Chief Executive, Office of Local Government v Passas

Legislative framework

1. Chapter 14, Part 1, Div 3 of the Act deals with misconduct by local government councillors: - their investigation, determination, and, if misconduct is established, sanctions.
2. By s 440F(1)(b) of the Act it is provided that: (1) In this Division: "misconduct" of a councillor means any of the following: … (b) a failure by the councillor to comply with an applicable requirement of a code of conduct under section 440,…
3. An act of disorder at a council meeting is capable of being misconduct, and it may also be a breach of the relevant code of conduct: see s 440F(1)(d): (1) In this Division: "misconduct" of a councillor means any of the following: … (d) an act of disorder committed by the councillor at a meeting of the council or a committee of the council,…
4. Section 440 provides for the promulgation of a Model Code of Conduct, and the adoption of that Code, with the capacity of the particular Council to provide for additional provisions, not inconsistent with the Model Code. The former Ashfield Council adopted the Code on 12 February 2013 - see s 440(3) - so that the Code therefore is a Code as required, and breach of an applicable requirement of that Code constitutes misconduct.
5. Clauses 3.1(a), (c), (d), (e), 3.3, 6.2, 6.5, 6.6, 6.7(a), (e), (g), 8.10 and 8.13 of the Code provide: 3.1 You must not conduct yourself in carrying out your functions in a manner that is likely to bring the council or holders of civic office into disrepute. Specifically, you must not act in a way that: a) contravenes the Act, associated regulations, council's relevant administrative requirements and policies … c) is improper or unethical d) is an abuse of power or otherwise amounts to misconduct e) causes, comprises or involves intimidation, harassment or verbal abuse 3.3 You must treat others with respect at all times. 6.2 Councillors or administrators must not: a) direct council staff other than by giving appropriate direction to the general manager in the performance of council's functions by way of council or committee resolution, or by the Mayor or administrator exercising their power under section 226 of the Act (section 352) b) in any public or private forum, direct or influence or attempt to direct or influence, any other member of the staff of the council or a delegate of the council in the exercise of the functions of the member or delegate (Schedule 6A of the Act) c) contact a member of the staff of the council on council related business unless in accordance with the policy and procedures governing the interaction of councillors and council staff that have been authorised by the council and the general manager d) contact or issue instructions to any of council's contractors or tenderers, including council's legal advisers, unless by the Mayor or administrator exercising their power under section 226 of the Act. This does not apply to council's external auditors or the Chair of council's audit committee who may be provided with any information by individual councillors reasonably necessary for the external auditor or audit committee to effectively perform their functions. 6.5 You must act in accordance with council's Code of Meeting Practice, if council has adopted one, and the Local Government (General) Regulation 2005 during council and committee meetings. 6.6 You must show respect to the chair, other council officials and any members of the public present during council and committee meetings or other formal proceedings of the council. 6.7 You must not engage in any of the following inappropriate interactions: a) Councillors and administrators approaching staff and staff organisations to discuss individual or operational staff matters other than broader workforce policy issues. e) Councillors and administrators being overbearing or threatening to council staff. g) Councillors and administrators directing or pressuring council staff in the performance of their work, or recommendations they should make. 8.10 Where you are a councillor or the general manager, you must comply with any council resolution requiring you to take action as a result of a breach of this code. 8.13 You must not disclose information about the consideration of a matter under this code except for the purposes of seeking legal advice unless the disclosure is otherwise permitted under this code.
6. The Council also had in place two Codes of Meeting Practice: the 2009 Code of Meeting Practice adopted July 2009, and the 2014 Code of Meeting Practice adopted in February 2014.
7. On 22 October 2013, the Council delegated to the Mayor the power to expel a Councillor from the meeting if any such person committed an 'act of disorder' or engaged in 'disorderly conduct'. The Codes of Practice contained provisions directed at keeping order at meetings, see clauses 41-44 of the 2009 Code of Meeting Practice, and clauses 40-43 of the 2014 Code of Meeting Practice: 2009 Code of Meeting Practice 41. Questions of Order (1) The Chairperson, without the intervention of any other Councillor, may call any Councillor to order whenever, in the opinion of the Chairperson, it is necessary to do so. NOTE: The conduct of meetings is the responsibility of the Chairperson. See Clause 15. See also Clause 40 for acts of disorder by Councillors or members of the public. (2) A Councillor who claims that another Councillor has committed an act of disorder, or is out of order, may call the attention of the chairperson to the matter. (3) The chairperson must rule on a question of order immediately after it is raised but before doing so, may invite the opinion of the Council. (4) The Chairperson's ruling must be obeyed unless a motion dissenting from the ruling is passed. R255 NOTE: This clause also applies to Committees. See Clause 55. 42. Acts of Disorder (1) A Councillor commits an act of disorder if the Councillor, at a meeting of a Council or a Committee of a Council: (a) contravenes the Act or any regulation in force under the Act, or (b) assaults or threatens to assault another Councillor or person present at the meeting, or (c) moves or attempts to move a motion or an amendment that has an unlawful purpose or that deals with a matter that is outside the jurisdiction of the Council or Committee, or addresses or attempts to address the Council or Committee on such a motion, amendment or matter, or (d) insults or makes personal reflections on or imputes improper motives to any other Councillor, or (e) says or does anything that is inconsistent with maintaining order at the meeting or is likely to bring the Council or Committee into contempt. R256 (2) The chairperson may require a Councillor: (a) to apologise without reservation for an act of disorder referred to in subclause (1) (a) or (b), or (b) to withdraw a motion or an amendment referred to in subclause (1) (c) and, where appropriate, to apologise without reservation, or (c) to retract and apologise without reservation for an act of disorder referred to in subclause (1) (d) or (e). (3) A Councillor may, as provided by section 10 (2) (a) or (b) of the Act, be expelled from a meeting of a Council for having failed to comply with a requirement under subclause (2). The expulsion of a Councillor from the meeting for that reason does not prevent any other action from being taken against the Councillor for the act of disorder concerned. R256 43. How Disorder at a Meeting may be dealt with (1) If disorder occurs at a meeting of a Council, the chairperson may adjourn the meeting for a period of not more than 15 minutes and leave the chair. The Council, on reassembling, must, on a question put from the chair, decide without debate whether the business is to be proceeded with or not. This subclause applies to disorder arising from the conduct of members of the public as well as disorder arising from the conduct of Councillors. (2) A member of the public may, as provided by section 10 (2) (a) or (b) of the Act, be expelled from a meeting of a Council for engaging in or having engaged in disorderly conduct at the meeting. R257 (1)-(2) NOTE: The basic rationale for the need for "order" to be preserved is to give all persons entitled a reasonable opportunity of participating in the discussion and voting on matters before the meeting. It is the role of the chairperson to take care that the proceedings are conducted in a proper manner. Councillors are required by the Code of Meeting Practice to comply with rulings from the chair unless a motion of dissent is passed by Council. Any Councillor who has received three warnings from the Chair for disorderly behaviour shall be asked to leave the meeting for the evening. 44. Power to remove persons from meeting after expulsion If a Councillor or a member of the public fails to leave the place where a meeting of a Council is being held: (a) immediately after the Council has passed a resolution expelling the Councillor or member from the meeting, or (b) where the Council has authorised the person presiding at the meeting to exercise the power of expulsion immediately after being directed by the person presiding to leave the meeting, A police officer, or any person authorised for the purpose by the Council or person presiding, may, by using only such force as is necessary, remove the Councillor or member from that place and, if necessary, restrain the Councillor or member from reentering that place. 2014 Code of Meeting Practice 40 Questions of Order (1) The Chairperson, without the intervention of any other Councillor, may call any Councillor to order whenever, in the opinion of the Chairperson, it is necessary to do so. [R255(1)] (2) A Councillor who claims that another Councillor has committed an act of disorder, or is out of order, may call the attention of the chairperson to the matter. [R255(2)] (3) The chairperson must rule on a question of order immediately after it is raised but before doing so, may invite the opinion of the Council. [R255(3)] (4) The Chairperson's ruling must be obeyed unless a motion dissenting from the ruling is passed. [R255(4)] PRACTICE NOTE: Questions of Order 1. The conduct of meetings is the responsibility of the Chairperson. See clauses 18 and 19. See also clause 41 for acts of disorder by Councillors or members of the public. 2. The provisions in relation to Questions of Order also apply to Committees. 41 Acts of Disorder (1) A Councillor commits an act of disorder if the Councillor, at a meeting of a Council or a Committee of a Council: (a) contravenes the Act or any regulation in force under the Act, or (b) assaults or threatens to assault another Councillor or person present at the meeting, or (c) moves or attempts to move a motion or an amendment that has an unlawful purpose or that deals with a matter that is outside the jurisdiction of the Council or Committee, or addresses or attempts to address the Council or Committee on such a motion, amendment or matter, or (d) insults or makes personal reflections on or imputes improper motives to any other Councillor, or (e) says or does anything that is inconsistent with maintaining order at the meeting or is likely to bring the Council or Committee into contempt. [R256 (1)] (2) The chairperson may require a Councillor: (a) to apologise without reservation for an act of disorder referred to in subclause (1) (a) or (b), or (b) to withdraw a motion or an amendment referred to in subclause (1) (c) and, where appropriate, to apologise without reservation, or (c) to retract and apologise without reservation for an act of disorder referred to in subclause (1) (d) or (e). [R256 (2)] (3) A Councillor may, as provided by section 10 (2) (a) or (b) of the Act, be expelled from a meeting of a Council for having failed to comply with a requirement under subclause (2). The expulsion of a Councillor from the meeting for that reason does not prevent any other action from being taken against the Councillor for the act of disorder concerned. [R256 (3)] 42 How Disorder at a Meeting may be dealt with (1) If disorder occurs at a meeting of a Council, the chairperson may adjourn the meeting for a period of not more than 15 minutes and leave the chair. The Council, on reassembling, must, on a question put from the chair, decide without debate whether the business is to be proceeded with or not. This subclause applies to disorder arising from the conduct of members of the public as well as disorder arising from the conduct of Councillors. [R257(1)] (2) A member of the public may, as provided by section 10 (2) (a) or (b) of the Act, be expelled from a meeting of a Council for engaging in or having engaged in disorderly conduct at the meeting. [R257(2)] PRACTICE NOTE: Acts of Disorder 1. The basic rationale for the need for "order" to be preserved is to give all persons entitled a reasonable opportunity of participating in the discussion and voting on matters before the meeting. It is the role of the chairperson to take care that the proceedings are conducted in a proper manner. Councillors are required by the Code of Meeting Practice to comply with rulings from the chair unless a motion of dissent is passed by Council 2. The Chairperson may warn any Councillor who: 2.1 interrupts a speaker except upon a point of order; 2.2 interrupts the Chairperson except on a point of dissent; 2.3 refuses to accept a ruling from the Chairperson. 3. Any warnings given by the Chairperson are to be noted in the minutes. 4. Any Councillor who is warned by the Chairperson three times in one meeting for disorder and fails to apologise for the disorder if requested to by the Chairperson may be expelled from the meeting for the evening by resolution of Council in accordance with clauses 255 and 256 of the Regulation. Council has delegated this power of expulsion to the Mayor. 5. In accordance with Clause 270 of the Regulation, the provisions of this clause apply to meetings of committees of the Council in the same way as they apply to meetings of the Council. 43 Power to remove persons from meeting after expulsion If a Councillor or a member of the public fails to leave the place where a meeting of a Council is being held: (a) immediately after the Council has passed a resolution expelling the Councillor or member from the meeting, or (b) where the Council has authorised the person presiding at the meeting to exercise the power of expulsion - immediately after being directed by the person presiding to leave the meeting, a police officer, or any person authorised for the purpose by the Council or person presiding, may, by using only such force as is necessary, remove the Councillor or member from that place and, if necessary, restrain the Councillor or member from re-entering that place. PRACTICE NOTE: Expulsion 1. Expulsion from the meeting can be done by the Council, Committee, Chairperson (if authorised to do so by a resolution of the meeting) or by a person presiding at the meeting. However, Council must have resolved to authorise the person presiding to exercise the power of expulsion: this is in accordance with section 10(2) of the Local Government Act. Council has delegated this power of expulsion to the Mayor. 2. For the purposes of this clause, the Police may be called to remove a person who has been expelled from the meeting and who is failing to leave. 3. The Chairperson may adjourn the meeting to enable persons to be removed. 4. In accordance with clause 270 of the Regulation, the provisions of this clause apply to meetings of committees of the Council in the same way as they apply to meetings of the Council. 5. The expulsion of a Councillor shall be recorded in the minutes of the meeting. 6. A Councillor expelled from a meeting in accordance with Clause 256 (3) of the Regulation shall leave the Chamber for the duration of the meeting.
8. In essence, it is provided that the person chairing the meeting, who will be the Mayor if present, has power to expel a Councillor following three warnings given for disorder.

The hearing

1. The matter was heard on 16 and 17 May 2016. At the commencement of the hearing, the applicant filed a Further Amended Application, making it clear that: first, grounds 1(c) and (e) were not pressed, and second, the order sought was disqualification from civic office rather than suspension from civic office, as the abolition of the Council the Friday preceding the hearing meant, in the applicant's submission, that suspension would serve no purpose.
2. An application to adjourn the hearing by Ms Passas was refused. The proceedings continued. Oral evidence was heard from Mr Albaba, and then the respondent.
3. The applicant made it clear in response to correspondence from those acting for the respondent, that it was not proposing to call the then-Mayor of the Council, and therefore would not be relying on any evidence from her, save when such material was already (in effect), a business record tendered in evidence before me, such as what was played on tapes of Council meetings.
4. The respondent was then called, and gave evidence for more than a day. She had recordings of the relevant portions of the Council meetings upon which the applicant relied, played to her in the witness box, and she was then asked questions about that material. She also was present in the hearing room when the case was opened against her in detail. In this way, she was made fully aware, to the extent she was not already aware, of the case made by the applicant against her.
5. Generally, I found the respondent to be attempting to be a truthful witness, although I accept she had made some errors in her written statement. She did find it difficult to focus on answering particular questions.
6. At the end of her evidence, by consent of the parties, the respondent's evidence in reply was provided by way of further statement, and written submissions were then received.
7. I have had the benefit of relying on that material, together with the Office of Local Government Report and Annexures, which were tendered, and a series of statements by the respondent's supporters in the Council, who were not required to be made available for cross-examination.

Chronology

1. A chronology of the impugned behaviour of the respondent can be summarised as follows. 1. On each of 21 February, 14 May, and 25 June 2013, during debates in Council meetings, the Mayor issued three warnings to the respondent during debate, concerning the respondent's conduct. Following each third warning, the respondent was directed to leave but did not do so. 2. On 27 August 2013, three warnings were issued to the respondent. The respondent was directed to leave, and she did so. 3. The 2014 Code of Meeting Practice was adopted on 11 February. On each of 25 February, 27 May, 11 November, 25 November and in 2015, 10 February, 24 February, 13 April, 12 May and 26 May, the Mayor issued at least three warnings to the respondent, directed the respondent to leave the meeting, but she did not ever do so. 4. On 24 June 2014, two warnings were issued. 5. The allegations in relation to Mr Albaba concern events on 20 November 2014. 6. The call to Radio 2GB took place on 13 January 2015. 7. The refusal by the respondent to provide an apology in accordance with a Council resolution of 10 March 2015, took place on 14 April 2015.

Grounds 1-4

1. In each case concerning events in Council meetings, I had in evidence the audio recordings, which were, at my direction, played in the hearing before the respondent gave evidence, so that she had an opportunity to hear them and respond to them.
2. I have already quoted from the Meeting Codes of Conduct where there are notations that: The basic rationale for the need of 'order' to be preserved is to give all persons entitled a reasonable opportunity of participating in the discussion and voting on matters before the meeting. It is the role of the Chairperson to take that the proceedings are conducted in a proper manner. Councillors are required by the Code of Meeting Practice to comply with rulings from the Chair, unless a motion of dissent is passed by Council. Any Councillor who has received three warnings from the Chair for disorderly behaviour shall be asked to leave the meeting for the evening.
3. All members of the Council are required to adhere to the Code of Conduct and the Meeting Codes of Conduct.
4. On the other hand, it is important not to be naïve about the existence of some level of robustness of debate in political life, as recognised in cases concerning the implied freedom of political communication. Further, although I do not accept the contention by the respondent that she has been improperly singled out in these proceedings for conduct similar to that engaged in by her fellow Councillors, without sanction by the Mayor, I note and accept the statement in the applicant's supplementary written submissions that: While it is true that at some times [in the tendered tapes], other Councillors can be heard interjecting or making comments worthy of censure, those Councillors generally then followed the directions of the Chairperson, whether to cease speaking or whether to withdraw, retract and/or apologise.
5. Finally, I note both that a Mayor has some discretion as to how to deal with particular interjections, and that there is the facility in relation to any such ruling by a Mayor for a motion of dissent to be put and, if supported, passed.
6. Next, the applicant submitted, and I accept, that I am entitled to rely on the records of the Council meeting, and the presumption of regularity as to their adoption as a true record of the meeting, as evidence that the respondent engaged in acts of disorder recorded in the meeting minutes, and that she was directed to leave and did not do so.
7. I have listened to the tape recordings and these confirm that those were the warnings given and decisions to expel made by the Mayor on the specified occasions. It is not necessary in this matter for the Tribunal itself to decide whether the Mayor was justified in making those decisions.
8. Accordingly, I am bound to find, and do find, that the applicant committed acts of disorder for which the warnings which were a necessary prerequisite for a direction to leave the meeting were issued and the directions made, and as recorded, not complied with.
9. I therefore find Grounds 1-4 (as amended) to be made out. Each instance amounts to misconduct.

Ground 5 - Mr Abdel Albaba

1. The allegation here is that: On 20 November 2014, Councillor Passas approached a member of council's staff, Abdel Albaba, and during this interaction, the conduct of Councillor Passas breached clause 3.1 of the Code of Conduct, both generally and by reference to subclauses (c), (d) and (e), and also breached clauses 3.3, 6.2, 6.7(a), 6.7(e) and 6.7(g) and so engaged in misconduct within the definition of that term in s 440F of the Act. Particulars (a) At all relevant times, Mr Albaba was a stormwater engineer employed by Council. (b) On 20 November 2014 at about mid-morning, Councillor Passas approached Mr Albaba and spoke to him. During the conversation, Councillor Passas: 1. Complained about the efficiency of the project at the intersection of Orpington Street and Elizabeth Street, Ashfield; 2. Acted in a loud, aggressive and abusive manner; and 3. Insulted Mr Albaba and others working on the site including by calling them "morons". (c) Councillor Passas' conduct caused stress and discomfort to Mr Albaba.
2. The allegation here was the subject of a considerable amount of evidence and written submissions. Mr Albaba attended to give evidence. The best evidence in this regard is the oral evidence, which I heard from him and the respondent. The respondent's evidence, in substance, is that as she was driving in the vicinity, she noticed a sign on the street she was driving on, parked her car, walked back, she saw six or seven men working and said "why is there no signage? I nearly hit a car, there is going to be an accident. Why is the road blocked off?" She was told there was a broken pipe. She says she couldn't believe people were putting up with the disruption. She didn't recall any discussion about work being over budget, she was simply trying to find out how things were progressing. She did not raise her voice. She never said "you are all idiots" or "all morons", and she never tried to belittle any of the workers. She did, however discuss operational matters with a Council staff member/contractor.
3. While Mr Albaba did put in a written complaint soon after the event, he also did not recall the use of the word "morons". What he recalled is that a female who he did not know as a councillor, aggressively asked him "why was the project taking so long", "why is it over budget" and he felt belittled in front of his workmates, he was put on the spot and she yelled at him. I accept his oral evidence. This was obviously a significant matter to him and he had no reason to exaggerate.
4. I do not find particular 3 made out, but I am prepared to accept particulars (b)(1) and (2) are made out.
5. The question is whether this is a breach of any of the large number of provisions of the Code identified in the further amended application.
6. I am not sure it is necessary to find this was conduct "as a councillor" as that preface is to be found in clause 3 but not clause 6. I need not finally determine that question as I am prepared to find that this was "conduct as a councillor" because of the respondent's concessions that she became a councillor because she wanted to do something about safety issues, and appeared to accept that "a councillor is a public figure, you look out for your fellow man but not just because you are a councillor" and "it all goes in together". But for the fact she was a councillor I doubt she would have done what she did in this instance
7. The breach of the Code which is most apt is 6.7(a), namely a councillor approaching staff to discuss operational staff matters other than broad workplace policy issues. I find it to be misconduct on this basis.

Ground 6 - call to radio station 2GB

1. On 13 January 2015, the respondent called Radio 2GB, identified herself only as "Julie, a local councillor on a local council" and said: I have a Code of Conduct complaint against me at the moment because I stopped and questioned the way the contractors were addressing traffic problems in our street in our area…the area had been dug up three times when all the work could have been done at the same time…there was no signage to residents that the street was closed off and a detour sign…apparently someone went back to council and now I have a Code of Conduct compliant against me. As a resident and a councillor, I am restricted from saying 'what are you doing wasting ratepayers' money, and why haven't you alerted residents that this street is closed off.'
2. As already noted, clause 8.13 prohibits disclosure of "information about the consideration of a matter under 'the Code'". The reviewer appointed by the Council to enquire into the respondent's conduct did not consider this conduct breached the Code. She said: 7.9 For completeness, it is worth stating that the investigator considers that Councillor Passas' conduct in making the talk-back call, whilst ill-advised, falls short of constituting a breach of the confidentiality provisions of the Code. This is because she does not disclose her identity; nor does she outline specific details of the complaint against her or the local council area concerned.
3. The applicant disagreed with the reviewer, his report at p 70 stating that when considered as a whole, however, "the statements made by Clr Passas during the radio interview identify that a complaint process was underway against her and specific reference is made to the incident giving rise to the complaint against her."
4. Even if established, this conduct would appear to be a technical, even trivial breach of the Code. However, I consider that the reviewer is correct for the reasons she gave, particularly because the respondent did not outline specific details of the complaint, nor the local council area concerned, nor indeed, her identity.
5. Further, what was actually said refers to the fact of a Code of Conduct complaint, but does not refer to the 'consideration of the matter by the Council'.
6. For all these reasons, I find ground 6 not to be made out.

Ground 7

1. The minutes of the Council meeting establish that there was a resolution by Council at its meeting of 10 March 2015 requiring the respondent to give an unqualified public apology. It is equally clear from the recording of what took place at the Council meeting on 14 April 2015 that no apology was forthcoming. This was a breach of clause 8.10 of the Code, and thus was misconduct. As this Tribunal held in Phillips v Director-General, Department of Premier and Cabinet [2014] NSWCATOD 48 at [28], a strongly held personal ethical belief on the part of a councillor that he or she was acting correctly, does not absolve the councillor from compliance, nor from a finding of misconduct if there was non-compliance.
2. This allegation is made out.

Ground 8 - failure to comply with a Council resolution requiring training

1. Also on 10 March 2015, the Council resolved to require the respondent to undertake Code of Conduct training within three months. So much was recorded in the minutes, and there is correspondence from the Council to the respondent to the same effect. The letters from the Council were never responded to, and no steps have been taken to engage in Code of Conduct training, and the councillor admits as much. Therefore, the respondent has breached clause 8.10 of the Code and has engaged in this conduct as defined in s 440F(1) of the Act.
2. It is no answer to this non-compliance for the respondent to say (as she does) that she would engage in training if all councillors were required to attend.

Conclusion

1. I have therefore found, in all of the instances except one, that the respondent has engaged in misconduct. The applicant has already filed submissions concerning the punishment which should be posed. I now need to consider any submissions and evidence from the respondent, and anything in reply from the applicant before making my final decision.
2. Accordingly, I make the following directions: 1. Within 21 days, the respondent is to file and serve any submissions and evidence upon which she relies in relation to the penalty phase of this matter, together with an indication as to whether she seeks an oral hearing. 2. Within a further 14 days, the applicant is to file and serve evidence and submissions in reply (if any), together with an indication as to whether it seeks an oral hearing.
3. I will then consider those matters and decide whether there should be an oral hearing, or whether I can proceed on the basis of written material to determine what punishment to be imposed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 October 2016