Office of Local Government v Councillor Martin Ticehurst of Lithgow City Council

The amended application

1. By amended application received 24 February 2016, the applicant alleged seven contraventions. Essentially, they were as follows: 1. On 27 October 2014, Councillor Ticehurst swore at the Mayor, calling her twice, a "bitch", and also threatening her by saying "I hope you choke on your sandwich" (Ground 1); 2. On 10, 11, 12 and 13 May 2015, wrote emails in relation to the investigation into that conduct on 27 October 2014 (Grounds 2-5); 3. At the Council meeting on 1 June 2015, despite there being a Council resolution that he apologise to the Mayor, declined to do so (Ground 5A); and 4. On 1 June 2015 following the Council meeting, acted in an aggressive, rude, intimidating and embarrassing manner towards a member of the public, namely Ms Renee Difranco (Ground 6).
2. I consider the details of these allegations below.

Statutory provisions

1. 'Misconduct' is defined in s 440F(1) of the Act to include failure by a Councillor to comply with an applicable requirement of a Code of Conduct under s 440.
2. The Chief Executive of the Office of Local Government is authorised to make a report in certain circumstances, and then to lodge a complaint in the Tribunal.
3. If the Tribunal, following a hearing, finds there has been misconduct, s 482A provides for the powers which may be exercised by it, noting these have recently been amended by s 275(1A) of the Act, inserted by the Local Government Amendment (Councillor Misconduct and Poor Performance) Act 2015.
4. In the case of Lithgow City Council, a Model Code of Conduct was adopted on 3 March 2014 as authorised by s 440(3) of the Act. Breach of that Code therefore amounts to misconduct: s 440F(1).
5. The Code relevantly states: 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. 8.1 You must not conduct yourself in a manner that is likely to undermine confidence in the integrity of its Code or its administration.
6. Clauses 8.4 and 8.5 proscribe the taking of detrimental action against a person substantially in reprisal for a complaint they have made. Reference was made to these provisions by way of analogy, but I do not find them to be relevant in this case as this is not a case of action taken against a person in reprisal for making a complaint.
7. Clause 8.7 provides: "You must not engage in conduct that is calculated to impede or disrupt the consideration of the matter under this Code."
8. Clause 8.10 provides: "Where you are a Councillor…you must comply with any Council resolution requiring you to take action as a result of breach of this Code…"
9. Clause 8.13 provides: "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."

Ground 1

1. Ground 1 provides that on 27 October 2014, whilst a meeting of Lithgow City Council was suspended, the respondent engaged in conduct amounting to misconduct in that it was a breach of clauses 3.1(a), (c), (d), (e), and 3.3 of the Lithgow City Council Code of Conduct.
2. Particulars: 1. In the Council chambers, during the suspension, the respondent called the Mayor a "bitch" twice; 2. In the Council chambers, during the suspension, the respondent said, to the Mayor, "I hope you choke on your sandwich".
3. This ground took up most of the hearing time in the matter. Essentially, Councillor Ticehurst contended that he had actually used the word "bitchy", not "bitch" and that he had not directed the statement "I hope you choke on your sandwich" at the Mayor, but to some other person, who was in fact eating a sandwich.
4. The difficulty for Councillor Ticehurst is that, despite being advised of the consequences of not giving evidence, he chose not to do so. Although he could make submissions about the evidence which was given, the evidence nevertheless needed to be considered without the benefit of his recollections.
5. There was a transcript of a recording of the meeting. I have listened to the primary evidence being the recording, on a number of occasions, and as I informed the parties at the hearing, the word I heard clearly was "bitch", not "bitchy", which is distinctively different. I was unable to determine, based only on the hearing of the recording, who the second statement "I hope you choke on your sandwich" was directed to. It was however, tolerably clear from the recording that the "bitch" comment was addressed to the Mayor.
6. Councillor Ticehurst wished to contend that the tape had been 'doctored' in some way, and that otherwise it was an "illegal recording" because, he said, the recording was made surreptitiously or without authority. The relevant Code of Conduct for meeting procedures at the relevant time expressly permitted recording to take place, and two of the witnesses said that they recalled a sign on the door to the Council chamber indicating that recording could take place. There is no substance in the contention that the recording was unlawful or otherwise unauthorised.
7. There was also no real contention by the Councillor that the recording concerning the statements made in the two particulars was inaccurate and there was direct evident from witnesses that the alleged statements were made. It is therefore not necessary to consider the allegation that the tape had somehow been tampered with, although I note there was in fact, no evidence that there had been.
8. There was important direct evidence from Ms Difranco and Ms Anthes that they heard both of the particularised statements being made and that they believed they were directed by Councillor Ticehurst to the Council's Mayor, who was a woman, that the distance at that time between the Councillor and the Mayor was between 3 and 4 metres, and that the comments were made in the earshot and in the view of both of those witnesses. I have already indicated that I found these witnesses to be of truth, and they were unshaken in cross-examination.
9. I therefore find that the statements were made as alleged.
10. There were also complaints made by Ms Anthes that she found what was stated by Councillor Ticehurst in the particulars to be offensive and inappropriate, and there was another complaint by other members of the public.
11. I accept the submission of the applicant that in 2016 in Australian civil society, calling someone a "bitch", but particularly a woman in a position of authority, is rude, disrespectful, and when used in or at a time proximate to a Council meeting (as here), is likely to bring the Council and holders of civic office into disrepute.
12. It was thus improper, involved misconduct, and constituted verbal abuse. It also involved a failure to treat the Mayor with appropriate respect. Thus, the Code of Conduct was breached: cll 3.1(c), 3.1(d), 3.1(e) and 3.3.
13. The other particular is not so clear cut. True it is that there was evidence that the Mayor, along with other Councillors, was moving into the adjacent supper room as the proceedings had been adjourned, and I have already found that the statement was directed to her. Although I find it amounts to verbal abuse contrary to cl 3.1(e), it is much lower on the scale of offensiveness than the "bitch" remark, made twice. Thus there is misconduct, as found, under s 440F(1).

Ground 5A

1. This alleges that on 1 June 2015, at a meeting of the Council, the respondent engaged in conduct amounting to misconduct in that it was a breach of clause 8.10 of the Code of Conduct as he failed to comply with the resolution of the Council requiring the respondent to take action as a result of the breach of the Code of Conduct.
2. Particulars: 1. On 11 May 2015, the Council resolved that the respondent had breached the Code of Conduct that he be required to apologise to the Mayor, both verbally and in writing, at the next ordinary meeting of the Council; 2. The next ordinary meeting of Lithgow City Council took place on 1 June 2015; 3. At the meeting of Lithgow City Council on 1 June 2015, the respondent refused to apologise to the Mayor.
3. This can be dealt with briefly. There is no doubt that Councillor Ticehurst was aware of the resolution, and that he did not apologise. He submitted at the hearing that he had not used the word "bitch", but rather "bitchy", and he had not directed the remark "I hope you choke on your sandwich" to the Mayor. I have found against him on both counts. The establishment of Ground 5A is clear-cut. I find a breach of cl 8.10, and thus misconduct, under s 440F(1) of the Act.

Ground 6 - conduct after the meeting on 1 June 2015

1. The allegation here is that, on 1 June 2015, following a meeting of Lithgow City Council, the respondent engaged in conduct amounting to misconduct in that it was a breach of clauses 3.1(c), (e), and 3.3 of the Code of Conduct, and further, in circumstances where the respondent engaged in that conduct in the belief that a member of the public was a complainant in relation to his conduct on 27 October 2014.
2. Particulars: 1. In the public area outside Council chambers after the meeting, the respondent accused Renee Difranco of having made a complaint about him, and acted in a manner which was aggressive, rude, intimidating and embarrassing toward Ms Difranco.
3. Ms Difranco gave evidence that Councillor Ticehurst came out of the Council chambers angry and agitated, pointed his finger at her, and accused her of having made a complaint about him in an angry and intimidating tone, such that she felt intimidated and harassed. That was supported by the evidence of Ms Mitchell, who knew Ms Difranco, but is not a personal friend nor a business associate of Ms Difranco, and has no reason to corroborate her version of events otherwise than because that is the truth. I accept this evidence. There was no contrary evidence.
4. I do find this behaviour to be aggressive, intimidating, embarrassing or rude "in relation to a Council meeting", in the sense it is proximate in time to it and related causally as well. Accordingly, there is a breach of clause 3.1(c) and (e), and 3.3. I have already mentioned that in the absence of an actual complaint having been made (because in fact, Councillor Ticehurst was mistaken), clauses 8.4 and 8.6 are irrelevant. These Code breaches also amount to misconduct.

Grounds 2-5

1. The remaining grounds are as follows: 1. Ground 2 - On 10 May 2015, at approximately 9.14 pm, the respondent sent an email to a number of councillors and others, including the Minister for Local Government and the Independent Commissioner Against Corruption, in relation to the investigation into his conduct on 27 October 2014. This email allegedly constituted a breach of clauses 3.1(c), 3.3, 8.1, 8.4, 8.5, 8.6, 8.7 of the Code of Conduct. 2. Ground 3 - On 11 May 2015 at approximately 5.23 pm, the respondent sent an email to a number of councillors and others, including the Minister for Local Government and the Independent Commissioner Against Corruption, in relation to the investigation into his conduct on 27 October 2014. This email allegedly constituted a breach of clauses 3.1(c), 3.3, 8.1, 8.4, 8.5, 8.6, 8.7 of the Code of Conduct. 3. Ground 4 - On 12 May 2015, at approximately 8.45 pm, the respondent sent an email to a number of councillors and others, including the Minister for Local Government and various media agencies, in relation to the investigation into his conduct on 27 October 2014, and purporting to require the Mayor of Lithgow City Council to make a statutory declaration. This email allegedly constituted a breach of clauses 3.1(c), 3.3 and 8.1 of the Code of Conduct. 4. Ground 5 - On 13 May 2015, at approximately 8.01 am, the respondent sent an email to a number of councillors and others, including the Minister for Local Government and various media agencies, containing a media release setting out, among other matters, the respondent's response to the Council's decision on 12 May 2015 to censure him. This email allegedly constituted a breach of clauses 3.1(a), (c), (d), 3.3 and 8.13 of the Code of Conduct.
2. Grounds 2-5 concern emails sent on consecutive days in May 2015. The context was, as noted above, that there was a Code of Conduct investigation report into the matters which are the subject of Ground 1 of this matter, by a Complaints Coordinator, who prepared a 'confidential closed report' for the purpose of the Council considering the matters in Ground 1, and whether the Respondent should be required to make an unreserved apology, censured, or whether the matter should be referred for further consideration. In the event, an apology was required, a censure was recorded under s 440G of the Act, and the matter was referred for further action which, indeed, led to these proceedings.
3. That meeting was held on 11 May 2015, which is important as a matter of context. Ground 2 concerns an email sent on Sunday 10 May, to all councillors, the Minister for Local Government, what appears to be the applicant, there was a copy sent also to the investigator and to the Independent Commission Against Corruption, although neither of these were action addressees. In substance, this email amounted to the submissions that Councillor Ticehurst wished to have considered, by the Council, in its consideration of the report. The email did aggressively contest the behaviour of the Code of Conduct reviewer, and how that person had conducted the review and made the same complaint made in these Tribunal proceedings that the audio recording of the meeting had been tampered with. It was certainly expressed in a strident fashion.
4. The applicant contends that the sending of this email comprised seven breaches of the Code, each of which I now consider. The email was alleged to be conduct which was improper or unethical, in that a number of the allegations were unfounded, and that it was not the appropriate manner in which to challenge the Council's proposed resolution. True it is that Councillor Ticehurst had previously had an opportunity to make submissions to the reviewer, and was to have a further oral opportunity to address the Council meeting before being required to leave it when the councillors considered the reviewer's report.
5. I do not, however, consider that a written statement in the form of an email being described as a "preliminary response" to the report was of itself, improper or unethical. Nor am I prepared to find that it was improper or unethical simply because, for example, there was an allegation made there that the tape was tampered with whereas I have found it was not tampered with. The Applicant did not seek to establish before me that the Councillor did not believe what he was saying. It is not appropriate for me to go through each and every one of the allegations of which there are many in the email, and come to a factual finding as to whether they were founded or unfounded, as that would involve a consideration of those allegations when the Applicant did not choose to make them facts in issue in this hearing. For example, one allegation or 'question', as Councillor Ticehurst put it, was why the mayor had "never ever made any immediate or belated public correction" in relation to various media articles. That was not made a fact in issue by the Applicant. The mayor was not called. I find that the sending of the email was not proved to be improper or unethical.
6. In relation to the allegation that the email was not respectful, that is a concept which depends much upon its context. What is appropriately respectful in a public meeting may not necessarily be the same as what is appropriately respectful in a councillor in, for example, a political discussion prior to the election of say, the mayor, in relation to that person's perceived strengths or weaknesses. I must also keep in mind that the Code is not to be presumed to be made invalidly, so as to infringe the implied freedom of political communication. Here, the relevant email action addressees were all councillors who were being required to make a judgement in relation to one of their fellow councillors. It needs to be borne in mind that he was being directly criticised, and made liable to disciplinary consequences which, in fact, came to pass. In the circumstances, although the language could have been expressed more moderately, I do not find that it was not respectful. Equally, given he had an entitlement to challenge the Council's actions orally in the Council chamber, the manner in which he challenged the actions was not in itself inappropriate. For these reasons, I also find the email was not intimidating or harassing of the investigator or the Councillors, or indeed the complainants. Finally, although robust, it did not amount to conduct calculated to disrupt or impede the consideration of the Councillor's conduct. This ground is not made out.
7. The next email (Ground 3) appears to have been sent on 11 May, shortly before the meeting at which the Council considered the complaint. Again, it was said to the councillors, the Minister, the Applicant and again, ICAC and the Investigator were merely copy addressees. It stated as follows: Urgent attention Dear fellow Councillors, Further to my preliminary response below regarding the above matter, I just wanted to give you all an update in respect of the audio recording of the Council meeting held on Monday 27 October 2014, as recorded by the General Manager, Mr Roger Bailey, using a digital voice recorder, which clearly confirms that the General Manager's audio recording was subsequently "modified" on the following day at 3:58.28 pm Tuesday 28 October 2014. I have late today been advised that another section of the same audio recording has been demonstrated to also have been deleted or "modified" with the possibility of up to 1 or 2 minutes having been deleted from the audio recording of the Council meeting held on Monday 27 October 2014, as recorded by the General Manager, Mr Roger Bailey, using a digital voice recorder.
8. The allegation is that this breached clauses 3.1 - likely to bring holders of civic office into disrepute, 3.1(c) - improper or unethical, 3.3 - not respectful, 8.1 - likely to undermine confidence in the integrity of the Code of Conduct or its administration, 8.8 - harassment of Mr Bailey, who had exercised functions under the Code of Conduct, constituting detrimental action against him (8.5 read with 8.6(b)) and was calculated (8.7) to impede or disrupt consideration of Councillor Ticehurst's conduct. Insofar as they merely repeat the allegations in the earlier email, for the same reasons, I find the ground not to be made out.
9. One and a half hours after that email was sent, the Council considered the breach of the Code of Conduct to be made out, and sent him a copy of the resolution.
10. Ground 4 relates to an email sent on 12 May, again, to all Councillors, but this time copied to three media outlets and two MPs, indicating that it attached a copy of a draft statutory declaration effectively inviting the Mayor to deny that the words the subject of complaint 1 had been made out, and also attaching a copy of the resolution, and a highly critical letter from the local MP, Paul O'Toole. Ground 5 concerns a similar email dated 13 May. I am not prepared to find any breach of Grounds 4 and 5 as alleged, essentially for the reasons set out in relation to Grounds 2 and 3.

Conclusion

1. I note that the findings in relation to Grounds 2-5 are not likely to be of much significance in relation to penalty. The Councillor has been found to have breached the conduct for the underlying conduct and is liable to be punished for it. He is not to be punished twice for essentially the same conduct.
2. In the result, I have found a number of breaches of the Code of Conduct. The applicant has put on submissions in that regard, including noting that if I was to order suspension (although curiously not the more serious step of disqualification), then there is, by operation of the Act, an automatic disqualification of holding civic office because Councillor Ticehurst has been previously suspended for periods of up to 4 months for similar conduct: s 275(1A) of the Act. I note that I have not taken into account such previous transgressions in making the findings in this matter to date.
3. I therefore make the following directions: 1. The respondent, Councillor Martin Ticehurst, within 21 days of the date of this decision, is to file and serve any evidence and submissions in relation to penalty based on the findings in this decision, and indicate whether he wishes there to be an oral hearing or whether it can be dealt with on the papers; 2. Within a further 14 days, the applicant is to file and serve any further evidence or submissions together with an indication of whether it consents to the matter being dealt with on the papers, or requires a further hearing.

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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: 27 September 2016