YATES and LOCAL GOVERNMENT STANDARDS PANEL
[2012] WASAT 59
•30 MARCH 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION: YATES and LOCAL GOVERNMENT STANDARDS PANEL [2012] WASAT 59
MEMBER: JUDGE T SHARP (DEPUTY PRESIDENT)
HEARD: 20 DECEMBER 2011
WRITTEN SUBMISSIONS:
31 DECEMBER 2011
20 JANUARY 2012
DELIVERED : 30 MARCH 2012
FILE NO/S: DR 342 of 2011
BETWEEN: DONALD YATES
Applicant
AND
LOCAL GOVERNMENT STANDARDS PANEL
RespondentATTORNEY GENERAL OF WESTERN AUSTRALIA
Intervener
Catchwords:
Local government - Rules of conduct - Improper use of office as council member - Causing detriment to a person - Task that contributes to the administration of local government - Minor breach
Legislation:
Companies (South Australia) Code, s 229(4)
Corporations Law (Cth), s 232(6)
Criminal Code Act Compilation Act 1913 (WA), s 83
Local Government Act 1995 (WA), s 2.7(1), s 5.23(2), s 5.41, s 5.41(c), s 5.93, s 103(1), s 5.104(1), s 5.105(1), s 5.106, s 5.110(6)(a), s 5.110(6)(b)(i), s 5.107(1), s 5.107(2), s 110(2)(a), s 5.110(6) s 5.120, s 5.125, Sch 5.1, cl 2
Local Government (Administration) Regulations 1996 (WA), reg 14(2)
Local Government (Rules of Conduct) Regulations 2007 (WA), reg 3, reg 3(1)(d), reg 3(2), reg 7, reg 7(1)(a), reg 7(1)(b),
Pt 2 reg 8, reg 8(b), reg 9, reg 9(1), reg 10(3)
State Administrative Tribunal Act 2004 (WA), s 29(3)(c)(ii), s 31(1)
Result:
Application as to minor breaches dismissed
No penalty imposed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Ms J Hook
Intervener: Mr J Hook
Solicitors:
Applicant: N/A
Respondent: State Solicitor's Office
Intervener: State Solicitor's Office
Case(s) referred to in decision(s):
Treby and Local Government Standards Panel [2010] WASAT 81
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Following a decision by the Town of Bassendean to make some repairs to the road entrance to the Bassendean Village Shopping Centre, Mr Donald Yates, then a member of the Town's Council, took it upon himself to arrange to have that work carried out by the owners of the shopping centre.
Further, in June 2010, Mr Yates gave notice of a motion which he intended to put to a future council meeting, suggesting that the Town considered ways of improving its 'purchasing policies' and he included a reference to the issue of the repairs to the shopping centre entrance and how it might be possible to lobby the shopping centre owners to undertake that work 'at no cost to the Town'.
Another councillor complained, saying that Mr Yates had no authority to liaise with the shopping centre owners about the road repairs and that he had used his position as a member of council to publicly criticise the performance of the Town's administrative staff.
The Local Government Standards Panel found that Mr Yates had breached reg 7(1)(b) and reg 9(1) of the Local Government (Rules of Conduct) Regulations 2007 (WA) namely making improper use of his office as a council member to cause detriment to the Town's administrative staff and undertaking a task that contributes to the administration of the Town without consent.
Mr Yates applied to the Tribunal for a review of that decision.
The contested issues for the Town were:
a)whether Mr Yates' conduct amounted to an improper use of his office as a council member;
b)if so, whether that conduct was to cause detriment to the Town's administrative staff; and
c)what would constitute an administrative task.
The Tribunal concluded that Mr Yates did in fact make improper use of his office to cause detriment to the Town's administrative staff and that, by liaising with the owners of the shopping centre with a view to having the repairs to the entrance carried out, he undertook a task that contributes to the administration of the Town.
The Tribunal therefore affirmed the Local Government Standards Panel's findings of minor breaches.
The Local Government Standards Panel had ordered that Mr Yates be publicly censured. The Tribunal set this order aside on the basis that the findings themselves were sufficient to demonstrate the seriousness of Mr Yates's misconduct, but the expense of publishing a Notice of Public Censure was not warranted.
Introduction
Following its consideration of the matter on 29 June 2011, the respondent (Standards Panel) made findings that the applicant had committed a breach of reg 7(1)(b) of the Local Government (Rules of Conduct) Regulations 2007 (WA) (Rules of Conduct Regulations) and a breach of reg 9(1) of the Rules of Conduct Regulations. On 24 August 2011, the Standards Panel made orders imposing sanctions on the applicant by way of punishment for those breaches.
The applicant filed an application with the Tribunal dated 30 September 2011, seeking a review of the Standards Panel's findings that he breached the Rules of Conduct Regulations.
Because in a review proceeding the Tribunal may invite the decisionmaker to reconsider the decision (s 31(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act)) and because the powers of the Tribunal on a review include the power to set aside the decision that is being reviewed and to send the matter back to the decisionmaker for reconsideration (s 29(3)(c)(ii) of the SAT Act), the Standards Panel did not play an active part in the review proceedings, other than to file a document setting out the issues and facts it considered arose in the review proceedings and to place the relevant documents before the Tribunal. However, the Tribunal was assisted by the intervention of the Attorney General of Western Australia, who acted as a contradictor in the review proceedings.
Proceedings in DR 341 of 2011 and in DR 342 of 2011
By an order made by Deputy President Judge Parry on 7 October 2011, DR 341 of 2011 was heard along with DR 342 of 2011. Both of these matters related to findings of the Standards Panel against the applicant.
For convenience, the findings of the Tribunal and the reasons for those findings in respect of DR 341of 2011 and of DR 342 of 2011 will be delivered separately. These reasons relate to DR 342 of 2011 only.
The allegations against the applicant
The designated Complaints Officer of the Town of Bassendean (Town) referred a number of complaints to the Standards Panel which can be summarised as follows:
The first allegation
The first allegation (allegation 1) made against the applicant is that between 14 November 2009 and 23 February 2010, the applicant:
(a)sent to Mr Evan Briers, the Investment Director of Hawaiian Property Group, which owns the Bassendean Village Shopping Centre (Shopping Centre), a copy of a drawing which he had received from a company named Allwest Bitumen (Allwest Bitumen) that indicated the requirements for replacing or repairing the crossover at the northern road vehicle entrance on West Road to the Shopping Centre in order to improve traffic flow and reduce footpath damage by vehicles (Works);
(b)sent to Mr Briers a copy of a quote dated 14 November 2009 which he had received from Allwest Bitumen for carrying out the works; and
(c)otherwise had meetings and discussions with Mr Briers in relation to the carrying out of the Works.
In doing so, it is alleged that the applicant contravened reg 9(1) of the Rules of Conduct Regulations in that he undertook tasks that contributed to the Town's administration without being authorised by the Town's Council (Council) or the Town's Chief Executive Officer (Town's CEO) to undertake those tasks.
The second allegation
The second allegation (allegation 2) made against the applicant is that on 25 June 2010, the applicant gave written notice to the Town's CEO of his intention to move a particular motion (Intended Motion) at the Town's Ordinary Council Meeting (OCM) to be held on 13 July 2010.
The Intended Motion was:
That the Council considers ways to improve the goods and services purchasing policies and practices of the Town of Bassendean as part of the Governance Workshop on July 20 2010, with a view to achieving better value for money when spending ratepayer, grant and cashinlieu funds.
Some background information (Background Information) was included in the applicant's notice which read as follows:
The crossover at the Bassendean Village Shopping Centre was estimated by the Town's administration as a budget item of some $70,000. A private quote to resolve the longstanding problem was less than $15,000. With lobbying, the task may be undertaken by the shopping centre owners at no cost to the Town.
Other related examples include the Wind in the Willows car park and various proposed public toilet installations, where a change in buying practices can release funds for other community projects and/or enhance project outcomes.
In giving the written notice, it is alleged that the applicant contravened reg 7(1)(b) of the Rules of Conduct Regulations in that he made improper use of his office of council member by giving to the Town's CEO written notice to move the Intended Motion at the Town's OCM to be held on 13 July 2010, with the intention that the Intended Motion and the Background Information would appear in the publicly available agenda for that meeting to cause detriment to the Town.
A third allegation was made against the applicant that on 5 November 2009, the applicant sought a quote from Allwest Bitumen for its costs of carrying out what the applicant perceived to be the scope of the Works but that allegation was dismissed by the Standards Panel and accordingly did not form part of the applicant's application.
Facts
The facts of this matter are largely agreed between the parties, except as specifically mentioned below.
On 18 December 2008, the applicant was elected as a member of the council of the Town for a term expiring on October 2011.
In 2006, before the applicant was a Council member, he wrote to the Town and also asked questions at Council meetings about addressing the issue of the northern road vehicle entrance on West Road into the Shopping Centre to remove the 'sump dragging hump' in that entrance.
At the Town's OCM held on 23 June 2009, it was resolved that the northern road vehicle entrance on West Road to the Shopping Centre would be reprofiled with hotmix or similar to improve traffic flow and to reduce footpath damage by entering vehicles. This was to be 'satisfactorily resolved' before 30 September 2009 (Respondent's Bundle, page 51).
The Works comprised modifications to the crossover and car park entrance. The actual scope of the Works, its costing and any necessary compliance matters had not been estimated or determined by the Town's administration when the resolution at the OCM on 23 June 2009 was made. In addition, there was no funding allocated in the Town's 2009/2010 budget to undertake the Works or the associated site survey. Accordingly the Works had not commenced by 30 September 2009.
On 5 November 2009, the applicant sought a quote from a private company, Allwest Bitumen, for its costs of carrying out what he perceived to be the scope of the Works. On or about 14 November 2009 he received from Allwest Bitumen a drawing (Allwest Bitumen drawing) of what Allwest Bitumen believed to be the scope of the Works, and its quote dated 14 November 2009 (Allwest Bitumen quote) for the same.
At this juncture, the parties are in disagreement about the facts. The Stndards Panel says that between 14 November 2009 and 23 February 2010, the applicant:
(a)sent copies of the Allwest Bitumen drawing and the Allwest Bitumen quote to Mr Briers; and
(b)otherwise had meetings and discussions with Mr Briers in relation to the carrying out of the Works.
(Respondent's bundle, page 5).
The applicant on the other hand, while he accepts that he sent the Allwest Bitumen drawing and the Allwest Bitumen quote to MrBriers, maintains that he merely raised the issue with Mr Briers at a chance meeting at an unrelated function (T:66, 20.12.11). He says he just 'started the process' (T:68, 20.12.11). However, in his response (Respondent's bundle, page 130), the applicant refers to an exchange of emails with Mr Briers 'in a LOBBYING capacity, using the estimates as a guide, and asking him how it could be resolved'.
At the Town's OCM held on 25 August 2009 Council resolved that:
1.When a Notice of Motion is proposed and presented, a reasonable amount of supportive background information, including but not limited to drawings and/or pictures submitted by Councillors, be included with the Notice of Motion;
2.The maximum printed size of the motion and background material be limited to an A4 page document; and
3.Such supportive background information is not to be part of the body of the motion, unless so included.
In relation to allegation 2, on 25 June 2010 the applicant gave written notice to the Town's CEO of his intention to move the Intended Motion at the Town's OCM to be held on 13 July 2010, and gave with the Intended Motion the Background Information.
The Intended Motion and the Background Information appeared in the publicly available Councillors' Bulletin issue of 9 July 2010.
The Standards Panel's findings
Finding on allegation 1
The Standards Panel found that between 14 November 2009 and 23 February 2010, the applicant committed a breach of reg 9(1) of the Rules of Conduct Regulations in that he undertook a task that contributed to the Town's administration, namely sending copies of the Allwest Bitumen drawing and the Allwest Bitumen quote through Mr Briers to the owner of the Shopping Centre and holding meetings and discussions with Mr Briers in relation to the carrying out of the Works, without being authorised by the Council or the Town's CEO to do so.
Finding on allegation 2
The Standards Panel found that 25 June 2010 the applicant committed a breach of reg 7(1)(b) of the Rules of Conduct Regulations on when he gave written notice to the Town's CEO of his intention to move the Intended Motion at the Town's OCM to be held on 13 July 2010, which included the Background Information, with the intention that the Intended Motion and the Background Information would appear in the publicly available agenda for that meeting to cause detriment to at least some of the Town's employees. The detriment was that at least some of the persons who read such agenda would think less favourably of at least some of the Town's employees.
Statutory framework
Section 5.104(1) of the Local Government Act 1995 (WA) (LG Act) permits regulations to be made prescribing rules that council members are required to observe. The Rules of Conduct Regulations are regulations made under s 5.104(1) of the LG Act. A council member commits a 'minor breach' if he or she contravenes a rule of conduct made under s 5.104(1) of the LG Act; s 5.105(1) of the LG Act.
Part 2 of the Rules of Conduct Regulations contains the rules of conduct referred to in s 5.104(1) of the LG Act. Of relevance to the present case are reg 7 and reg 9 which provide:
7. 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.
(2) Subregulation (1) does not apply to conduct that contravenes section 5.93 of the Act or The Criminal Code section 83.
9. Prohibition against involvement in administration
(1) A person who is a council member must not undertake a task that contributes to the administration of the local government unless authorised by the council or by the CEO to undertake that task.
(2) Subregulation (1) does not apply to anything that a council member does as part of the deliberations at a council or committee meeting.
A person who has reason to believe that a council member has committed a minor breach may complain of the breach by sending to the officer designated as the complaints officer by the local government concerned (under s 5.120 of the LG Act) a complaint setting out the particulars of the complaint referred to in s 5.107(2) of the LG Act; s 5.107(1) of the LG Act.
A complaint of a minor breach is dealt with by a standards panel appointed by the Minister under cl 2 of Sch 5.1 to the LG Act. In the case of a complaint which does not involve a current breach of the LG Act, a standards panel is required to make a finding as to whether the breach alleged in the complaint occurred; s 5.110(2)(a) of the LG Act.
The LG Act provides some guidance on how a determination should be made that a breach has occurred. Section 5.106 of the LG Act provides:
A finding that a breach has occurred is to be based on evidence from which it may be concluded that it is more likely that the breach occurred than that it did not occur.
If a standards panel finds that a council member has committed a minor breach, then after giving the council member an opportunity to make submissions about how that breach should be dealt with, the standards panel is to deal with the breach in accordance with s 5.110(6) of the LG Act.
The LG Act permits a party to apply to the Tribunal for a review of a decision made by a standards panel; s 5.125 of the LG Act. The applicant's application in this matter was brought pursuant to that section. In dealing with that application, the Tribunal is exercising its review jurisdiction.
Issues in the review proceedings
In its Statement of Issues and Contentions, the intervener contends that the following issues arise in the review proceedings:
Allegation 1
1.Was the applicant a council member between 14 November 2009 and 23 February 2010?
2.If issue 1 is answered in the affirmative, during that period did the applicant:
a)send copies of the Allwest Bitumen quote and the Allwest Bitumen drawing to Mr Briers, the Investment Property Director of the owner of the Shopping Centre; and
b)have meetings and discussions with Mr Briers in relation to carrying out the requirements for the northern road vehicle entrance to the Shopping Centre to be reprofiled with hotmix or similar to improve traffic flow and substantially reduce footpath damage by entering vehicles.
(Task)?
3.If issue 2 is answered in the affirmative, was the applicant in performing the Task undertaking a task that contributed to the administration of the Town?
4.If issue 4 is answered in the affirmative, was the applicant's performance of the Task authorised by the Council or the Town's CEO?
5.If issue 4 is answered in the negative, was the applicant performing the Task as part of the deliberations at a council or committee meeting?
6.If issue 5 is answered in the negative, how should the applicant's breach of reg 9(1) of the Rules of Conduct Regulations be dealt with pursuant to s 5.110(6) of the LG Act?
Allegation 2
7.Was the applicant a council member on 25 June 2010?
8.If issue 7 is answered in the affirmative, did the applicant give written notice to the Town's CEO of his intention to move the Intended Motion and include the Background Information?
9.If issue 8 is answered in the affirmative, did the applicant make improper use of his office as a Council member to cause detriment to the Town, in that the applicant gave the notice of the Intended Motion and the Background Information with the intention that both would appear in the publicly available agenda for the Town's OCM on 13 July 2010.
10.If issue 9 is answered in the affirmative, did the applicant's conduct contravene s 5.93 of the LG Act or s 83 of the Criminal Code Act Compilation Act 1913 (WA)?
11.If issue 10 is answered in the negative, how should the applicant's breach of reg 7(1)(b) of the Rules of Conduct Regulations be dealt with pursuant to s 5.110(6) of the LG Act?
The Tribunal's findings
The Tribunal agrees that the issues to be determined are those submitted by the intervener and set out at [43] above.
Allegation 1
The applicant does not dispute that he was a Council member between 14 November 2009 and 23 February 2010.
He also accepts that he sent copies of the Allwest Bitumen quote and the Allwest Bitumen drawing to Mr Briers and at least initiated discussions with Mr Briers about the possibility of the owners of the Shopping Centre carrying out the Works at a lower or at no cost to the Town.
The next issue to be addressed is whether the applicant's dealings with the owner of the Shopping Centre in connection with the Works constituted the undertaking of a task that contributes to the administration of the Town.
Neither the LG Act nor the Rules of Conduct Regulations specifically define what tasks contribute to the administration of the local government, but s 2.7(1) of the LG Act provides that the role of the Council is to 'govern the local government's affairs'. It then provides for the appointment of a Chief Executive Officer for the local government to perform certain functions.
Section 5.41 of LG Act sets out the Chief Executive Officer's functions as follows:
The CEO's functions are to
(a)advise the council in relation to the functions of a local government under this Act and other written laws;
(b)ensure that advice and information is available to the council so that informed decisions can be made;
(c)cause council decisions to be implemented;
(d)manage the day to day operations of the local government;
(e)liaise with the mayor or president on the local government’s affairs and the performance of the local government’s functions;
(f)speak on behalf of the local government if the mayor or president agrees;
(g)be responsible for the employment, management supervision, direction and dismissal of other employees (subject to section 5.37(2) in relation to senior employees);
(h)ensure that records and documents of the local government are properly kept for the purposes of this Act and any other written law; and
(i)perform any other function specified or delegated by the local government or imposed under this Act or any other written law as a function to be performed by the CEO.
The applicant in his response says (Respondent's bundle, page 130) that, having identified the 'specific issues of the car park and in particular the most northern car park entrance in West Road' he did exchange emails with Mr Briers and he said that Mr Briers confirmed on behalf of the owner of the Shopping Centre that the crossover would be repaired 'at their own cost using their own team'.
The applicant went on to say that some six months elapsed without any further contact with Mr Briers and then he received an email advising him that the work would be done within the next month.
According to the applicant, the work was carried out during the first weekend of October 2010.
The intervener does not contend that the Town or the Town's CEO were unaware of what was taking place. The owner of the Shopping Centre had submitted plans to the Town of the Works for approval and such approval was apparently given. What the intervener is contending is that the applicant involved himself in implementing a decision of Council without the consent of Council or the Town's CEO.
It is without doubt the role of the Council to consider the need for and desirability of the carrying out of the Works and to decide whether the Works should be carried out. On the other hand, the process for giving effect to that decision is clearly an administrative function of the Town's CEO.
Did the applicant's approach to the owner of the Shopping Centre, in whatever circumstances, contribute to what therefore is one of the functions of the Town's CEO?
The word 'contribute' when given its ordinary and general meaning, means 'play a part in the achievement of a result'; Shorter Oxford English Dictionary, (6th ed, 2007).
Accordingly, the question of whether the applicant's approach to the owner of the Shopping Centre played a part in the achievement of the completion of the Works must inevitably be answered in the affirmative. The applicant admits to this when he says that he 'started the process'; (T:68, 20.12.11).
There is no evidence to suggest, and the applicant does not contend, that he was authorised by Council or by the Town's CEO to undertake that task and the Tribunal has no reason to consider that the task was something that was part of the deliberations at a Council meeting.
Accordingly, the Tribunal finds that the applicant committed a breach of reg 9(1) of the Rules of Conduct Regulations in that he undertook a task that contributed to the Town's administration, namely sending copies of the Allwest Bitumen drawing and the Allwest Bitumen quote through Mr Briers to the owner of the Shopping Centre, and holding discussions with a representative of the owner of the Shopping Centre concerning the carrying out of the Works.
On its face, this finding may appear to be somewhat unfortunate in that the applicant's role, although pivotal in the resulting outcome, was a very minor one in fact. However, a breach of reg 9(1) could easily have been avoided by a brief conversation with the Town's CEO who would more likely than not have either agreed to the applicant approaching the Shopping Centre owner or undertaking that task himself.
Allegation 2
It is not in contention that the applicant, when he was a member of Council, gave written notice to the Town's CEO of his intention to move the Intended Motion at the Town's OCM to be held on 13 July 2010 and that he included in that written notice the Background Information.
Accordingly, the next issues are:
1)Was the sending of the Intended Motion and the Background Information to the Town's CEO an improper use of the applicant's office as a Council member?
2)If so, did the applicant do so to cause detriment to at least some of the Town's employees?
Improper use
The sending to the Town's CEO of the notice of the Intended Motion and the Background Information was undoubtedly a use by the applicant of his office as a council member. We now turn to whether that use was an improper one.
In Treby and Local Government Standards Panel [2010] WASAT 81 (Treby), Judge Pritchard, as she was then, examined in detail the meaning of the word 'improper' used in reg 7(1)(b) of the Regulations. Her Honour's observations and findings continue to reflect the view of the Tribunal on this issue and we respectfully summarise them, so far as they are relevant to these reasons, as follows:
1.The word 'improper' is used in reg 7(1)(b) as an adjective to describe the use of a councillor's office. The term 'improper' is not defined in the LG Act or the Rules of Conduct Regulations.
2.According to the Shorter Oxford English Dictionary (6th ed, 2007), the meaning of 'improper' includes 'unsuitable' and 'inappropriate'. Her Honour said that the meaning of the word 'improper' could not be considered in isolation, but rather should take its flavour from the surrounding context, which includes an assessment of what is involved in role of a councillor, according to the LG Act and the Rules of Conduct Regulations and other instruments made under the LG Act.
3.Her Honour went on to point out that the meaning of the word 'improper' in the context of provisions similar to reg 7(1)(b) had been considered in Chew v The Queen (1992) 173 CLR 626 (Chew), R v Byrnes (1995) 183 CLR 501 (Byrnes) and Doyle v Australian Securities and Investments Commission (2005) 227 CLR 18 (Doyle). In Chew and Byrnes the Court considered s 229(4) of the Companies (South Australia) Code while in Doyle the Court construed s 232(6) of the Corporations Law (Cth). Each provision prohibited an officer or employee of a corporation from making improper use of his or her position as such an officer or employee, to gain, directly or indirectly, an advantage for himself or for any other person or to cause detriment to the corporation. Although s 229(4) created a criminal offence, and s 232(6) is a civil penalty provision, the observations of the Court are highly relevant to the construction and application of reg 7(1)(b), given the similarity between its terms and s 229(4) and s 232(6).
4.In view of these authorities, her Honour drew the following conclusions in relation to the meaning and application of the term 'improper use of the person's office' within the context of reg 7(1)(b) of the Rules of Conduct Regulations.
(a)Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of a councillor by reasonable persons with knowledge of the duties, powers and authority of that person's position as a councillor and the circumstances of the case.
(b)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.
(c)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. Alternatively, impropriety will arise from the doing of an act which a councillor knows or ought to know that he or she has no authority to do.
(d)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 or her purpose or intention in exercising the power will be important factors in determining whether the power has been abused.
(e)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 Council.
5.The standards of conduct that would be expected of a member of a local government can be discerned from the fiduciary obligations which council members owe to their councils and from a range of statutory and non-statutory instruments, including the LG Act itself, and any code of conduct, local laws as to conduct and regulations which the LG Act contemplates may be made to regulate the conduct of members of local government. Such instruments might include the Rules of Conduct Regulations (which at reg 3 contains general principles to guide the behaviour of council members).
6.A failure to comply with any of these provisions would constitute a breach of the standards of conduct that would be expected of a person in the position of a councillor by reasonable persons with knowledge of the duties, powers and authority of that person's position as a councillor and the circumstances of the case, and that would therefore suggest an improper use of that office.
What then are the standards of conduct which are expected of a councillor?
Regulation 3(1)(d) of the Rules of Conduct Regulations provides:
General principles to guide the behaviour of council members
(1)General principles to guide the behaviour of council members include that a person in his or her capacity as a council member should
…
(d)avoid damage to the reputation of the local government; and
…
The Tribunal notes that under reg 3(2) of the Rules of Conduct Regulations, the general principles referred to in reg 3(1) are for guidance of council members but that it is not a rule of conduct that those principles be observed.
Regulation 10(3) of the Rules of Conduct Regulations provides:
Relations with local government employees
…
(3)If a person, in his or her capacity as a council member, is attending a council meeting, committee meeting or other organised event and members of the public are present, the person must not, either orally, in writing or by any other means
(a) make a statement that a local government employee is incompetent or dishonest; or
(b) use offensive or objectionable expressions in reference to a local government employee.
…
The Council has adopted a code of conduct pursuant to s 5.103(1) of the LG Act (Code of Conduct). The Code of Conduct relevantly provides:
4.7Relationships between Councillors and Committee Members and Employees
An effective councillor or Committee Member will work as part of the Council team with the Chief Executive Officer and other Council Employees. That teamwork will only occur if Councillors, Committee Members and Employees have a mutual respect and cooperate with each other to achieve the Council's corporate goals and implement the Council's strategies. To achieve that position councillors and Committee Members need to:
(a)accept that their role is a leadership, not a management or administrative one;
(b)acknowledge that they have no capacity to individually direct employees to carry out particular functions;
(c)refrain from publicly criticising employees in a way that casts aspersions on their professional competence and credibility; and
(d)where they have a perception that an employee has not carried out their duties competently and professionally, raise the matter with the Chief Executive Officer. If the employee is the CEO then the matter should be dealt with in accordance with the CEO's contract of employment by Council as a whole.
To cause detriment
If the Tribunal finds that the sending of the Intended Motion to the Town's CEO was an improper use of the applicant's office as a Council member, that in itself would not constitute a minor breach. It is then necessary to consider whether the applicant did so to cause detriment to the local government or any other person.
The Tribunal in Treby after considering the meaning of the phrase 'to cause detriment' drew the following conclusions:
1.The ordinary and natural meaning of the word 'detriment' is loss or damage done or caused to, or sustained by, any person or thing: Shorter Oxford English Dictionary (6th ed, 2007).
2.The meaning of 'loss' is the 'diminution of one's possessions or advantages; detriment or disadvantage involved in being deprived of something, or resulting from a change in conditions', while 'damage' means 'loss or detriment to one's property, reputation etc' and 'harm done to a thing or person': Shorter Oxford English Dictionary (6th ed, 2007).
3.A contravention of reg 7(1)(b) does not depend on actual detriment being suffered by a person. However, it must be established that the councillor believed that the intended result of his or her conduct would be that the other person would suffer detriment.
Once more, this continues to reflect the approach the Tribunal takes when considering the expression 'to cause detriment to' in reg 7(1) of the Rules of Conduct Regulations.
Applicant's response
The applicant's response to allegation 2, rather than disputing the alleged breach of reg 7(1)(a), seeks to justify any criticism of the Town's staff. The applicant says, for example (Respondent's bundle, page 132):
The Town of Bassendean, as represented by its upper management staff, have a very low approval rating within … the Bassendean community … this is not of my making. The key staff bring it down upon themselves.
Again, at page 133 of the Respondent's bundle, the applicant says:
The above is another illustration of the staff bringing down their own reputation and that of the whole town in the eyes of the ratepayers.
Again, at page 134 of the Respondent's bundle, the applicant says:
In another example where the key management have not endeared themselves to the community … .
He goes on to say in his response (Respondent's bundle, page 135) under the heading: 'Did Councillor Yates commit the alleged conduct?':
No. By facing up to the situation and showing the start of financial responsibility … the rebuilding phase of the Town's staff and the Town's reputation can begin. Hiding behind a vague interpretation of a rule book is no way to enhance the credibility of both staff and the Town.
The remainder of his response is difficult to understand (Respondent's bundle, pages 135136). He says that he did not commit the 'alleged conduct', he denies that his conduct was a use of his office as a Council member (he says he was 'giving a voice to the residents that I represent … and so get more from the Town's upper management staff in outlook and performance').
Under the question: 'Was that conduct an improper use of Councillor Yates' office as a Council member?', he responds in the negative, saying:
No. In objective terms, I am interacting with the ratepayers I represent and helping when and where I can, adding to the Town's reputation while acknowledging the good work of the Town's staff like the Rangers.
Finally, he says that he did not believe that the intended result of his conduct would be to cause detriment to the Town. On the contrary, he says:
Being honest and facing the issues squarely, adds to the reputation of the Town of Bassendean.
With respect to the applicant, all of this somewhat misses the point. The alleged conduct was the sending of the Intended Motion and the Background Information to the Town's CEO which he accepts that he did in fact do. He also accepts that he did so as a member of Council. He does not address the issue of whether his conduct was an improper use of his office as a Council member and, if so, whether he did so to cause detriment to any person.
The Standards Panel found that, by inference, the applicant's Intended Motion and Background Information was critical of the Town's administration contrary to reg 3(1)(d) of the Rules of Conduct Regulations and the Code of Conduct cl 4.7(c) and that therefore in using his position as a member of Council to submit the Intended Motion and Background Information he was not acting in accordance with the standards expected of him as a councillor and was therefore acting improperly. The Standards Panel said that from the statement in the Background Information that:
The crossover at the Bassendean Village Shopping Centre was estimated by the Town's administration as a budget item of some $70,000. A private quote to resolve the longstanding problem was less than $15,000.
the applicant was implying that the Town's administration lacked competence and credibility in that they had prepared estimates for a job that was more than 400% higher than the cost for which a private contractor would perform the same work.
On the available information, the Council's estimate and that of the applicant's private contractor were based on different scopes of work and the Standards Panel considered that it is more likely than not that those criticisms were false and likely to cause unwarranted offence or embarrassment.
Further, the Standards Panel found that when the applicant sent the Intended Motion and the Background Information to the Town's CEO, he did not give any indication that the Intended Motion ought to be dealt with at a meeting closed to members of the public.
The Standards Panel concluded by finding that the applicant committed a breach of reg 7(1)(b) of the Rules of Conduct Regulations when he gave written notice to the Town's CEO of his intention to move the Intended Motion including the Background Information with the intention that the Intended Motion and the Background Information would appear in the publicly available agenda for the meeting concerned to cause detriment to at least some of the Town's employees, such detriment being that at least some of the persons who read such agenda would think less favourably of at least some of the Town's employees.
The Tribunal agrees with these findings. It is clear from cl 4.7 of the Code of Conduct and from reg 10(3) of the Rules of Conduct Regulations that any concerns that the applicant had about the performance of employees should have been dealt with by raising those concerns with the Town's CEO, not by seeking to have them discussed at a public meeting.
The words of the Intended Motion themselves are not critical of anyone, but when read with the Background Information we have no hesitation in coming to the conclusion that by using his position to give notice of his intentions to move the Intended Motion and by including the Background Information the applicant was in breach of reg 10(3) of the Rules of Conduct Regulations and of the Code of Conduct, which is an improper use of his office. It is more likely than not that the applicant knew the text of the Intended Motion and Background Information would appear on the Town's website and that he submitted it to cause detriment to at least some of the Town's administrative staff.
There is nothing to suggest that the applicant's conduct contravened s 5.93 of the LG Act or s 83 of the Criminal Code Act Compilation Act 1913 (WA).
For completeness, even though the applicant did not argue the point, we should note that the decision to make the Intended Motion and the Background Information public was not the applicant's decision. The Town's CEO could have decided that the part of the meeting at which the Intended Motion was to be discussed was likely to be closed to members of the public under s 5.23(2) of the LG Act. If he did so, reg 14(2) of the Local Government (Administration) Regulations 1996 (WA) denies members of the public the right to inspect Notice papers and the agenda.
It would have been open to the applicant to argue that he had no intention that the Intended Motion and Background Information would appear on a publicly available paper and that he relied on the Town's CEO not to publish the Intended Motion and the Background Information. However, the applicant did not pursue this, and allowed the intervener to contend that it was the applicant's responsibility to draw the attention of the Town's CEO to the fact 'that it may be appropriate to close the meeting' (T:91, 20.12.11).
How should the minor breaches be dealt with?
Section 5.110(6) of the LG Act states:
…
The breach is to be dealt with by
(a)dismissing the complaint;
(b)ordering that
(i)the person against whom the complaint was made be publicly censured as specified in the order;
(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).
…
The Standards Panel in respect of its finding that the applicant committed two minor breaches, ordered pursuant to s 5.110(6)(b)(i) that the applicant be publicly censured. Even though the Standards Panel made two separate findings of a minor breach, the Standards Panel ordered that a single Notice of Public Censure be published.
The intervener submits that the Standards Panel's decision to publicly censure the applicant should be affirmed. The applicant, on the other hand, having consistently denied any wrong doing on his part, makes no submissions with regard to sanctions.
The Tribunal regards the findings of the Standards Panel which it has upheld as serious. However, the Tribunal does not see the applicant's breach of reg 9(1) of the Rules of Conduct Regulations as being at the higher end of the scale of seriousness. Instead it seems that the applicant lacked an understanding of where his role of a councillor ended and the Town's administrative functions began.
The applicant's breach of reg 7(1)(b), on the other hand, is more serious. Using his position as a Council member to publicly criticise the Town's staff is simply unacceptable.
In Yates, his Honour Judge Parry considered that it is open to the Standards Panel, and therefore the Tribunal, to dismiss a complaint pursuant to s 5.110(6)(a) of the LG Act, even though that complaint had been proved.
The applicant is no longer a member of the Town's council and the Tribunal concludes, on balance, that the Tribunal's findings themselves are a sufficient indication that conduct of this kind will not be tolerated. However, it seems to the Tribunal that there would be nothing further to be gained by publishing a Notice of Public Censure which, as the Standards Panel observes, is a significant expense to the Town and its residents (Respondent's bundle, page 41).
Accordingly, the Tribunal will order that, although the complaints in respect of allegation 1 and allegation 2 are established, those complaints are dismissed under s 5.110(6)(a) of the LG Act.
Orders
For the reasons set out above, the Tribunal makes the following orders:
1.The finding of the Local Government Standards Panel considered on 29 June 2011 that the applicant committed a breach of reg 9(1) of the Local Government (Rules of Conduct) Regulations 2007 (WA) in that he undertook a task, namely arranging for certain roadworks to be carried out by a private landowner, that contributed to the Town's administration without being authorised to do so by the Council or by the Town's Chief Executive Officer is affirmed.
2.The finding of the Local Government Standards Panel considered on 29 June 2011 that the applicant committed a breach of reg 7(1)(b) of the Local Government (Rules of Conduct) Regulations 2007 (WA) by making improper use of his office as a Council member to cause detriment to at least some of the Town's employees is affirmed.
3.The complaints in respect of the allegations described in orders 1 and 2 above are dismissed pursuant to s 5.110(6)(a) of the Local Government Act 1995 (WA).
4.The decision of the Local Government Standards Panel delivered on 24 August 2011 to publicly censure the applicant is dismissed.
I certify that this and the preceding [98] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE T SHARP, DEPUTY PRESIDENT
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