SHIRE OF DENMARK and BARTLETT
[2018] WASAT 58
•28 JUNE 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION: SHIRE OF DENMARK and BARTLETT [2018] WASAT 58
MEMBER: MS D QUINLAN (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 25 JUNE 2018
PUBLISHED : 28 JUNE 2018
FILE NO/S: CC 2175 of 2017
BETWEEN: SHIRE OF DENMARK
Applicant
AND
YASMIN BARTLETT
Respondent
Catchwords:
Local Government - Minor breach - Facebook post - Order of Local Government standards panel - Order to provide public apology at next ordinary council meeting - Referral to Tribunal alleging non-compliance with order - Council member resigned and did not contest council election before order came into effect - Tribunal not satisfied council member failed to comply with order
Legislation:
Local Government (Rules of Conduct) Regulations 2007 (WA), reg 7(1)(b)
Local Government Act 1995 (WA), s 5.110(6), s 5.117, s 5.118(1), s 5.119, s5.119(1)
State Administrative Tribunal Act 2004 (WA), s 60(2)
Result:
Application dismissed
Representation:
Counsel:
| Applicant | : | In Person |
| Respondent | : | In Person |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
King and Local Government Standards Panel [2018] WASAT 42
Shire of Halls Creek and Taylor [2017] WASAT 161
REASONS FOR THE DECISION OF THE TRIBUNAL:
Oral reasons delivered on 25 June 2018
The Tribunal, with the consent of the parties, determined this matter entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA).
These published reasons are a formally revised and edited version of the Tribunal's reasons delivered orally on 25 June 2018.
Introduction
On 26 October 2017 the Chief Executive Officer (CEO) of the Shire of Denmark (CEO) made an application to the Tribunal pursuant to a referral under s 5.118(1) of the Local Government Act 1995 (WA) (LG Act) in relation to Yasmin Bartlett (Ms Barlett). When the CEO lodged his application in the Tribunal on 26 October 2017 Ms Bartlett was, by that time, a former council member of the Shire of Denmark.
Legislation
Section 5.118(1) of the LG Act provides that the CEO of the Shire of Denmark is to arrange the publication of any censure ordered by the local government standards panel (the Panel) under s 5.110(6) of the LG Act and, relevant to these proceedings, is to refer to the Tribunal any failure to comply with any other order made under that subsection.
The Tribunal's enforcement powers in these proceedings is derived from s 5.119 of the LG Act which provides that the Tribunal may, if satisfied that the person failed to comply with the order, make an order described in s 5.117(1)(a)(iv) or s 5.117(1)(a)(v) of the LG Act. Section 5.117 of the LG Act is the relevant penalty provision for a serious breach of the LG Act. Section 5.117(1)(a)(iv) or s 5.117(1)(a)(v) of the LG Act are the most serious penalties available for a serious breach of the LG Act, namely suspension and disqualification respectively.
Also relevant to any penalty considerations in these proceedings is s 5.117(2) of the LG Act which provides a discretion to the Tribunal to impose a suspended penalty of suspension or disqualification subject to any conditions directed by the Tribunal.
The Tribunal considered a somewhat similar factual scenario as did the Panel in these proceedings in King and Local Government Standards Panel [2018] WASAT 42. However, of course, the Tribunal in the current proceedings is not determining the appropriate penalty for a minor breach of reg 7(1)(b) of the Local Government (Rules of Conduct) Regulations 2007 (WA) (Conduct Regulations). In the current proceedings, the Tribunal is determining the alleged failure or non-compliance, of Ms Bartlett with the Panel's order to apologise.
The Tribunal considered these particular legislative provisions in a recent decision of Shire of Halls Creek and Taylor [2017] WASAT 161 (Shire of Halls Creek and Taylor). I reiterate the observation made by the Tribunal in that decision at [29] as follows:
The Tribunal also notes that these proceedings are principally related to the alleged non-compliance with the Panel’s orders, not the original minor breach as found by the Panel. There is a clear public interest in compliance with the Panel's orders as shown by the serious provisions in the LG Act as to the substantial penalty regime for such noncompliance.
Background facts
On 3 October 2017, the Panel issued a sanction decision and reasons for decision as well as an order for Ms Bartlett to issue a public apology. At that time, Ms Bartlett was a council member of the Shire of Denmark.
The Panel determined that Ms Bartlett had committed a minor breach and I quote paragraphs 1 and 2 as follows:
On 27 July 2017 the Panel found that Councillor Yasmin Bartlett (Cr Bartlett), a councillor for the Shire of Denmark (the Shire), committed one minor breach under the [LG Act] and regulation 7(1)(b) of the [Conduct Regulations] on 20 January 2017 when making statements in a Facebook post about the previous Shire Chief Executive Officer's performance in relation to business planning and managing the Shire's assets.
On 29 August 2017 the Panel published its Finding and Reasons for Finding that Cr Bartlett had breached regulation 7(1)(b). The Panel quoted a number of statements that Cr Bartlett improperly made in her Facebook post and said:
56.… Cr Bartlett did not act professionally or with respect towards a former Shire employee by making these accusations in public. It is not relevant whether her claims about the previous CEO are true.
57.Even if Cr Bartlett intended the comments for a limited audience, and the Post was only on Facebook for a matter of minutes, Cr Bartlett is not excused. Her actions would have been improper even if her post was accessible by a smaller audience, or by only the person to whom she responded. If Cr Bartlett had grievances about the previous CEO's performance she should have raised them in a confidential setting with other current Councillors and/or the current CEO.
…
62.Cr Bartlett took time to write such a long post. A prudent councillor would have read over the words and considered the implications of what she was about to post. Cr Bartlett referred to the previous CEO by name four times. It would have been easy for her to use her post to promote the current Shire's and Council's plans and projects without denigrating the previous CEO.
The Panel determined the appropriate penalty was a public apology and ordered Ms Bartlett to do as follows:
THE LOCAL GOVERNMENT STANDARDS PANEL ORDERS THAT:
1.Councillor Yasmin Bartlett, a Councillor for the Shire of Denmark (the Shire), publicly apologise to Mr Dale Stewart, the former Shire Chief Executive Officer, and her fellow Councillors as specified in paragraph 2 below.
2.At the Shire's first ordinary council meeting Cr Bartlett attends after the expiration of 28 days from the date of service of this order on her Cr Bartlett shall:
(a)ask the presiding person for his or her permission to address the meeting to make a public apology to Mr Stewart and all other Shire Councillors;
(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, 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 a provision of the Local Government (Rules of Conduct) Regulations 2007 on 20 January 2017 when I posted adverse comments on my Facebook page about Mr Dale Stewart relating to his role as the former Chief Executive Officer of the Shire of Denmark.
(ii)The Panel found that by publishing these adverse comments about Mr Stewart on Facebook I made improper use of my office as a Councillor with the intention of damaging Mr Stewart, thereby committing a breach of regulation 7(1)(b) of the Local Government (Rules of Conduct) Regulations 2007.
(iii)I accept that I should not have published the adverse comments about Mr Stewart and I apologise to Mr Stewart and all my fellow Councillors for having done so.
Within the 28 day period specified in the Panel's order (which is before the order was to come into effect), it is an agreed fact that Ms Bartlett was unable to attend the ordinary council meeting on 17 October 2017 due to her personal work commitments.
Again, within the 28 day period specified in the Panel's order, Ms Bartlett resigned from her position as a council member of the Shire of Denmark and did not contest the local government elections held on 21 October 2017.
As noted above, the referral by the CEO to the Tribunal occurred on 26 October 2017 when Ms Bartlett was no longer a council member of the Shire of Denmark.
CEO's submissions
The CEO has referred this alleged non-compliance with the Panel's order under his obligation pursuant to s 5.118 (1) of the LG Act.
Other than providing the Tribunal with the referral and the relevant background facts to these proceedings, the CEO has elected to make no further submissions in relation to the alleged non-compliance or suggested any appropriate penalty to the Tribunal. Effectively, the CEO is leaving the matter in the hands of the Tribunal.
Ms Bartlett's submissions
In her email to the Tribunal on 23 March 2018 Ms Bartlett submitted as follows:
I have already suffered many public Facebook posts and newspaper articles by Barbara Marshall stating that I did wrong and had to apologise. Both the local and Albany papers [through] the actions of John Sampson have been hounding me about why I had to apologise. I lost work mat [sic] my casual Support Workers job as a result of the negative publicity about me "breaching that Act" and all I did was tell the truth. I find it absolutely disgraceful that my name and reputation has been destroyed all because I told the truth and work diligently to make Denmark compliant.
See article "Sorry order".
I will not apologise for telling the truth and being a diligent councillor ensuring the Shire of Denmark became fully compliant. If you so wish to apply the maximum penalty of not being able to become a councillor for 5 years so be it. After seeing how the system has failed and those who tell blatant lies and fail to perform their role get Golden hand shakes whilst those who tell the truth get penalised I would be reluctant to get involved in local politics again. Having been bullied by these ex councillors, threatened and even my business targeted I became so stressed I was actually hospitalised. The vote was 44 and if they broke me they won. I was targeted as I was a single woman with no partner or family here to support me. I resigned for health reasons from the stress caused by these persons and their actions.
Consideration
The Panel's order made on 3 October 2017 required that Ms Bartlett was to apologise at the Shire's first ordinary council meeting that Ms Bartlett attends after the expiration of 28 days from the date of service of the Panel's order on Ms Bartlett.
Within that 28 day period after 3 October 2017 (and without even allowing any time for service of the Panel's order), Ms Bartlett resigned from being a council member and did not contest the local government elections held on 21 October 2017.
Under the terms of the Panel's orders, Ms Bartlett was not obliged to make the apology within the 28 day period. However, even if Ms Bartlett was so inclined (which it is abundantly clear she was not so inclined) to make the apology within that 28 day period, it is agreed that due to her personal work commitments that Ms Bartlett was unable to attend the immediately next available ordinary council meeting on 17 October 2017. That ordinary council meeting was the only available meeting prior to Mr Bartlett's resignation and her notcontesting the local government elections on 21 October 2017. However, I reiterate this ordinary council meeting occurred within the 28 day period during which Ms Bartlett was not obliged to comply with the Panel's order.
Relevant to these proceedings, pursuant to ss 5.119(1) and 5.117(1) and 5.117(2) of the LG Act, the Tribunal has a discretion whether to make an order for suspension or disqualification or to make a suspended order with conditions. An order for suspension is not open in these proceedings as Ms Bartlett is no longer a council member. Disqualification or a suspended order of disqualification subject to conditions are the only available penalties in these proceedings.
However, the discretion as to which penalty to impose can only be enlivened and exercised if the Tribunal is satisfied that Ms Bartlett failed to comply with the Panel's order for an apology.
There are two principle reasons why the Tribunal declines to make an order disqualifying Mr Bartlett from holding office as a member of the council for up to five years or make a suspended order of disqualification subject to conditions.
Firstly, the Tribunal is not satisfied that Ms Bartlett failed to comply with the Panel's order for an apology because the Tribunal finds the facts do not establish that Ms Bartlett failed to comply. Ms Bartlett has not attended an ordinary council meeting as a council member after the expiration of 28 days from 3 October 2017 (plus a reasonable time for service of the Panel's order). It seems implicit to the Panel's order for an apology that it is done when Ms Bartlett is a council member. Even if it could be argued that the Panel's order was directed to Ms Bartlett as a 'person' not a council member, as the LG Act penalty provisions do, there is no evidence before the Tribunal that Ms Bartlett has since the expiration of 28 days from 3 October 2017 (plus time for service) attended an ordinary council meeting and failed to apologise as ordered.
Therefore, since the Tribunal cannot be satisfied of noncompliance, the Tribunal finds that the exercise of a discretion to make an order for a period of disqualification or a suspended order of disqualification subject to conditions does not arise, or is not elivened, in these proceedings.
Secondly, and in the alternative, if the Tribunal is incorrect in finding on the facts of this case that it is not satisfied that Ms Bartlett has failed to comply with the Panel's order for an apology and, therefore, the discretion does not arise, in the exercise of that discretion, the Tribunal declines to make any order for a period of disqualification or a suspended order of disqualification with conditions.
In the circumstances of this case, where Ms Bartlett is no longer a council member and, should she be so inclined to run again (which she says she is not), it is the understanding of the Tribunal that Ms Bartlett could not be a council member again until the next scheduled local government elections in two years on 19 October 2019, the Tribunal declines in the exercise of its discretion to penalise Ms Bartlett for noncompliance with the Panel's order for an apology.
Finally, the Tribunal notes that the decision of the Tribunal in these proceedings should not be interpreted as an endorsement of the behaviour of Ms Bartlett. If Ms Bartlett was still a council member, the Tribunal would have considered imposing a suspended order of a period of disqualification with conditions under s 5.117(2) of the LG Act. This is because of the observation the Tribunal made in the previous decision of Shire of Halls Creek and Taylor as to the important public interest regarding compliance with the Panel's orders. In the submissions made to the Tribunal in these proceedings (as well as to the Panel), Ms Bartlett displays a clear lack of understanding and insight as to why her conduct was a minor breach of the LG Act and the Conduct Regulations. Further, Ms Bartlett’s lack of understanding as to the importance of compliance with the Panel's orders as well as a lack of remorse for her conduct as a council member who has an obligation to comply with the LG Act and the Conduct Regulations (regardless of what appears to be Ms Bartlett's truly held belief that she was speaking the truth).
Orders
In accordance with these reasons the Tribunal orders as follows:
1.The application is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS D QUINLAN, MEMBER
28 JUNE 2018