YATES and LOCAL GOVERNMENT STANDARDS PANEL - [2012] WASAT 52

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: LOCAL GOVERNMENT ACT 1995 (WA)

CITATION: YATES and LOCAL GOVERNMENT STANDARDS PANEL [2012] WASAT 52

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 341 of 2011

BETWEEN: DONALD YATES
Applicant
AND
LOCAL GOVERNMENT STANDARDS PANEL
Respondent
ATTORNEY GENERAL OF WESTERN AUSTRALIA
Intervener

Catchwords:

Local government - Rules of conduct - Use of resources of a local government - Task that contributes to the administration of local government - Minor breach

Legislation:

Local Government Act 1995 (WA), s 2.7(1), s 5.41, s 5.41(c), 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 (Rules of Conduct) Regulations 2007 (WA), Pt 2 reg 8, reg 8(b), reg 9, reg 9(1)
State Administrative Tribunal Act 2004 (WA), s 29(3)(c)(ii), s 31(1)

Result:

Application allowed in respect of one finding of a minor breach and dismissed in respect of the other three findings of a minor breach.
No penalty imposed

Category: B

Representation:

Counsel:

Applicant:     Self-represented
Respondent:     Ms J Hook
Intervener:     Ms J Hook

Solicitors:

Applicant:     N/A
Respondent:     State Solicitor's Office
Intervener:     State Solicitor's Office

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

Yates and Local Government Standards Panel [2012] WASAT 23

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

On three separate occasions during February and March 2010, Mr Donald Yates, then a member of the council of the Town of Bassendean, included the Town's official logo, or something similar to it, in promotional materials that he had prepared for, respectively, an upcoming Town community workshop, the Town's Cyril Jackson Recreation Centre and a family day sponsored by the Town to be held at the grounds of the Ashfield Soccer & Sports Club Inc.
Another councillor complained, saying that on none of those occasions did Mr Yates have the requisite consents or authority to use the Town's resources (namely the Town's official logo) in those materials. Further, in respect of an advertisement which he placed in the local press for the community workshop, he did not have the requisite consents or authority to place that advertisement at all.
The Local Government Standards Panel found that Mr Yates had breached reg 8 and reg 9(1) of the Local Government (Rules of Conduct) Regulations 2007 (WA), namely using the resources of the Town without consent 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 Tribunal were:
a) whether the Town's official logo or something similar to it is a 'resource' of the Town; and
b) what would constitute an administrative task.
The Tribunal concluded that the Town's official logo or something similar to it was a resource of the Town and that the task of placing an advertisement for a town community workshop was an administrative one.
The Tribunal further concluded that Mr Yates did not have the requisite consents to use the Town's official logo in the community workshop advertisement or in the promotional materials for the family day at Ashfield, nor did he have the requisite consent to place the community workshop advertisement at all.
However, the Tribunal decided that Mr Yates did have consent to include the Town's official logo in the signage for the Cyril Jackson Recreation Centre.
The Tribunal therefore affirmed the Local Government Standards Panel's finding of breach in respect of the placement of the community workshop advertisement, and the inclusion of the Town's official logo in that advertisement and in the family day promotional material. However, the Tribunal set aside the Panel's finding of breach in respect of the use of the Town's official logo in the Cyril Jackson Recreation Centre signage.
The Local Government Standards Panel had ordered that Mr Yates be publicly censured. The Tribunal set this order aside on the basis that the breaches which were affirmed were serious, but not sufficiently serious so as to warrant the expense of the publication of a Notice of Public Censure. The Tribunal considered that the findings themselves were sufficient to demonstrate the seriousness of Mr Yates' misconduct.

Introduction

Following its consideration of the matter on 8 June 2011, the respondent (Standards Panel) made findings that the applicant had committed three breaches of reg 8 of the Local Government (Rules of Conduct) Regulations 2007 (WA) (Rules of Conduct Regulations) and one 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 the possibility exists in a review proceeding that 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 341 of 2011 and of DR 342 of 2011 will be delivered separately. These reasons relate to DR 341 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, following clarification from the complainant, can be summarised as follows:
1.The first allegation
The first allegation (allegation 1) made against the applicant was that on or before 16 March 2010, the applicant contravened reg 8 of the Rules of Conduct Regulations by directly or indirectly using the resources of the Town, namely the Town's official logo or a mark or a design similar to it, for the purpose of advertising a Town community workshop, when he was not authorised under the Local Government Act 1995 (WA) (LG Act) or by the Town's Council (Council) or the Town's Chief Executive Officer (Town's CEO) to do so.
2.The second allegation
The second allegation (allegation 2) made against the applicant was that on or before 16 March 2010, the applicant contravened reg 9(1) of the Rules of Conduct Regulations in that he undertook a task, namely placing the advertisement referred to in allegation 1, that contributed to the Town's administration without being authorised by the Council or by the Town's CEO to undertake that task.
3.The third allegation
The third allegation (allegation 3) made against the applicant was that in or about February 2010, the applicant contravened reg 8 of the Rules of Conduct Regulations by directly or indirectly using the resources of the Town for the purpose of promoting the Cyril Jackson Physical Education & Recreation Centre (Recreation Centre) when he was not authorised under the LG Act or by the Council or the Town's CEO to use the Town's logo or any mark or design similar to it in any proposed signage for the Recreation Centre.
4.The fourth allegation
The fourth allegation (allegation 4) made against the applicant was that in or about March 2010, the applicant contravened reg 8 of the Rules of Conduct Regulations by directly or indirectly using the resources of the Town for the purpose of advertising one of the events of the Ashfield Soccer & Sports Club Inc. when he was not authorised under the LG Act or by the Council or the Town's CEO to use the Town's logo or any mark or design similar to it for the purpose of advertising any event held by the Ashfield Soccer & Sports Club Inc.

Facts

General

On 18 December 2008 the applicant was elected as a member of the Council of the Town for a term expiring in October 2011.
At all times relevant, the Town had in place a Style Guide in relation to the use of its official logo (Town's Style Guide); (Respondent's bundle, page 138). The Town's Style Guide includes the following provisions:
(1)The Town of Bassendean, through its Marketing Group Committee have adopted the following policy regarding the use of this Style Guide and the Town of Bassendean logo:
Objective
To promote the corporate image of the Town of Bassendean and to communicate effectively with our target audience, the logo is to be used in all publications. Competent and consistent design of published materials is an important part of the Town's corporate image.
To ensure that staff comply with the Style Guide when producing material or publications for internal or external use.
Policy
•   Where authorised, the use of the logo must comply with the Style Guide.
•   Both Council and Council staff will utilise the Style guide at all times when producing material or publications for internal or external use.
•   All managers will have access to the logo.
•   All publications must be approved by the CEO prior to printing or distribution.
•   The printing checklist will be applied to all printed material prior to presentation to the CEO for approval.
…
The Town's Style Guide also relevantly provides as follows:
The Town of Bassendean logo
Use of the logo
The Town of Bassendean logo may only be used with the express permission of the Town of Bassendean. If in doubt please consult the Executive Assistant first.
The logo is not to be used by other members of the community unless authorised. It belongs only to the corporate body of the Town and council. Its identity should not be allowed to be diffused by other uses.
Where authorised, the use of the logo must comply with this Style Guide.
The Town of Bassendean logo should be featured in one of the approved forms … on any document project or sponsorship event which the Town of Bassendean issues or promotes.
…
Nonconforming applications
…
For any nonconforming applications, approval must first be sought and provided by the CEO.
…
Press advertising
Press advertising has two main applications, namely employment and display advertisements.
Budget allocation will determine size of advertisement and whether colour can be used. The publication type and section also may determine whether colour can be used check when booking.
Press advertising has a standardised design approach using a header and footer with a flexible length area in between for copy.
…
Process for display application
Display advertisements are required to be authorised by a Business Unit Manager prior to being submitted to the CEO for approval.
…
Approval process
No document should be issued in the name of the Town of Bassendean unless approved. For approval process, see 'Supervision of house style' …

The facts relating to allegation 1 and allegation 2

At the Town's Ordinary Council Meeting (OCM) held on 25 August 2009, according to the Minutes of that meeting (Respondent's bundle, page 49), the applicant moved the following motion, which was carried:
1.A community and Councillor combined workshop be arranged to identify the many issues related to the Guildford Road utility, associated roads, pedestrian crossings, lighting and related infrastructure so a priority list of immediate needs and possible practical solutions can be arrived at by consensus; and
2.The Town commences a rigorous lobbying and grants application campaign to secure both Federal and State Government support to resolve as soon as possible the first 10 priority issues as determined by the Guildford Road Improvement Program Workshop.
At an OCM of the Town held on 23 February 2010, according to the Minutes of that meeting (Respondent's bundle, page 63), the Council resolved that the Town's calendar for March 2010 would include a Guildford Road Workshop to be held at Alf Faulkner Hall on 18 March 2010 (Town's Community Workshop).
As at 16 March 2010, the Town was either the copyright owner (by assignment) or the sole licensee of the copyright owner, of the masterbrand mark or logo reproduced in the Town's style guide (Town's official logo). The Town's official logo is reproduced in the Respondent's bundle at page 101.
On or before 16 March 2010, the applicant placed an advertisement (Respondent's bundle, page 100) (Advertisement) for the Town's Community Workshop to be published in the Eastern Reporter newspaper issue of 16 March 2010. The Advertisement as published showed in the bottom right hand corner the Town's official logo, or something similar to it (it did not include, for example, the words 'Home by the Swan' and only the word 'Bassendean' appeared, rather than 'Town of Bassendean').
The Town's CEO received a letter dated 9 April 2010 (Respondent's bundle, page 136), from an entity trading under the name 'Linc', which contained the following:
BRAND MARK/BRAND IDENTITY
You may be aware that Linc designed the current brandmark for the town of Bassendean.
You might also be aware that, under Australian law, Linc owns the copyright to that brandmark. That is, whilst we licence the town of Bassendean to use the brandmark, ownership resides with the designer which in this case is Linc.
Further, we licence the town of Bassendean to use the brandmark on the basis that:
•It is not used by any party other than town of Bassendean itself with the approval of the Chief Executive
•It in no way be altered or changed without the written authority of the designer Linc
An examination of copyright law, and indeed our terms and conditions of trading as presented to the town of Bassendean at the time, will clearly demonstrate these points to you.
It is with this in mind that I raise with you our concerns in relation to the use of the town of Bassendean logo in a recent advertisement which appeared in the Eastern Suburbs Reporter some weeks ago.
It would appear to us that this advertisement:
•Was not placed by the town of Bassendean, but rather by an individual or group not authorised to use the brandmark
•The brandmark has been altered, for incorporation into the advertisement, in a manner inconsistent with the terms of our arrangement
We would therefore respectfully ask you to:
•Take whatever steps you can to prevent other individuals using our intellectual property
•Take whatever steps you can to ensure that where the brandmark is used it is correct in all respects
You should also be aware that we reserve the right to seek legal advice in relation to action we might take against the town of Bassendean, or indeed individuals using the brandmark, in relation to this matter.
…

The facts relating to allegation 3

The Recreation Centre is a facility jointly owned by the Town and the State of Western Australia through its Department of Education.
At the Town's OCM on 27 October 2009, according to the Minutes of that meeting (Respondent's bundle, page 52), Council appointed the applicant as a member of the committee known as the Cyril Jackson Physical Education & Community Recreation Centre Management Committee (Cyril Jackson Management Committee) and made the following delegation:
The [Cyril Jackson Management] Committee shall be responsible for the management, operation and policy of the [Recreation] Centre. The Committee may use its allocated funds for the following purposes:
a)Minor maintenance and repair of buildings, fences, provision and repair of equipment and other minor improvement associated with the [Recreation] Centre, as defined within the formal agreement.
b)To implement programmes and services as appropriate to the general aims of the [Recreation] Centre.
c)General administrative expenses of the Committee.
d)With the written consent of the Town of Bassendean and Education Department first obtained the erection of further amenities at the [Recreation] Centre or alterations and improvements thereto.
At all times relevant to allegation 3, the applicant was a member of the Cyril Jackson Management Committee.
The applicant attended a meeting of the Cyril Jackson Management Committee held on 11 February 2010 as a member (Respondent's bundle, page 61). Mr Ross Rayson, the Town's Manager Recreation and Culture, was one of the Town's officers who attended the meeting as administrative support for the Cyril Jackson Management Committee. Signage for the Recreation Centre was discussed and in relation to this item:
(1)It was noted that at its December 2009 meeting the Cyril Jackson Management Committee had received a report on 'signage strategies' for the Recreation Centre. It seems that the intention was to place a sign at the Recreation Centre to indicate its availability for 'functions and events'.
(2)The Cyril Jackson Management Committee discussed the proposed signage put forward by officers. It was resolved that officers liaise with a design company to make changes to the design and report back to the next meeting.
(3)It was noted that two new designs had been submitted for Committee consideration, and that these designs had been reviewed by Cyril Jackson school personnel, who indicated their preferred option.
(4)The applicant then tabled a further two alternative designs and it was agreed that the applicant's alternative designs should be provided to the school's Principal for further review and final approval of a preferred design.
(5)The Committee resolved (on a 3/2 basis) that:
1.The signage for the promotion of Recreation Centre be accepted with final approval by the Principal of the school; and
2.Officers arrange for the manufacture and installation of the sign once relevant approvals have been gained.
In the period between 11 February to 10 March 2010, only the two designs referred to above had been presented to the Cyril Jackson school personnel. Then, on or about 10 March 2010:
(a)the applicant spoke with Ms Pamela Pepper of Cyril Jackson school, who advised him:
(i)she had not seen the applicant's alternative designs; and
(ii)the Cyril Jackson school managers were not happy with any of the designs produced to them; and
(b)the applicant sent copies of his alternative designs to Ms Pepper.
On 7 April 2010, in an email (Respondent's bundle, page 129), Mr Rayson advised the applicant as follows:
As per the previous meeting of the CJ Management Committee, the two sign designs that you submitted for the signage have been submitted to Cyril Jackson Campus.
Accordingly, the school have (sic) agreed that their preferred option is for the design above. However, a couple of changes need to be made to the design before we can get it made.
1.The school have requested that the word "Cyril" is made the same colour as "Jackson", and
2.The Town of Bassendean official logo is inserted into the design instead of the logo that is currently there.
It would be appreciated if you could make the changes ASAP and then we will get the sign manufactured and attached to the building.

The applicant responded to Mr Rayson's email with his email of 7 April 2010 and its attachment (Respondent's bundle, page 130). The substantive text of his email reads:
I do not have a clear Bassendean logo used the best I have on hand. Send me a better and I can drop into the artwork. I have sized the sign as 1600 x 900 … not sure of final size wanted.
Have made the Cyril and Jackson the same colour.
I am sending the art as a 300dpi JPG and PDF as 2 email attachments. Not sure of max size permitted as attachments by the system.
Mr Rayson responded to the Applicant's email mentioned in para 16 above by an email (Respondent's bundle, page 130) that read:
Don,
Thank you. I think that may be OK. I will come back to you if I need any adjustments.

The facts relating to allegation 4

In or about early March 2010 the applicant submitted banner artwork to the Ashfield Soccer & Sports Club Inc., for display on its banners advertising one of its events, namely a 'Family Fun Day', to be held at the Ashfield Soccer & Sports Club Inc. on 28 March 2010 (Respondent's bundle, page 132). The event in question was to be financially sponsored to some extent by the Town.
The Town's CEO advised that the relevant terms of the sponsorship agreement relating to promotional strategies were as follows:
1.1Town of Bassendean Signage
•     Town of Bassendean Banner
Ashfield Soccer & Sporting Club will be responsible for displaying any nominated signage at the appropriate venues. Signage will be the responsibility of the Ashfield Soccer & Sporting Club in case of loss or damage and will be replaced.
1.2    Logo identification
The Town of Bassendean logo is to be included on but not limited to:
•     Event flyers Yes
•     Official Program Yes
•     Invitations Yes
•     Website Yes
•     Media releases Yes
The Town of Bassendean must approve all of the above prior to printing.
(Intervener's supplementary written submissions, page 6, para 16)

The banner artwork included the Town's official logo or something similar to it, together with, in very small print at the bottom right hand corner of the banner, the words 'Proudly approved by our Town of Bassendean'.

The Standards Panel's findings

Finding on allegation 1

The Standards Panel was reasonably satisfied, and found, that in early March 2010 the applicant committed a breach of reg 8 of the Rules of Conduct Regulations by directly or indirectly using the Town's resources (namely, its official logo) without the requisite authorisation when he placed an advertisement for the Town's Community Workshop to be published in the Eastern Reporter newspaper.

Finding on allegation 2

The Standards Panel was reasonably satisfied, and found, that on or before 16 March 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 the placement of an advertisement for a Town community workshop to be published in a newspaper, with the advertisement including a mark or design substantially similar to the Town's official logo, without being authorised by the Council or the Town's CEO to place that advertisement.

Finding on allegation 3

The Standards Panel was reasonably satisfied, and found, that the applicant committed a breach of reg 8 of the Rules of Conduct Regulations by directly or indirectly using the Town's resources, namely, its official logo, without the requisite authorisation when he tabled his two alternative designs at the meeting of the Management Committee on 11 February 2010, and when he sent copies of those designs to Ms Pepper on or about 10 March 2010.
However, when the applicant finished his design that became the actual design used by the Recreation Centre, namely his design after Mr Rayson asked him to make changes, while the applicant was not authorised under the LG Act or by the Council to directly or indirectly use the Town's official logo in the finished design, on the basis of Mr Rayson's position as a senior Town Employee the Standards Panel was not reasonably satisfied that Councillor Yates was not authorised by the Town's CEO or his delegate to directly or indirectly use the Town's official logo in the finished design.

Finding on allegation 4

The Standards Panel was reasonably satisfied, and found, that in or about early March 2010 the applicant committed a breach of reg 8 of the Rules of Conduct Regulations by directly or indirectly using the Town's resources, namely, its official logo, without the requisite authorisation when he submitted his banner artwork to the Ashfield Soccer & Sports Club Inc.

Statutory framework

Section 5.104(1) of the 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 8 and reg 9 which provide:
8. Misuse of local government resources
A person who is a council member must not either directly or indirectly use the resources of a local government
(a)for the purpose of persuading electors to vote in a particular way at an election, referendum or other poll held under the Act, the Electoral Act 1907 or the Commonwealth Electoral Act 1918; or
(b)for any other purpose,
unless authorised under the Act, or authorised by the council or the CEO, to use the resources for that purpose.
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:
Allegations 1 and 2 advertisement in the Eastern Reporter
Issues common to both allegations
1.Did the applicant place the Advertisement in the Eastern Reporter on 16 March 2010 for a community workshop to be held by the Town?
2.If issue 1 is answered in the affirmative, was the applicant a council member when he placed the Advertisement?
3.If issue 2 is answered in the affirmative, did the Advertisement include:
(a)the Town's official logo; or
(b)a mark or design similar to the Town's official logo
Issues confined to allegation 1
4.If issue 3 is answered in the affirmative, is:
(a)the Town's official logo; or
(b)a mark or design similar to the Town's official logo,
a resource of the Town?
5.If issue 4 is answered in the affirmative, did the inclusion of the Town's official logo or a mark or design similar to the Town's official logo constitute the direct or indirect use of the resources of the Town (Use)?
6.If issue 5 is answered in the affirmative, was the Use for any other purpose within the meaning of reg 8(b) of the Rules of Conduct Regulations?
7.If issue 6 is answered in the affirmative, was the Use for that purpose authorised under the LG Act, or by the Town's council or the Town's CEO?
8.If issue 7 is answered in the negative, how should the applicant's breach of reg 8 of the Rules of Conduct Regulations be dealt with pursuant to s 5.110(6) of the LG Act?
Issues confined to allegation 2
9.If:
(a)issues 1 and 2 are answered in the affirmative; or
(b)alternatively, issues 1, 2 and 3 are answered in the affirmative,
did the placement of the Advertisement constitute the undertaking of a task that contributes to the administration of the Town?
10.If issue 9 is answered in the affirmative, was the placement of the Advertisement authorised by the Town's council or the Town's CEO?
11.If issue 10 is answered in the negative, was the Advertisement placed by the applicant as part of the deliberations at a council or committee meeting?
12.If issue 11 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 3 promotion of the Recreation Centre
13.If issue 4 is answered in the affirmative, did the applicant include a mark or design similar to the Town's official logo in two designs he prepared for signage at the Recreation Centre and:
(a)tabled at a meeting of the Cyril Jackson Management Committee on 11 February 2010; and
(b)sent to Ms Pepper of the Cyril Jackson school on or about 10 March 2010?
14.If issue 13 is answered in the affirmative, was the applicant a council member at those times?
15.If issue 14 is answered in the affirmative, did the inclusion of a mark or design similar to the Town's official logo constitute the direct or indirect use of the resources of the Town?
16.If issue 15 is answered in the affirmative, was the use for any other purpose within the meaning of reg 8(b) of the Rules of Conduct Regulations?
17.If issue 16 is answered in the affirmative, was the use for that purpose authorised under the LG Act or by the Town's council or the Town's CEO?
18.If issue 17 is answered in the negative, how should the applicant's breach of reg 8 of the Rules of Conduct Regulations be dealt with pursuant to s 5.110(6) of the LG Act?
Allegation 4 Banner artwork for Ashfield Soccer & Sports Club Inc.
19.If issue 4 is answered in the affirmative, did the applicant include the Town's official logo or a mark or design similar to the Logo in banner artwork he submitted to the Ashfield Soccer & Sports Club Inc. in or about early March 2010 for display on its banners advertising one of its events?
20.If issue 19 is answered in the affirmative, was the applicant a council member at that time?
21.If issue 20 is answered in the affirmative, did the inclusion of a mark or design similar to the Town's official logo constitute the direct or indirect use of the resources of the Town?
22.If issue 21 is answered in the affirmative, was the use for any other purpose within the meaning of reg 8(b) of the Rules of Conduct Regulations?
23.If issue 22 is answered in the affirmative, was the use for that purpose authorised under the LG Act or by the Town's council or the Town's CEO?
24.If issue 23 is answered in the negative, how should the applicant's breach of reg 8 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 [48] above.

Allegation 1

The applicant does not dispute that he placed the Advertisement in the Eastern Reporter on 16 March 2010 and he accepts that he was a Council member when he placed the Advertisement; (T:[6], [20.12.11]).
Further, the applicant does not dispute that the Advertisement included the Town's official logo or a mark or design similar to the Town's official logo; (T:[6], [20.12.11]).
The next issue is whether the Town's official logo or a mark or design similar to the Town's official logo is a resource of the Town.
The applicant says in his response that the Town's official logo is not a resource of the Town, because:
a)a 'resource' is money or property that can be converted into money or an asset; and
b)the resource or asset in question is the copyright in the Town's official logo and that copyright is not owned by the Town.
(Respondent's bundle, page 125).
In Yates and Local Government Standards Panel [2012] WASAT 23 (Yates), his Honour Judge Parry considered the meaning of the term 'resource'. His Honour said at [31]:
The noun 'resource' is relevantly defined in The Macquarie Dictionary (5^th ed, 2009) at page 1408 as '(Often plural) Money or any property which can be converted into money; assets'. … The noun 'asset' is defined at page 91 of The Macquarie Dictionary as 'a useful thing or quality' and 'an item of property; an economic resource'.
It is unnecessary for the Tribunal to make any finding in regard to ownership of copyright in the Town's official logo. There appears to be no dispute that, irrespective of the ownership of that copyright, the Town has an exclusive right to use the logo, and in the Tribunal's view, irrespective of whether the Town owns copyright in its logo or an exclusive right to use it, the logo is a resource of the Town.
The fact that the logo which was used by the applicant may not have conformed exactly with the Town's official logo does not alter our conclusion. The versions used by the applicant of the Town's official logo are not in our view sufficiently dissimilar to sustain the view that the logo used by the applicant was not the Town's official logo.
We turn now to whether the Use was 'for any other purpose' within the meaning of reg 8 of the Rules of Conduct Regulations.
Headings are not, of course, part of the Rules of Conduct Regulations, but it is interesting that the heading to reg 8 is 'Misuse of local government resources'. There seems to be no suggestion by the Standards Panel that the applicant's use of the logo was a 'misuse' of a resource of the Town or that there was some element of personal gain on the part of the applicant, but whether or not reg 8 is confined to misuse or that the generality 'any other purpose' in subparagraph (b) of reg 8 is limited by the words of subparagraph (a), was not argued by the applicant. Accordingly, no submissions were made in that regard by the Standards Panel or the intervener. For that reason, the Tribunal does not propose to give this any further consideration and we therefore conclude that the Use was 'for any other purpose' within the meaning of reg 8 of the Rules of Conduct Regulations.
The next issue is whether the Use was authorised under the LG Act or by the Town's Council or the Town's CEO. The applicant in his submissions on allegation 1 was almost entirely focused on his assertion that the Town's official logo was not a resource of the Town. He did not therefore appear to consider this question at all and he provided no evidence to suggest that he was so authorised. It is therefore more likely than not that the applicant was not so authorised. The Tribunal therefore finds that the applicant in placing the Advertisement with the inclusion of the Town's official logo or a design similar to it was in breach of reg 8 of the Rules of Conduct Regulations and that he committed a minor breach.

Allegation 2

The Tribunal has already observed that the applicant does not dispute that he placed the Advertisement in the Eastern Reporter on 16 March 2010 and that he was a Council member when he did so. The Tribunal has also found that the Advertisement included the Town's official logo or a mark or design similar to the Town's official logo.
Accordingly, the next issue to be addressed is whether the placement of the Advertisement 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 2.71 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 submits that it is his duty as a councillor to communicate with ratepayers and he points out that as part of his 'community communications' he often takes steps to make sure that residents are aware of an event in question (Respondent's bundle, page 127). He considers that so far as the Town's Community Workshop was concerned, the 'task' in question was the setting up of that Workshop, running it, cleaning up after it, and making a report summarising the outcomes of the Workshop for a later Council meeting. He does not consider the placing of the Advertisement to be either a task or the responsibility of the Town's administration, 'but rather a service that I am paid to do, namely keeping in communication with residents in many ways' (Respondent's bundle, page 127).
The Tribunal disagrees. In our view, the decision to conduct the Town's Community Workshop is clearly one for Council members, but once that decision was made, under s 5.41(c) of the LG Act, it is entirely a matter for the CEO and his staff to give effect to that decision.
Even though the applicant's contention seems to be that he was merely encouraging residents to attend a community workshop by supplementing the Town's own advertisements for the event, he conceded at the hearing that he had not seen the Town's advertisements and had 'little faith … the task would be done by the town's … ), (T:[33], [20.12.11]). It seems therefore that the applicant more likely than not was taking it upon himself to perform that task.

The Advertisement (Respondent's bundle, page 100) opens with the words 'Tell us what you want fixed!' followed by the words 'Guildford Road Community Workshop' and has endorsed upon it the Town's official logo or a mark or design similar to the Town's official logo. The Advertisement does state 'Add your own issues … call Councillor Don Yates' but the Tribunal is satisfied that when read as a whole the Advertisement is an advertisement placed by the applicant on behalf of the Town.
Accordingly, the Tribunal finds that it is more likely than not that the placement of the Advertisement constituted the undertaking of a task that contributes to the administration of the Town. There is no evidence that the placement of the Advertisement was authorised by the Town's Council or CEO and there is nothing to suggest that the Advertisement placed by the applicant was part of the deliberations at a council or committee meeting.
For these reasons, the Tribunal finds that the applicant in placing the Advertisement was in breach of reg 9 of the Rules of Conduct Regulations and that he committed a minor breach.

Allegation 3

The Tribunal has already found that the Town's exclusive right to use its official logo or mark or design similar to that logo is a resource of the Town. Also, it is not in dispute that the applicant included the Town's official logo or a mark or design similar to it in the two designs for the signage for the Recreation Centre which he presented to the Cyril Jackson Management Committee at its meeting on 11 February 2010 and which were subsequently sent to the Cyril Jackson school personnel.
It follows that the applicant's actions were a direct or indirect use of the resources of the Town 'for any other purpose'.
Further, the applicant accepts that he was a member of Council at that time.
However, the Tribunal was subsequently informed by the intervener that, following further enquiries, it seems that the Town through the Cyril Jackson Management Committee had by the time of that meeting already decided to use the Town's official logo on the new signs. It would appear that the Standards Panel was not made aware of this. On the basis of that information, the Tribunal does not therefore consider that, merely by tabling alternative designs, also including the Town's official logo or a mark or design similar to it, at the meeting for consideration by the Cyril Jackson Management Committee, the applicant is in breach of reg 8.
The subsequent sending of the applicant's designs to the school personnel was an act of the Cyril Jackson Management Committee, not the applicant (intervener's supplementary written submissions, page 4, para 11).
The Tribunal therefore finds that allegation 3 has not been made out.

Allegation 4

It is not in dispute that the Town had agreed to provide sponsorship to the Ashfield Soccer & Sports Club Inc. to assist with a Family Fun Day in April 2010.
The applicant states in his response (Respondent's bundle, page 132) that Mr Bill Busby of the Ashfield Soccer & Sports Club Inc. asked him to prepare the banner for the event. However, even if that is the case, there is no support for the applicant's contention that he was expressly, through a message passed on to him by Mr Busby, authorised by the Town's CEO to use the Town's logo for the purpose of preparing a banner for the Ashfield Soccer & Sports Club Inc., (T:[4344], [20.12.11]).
The fact that the Town was to provide sponsorship to the Ashfield Soccer & Sports Club Inc. may have suggested to the applicant that it would be reasonable for the Town's logo to be used on an associated banner and that it was likely that the CEO would authorise use of the Town's logo on the banner he prepared at the request of the sponsored organisation (T:[44], [20.12.11]). However, the applicant did not seek authorisation and therefore none was given. The fact that it may have been a reasonable use of the resources of the Town is not to the point. Under reg 8 of the Rules of Conduct Regulations, the use of the resource needs to be authorised under the LG Act, by the Council or by the Town's CEO.
Merely because the Town liaises with a particular organisation on a variety of issues arising from that organisation's operation within the district does not mean that any individual council member is authorised to use any of the Town's resources for any purpose which may be associated with that organisation's activities, which seems to be one of the applicant's contentions (T:[43], [20.12.11]).
The applicant contended at the hearing (T:[43], [20.12.11]) that he was authorised to use the logo for the purpose of preparing draft designs for signs for the Cyril Jackson Recreation Centre, and that therefore it follows that authorisation can be inferred for use of the logo for another purpose. A contention to that effect, if accepted, would suggest that a council member is entitled by one instance of authorisation to use a resource of his or her local government to use that resource for any other purpose he or she wishes in the future. The Tribunal does not accept this.
An assumption that it would be reasonable to include the logo on this banner because the logo had been included on banners for other events sponsored by the Town does not override the need for authorisation to use the Town's logo. As we have said, under reg 8 of the Rules of Conduct Regulations, it is not whether authorisation would be reasonable in the circumstances, but whether it was actually provided.
There is nothing to suggest that at any time did the Town or the Council authorise the applicant's use of his version of the Town's official logo. The applicant refers to approval by the full Council at the reconvened meeting of 23 March 2010 in his supplementary statement dated 31 December 2011, (para 5(d)). However, that would appear to be a reference to the Mayor's response to a question from the public that he personally had no issue with the applicant placing the Advertisement relevant to allegation 1 (Respondent's bundle, page 69).
Accordingly, the Tribunal finds that the applicant in including the Town's official logo or a mark or design similar to the Town's official logo in a banner which he designed for the Ashfield Soccer & Sports Club Inc. was in breach of reg 8 of the Rules of Conduct Regulations and he committed a minor breach.

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 four minor breaches, ordered pursuant to s 5.110(6)(b)(i) that the applicant be publicly censured. Even though the Standards Panel made four 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 wrongdoing on his part, makes no submissions with regard to sanctions.
Although the Tribunal regards the findings of the Standards Panel which it has upheld as serious, the Tribunal nonetheless does not see the applicant's misconduct as being at the higher end of the scale of seriousness. As we have observed earlier in these reasons, there has been no suggestion that the applicant's actions were motivated by personal gain or advantage, but instead it seems that the applicant had greater confidence in his own abilities to progress matters than he had in those of the Town.
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. 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, allegation 2, and allegation 4 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 8 June 2011 that the applicant had committed a breach of reg 8 of the Local Government (Rules of Conduct) Regulations 2007 (WA) by directly or indirectly using the Town of Bassendean's resources (namely, its official logo) when he place an advertisement in the Eastern Reporter newspaper for a community workshop without such use being authorised under the Local Government Act 1995 (WA) or by the Council or the Town's Chief Executive Officer is affirmed.
2.The finding of the Local Government Standards Panel considered on 8 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 the placing an advertisement 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.
3.The finding of the Local Government Standards Panel considered on 8 June 2011 that the applicant committed a breach of reg 8 of the Local Government (Rules of Conduct) Regulations 2007 (WA) by directly or indirectly using the Town's resources, (namely its official logo), without the requisite authorisation when he tabled his two alternative designs of the Town's official logo at a meeting of a subcommittee of Council and when he sent copies of those designs to a third party is set aside.
4.The finding of the Local Government Standards Panel considered on 8 June 2011 that the applicant committed a breach of reg 8(1) of the Local Government (Rules of Conduct) Regulations 2007 (WA) by directly or indirectly using the Town of Bassendean's resources (namely its official logo) in a banner which he designed for an event for the Ashfield Soccer & Sports Club Inc. without being authorised to do so under the Local Government Act 1995 (WA) or by the Council or by the Town's Chief Executive Officer is affirmed.
5.The complaints in respect of the allegations described in orders 1, 2 and 4 above are dismissed pursuant to s 5.110(6)(a) of the Local Government Act 1995 (WA).
6.The decision of the Local Government Standards Panel given to the applicant on 24 August 2011 to publicly censure the applicant is dismissed.

I certify that this and the preceding [91] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE T SHARP, DEPUTY PRESIDENT

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Yates and Local Government Standards Panel [2012] WASAT 52

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YATES and LOCAL GOVERNMENT STANDARDS PANEL [2012] WASAT 23