Coppock v Secretary, Department of Planning and Environment

NCAT Occupational|2021-07-16

REASONS FOR DECISION

Mr Stuart Coppock, a councillor of Willoughby City Council (the Council), has appealed to the Tribunal under s 440L of the Local Government Act 1993 (the LG Act) against orders made on 28 February 2020 under s 440I of the LG Act by the Deputy Secretary, Local Government, Planning and Policy, Department of Planning, Industry and Environment (the Deputy Secretary).
The Deputy Secretary found, having considered a departmental report prepared under s 440H of the LG Act, that he was satisfied that Clr Coppock had engaged in misconduct within the meaning of s 440F of the LG Act, and that disciplinary action was warranted under s 440I of the LG Act. The Deputy Secretary stated that he had determined that Clr Coppock: 1. Be reprimanded pursuant to s 440I(2)(b) of the LG Act; 2. Pursuant to s 440I(2)(e) of the LG Act, undertake training with respect to his rights and obligations as a councillor when interacting with Council staff, within 3 months of the date of the decision; and 3. Pursuant to s 440I(2)(h) of the LG Act, have his right to be paid any fee or other remuneration to which he would otherwise be entitled as the holder of civic office suspended for a period of 2 months (without suspending him from civic office for that period) commencing on 1 April 2020 and ending on 31 May 2020.
A stay of that part of the decision that requires Clr Coppock to undergo training was granted by consent, pending determination of the appeal or until further order of the Tribunal.
In an Amended Application filed 17 August 2020 Clr Coppock seeks to have set aside the decision that he engaged in misconduct within the meaning of s 440F of the LG Act, and the disciplinary action taken under s 440I of the LG Act; and an order for costs.
There have been two decisions in this matter: Coppock v Secretary, Department of Planning and Environment [2020] NSWCATOD 89 (Coppock No 1) and Coppock v Department of Planning and Environment (No 2) [2021] NSWCATOD 18 (Coppock No 2). Those decisions include extracts from the applicable legislation, and the Council's Code of Conduct and Councillors' Access to Information and their Interaction with Staff Policy, and these reasons should be read together with those decisions.

Background

The background to the appeal is summarised in Coppock No 1: [11] Clr Coppock was first elected to Council in September 1999. An allegation was made that on 18 October 2017 he telephoned Mr Mark Fisher, a Council Development Enforcement Officer, in relation to a site inspection of premises in Naremburn, and requested Mr Fisher not to proceed with any enforcement action flowing from the inspection. In January 2018 the Council's Acting Governance Manager instructed Enterprise Risk Solutions to conduct an investigation in relation to the allegation. [12] On 18 April 2018 Dr Mark Loves, the conduct reviewer, provided a Report of an Investigation into Alleged Misconduct Involving Clr Coppock. Dr Loves had interviewed the council officer, Mr Fisher, and had a written submission and a statement from Clr Coppock in which he denied trying to influence any council officer. Dr Loves found that the allegation was substantiated, and that Clr Coppock's conduct was in breach of cll 5.8, 6.2(b) and (c) and 6.7(g) of the Council's Code of Conduct, and in breach of the Council's Access to Information and Interaction with Staff Policy. Dr Loves recommended that the findings of inappropriate conduct be made public, and that Clr Coppock be formally censured for the breach under s 440G of the LG Act. [13] Dr Loves provided a Supplementary Report dated 18 May 2018, responding to two statutory declarations including one by Clr Coppock, referred by the Council at its meeting on 14 May 2018. The Supplementary Report confirmed the conclusions reached in the Report of 18 April 2018. [14] At its meeting of 28 May 2018, the Council resolved: That Council: 1. Note the findings of the Conduct Reviewer. 2. That Council does not adopt the recommendations of the Conduct Reviewer. 3. That Council's reason for not adopting the recommendations was that Council does not accept the finding of the Conduct Reviewer due to the differing perceptions of the participants in the conversation. 4. Make public Council's resolutions as above, following the closed part of this meeting, pursuant to clause 253 of the Local Government (General) Regulation 2005. [15] By letter dated 4 June 2018 the Council, pursuant to cl 8.59 of the Procedures for the Administration of the Model Code of Conduct, notified the respondent that Council had not accepted the recommendations of the conduct reviewer, and the terms of the resolution of 28 May 2018. [16] On 4 October 2018 the DCE authorised preparation of a departmental report into Clr Coppock's conduct. A further authorisation was made on 8 February 2019. The Departmental Report under Section 440H of the Local Government Act 1993 issued in July 2019 … [17] At Part 3, headed "The Conduct Reviewer's Investigation and Report", the departmental report referred to the investigation conducted by Dr Loves and his report and supplementary report. The departmental report referred to the evidence as to the telephone call of 18 October 2017, and to the Council's policies and procedures. At para 47 the departmental report noted that the versions provided by Mr Fisher and Clr Coppock as to the content of the telephone conversation differed, and concluded that Mr Fisher's version was considered to be more probably correct, stating five reasons for that conclusion. The departmental report concluded that the evidence supported a finding that Clr Coppock telephoned Mr Fisher to discuss an enforcement matter, and that in the course of the discussion with Mr Fisher, Clr Coppock requested Mr Fisher not to issue an infringement notice to the owner. [18] The departmental report concluded that Clr Coppock had contravened cll 3.1(a), (c) and (d), 5.8 and 6.2(b) and (c) of the Council's Code of Conduct, and the failure to comply with the Councillors' Access to Information and Interaction with Staff Policy and those clauses of the Code of Conduct and s 440(5) of the Act constituted misconduct as defined in s 440F of the LG Act. The departmental report concluded that the finding of misconduct warranted disciplinary action by the Deputy Secretary.
Clr Coppock challenged the power of the Deputy Secretary to take disciplinary action, contending that the report on which that was based was not a "departmental report" envisaged by s 440H(6) of the LG Act, which provides that the preparation of a departmental report is a precondition to a decision by the Department Chief Executive (DCE) to take disciplinary action against a councillor.
In Coppock No 1, for reasons provided in that decision, I concluded that in an external appeal to the Tribunal under s 440L of the LG Act, as an appeal de novo which encompasses both the underlying finding of misconduct and the appropriate disciplinary response, it is sufficient if there is in fact a departmental report. If the underlying findings are contested, the Tribunal is required to make findings based on the evidence before it. The task of the Tribunal in an appeal under s 440L of the LG Act is to determine whether the alleged misconduct is proven and if so, what the appropriate disciplinary response is.
On 10 February 2021 in Coppock No 2 I published reasons for concluding that I was satisfied that Clr Coppock had failed to comply with cll 3.1(a), 5.8, 6.2(b), (c) and 6.7(g) of the Council's Code of Conduct, and that in doing so he failed to comply with the obligation stated in s 440(5)(a) of the LG Act that he comply with the applicable provisions of the Code of Conduct. I concluded that Clr Coppock's contravention of the LG Act, and the failure to comply with the applicable requirements of the Code of Conduct, was "misconduct" as defined in s 440F(1)(a) and (b) of the LG Act.
On 16 February 2021 directions were made for the parties to file and serve evidence, statements and submissions, and the matter was listed for hearing on the question of the appropriate disciplinary response consequent on the finding of misconduct.
The parties provided further evidence and submissions. On 26 April 2021 the parties requested that the hearing be vacated and the matter determined on the papers. On 27 April 2021, having considered the parties' submissions, and being satisfied that the remaining issues could be adequately determined on the basis of the documents provided to the Tribunal, I made an order under s 50(2) of the Civil and Administrative Tribunal Act 2013 dispensing with a hearing.

The finding of misconduct

As summarised in a statement of Agreed Facts in Coppock No 2: 1. Willoughby City Council is a 'council' for the purposes of the Local Government Act 1993 (NSW) (LG Act). 2. Stuart Coppock is a councillor, for the purposes of the LG Act, elected to Willoughby City Council. 3. Mr Coppock was first elected as a councillor in 1999 and has been an elected councillor since. 4. Mark Fisher was, as at 18 October 2017, a Development Enforcement Officer employed by the Council. 5. On 18 October 2017, Mr Fisher attended a premises located at 278 Willoughby Road Naremburn (Premises) for the purpose of conducting an inspection in relation to unauthorised building work. Mr Fisher met with Mr G Denarian who was carrying out works at the premises fitting out the premises for the purposes of conducting a café. The fit-out had not been authorised by Willoughby City Council. 6. The Premises were owned by Mark Lum. 7. Sometime prior to 2:25PM on 18 October 2017, Mr Lum contacted Mr Coppock in relation to Mr Fisher's inspection of the Premises. 8. In the afternoon of 18 October 2017, at or about 2:25PM: 8.1 Mr Coppock called the switchboard at Willoughby City Council and asked to be put through to Mr Fisher; 8.2 the operator on the switchboard put Mr Coppock through to Mr Fisher; 8.3 Mr Coppock and Mr Fisher had a telephone conversation.
At issue was whether in the course of the telephone conversation, Clr Coppock requested or directed Mr Fisher not to take enforcement action in relation to the inspection he had conducted earlier that day at the premises at Naremburn, and whether Clr Coppock had failed to comply with any of the relevant requirements of the Willoughby City Council Code of Conduct (the Code of Conduct) or the Councillors' Access to Information and their Interaction with Staff Policy (the Access Policy).
The documentary evidence before the Tribunal included an affidavit of Clr Coppock sworn 3 September 2020 (annexing a statutory declaration of 12 May 2018 and an unsigned statement of 12 February 2018), and an affidavit affirmed on 6 November 2020. The Departmental Report, which included transcript of interviews by Dr Loves, the conduct reviewer, with Mr Fisher and Mr Mark Taylor, Mr Fisher's manager, was in evidence. Clr Coppock, Mr Fisher, and Mr Taylor gave oral evidence at the hearing on 18 November 2020.
In Coppock No 2 at [84] I concluded that I was satisfied that in the telephone conversation of 18 October 2017 Clr Coppock requested Mr Fisher not to take compliance action against Mr Lum in relation to the unauthorised building works being undertaken on the premises; that that was more than a perception or misunderstanding of what Clr Coppock was seeking, but based on what he said in the telephone conversation; and that Mr Fisher reported that to his manager because he thought Clr Coppock "had overstepped a line in requesting that an infringement not be issued".
My reasons for reaching that conclusion were: [67] It is not in dispute that Clr Coppock was contacted by Mr Lum, owner of the premises inspected by Mr Fisher, and that his telephone call to Mr Fisher followed. Clr Coppock submits that his evidence that he was not aware as to what was occurring at the premises until he discussed the matter with Mr Fisher is supported by the statutory declaration of Mr Lum, who stated that he did not request Clr Coppock to influence Mr Fisher not to issue an infringement notice or take any other action, and that he had no idea what occurred at his premises. [68] That proposition is not consistent with what is recorded in Mr Lum's statutory declaration, which was that he asked Clr Coppock to find out why the works had been stopped. It is not consistent with Clr Coppock's statement of 12 February 2018, that Mr Lum had said that a Council officer had attended the shop and ordered cessation of work being carried out by the tenant; or his statement in the statutory declaration of 12 May 2018 that Mr Lum told him that his new tenant had been stopped from doing fit out works on the property; or with the statement in his affidavit of 3 September 2020 that Mr Lum said "work was stopped", and when Clr Coppock asked what were the works he was talking about, said "Fit out works for the new tenant". [69] The Tribunal does not accept Clr Coppock's evidence that he had no apprehension at the time of Mr Lum's telephone call that the works might be unauthorised, or that it was a surprise when Mr Fisher told him that the inspection related to unauthorised works, for the following reasons. First, the Tribunal accepts that a statement by an owner, who was not there at the time, that fit out works by his new tenant had been stopped by a Council officer doing an inspection would not disclose much in the way of detail of the works themselves, or the concern. However, for an experienced Councillor, familiar with contact from constituents over many years on issues with Council, a readily available possibility as to why a Council officer might direct at an inspection that building works cease must have been that works were being carried out without authorisation. That is supported by Clr Coppock's statement of 12 February 2018, that illegal work is "not an uncommon occurrence which councillors come across and are asked to advise in relation to". [70] Secondly, the first mention of the proposition that Clr Coppock was unaware of the possibility that the works were unauthorised until during his conversation with Mr Fisher, and thus became aware only at that time of the potential impropriety of the conversation, is in his affidavit of 3 September 2020. In the statement of 12 February 2018 Clr Coppock stated that Mr Fisher "confirmed what I knew from my telephone call from Lum". There is no mention in the statutory declaration of 12 May 2018 of any surprise to learn from Mr Fisher that the works were unauthorised. Both documents were provided by Clr Coppock at the time of the conduct review, in which the context of the telephone call to Mr Fisher was a central issue. [71] Clr Coppock agrees that he referred in his conversation with Mr Fisher to Mr Lum as having been in the area a long time, and as a good bloke. He denies that he asked that Mr and Mrs Lum not be penalised, or that he said he would rescind the request if there was an issue, and his position was that his purpose in phoning Mr Fisher was to arrange for him to call Mr Lum. On the critical issue of whether Clr Coppock requested that Mr and Mrs Lum not be penalised, the Tribunal prefers the evidence of Mr Fisher, for the following reasons. [72] First, is Mr Fisher's reaction to the telephone conversation. In the interview with Dr Loves Mr Fisher stated that as soon as Clr Coppock said he should not issue an infringement notice, Mr Fisher knew that was "crossing the line". His evidence that he went to speak to Mr Taylor as soon as the conversation ended is supported by Mr Taylor. Mr Taylor's statement to Dr Loves as to what he was told by Mr Fisher immediately after the telephone conversation, that Clr Coppock had said he "would appreciate it" if a penalty or fine was not issued, is consistent with Mr Fisher's record of the conversation. While Mr Taylor in oral evidence was unable to recall much detail of his conversation with Mr Fisher, he did recall his surprise that Clr Coppock had contacted Mr Fisher, and the key points of what he was told by Mr Fisher. [73] Secondly, Mr Fisher's evidence that Mr Taylor advised him to put a record of the conversation in a file note is supported by the file note of 18 October 2017. Clr Coppock submitted that the file note is not a contemporaneous document, and while dated 18 October 2017, it was compiled close to the date it was entered in the ECM, 6 November 2017. Clr Coppock submits that there is no evidence that it was produced on 18 October 2017, or that Mr Fisher gave the file note to Mr Taylor; and Mr Taylor could not remember seeing it on 18 October 2017. [74] The Tribunal does not accept that submission, and is satisfied that that document is a contemporaneous record of the conversation. Based on Mr Fisher's evidence as to his usual practice and the content of the file note itself, the Tribunal accepts Mr Fisher's evidence that he made the file note on 18 October 2017 and that the document stayed in the system until he uploaded it on 6 November. Mr Fisher's evidence that it was his practice to record an inspection in the ECM, but not upload a note he had made in the ECM, as soon as possible as there may be several documents such as photographs to upload is supported by the fact that the file note of 18 October 2017 was not worked on after it was uploaded, and it includes photographs. If that conclusion is not correct, and if the record of the conversation with Clr Coppock was not written on 18 October 2017, at the latest the file note was created by 9am on 6 November 2017. [75] A third reason why Mr Fisher's account should be accepted is that no reason has been asserted as to why he would invent a request from Clr Coppock that Mr Lum not be subject to regulatory action in relation to unauthorised building works. Clr Coppock's oral evidence was that there was no reason for any personal animus towards Mr Fisher, and he described him in his statutory declaration of 12 May 2018 as "friendly and helpful as I have always found him to be". He acknowledged in the statement of 12 February 2018 that Mr Fisher and his colleagues were proficient in their jobs as compliance officers and he had never questioned the outcome of their work. Mr Fisher stated in his interview that he did not mind speaking to Clr Coppock as like a resident and explaining the situation. There is nothing about that mutual attitude to support any reason or motive for invention. [76] Fourthly, the Tribunal does not regard inconsistencies in the transcript of Mr Fisher's interview as detracting from the overall reliability of his evidence. Clr Coppock relied on references to Mr and Mrs Lum being the owner. Mr Fisher's oral evidence was that in responding to a CSR he would find out who the owner was either before or after the requested inspection, and he could not recall when he found out who owned the premises. The printout of the CSR confirms that ownership detail was not included. While Mr Fisher spoke only to the tenant on 18 October 2017, both Mr and Mrs Lum were present when he returned to the premises on 19 October 2017 (Annexure B, ex A2); and both were involved in the follow up action, as recorded in the CSR Notes Summary on 28 November 2017. The Tribunal does not regard any inconsistency as to whether or not it was Mr Lum alone who was the owner, or it was Mr and Mrs Lum jointly, as significant. [77] Clr Coppock also pointed to discrepancies in the words used by Mr Fisher in the interview, being "request" (the word also used in the file note of 18 October 2017) and later in terms of a direction, when Mr Fisher said that Clr Coppock told him he "shouldn't" issue an infringement notice (A104), and "not to issue" an infringement. Clr Coppock submits that the difference in wording between "request" and "direction" is significant, and counts against the reliability of Mr Fisher's evidence. [78] Mr Fisher did not use the term "direction" or "direct" in the transcript of the interview or in oral evidence. The strongest term used by Mr Fisher in the interview was "shouldn't", and in his oral evidence "don't". The Tribunal regards Mr Fisher's statement at A103 that Clr Coppock "… asked whether, that they not be penalised because they're good people…" as Clr Coppock's approach being understood as a request and not a direction. That was how Mr Fisher responded to Dr Loves' follow up question, whether Clr Coppock "requested you not to issue a penalty infringement to the owner because he was a good bloke", with "something like that" (para [44] above). It is also how Mr Taylor described his recollection of the conversation he had with Mr Fisher, that in essence, Clr Coppock "would appreciate it if a penalty notice or fine wouldn't be issued" (A119, para [55] above). [79] The Tribunal agrees that Dr Loves' interview with Mr Fisher included a number of leading questions, diminishing the weight that might be afforded to some of the responses. However, the central record of what Clr Coppock said in the conversation, in the passage beginning "He said it's Clr Coppock…" in [44] above, was in response to Dr Loves' prompt to use exact words as far as he could recall. Mr Fisher's further comment that he thought Clr Coppock "was trying to make sure that they didn't get any penalties" (A105, [45] above) was also in response to an open question, as to what gave him the impression that Clr Coppock was trying to influence him. [80] Fifthly, Mr Fisher's concession in oral evidence that Clr Coppock could have said "Do what you have to do", or that he was not trying to "tell you what to do", is not inconsistent with Clr Coppock requesting or suggesting that Mr Fisher not take regulatory action because Mr Lum was a good bloke. Even if those words were said, the latter on Clr Coppock's evidence at the conclusion of the telephone conversation, they could not redress what would otherwise be a request relating to how Mr Fisher should carry out his enforcement duties. [81] Sixthly, the Tribunal does not regard the fact that Clr Coppock contacted Mr Fisher through the Council switchboard, submitted to be an indication that he did not attempt to conceal the call; or that there is no apparent motive for his request; or a suggestion that Mr Fisher speak to his manager, as casting doubt on Mr Fisher's account. The call through the Council switch is consistent with Clr Coppock's statement of 12 February 2018 that he prefers to call through the Council switchboard so if the officer is not present he can leave a message on the message bank facility. While Clr Coppock submits that there was no pre-existing relationship of any significance between himself and Mr Lum, and thus no motive for a request, Mr Lum's evidence was that he had known Clr Coppock for over 15 years and had seen him regularly before he closed his restaurant. The possibility that Clr Coppock suggested that Mr Fisher talk to his manager appears in Mr Fisher's interview with Dr Loves, in terms of there being no objection to that course, and after Mr Fisher had stated that he was not the person to whom Clr Coppock should be talking, but rather his manager. It is not mentioned in Clr Coppock's statement of 12 February 2018 or his statutory declaration of 12 May 2018. Its inclusion in the affidavit of 3 September 2020 is in the absence of any context, context only being provided in Mr Fisher's evidence that it was a response to his statement that he was not the person to whom Clr Coppock should speak. The Tribunal does not accept that Clr Coppock independently suggested that Mr Fisher speak to his manager. [82] While there are some differences in the wording, the Tribunal is satisfied that the file note of 18 October 2017, and the record of the interview some three months later, reflect what Clr Coppock said to Mr Fisher during the telephone conversation. In contrast with those records on the day and relatively shortly thereafter, which are supported by the evidence of Mr Taylor, Clr Coppock's early accounts in the statement of 12 February 2018 and 12 May 2018 provide minimal detail to explain how the telephone call took 9 minutes if the purpose, and substance, was a request for Mr Fisher to call Mr Lum. [83] Clr Coppock's statutory declaration of 12 May 2018 includes the statement that the call from Mr Lum was no different from the countless calls he had received from constituents who had issues with the Council since 1999, and it is a major function of being a councillor. Based on his oral evidence, it was not unusual for Clr Coppock at least at that time to contact Council staff. In the Tribunal's view the purpose and the substance of Clr Coppock's telephone call was captured in Mr Fisher's comment to Dr Loves that he thought Clr Coppock was acting in his role as a councillor for the people who owned the building, and that he was trying to make sure that they did not get any penalties.
Relevant provisions of the Council's Code of Conduct and the Access Policy were extracted in the Statement of Agreed Facts (see [8], Coppock No 2), and at [86]-[89] of Coppock No 2.
At [97]-[102] of Coppock No 2 I explained my reasons for finding that the conduct as found was in breach of the Access Policy, and accordingly in breach of cll 3.1(a) and 6.2(c) of the Code of Conduct, and was in breach of cll 5.8, 6.2(b) and 6.7(g) of the Code of Conduct: [97] The Access Policy requires that other than for basic information not pertaining to matters before Council, a Councillor is to direct requests for information and approaches to staff to the General Manager, Directors, or persons nominated by the General Manager. An approach to a junior member of staff for information on sensitive or controversial matters is identified as an inappropriate interaction. Mr Fisher, while an experienced compliance officer, was not General Manager or a Director, and was not a nominated contact person identified in an email to councillors from the Acting Governance Manager of 30 June 2017, which included a summary of the requirements relating to councillors seeking information from Council staff other than routine conversations or basic administrative queries. That email also provided a copy of Part 6 of the Code of Conduct and the Access Policy. A further email of 5 July 2017 provided names and contact extension numbers of the persons nominated as a contact. [98] In his statement of 12 February 2018 Clr Coppock referred to that email, and stated that in 2017 he did not receive or read Council emails, and Council emails were not being communicated to him by any other method. The issue of Clr Coppock's receipt of Council emails was not explored in oral evidence or submissions. Regardless of whether or not Clr Coppock was aware, or should have been aware, in October 2017 as to who were the nominated persons for the purposes of the Access Policy, he accepted in oral evidence that he was familiar with the general terms of the Access Policy, and stated that he would normally call the General Manager or a Director. That would be consistent with the Access Policy. [99] The telephone call to Mr Fisher did not involve "basic information not pertaining to matters before Council", and the matter was not "straightforward advice on administrative matters". It related to a current investigation into alleged unauthorised building works. The question of possible enforcement action that might be taken in response was a sensitive matter. While he was an experienced compliance officer, Mr Fisher was not a senior member of staff. He was the compliance officer who had carried out an inspection of premises owned by Mr Lum, the person on whose behalf Clr Coppock stated he was calling. The telephone call was an inappropriate interaction, and in breach of the Access Policy. [100] In suggesting or requesting that Mr Fisher not take penalty or infringement action, Clr Coppock was taking advantage of his position as Councillor to influence a member of staff in the performance of his public duties. While that was not for the purpose of securing any personal benefit, it was for the benefit of Mr Lum. That was a breach of the Access Policy. [101] The contact with Mr Fisher otherwise than in accordance with the Access Policy was a breach of cl 6.2(c) of the Code of Conduct, and being in contravention of the Council's relevant administrative requirements and policies as to contact with staff under the Access Policy, was in breach of cl 3.1(a) of the Code of Conduct. [102] The request went beyond any representative function of a Councillor, as Clr Coppock recognised in his affidavit of 3 September 2020 in which he stated his understanding that directions, express or implied, to do with anything concerning compliance or enforcement measures had to be avoided. To make such a request was a misuse of Clr Coppock's position, in breach of cl 5.8 of the Code of Conduct. It was an attempt to influence a member of staff, in breach of cl 6.2(b) of the Code of Conduct. Having regard to the terms in which Mr Fisher described the request, the Tribunal does not conclude that Clr Coppock's conduct can appropriately be described as "directing" a member of staff in the performance of his work. However it could, even if Mr Fisher did not feel intimidated by it, be regarded as "pressuring", and as such it constituted a breach of cl 6.7(g) of the Code of Conduct.

Disciplinary action

Clr Coppock's failure to comply with cll 3.1(a), 5.8, 6.2(b), (c) and 6.7(g) of the Council's Code of Conduct, and his failure to comply with the obligation in s 440(5)(a) of the LG Act that he comply with the applicable provisions of the Council's adopted code of conduct, was misconduct as defined in s 440F(1)(a) and (b) of the LG Act.
Having found that Clr Coppock engaged in misconduct, the task of the Tribunal is to consider what is the appropriate disciplinary response, in the exercise of the power conferred by s 440L(4) of the LG Act: (4) On hearing the appeal, the Tribunal may - (a) confirm the decision, or (b) amend the decision, or (c) set aside the decision and substitute a new decision.
The disciplinary action taken by the Deputy Secretary was to impose a reprimand pursuant to s 440I(2)(b) of the LG Act; order pursuant to s 440I(2)(e) that Clr Coppock undertake training; and pursuant to s 440I(2)(h) of the LG Act, suspend Clr Coppock's right to receive fees or remuneration for the period 1 April 2020 to 31 May 2020. The second action was stayed, and the balance of disciplinary actions was not. The suspension of pay has been carried out.
Clr Coppock submits that the appropriate disciplinary sanction is for the Tribunal to confirm the reprimand and suspension of Clr Coppock's right to be paid any fee or other remuneration, but otherwise amend the Deputy Secretary's actions to remove the order for training.
The Deputy Secretary submits that the decision should be confirmed, to leave in place the actions taken in the decision of the Deputy Secretary.

Clr Coppock's evidence and submissions

Clr Coppock provided two affidavits. The first, sworn 19 March 2021, provides a summary of his professional career, including as a solicitor admitted in 1982, in sole practice since 1991 and as an employed solicitor with a number of organisations including the Australian Taxation Office (ATO) from 1985 to 2014; as non-executive Director at a number of companies and institutions; and in university and TAFE teaching. In that affidavit Clr Coppock states: … 7. I am aware of the policies and regulations that I am subject to in my role as a Councillor of the Willoughby City Council, including the Code of Conduct for Councillors. I have read the Code of Conduct and I understand how important it is to the proper administration of the Council and to the duties and obligations of Councillors. 8. I will adhere to and comply with the requirements of the Code of Conduct and other policies and regulations that relate to me in my role as a Councillor of Willoughby City Council. 9. I am remorseful that I am before the Tribunal in the current matter. I have read the decision of the Tribunal and understand how my conduct that was the subject of consideration by the Tribunal has was resulted in the determination being made. …
In his second affidavit, sworn 21 April 2021, Clr Coppock states: … 2. Since the complaint forming these proceedings was made, I have not been able to perform all of my functions as a Councillor. My duties have been limited to putting written questions on notice on behalf of my constituents and attending only intermittent Council meetings. 3. I have decided that I will not be contesting the next election for my role as a Councillor. The election is to occur in September 2021 and I will not be nominating for the forthcoming election.
Clr Coppock has provided affidavits from four character referees: 1. Kenneth Bately Ramsay, solicitor, sworn 16 March 2021; 2. Maree Patricia McCaskill, Chief Executive Officer, sworn 18 March 2021; 3. Kenneth John Aird, retired public servant, sworn 19 March 2021; and 4. Nicholas Charles Harvey Wright, Councillor, sworn 22 March 2021.
All state that they have known Clr Coppock for many years, that they are aware of the Tribunal findings, and all express shock as to the findings.
Mr Ramsay, Ms McCaskill and Mr Aird state that the findings are out of character for Clr Coppock. Mr Ramsay states that Clr Coppock has expressed his remorse that he is now in this situation. He states that the findings against Clr Coppock are not consistent with the person he knows, and he does not believe that Clr Coppock would intentionally seek to influence another person if that could put him or another in a compromising position. Ms McCaskill states that Clr Coppock strongly upholds a requirement for truth, honesty and facts no matter how uncomfortable it may make a situation for him or others, and has always lived by ethical principles. Mr Aird states that he does not believe that Clr Coppock would intentionally breach his obligations as a councillor, and that Clr Coppock has expressed his remorse for being in the situation that led to the Tribunal making its decision.
Mr Nicholls states that he is a councillor, representing the same ward as Clr Coppock, and that in the 8 years he has known Clr Coppock he has known him to be a person of the highest integrity. Clr Coppock has always sought to deliver the best result he can for his constituents and he tenaciously represented the Naremburn Ward. Mr Nicholls states that he does not believe that Clr Coppock would ever intentionally act in a way that was contrary to the Council's Code of Conduct, and to do so would be out of character for Clr Coppock both personally and in his professional capacity. Mr Nicholls states that while Clr Coppock is a tenacious councillor he acts within the confines of Council regulations and the law. Mr Nicholls states that Clr Coppock has expressed remorse to him about being in a situation where allegations of improper influence of a Council staff member have been made against him, and he believes that Clr Coppock would be unlikely to act in a manner in the future that would give rise to similar allegations being made.
Clr Coppock submits that the misconduct fell below the middle of the end of the spectrum of seriousness for misconduct of the kind encapsulated by s 440I of the LG Act. Relevant to the objective seriousness of the misconduct found to have been engaged in are the following: 1. Clr Coppock made no attempt to conceal the telephone call, and the attempt to influence Mr Fisher was neither sophisticated nor well-planned, and it was inevitable that the request would be reported to Mr Fisher's Compliance Manager and that disciplinary action would be taken; 2. Clr Coppock made a request of Mr Fisher, and did not give a direction; 3. Clr Coppock underscored that he was making a request by telling Mr Fisher that he was not telling him what to do and that he would rescind the request if there was an issue with it; 4. Clr Coppock was not motivated to obtain any pecuniary or other benefit for himself in making the request; 5. The request was never followed up or otherwise acted on by Clr Coppock, and was a one-off, impulsive and unthinking act; 6. Clr Coppock's conduct had no tangible impact, and did not influence or interfere with Mr Fisher's investigation or exercise of powers in relation to the unauthorised building works at the property; 7. While Clr Coppock should not have contacted Mr Fisher in breach of the Access Policy, it was his unchallenged evidence that his practice before October 2017 was to contact officers directly. It is accepted that Clr Coppock should have known the terms of the Access Policy and had not been sufficiently diligent in apprising himself of its terms by October 2017.
Clr Coppock submits that the relevant subjective circumstances are that: 1. Clr Coppock has been a councillor since 1999 and apart from this matter has not been the subject of any adverse finding of misconduct for the purposes of s 440F of the LG Act; and the single instance of misconduct is, therefore, an uncharacteristic aberration; 2. Clr Coppock accepts the Tribunal's findings and is remorseful for his conduct as expressed in his affidavit, as is apparent in the affidavits filed by other councillors and community members; 3. Clr Coppock's conduct was out of character in the context of his career as a councillor; 4. Clr Coppock has insight into the misconduct engaged in, and understands the importance of the Code of Conduct and the need to adhere to it and deposes that he will do so in future, and there is no need for or utility in any order for re-training; 5. The proceedings have been a salutary experience for Clr Coppock; 6. Over three years have elapsed since the misconduct, without any repeat of the uncharacteristic misconduct; and 7. The Tribunal can be comfortably satisfied that the misconduct was aberrant and will not be repeated, and so there is no need for specific deterrence.
Clr Coppock submits that in the circumstances that the misconduct was an isolated incident and fell below the middle of the range of objective seriousness, Clr Coppock's positive subjective case including his remorse and insight, and his completion of the two month suspension, there is no need for any further sanction to be imposed. The Tribunal should amend the decision by removing the imposition of a training requirement and otherwise confirm the reprimand and suspension.
In reply submissions, filed after his second affidavit of 21 April 2021, Clr Coppock submits that there was no evidence that Clr Coppock phoned Mr Fisher with the intention of making the request, which appears to have occurred part way into the conversation and to have been uttered spontaneously. While Clr Coppock's approach and request were plainly inappropriate, the request was not made in circumstances where Clr Coppock sought to overbear Mr Fisher's decision-making or apply significant pressure to him. Clr Coppock's affidavit evidence is that he understands Council's policies and is committed to complying with them, and so the need for training is directed to his present understanding of Council policies, not the lack of understanding which existed in 2017. In addition to Clr Coppock's insight and understanding of the importance of the Code of Conduct and the need to adhere to it, a further reason for not imposing the training condition is that Clr Coppock has determined that he will cease being a councillor in a matter of months.

Respondent's submissions

The Deputy Secretary submits that the following matters are relevant to the Tribunal's decision under s 440L(4) of the LG Act: 1. A code of conduct adopted pursuant to s 440 of the LG Act is of great significance: it advises those who deal with a council as to the standards of conduct they can expect of holders of civic office whether elected, appointed or employed, and the provisions dealing with the improper use of a councillor's position go to the heart of the proper separation between the political and administrative arms of local government, so that any breach of those provisions must be regarded as a serious failure to comply with the obligation contained in s 440F(1)(b) of the LG Act; 2. While the telephone conversation with Mr Fisher may have been foolhardy, it was planned and intentional, as the Tribunal rejected Clr Coppock's evidence that he had no apprehension at the time of Mr Lum's telephone call that the works might be unauthorised, or that he was surprised to learn that from Mr Fisher. The fact that the call was not concealed is not a matter tending to diminish the seriousness of the conduct, and while that might support a conclusion that Clr Coppock did not appreciate that his conduct was contrary to the Code of Conduct, where the Tribunal is exercising a protective jurisdiction and the appellant has significant experience, ignorance is not a mitigating factor; 3. While Clr Coppock requested, rather than directed, that Mr Fisher exercise his discretion in a particular way and Mr Fisher did not comply with that request, the relevant provisions of the Code of Conduct and the Access Policy seek not only to prevent improper influence being acted upon, but also the attempt of it, and the consequence of Council staff feeling pressured to prefer a certain outcome out of a range of discretionary possibilities. Such a preference expressed by a person in a political position to an enforcement officer is a serious act of misconduct; 4. Clr Coppock has been a councillor since 1999, has served three terms as Deputy Mayor and has practised as a solicitor since 1984, and it is a reasonable expectation that he have a clear understanding of his obligations under the Code of Conduct and under important Council policies, an understanding that he ought not in his capacity as councillor contact Council staff in charge of an active enforcement matter on behalf of a constituent, and that he never deliberately or inadvertently apply pressure or persuasion (direct or indirect) to Council staff in charge of an active enforcement matter, or create the appearance of the same; and 5. Clr Coppock's attempts to justify his conduct, dealt with in the Departmental Report and adopted in the proceedings, speak to his degree of insight and contrition, and it is not the case that he accepts the findings and is remorseful for his conduct, his evidence being to the effect that he is regretful about "the situation".
The Deputy Secretary submits that in light of the seriousness of the conduct, the penalty actually imposed pursuant to s 440I(2) of the LG Act was at a minimum no more than necessary and appropriate to provide both the requisite specific and general deterrence for the conduct, and that decision should be confirmed.

Discussion and findings

It was common ground that the Tribunal is exercising afresh the discretion as to what if any sanctions should be imposed as a result of the findings of misconduct, and is not limited to analysing the appropriateness of the decision of the Deputy Secretary. That it would be open to depart from that outcome by determining that different actions are appropriate is made clear by the power in s 440L(4) of the LG Act to set aside the decision under appeal and substitute a new decision. There is no contention that the imposition of sanctions more severe than those imposed by the Deputy Secretary is warranted.
It was common ground that the proceedings are disciplinary in nature and that principles relevant to professional disciplinary matters are useful in determining the nature and extent of sanctions imposed, bearing in mind the difference between misconduct engaged in by local councillors and that engaged in by professionals in or during the course of the practice of their professions. The jurisdiction to impose sanctions under s 440I(2) is protective of the public and the maintenance of high standards of local councillors: Office of Local Government v Shelley [2018] NSWCATOD 103.
The parties agreed that the circumstances relevant to assessing the appropriate disciplinary order include: 1. The need to remind councillors of the public interest in the maintenance of high standards of conduct; 2. The need to emphasise the unacceptability of misconduct by denunciation; 3. Whether there has been previous misconduct by the councillor; 4. Any apology, remorse or insight into the conduct by the councillor; and 5. The imperative to maintain confidence in the standard of local councillors generally.
It was not in dispute that Clr Coppock has been a councillor since 1999, and has served three terms as Deputy Mayor. His referees confirm his evidence as to his extensive experience both as a legal practitioner, and in his involvement with industry and not-for-profit organisations. It is not in dispute that no previous adverse finding of misconduct has been made against Clr Coppock, or that there is no instance of any further misconduct since 2017 when the matters at issue in these proceedings arose. The Tribunal accepts the evidence of Clr Coppock's character referees, based on their knowledge of him over many years, that the findings are out of character. The Tribunal is satisfied that, on the evidence before the Tribunal, this was an isolated incident.
The findings and reasons as to the context and content of Clr Coppock's telephone conversation with Mr Fisher on 18 October 2017 are extracted from Coppock No 2 at [16] above. While no finding was made that Clr Coppock made the telephone call to Mr Fisher with the express intention of making the request that the owner of the premises not be penalised, Clr Coppock's evidence that he had no apprehension that the works might be unauthorised until during his conversation with Mr Fisher was not accepted. The Tribunal did not accept that Clr Coppock independently suggested that Mr Fisher speak to his manager. Mr Fisher's evidence that during the telephone conversation Clr Coppock requested that the owner not be penalised was accepted. As discussed at [81] in Coppock No 2, the fact that Clr Coppock contacted Mr Fisher through the Council switch, or that there was no apparent motive for the request not to take regulatory action, or a suggestion that Mr Fisher speak to his manager, did not cast doubt on Mr Fisher's account of the telephone conversation.
As discussed at [99] in Coppock No 2, Clr Coppock's telephone call to Mr Fisher related to a current investigation into alleged unauthorised building works, and Mr Fisher was the compliance officer who had carried out the inspection. The telephone call was an inappropriate interaction, as identified in the Access Policy. As found at [100], in requesting Mr Fisher not take penalty or infringement action, Clr Coppock was taking advantage of his position as Councillor to influence a member of staff in the performance of his public duties. The request went beyond any representative function of a councillor, and was a misuse of his position.
Clr Wright describes Clr Coppock as a tenacious councillor, always seeking to deliver the best result he can for his constituents. That is consistent with Clr Coppock's evidence that it was his practice as a councillor to respond to concerns of constituents in their dealings with Council and Council staff. As discussed at [93] in Coppock No 2, the parameters within which representing the interests of residents, ratepayers and the local community, and facilitating communication with the Council, as part of the role of a councillor as stated in s 232 of the LG Act, are appropriately managed are reflected in the provisions of the Code of Conduct and in the Access Policy.
The Tribunal agrees with the Deputy Secretary that Clr Coppock's conduct should be viewed seriously. His actions had the potential to subvert to a significant extent the probity and influence provisions of the Code of Conduct, of which the provisions dealing with the improper use of a councillor's position are fundamental to the proper separation between the political and administrative arms of local government. That is so even though the request to Mr Fisher was not made for the purpose of securing any personal benefit for himself and even though Mr Fisher did not feel intimidated by it, and there is no evidence that the request had any impact on the conduct by him of his duties.
Clr Coppock submits that he has accepted the Tribunal findings and is remorseful for his conduct. His affidavit evidence is that he is remorseful that he "is before the Tribunal in the current matter". That he is regretful as to his situation is confirmed by the affidavit evidence of Mr Ramsay, Mr Aird and Mr Wright. The Tribunal regards that evidence as demonstrating limited remorse or contrition for the conduct itself, found to be in breach of fundamental obligations under the Council's Code of Conduct.
The Tribunal agrees with the Deputy Secretary that having been a councillor since 1999, and having practised as a solicitor since 1984, it is a reasonable expectation that Clr Coppock have a clear understanding of the obligations of a councillor under the Council's Code of Conduct, and under policies including the Access Policy, and an understanding that he ought not contact a Council officer in charge of an active enforcement matter on behalf of a constituent, or attempt to influence such an officer in the exercise of their regulatory functions.
As recorded at [36] in Coppock No 2, Clr Coppock's evidence was that he was familiar with the general terms of the Access Policy but not the precise words, and it was his practice in October 2017 to contact Council officers directly. The Council's Access Policy required requests for information and approaches to staff, other than to obtain basic information, to be directed to the General Manager, directors or nominated persons, which did not include Mr Fisher, and identified approaches to junior staff on sensitive or controversial matters to be inappropriate. The Access Policy had been in effect since 1997, and amended four times during Clr Coppock's period on Council. The Council's Code of Conduct, in effect from March 2013, was clear in prohibiting a councillor from using their position to influence other Council officials in the performance of their duties.
Clr Coppock states in his affidavit of 19 March 2021 that he understands the importance of the Code of Conduct and the need to adhere to it. Having regard to the seriousness of the breach, what is accepted to have been a lack of diligence in apprising himself of the terms of the relevant Council policies, and the limited insight and contrition demonstrated, the Tribunal does not share Clr Coppock's confidence that he will adhere to and comply with the requirements of the Code of Conduct and other policies.
The Tribunal agrees with the parties that a reprimand, as a formal rebuke for past misconduct, and suspension of the right to payment of fees, are appropriate disciplinary actions, and should be confirmed. The Tribunal is satisfied that having regard to the concerns expressed at [47], the imposition of the requirement that Clr Coppock undertake training with respect to his rights and obligations as a councillor when interacting with Council staff, would also be appropriate.
However, the Tribunal acknowledges that if, as stated in his affidavit of 21 April 2021, Clr Coppock does not nominate for the forthcoming Council election in September 2021, he will cease to hold civic office. In those circumstances, a requirement that he undertake training would serve no apparent purpose. Had that not been his expressed intention, the Tribunal would have confirmed that part of the order made by the Deputy Secretary. The remaining parts of the order made by the Deputy Secretary should be confirmed.

Orders

The Tribunal orders pursuant to s 440L(4) of the Local Government Act 1993: 1. The decision of the Deputy Secretary, Local Government, Planning and Policy, Department of Planning, Industry and Environment dated 28 February 2020 is amended, by deletion of the requirement pursuant to s 440I(2)(e) of the Local Government Act 1993 that Councillor Stuart Coppock is to undertake training with respect to his rights and obligations as a councillor when interacting with Council staff; 2. The decision is otherwise confirmed.

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: 16 July 2021

At a glance

Court

Decision date

Source

Judgment (9 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (3)