 and 11
Since being elected as Mayor I have had difficulty performing my role due to a number of internal practices that I was advised were 'just the way it was'. The automatic deletion and archiving of my emails so that they could not be easily accessed was one such practice. These are ways in which some employees entrench their position and thwart the Elected Members' attempts to introduce transparency and accountability.
We do not want employees whose primary objective appears to have been to inflate the council budget and perform work only for Councillors who protect them from accountability and scrutiny.
Improper use and intended detriment
18)It is not pressed that there was a positive intent to cause detriment but rather the applicant was wilfully blind as to the consequences of her statements.
Consideration
In Treby and Local Government Standards Panel [2010] WASAT 81 (Treby) the Tribunal considered the meaning of 'Improper use of office' in some detail.
The Tribunal noted impropriety consists in a breach of the standard of conduct that would be expected of a person in the position of a councillor [mayor] by reasonable persons with knowledge of the duties, powers and authority of his or her position as a councillor [mayor] in the circumstances of the case.[1] It considered the impropriety may arise in two ways:
•by 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; or
•from the doing of an act which a councillor knows or ought to know that he or she has no authority to do;
[1] Treby at [29]-[33].
In the case of an abuse of power a councillor's alleged knowledge or means of knowledge of the circumstances in which the power is exercised and his or her purpose or intention in exercising the power will be an important factor in determining whether power has been abused.
Further and importantly 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 and the impropriety does not depend on a councillor's [mayor's] consciousness of the impropriety.
Statement 1
The statement made about the Director of Projects, Mr J was a statement about things that had gone wrong with projects he was responsible for and had not reported these matters to Council.
The applicant says she had good reason to believe her statement(s) were accurate. In applying the test as set out in Treby the Tribunal needs to consider whether reasonable persons with knowledge of the duties, powers and authority of the applicant's position of mayor would consider the applicant's action in making the statement a breach of the standards of conduct. Her actions need to be considered in context and in circumstances where there was a lot of public discussion of the problems with the aquatic centre and other projects.
The intervener says in circumstances where the applicant did not positively know the reason why Mr J significantly underestimated the heat pumps and work required for the heating at Bold Park Aquatics Centre or why he gave practical completion of building projects when significant defects were known to him (ts 188, 28 February 2020) the inference of wrongdoing on the part of Mr J. was an improper use of the applicant's office.
The applicant's emphasis in her explanation as to why she made the statement is not on the problems with the Bold Park Aquatic Centre and giving practical completion when there were defects but rather that they were not reported to Council by Mr J.
The statement is not predominately about his underestimating the costs of the heat pumps etc. and giving practical completion when there were significant defects but rather that none of these issues were disclosed to Council.
The question arises then whether reasonable persons with knowledge of the duties, powers and authority of the applicant's position of mayor would consider the applicant's action in making the statement a breach of the standards of conduct having regard to the fact that the Council had been criticised in respect of these issues and the applicant was offering an explanation for the Council's conduct.
Further the intervener submits it was improper for the applicant to make the statement as it was not her job to critique or criticise employees.
Where it is quite proper for there to be public scrutiny of a council and its members it is also reasonable for a council by its mayor to be able to explain why it may or may not have taken action regarding a matter(s) in which there has been public interest.
Councillors are not free to engage in derogatory or personal attacks on fellow councillors or any other person. The applicant did not do so here. She stated a number of facts she believed to be correct.
The explanation given by the applicant for making the statement included explaining to the public why Mr L had not been appointed the acting CEO.
The Tribunal accepts that the applicant was seeking to explain salient facts relating to why there were going to be unexpected costs associated with various projects and was providing information that explained the Town's reason for not recruiting the acting CEO internally from senior executives.
The Tribunal is not satisfied that in making this statement the applicant used her position in a way that was inconsistent with the discharge of her duties arising from her office or was an act for which she had no authority.
The Tribunal is not satisfied that in the circumstances it is more likely the applicant did make improper use of her office than she did not.
Statement 2 and 3
Similar positions in respect of this statement is made by both the applicant and intervener as with Statement 1. The applicant says she needed to explain why Mr L was not a suitable candidate as CEO and the intervener again says it was not the applicant's place to criticise an employee particularly when no findings against him had been made by either the Town or the Report.
Further the intervener says there was no basis for the applicant stating that Mr L had not implemented performance benchmarking when the motion passed by the Council was that data was to be collected to allow him to provide a report to Council but not to implement anything.
The applicant's view is that Mr L could not have prepared a report without implementing bench marking as the motion required Mr L to provide a report based on data obtained from bench marking.
The point made by the intervener that it does not specifically require Mr L to implement the bench marking is correct. However Mr L was at the time the acting CEO of the Town and as such had overall responsibility to ensure that he could comply with the decision of the Council and provide it with a report.
It is therefore not unreasonable for the applicant to say Mr L was responsible for the benchmarking required to provide the necessary data given his overall responsibility for the administration of the Town as the acting CEO.
There was significant public interest in what was occurring in the Town, specifically in respect of senior staff leaving and criticism in the press of the Council's lack of governance (Exhibit 3 pages 120,144,145 and 146).
In these circumstances the Tribunal is not satisfied that a reasonable person with knowledge of the duties, powers and authority of the applicant's position of mayor would consider the applicant's action in making the statement inconsistent with the discharge of her duties arising from her office or one she did not authority to make.
The Tribunal is not satisfied that it is more likely that the applicant made improper use of her office as a councillor and Mayor than she did not.
Statement 4
The applicant said that she made the statement to explain why the Report had taken as long as it had. The intervener points to why these statements would cause detriment to Mr L and that the applicant intended this or was recklessly indifferent as to whether this would result in a detriment to Mr L but does not in the Tribunal's view squarely deal with the issue of whether it was an improper use of the applicant's office to make it.
The applicant says the objective in making the Announcement was to inform the public of the salient points of the Report.
The commencement of statement 4 starts with the words 'Furthermore in my opinion …'. The statements that follow are clearly the views of the applicant and are not necessarily endorsed by the Council.
The applicant clearly was not informing the public of the salient points of the Report. She was providing her opinion on Mr L's conduct. The applicant does not suggest she was authorised to comment generally on the conduct of employees of the Town or any employee in particular.
However the Tribunal needs to consider, given all the circumstances, if the applicant knew or ought to have known she had no authority to make the statement in relation to Mr L's 'thwarting of the report' or if it was inconsistent with the discharge of her duties arising from her office.
The applicant does not resile from the fact that she was seeking to show that any delay in publication of the Report was due to the actions of Mr L rather than that of the Council. The Tribunal accepts that an accusation or statement that someone has sought to thwart an investigation and did so because it was in respect of matters for which he or she was responsible would clearly cause them to be thought of less favourably and cause them detriment.
The finding of intended detriment is inextricably linked with a finding of improper use of a councillor's office. The impropriety of the councillor's actions influences whether there was an intention to cause a detriment.
The reason for or the benefit that is alleged to be derived from the making of a statement needs to be balanced against any detriment that might flow to a person as a consequence of doing so. The Tribunal needs to consider in this context if there has been an abuse of power.
The intervener says that the applicant should not have said that the motion to stop the Investigation was on its face 'out of order' because it was a 'very high statement', a statement that the motion was unequivocally out of order: ts 190, 28 February 2020.
The issue is more properly whether any statement about the motion was appropriate or necessary for the applicant to make.
The purpose of this statement appears to the Tribunal to be to provide information or an example as to how Mr L sought to thwart the Investigation. It provides context.
From a review of the transcript the intervener challenged the applicant's use of her office to make the statement but did not appear to challenge the applicant's assertion that she had a reasonable basis for her claim Mr L had sought to thwart the Investigation.
The applicant in expressing a personal opinion was not informing the public of the salient points of the Report. The Tribunal is not satisfied however that she was acting outside of the authority given to her by the Council.
Mr Giorgio who knew the purpose of the Announcement did not raise with the applicant that she was exceeding her authority in making the statement when he reviewed the Announcement prior to its publication.
The authorisation given by the Council should not be interpreted literally. Given all the background that led to the Announcement and the criticism of the Council that had been made of its conduct it was not unreasonable for the applicant to consider she had authority to explain about the delay in the obtaining of the Report.
In these circumstances the Tribunal is not satisfied that a reasonable person with knowledge of the duties, powers and authority of the applicant's position of mayor would consider the applicant's action in making the statement inconsistent with the discharge of her duties arising from her office or one she did not authority to make.
The Tribunal is not satisfied that it is more likely that the applicant did make improper use of her office than she did not.
Statement 5 and 6
The applicant says these are statements of fact.
The intervener says it was improper for the applicant to make the statement that Mr L had delayed providing position statements to the authors of the Report without knowing if there was a legitimate reason for the delay, for example he was on leave or there were other pressing Town commitments.
If there was delay by Mr L in providing the position statements, and the intervener does not appear to challenge that there was, then the Tribunal is not satisfied that informing the public of this to explain the delay in the provision of the Report is inconsistent with the discharge of her duties or outside her authority.
The Tribunal does not consider it is an improper use of the applicant's position to state that the Report made a recommendation about Mr L in circumstances where the applicant had been authorised to make a statement that contained salient points of the Report.
The Tribunal accepts that that the applicant did not have carte blanche to make any statement she wished but this was a direct recommendation of the Report and went to the heart of the Report's findings.
In these circumstances the Tribunal is not satisfied that a reasonable persons with knowledge of the duties, powers and authority of the applicant's position of mayor would consider the applicant's action in making the statement inconsistent with the discharge of her duties arising from her office or one she did not authority to make.
The Tribunal is not satisfied that it is more likely that the applicant did make improper use of her office than that she did not.
Statement 7
This statement implies that Mr L was obliged to answer questions put to him in an exit interview. The applicant did not provide any evidence that established that Mr L had acted improperly in not doing so.
The applicant in her position of mayor and as a councillor of the Town owes a duty of fairness and respect to employees and former employees of the Town. She owes these duties as she is a leader in the community and is required to do so under reg 3 of the Regulations.
At the confidential Council meeting on 24 July 2018 (Exhibit 3 page 311 at page 318) regarding the implementation of the Report, it was stated that legal advice had been obtained by the Town that the matters that would have been put in the show cause letter referred to in Statement 6 should be put to Mr L in his exit interview.
In these circumstances the Tribunal is not satisfied the applicant exceeded her authority or acted in a way that was inconsistent with the duties arising from her office or position.
In these circumstances the Tribunal is not satisfied that a reasonable person with knowledge of the duties, powers and authority of the applicant's position of mayor would consider the applicant's action in making the statement inconsistent with the discharge of her duties arising from her office or one she did not authority to make.
The Tribunal is not satisfied that it is more likely that the applicant made improper use of her office than that she did not.
Statement 8
The applicant asserts the reason she made this statement was that after Mr L left the Town's employment it was found that emails were missing from his 'inbox' but she did not know why he had deleted them or if he had kept a hard copy of them. The Tribunal notes that no evidence was led by the applicant that there was evidence that Mr L had deleted them or why the applicant was able to assume that he had.
The applicant's motivation or reason for making this statement, she says was to let the public know why he should not be appointed the acting CEO.
The inferred allegation in this statement is that Mr L had deleted some emails and wiped his phone when his terms of employment prohibited him from doing so and further that he did so deliberately and for some ulterior purpose.
The applicant did not provide any evidence or explanation that Mr L had actually deleted emails opposed to there being evidence of emails missing. These statements have nothing to do with the delay in concluding the Investigation.
The applicant herself says it was to inform the public '… why we didn't need [Mr L] again as an acting CEO. People like that shouldn't be an acting CEO': ts 123, 19 December 2019.
The statement appears from the above evidence of the applicant to have been more in the nature of general critique of Mr L's actions. They are not salient points from the Report.
There does not appear to be a reason for the statement that arises from anything in the Report, the delay in obtaining the report or the decision of the Town not to appoint Mr L as CEO or continuing in the role of acting CEO given they occurred after his employment had ended.
The Tribunal accepts the applicant's motivation for making the statement was to benefit the Council.
A councillor's (mayor's) use of her or his office can be improper even if it is for the purpose or with the intention of benefiting the council. Improper use of a councillor's office does not depend upon a councillor's (mayor's) consciousness of impropriety.
The Tribunal is satisfied however that the applicant ought to have known she had no authority to make this statement.
The Tribunal is satisfied that the applicant intended to cause Mr L detriment by inferring he had acted improperly in deleting some emails and breached his obligations with respect to the Town's IT policy.
In these circumstances the Tribunal is satisfied that a reasonable person with knowledge of the duties, powers and authority of the applicant's position of mayor would consider the applicant's action in making the statement inconsistent with the discharge of her duties arising from her office or one she did not authority to make.
The Tribunal is satisfied that the applicant made improper use of her office as a councillor and Mayor and did so to cause detriment to Mr L.
The Tribunal is satisfied that it is more likely that a breach of reg 7(1)(b) of the Regulations occurred than it did not occur.
Statement 9, 10 and 11
These three statements are general in nature and whilst being capable of being understood as applying to Mr L and perhaps to Mr J they are essentially a condemnation of all the senior executives of the Town. They are related to the Report which was critical of senior management generally and included Mr J and Mr L. The Tribunal is not satisfied that in making the statements the applicant was exceeding her authority.
The Report covered a period of time when another person was the CEO indeed the newspaper articles referred to above outline the number of senior executives that had left the Town's employment over a relatively short time. The media articles discussed the 'turmoil' in the Town caused by the number of its senior executives who had left.
The statements are about all the senior executives including Mr L and Mr J and are critical of their performance as employees and is an explanation as to why some of them were no longer suitable in the council's view to be employed by the Town.
In these circumstances the Tribunal is not satisfied that a reasonable person with knowledge of the duties, powers and authority of the applicant's position of mayor would consider the applicant's action in making the statement inconsistent with the discharge of her duties arising from her office or one she did not authority to make.
The Tribunal is not satisfied that it is more likely the applicant made improper use of her office as a councillor and Mayor than she did not.
Conclusion
To find the applicant committed a minor breach of the LG Act the Tribunal needs to conclude on the evidence that was before it at hearing that it is more likely that the breach occurred than it did not occur.
In determining the applicant committed a minor breach of the LG Act the Tribunal needs to conclude that the applicant contravened, in these circumstances, reg 7(1)(b) of the Regulations.
To have contravened reg 7(1)(b) of the Regulations the Tribunal needs to find the applicant made improper use of her office and did so to cause detriment to another person namely Mr L and or Mr J.
The Tribunal is not satisfied that the applicant had made improper use of her office as a councillor or Mayor in making 10 of the 11 statements that made up the Announcement.
The Tribunal is not satisfied that it is more likely that a breach of reg 7(1)(b) of the Regulations occurred than it did not occur in respect of Statements 1 to 7 and 9 to 11 of the Announcement.
The Tribunal found the applicant made improper use of her office and did so intending to cause detriment to Mr L in respect of Statement 8 relating to his alleged deleting of some emails and wiping his mobile phone.
The Tribunal finds the applicant contravened, reg 7(1)(b) of the Regulations: cf s5.105 when at Council Meeting on 28 August 2018 the applicant stated 'Mr [L] appears to have deleted some emails from his inbox and wiped his telephone prior to leaving despite the fact the he was breaching the IT policy he introduced as Director of Corporate Services in April 2018'; (Statement 8).
The Tribunal finds it is more likely that a minor breach of the LG Act occurred than it did not occur when the applicant contravened reg 7(1)(b) of the Regulations on 28 August 2018 by making Statement 8.
The Tribunal is not satisfied that the decision of the Panel which found the whole of the Announcement a contravention of reg7(1)(b) of the Regulations was the correct and preferable decision and determines it should be set aside and the following order made:
Mayor Shannon committed one breach of regulation 7(1)(b) of the Local Government (Rules of Conduct) Regulations 2007 (WA) and a minor breach of the Local Government Act 1995 (WA) when she said at a council meeting on 28 August 2018 'Mr [L] appears to have deleted some emails from his inbox and wiped his telephone prior to leaving despite the fact the he was breaching the IT policy he introduced as Director of Corporate Services in April 2018'.
Sanction[2]
The LG Act allows for the imposition of various sanctions for minor breaches. The hierarchy of penalties range from the least serious being an order that a person undertake training as specified in the order, to the most serious, being an order the person be publicly censured.
At the hearing the parties made submissions in respect of the appropriate penalty.
The submissions made at the hearing with respect to the appropriate sanction did not address the situation where only a small part of the Announcement was found to be a breach of the LG Act. Accordingly, I have determined it is appropriate to allow a further opportunity for the parties to make submissions as to an appropriate sanction.
In the event the sanction proposed by either party is that the applicant undertake training the Tribunal it would be assisted by submissions as to the type of training that is available and/or proposed.
Orders
1.The decision of the Local Government Standards Panel made on 27 March 2019 in so far that that Mayor Shannon did commit a breach of regulation 7(1)(b) of the Local Government (Rules of Conduct) Regulations 2007 (WA) in relation to a the whole of the complaint made by Corrine MacRae is set aside and substituted with the following.
Mayor Shannon committed one breach of regulation 7(1)(b) of the Local Government (Rules of Conduct) Regulations 2007 (WA) and thereby committed a minor breach of the Local Government Act 1995 (WA) when at a council meeting on 28 August 2018 she announced that 'Mr [L] appears to have deleted some emails from his inbox and wiped his telephone prior to leaving despite the fact the he was breaching the IT policy he introduced as Director of Corporate Services in April 2018'.
2.Within 21 days of the date of this decision the parties shall file with the Tribunal and provide a copy to the other party any submissions they may wish to make regarding an appropriate sanction.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS P LE MIERE, MEMBER
13 MAY 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION: SHANNON and LOCAL GOVERNMENT STANDARDS PANEL [2020] WASAT 50 (S)
MEMBER: MS P LE MIERE, MEMBER
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 2 JULY 2020
FILE NO/S: CC 554 of 2019
BETWEEN: KERI SHANNON
Applicant
AND
LOCAL GOVERNMENT STANDARDS PANEL
Respondent
ATTORNEY GENERAL FOR WESTERN AUSTRALIA
Intervener
Catchwords:
Local government - Regulations - Minor breaches - Penalty - Public apology
Legislation:
Local Government (Rules of Conduct) Regulations 2007 (WA), reg 7(1)(b)
Local Government Act 1995 (WA), s 5.110(6), s 5.110(6)(a)
State Records Act 2000 (WA), s 78
Result:
Applicant to make a public apology to former employee
Category: B
Representation:
Counsel:
| Applicant | : | Mr GJ Douglas |
| Respondent | : | N/A |
| Intervener | : | Ms JM Vincent and Mr MW McIlwaine |
Solicitors:
| Applicant | : | Douglas Cheveralls Lawyers |
| Respondent | : | N/A |
| Intervener | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Chief Executive Officer, Department of Local Government and Communities and Scaffidi [2017] WASAT 67 (S)
Chief Executive Officer, Department of Local Government and Communities and Scaffidi [No 2] [2018] WASAT 66
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 12 September 2018 Corinne MacRae a former Councillor of the Town of Cambridge (Town) lodged a formal complaint with the Local Government Standards Panel (Panel) against Kerri Shannon the Mayor of the Town (applicant). The complaint alleged a minor breach of the Local Government (Rules of Conduct) Regulations 2007 (WA) (Regulations).
The complaint was that the applicant had made use of her office as Mayor to cast aspersions on the professional conduct of two former employees in an announcement (Announcement) at an ordinary meeting of the Council of the Town (Council) held on 28 August 2018 (Council Meeting). On 27 March 2019 the Panel found that the applicant had committed one minor breach of reg 7(1)(b) of the Regulations when she made the Announcement (Finding).
On 23 May 2019 the Panel handed down its penalty decision in respect of the Finding (Penalty Decision). The penalty was that the applicant was required to make a public apology at a meeting of the Council as set out below:
1.Mayor Keri Shannon, a Councillor for the Town of Cambridge (Town), publicly apologise to the Town's former employees who she referred to in her Mayoral Announcement during the Council Meeting on 28 August 2018.
2.At the Town's first ordinary council meeting Mayor Shannon attends after the expiration of 28 days from the date of service of this Order on her Mayor Shannon shall:
(a)ask the presiding person for his or her permission to address the meeting to make a public apology to the Town's former employees;
(b) 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;
(c)address the Council as follows, without saying any introductory words before the address, and without making any comments or statement after the address:
"I advise this meeting that:
(i) A complaint was made to the Local Government Standards Panel, in which it was alleged that I contravened regulation 7(1)(b) of the Local Government (Rules of Conduct) Regulations 2007 when I made an announcement at the council meeting on 28 August 2018 in which I referred to two former Town employees.
(ii) The Panel found that by behaving in this manner I made improper use of my office as Councillor with the intention of damaging the former employees thereby committing one breach of regulation 7(1)(b) of the Local Government (Rules of Conduct) Regulations 2007.
(iii) I accept that I should not have acted in such a manner towards the former employees and I apologise to the parties concerned for having done so."
3.If Mayor Shannon fails or is unable to comply with the requirements of paragraph 2 above she shall cause the following notice of public apology 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 Western Suburbs Weekly newspaper.
PUBLIC APOLOGY BY MAYOR KERI SHANNON
A formal complaint was made to the Local Government Standards Panel alleging that I contravened a provision of the Local Government (Rules of Conduct) Regulations 2007 when I made an announcement at the council meeting on 28 August 2018 in which I referred to two former Town employees.
The Panel found:
(1)I committed one breach of regulation of 7(1)(b) of the Rules of Conduct Regulations when I made the announcement and referred to the former employees.
(2)By behaving in this way to the former employees I failed to meet the standards of conduct expected of a councillor
I apologise to the parties concerned for acting in such a manner.
On 10 April 2019 the applicant lodged an application for review of the Finding and Penalty Decision (Decisions) with the Tribunal.
The Review application was heard by the Tribunal on 19 December 2019 and 28 February 2020 and the decision published on 13 May 2020.
The application was allowed in part. The Tribunal found that the statement in the Announcement
Mr [L] appears to have deleted some emails from his inbox and wiped his telephone prior to leaving despite the fact that he was breaching the IT policy that he introduced as Director of Corporate Services in April 2018. (Statement)
constituted a breach of the LG Act and made the following order:
The decision of the Local Government Standards Panel made on 27 March 2019 in so far that that Mayor Shannon did commit a breach of regulation 7(1)(b) of the Local Government (Rules of Conduct) Regulations 2007 (WA) in relation to a the whole of the complaint made by Corrine MacRae is set aside and substituted with the following.
Mayor Shannon committed one breach of regulation 7(1)(b) of the Local Government (Rules of Conduct) Regulations 2007 (WA) and thereby committed a minor breach of the Local Government Act 1995 (WA) when at a council meeting on 28 August 2018 she announced that 'Mr [L] appears to have deleted some emails from his inbox and wiped his telephone prior to leaving despite the fact the he was breaching the IT policy he introduced as Director of Corporate Services in April 2018'.
The Tribunal further ordered:
Within 21 days of the date of this decision the parties shall file with the Tribunal and provide a copy to the other party any submissions they may wish to make regarding an appropriate sanction.
Both the applicant and the intervener provided written submissions on penalty.
Sanctions for minor breaches generally
The Local Government Act 1995 (WA) (LG Act) allows for the imposition of various penalties for minor breaches. The hierarchy of penalties range from the least serious being an order that a person undertake training as specified in the order, to the most serious, being an order the person be publicly censured.
At the period when the Penalty Decision was imposed s 5.110(6) of the LG act stated:
(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).
Subsection 5.110(6) of the LG act was amended in July 2019. The subsection currently provides:
The breach is to be dealt with by
(a)ordering that no sanction be imposed; 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
(iv)the person against whom the complaint was made pay to the local government specified in the order an amount equal to the amount of remuneration and allowances payable by the local government in relation to the complaint under Schedule 5.1 clause 9;
or
(c)ordering 2 or more of the sanctions described in paragraph (b).
Guidance as to the factors which the Tribunal may consider when determining the appropriate penalty to impose can be found in Chief Executive Officer, Department of Local Government and Communities and Scaffidi [2017] WASAT 67 (S) at [75] and Chief Executive Officer, Department of Local Government and Communities and Scaffidi [No 2] [2018] WASAT 66 at [76]. They include but are not limited to:
a)the nature and seriousness of the breaches;
b)the councillor's motivation for the contravention;
c)whether or not the councillor has shown any insight and remorse into his/her conduct;
d)whether the councillor has breached the LG Act knowingly or carelessly;
e)the councillor's disciplinary history;
f)likelihood or not of the councillor committing further breaches of the LG Act;
g)personal circumstances at the time of conduct, and of imposing the sanction;
h)need to protect the public through general deterrence and maintain public confidence in local government; and
i)any other matters which may be regarded as aggravating conduct or mitigating its seriousness.
Applicant's submissions
No further sanction should be imposed in accordance with s 5.110(6)(a) of the LG Act for the following reasons:
•The applicant was put to the expense of seeking a review of the Finding and Penalty Decision in which she was largely successful. The cost of doing so has served as a significant financial burden.
•As the applicant conducted the proceedings on her own up until the last day of the hearing the applicant now has an intimate knowledge of this area of law.
•There was publicity in relation to the respondent's Finding and the review in the Tribunal. Accordingly the applicant has suffered damage to her reputation which exceeds any public censure that ought to reasonably apply for the breach of the rule for which she was ultimately found liable.
The Tribunal should consider the severity of the Statement that caused harm to the individual and the extent to which the damage to the individual's reputation is self-inflicted.
It is a relevant consideration for the Tribunal that the Statement the applicant made that was found to be a breach of the L G Act was that a former employee had deleted his work emails from his email account which is prima facie an offence pursuant to s 78 of the State Records Act 2000 (WA) (State Records Act).
Intervener's submissions
The nature and seriousness of the breach
The minor breach found by the Tribunal involved serious impropriety and the applicant used her position as Mayor to make insulting and derogatory remarks about a former employee.
The finding by the Tribunal that the applicant intended to cause detriment to the former employee as distinct from the applicant being recklessly indifferent increases the severity of the breach.
The former employee was named in earlier in the Announcement which was published in the Town's minutes and in the media and therefore the Tribunal should infer that the Statement has the potential to continue to cause detriment to the former employee both professionally and privately.
At the time the applicant made the Statement she knew it would be publicly disseminated, would continue to be published in the Council minutes and available on the Town's website for some time to come.
The applicant showed no remorse or regret in respect of the Statement and instead has sought to justify her actions.
There is no evidence the applicant deliberately or knowingly contravened the LG Act but is open to the Tribunal to find the applicant's breach was careless.
There is no evidence before the Tribunal as to whether the applicant is likely to commit further breaches of the LG Act.
The applicant held at the time of the breaches and continues to hold a leadership role as the Mayor of the Town and the penalty imposed by the Tribunal needs to reflect the leadership role played by the applicant.
The protective purposes of a sanction can be fulfilled by a public apology. The actual or potential damage to the former employee flowing from the applicant's breach can be somewhat undone by a public apology.
The applicant is not an inexperienced councillor having been elected as Mayor of the Town in October 2015 and assesses herself as having a better understanding of the LG Act than most.
The applicant gave evidence that she had undertaken training, including completing the course 'Serving on Council' prior to the hearing of this matter but after having made the Statement.
In these circumstances it is not clear that the applicant undertaking any further training would have any particular utility.
Determination
The Tribunal accepts the intervener's submission that the purpose of the imposition of a penalty under the LG Act is generally for the protection of the public and the maintenance of standards of conduct of council members.
Further the sanction imposed should dissuade councillors and Mayors from other local governments from engaging in similar conduct in the future, and thereby facilitate the maintenance of appropriate standards of behaviour during council meetings.
The applicant's conduct in contravening the LG Act was wrong and worthy of censure. The Tribunal does not however accept it involved serious impropriety.
The Tribunal accepts the applicant's motivation in making the Statement was to benefit the Council by informing the public as to why the former employee had not be appointed the acting Chief ExecutiveOfficer.
The Tribunal accepts the intervener's submission that the applicant has not shown insight into the inappropriateness of her actions.
The Tribunal notes the applicant's submission that prima facie, deleting work related emails by a government employee is contrary to the State Records Act. However the impropriety in making the Statement arose because the applicant did not know, as opposed to, assumed the former employee himself had deleted the emails. Noevidence was led that any inquiry was conducted as to how his emails were deleted or whether paper copies of them had been kept.
There is no evidence the applicant deliberately or knowingly breached the LG Act.
The applicant says she has suffered financial loss in bringing this review in which she was substantially successful and that no further penalty should be imposed as a consequence of the finding the applicant breached the LG Act.
The applicant also urges the Tribunal to consider the extent to which any damage the former employee suffered to his reputation was selfinflicted.
The latter submission persuades the Tribunal to accept the intervener's submission that the applicant has shown no insight in to the consequences of her conduct, any remorse for her actions and indeed as the intervener says still seeks to justify her conduct despite the Tribunal'sfindings.
The contravention of the LG Act committed by the applicant has been found to be on the lower end of the scale in respect of minor breaches. The finding nevertheless means the applicant has acted in a manner she should not have and has thereby caused reputational damage to a former employee.
The purpose of the imposition of a penalty under the LG Act is generally for the protection of the public and the maintenance of standards of conduct of council members and to reflect the community's disapproval of such conduct.
The Tribunal considers that a penalty is required to communicate to the applicant and the community at large that a breach of the LG Act such as occurred in this matter will not be tolerated.
The Tribunal did consider whether further training would be appropriate. The applicant did not suggest this is something she thought would be of assistance to her. The applicant is now an experienced councillor and has already undertaken training and as the intervener submits it is not clear that there would be any utility in her undertaking any further training.
In considering the submissions by the applicant and intervener as to what is an appropriate sanction the Tribunal has determined that whilst the minor breach is towards the lower end of the scale the negative comment was intended to cause damage and detriment to the former employee and therefore an apology is required to be made.
The Tribunal concurs with the intervener that as the nature of the breach is confined to the Statement that was a small part of Announcement the apology can reflect that in its terms.
Orders
1.Pursuant to s 5.110(6)(b)(ii) of the Local Government Act 1995 (WA) that, in relation to the minor breach of reg 7(1)(b) of the Local Government (Rules of Conduct) Regulations 2007 (WA) Mayor Shannon make an apology to the former employee at a Council meeting in the terms set out below:
At the first ordinary Council meeting occurring after the expiration of 28 days from the date of service of this order, Mayor Shannon shall:
(a)attend the relevant ordinary Council meeting;
(b)ask the presiding person (if not Mayor Shannon) to allow her to address the councillors at a time when the Council meeting is open to the public; and
(c)address the Council as follows, without saying any introductory words before the address and without making any comments or statements after the address, make an apology as follows:
'I advise this meeting that:
The State administrative Tribunal has found that I contravened the Local Government (Rules of Conduct) Regulations 2007 (WA) on 28 August 2018 when I stated during an ordinary meeting of the Council of the Town of Cambridge that a former employee had appeared to have deleted some emails and wiped his phone when his terms of employment prohibited him from doing so.
I accept the Tribunal's findings and apologise to the former employee concerned for my failure to comply with reg 7(1)(b) of the Local Government (Rules of Conduct) Regulations 2007 (WA)'.
2.If the applicant fails or is unable to comply with the requirements of order 1 above she shall cause the following notice of public apology 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 Western Suburbs Weekly newspaper:
PUBLIC APOLOGY BY MAYOR KERI SHANNON
The State Administrative Tribunal has found that I contravened the Local Government (Rules of Conduct) Regulations 2007 (WA) on 28 August 2018 when I stated during an ordinary meeting of the Council of the Town of Cambridge that a former employee had appeared to have deleted some emails and wiped his phone when his terms of employment prohibited him from doing so. I accept the Tribunal's findings and apologise to the former employee concerned for my failure to comply with reg 7(1)(b) of the Local Government (Rules of Conduct) Regulations 2007 (WA)'.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS P LE MIERE, MEMBER
2 JULY 2020
Chief Executive Officer, Department of Local Government and Communities and Scaffidi [2017] WASAT 67 (S) at [22].
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