Office of Local Government v Shelley

The Code

1. Section 440 of the Act provides that regulations may prescribe a model code of conduct applicable to councillors, members of staff of councils and delegates of councils. Clause 183 of the Local Government (General) Regulation 2005 provides that, for the purposes of s 440 of the Act, the document entitled The Model Code of Conduct for Local Councils in NSW published in the Gazette on 13 November 2015 is prescribed as the model code of conduct.
2. The Council adopted the Model Code as its Code on 17 February 2016. Part 1 (Introduction) to the Code relevantly states: Councillors . . . must comply with the applicable provisions of council's code of conduct in carrying out their functions as council officials. It is the personable responsibility of council officials to comply with the standards in the code and regularly review their personal circumstances with this in mind. Failure by a councilor to comply with the standards of conduct prescribed under this code constitutes misconduct for the purposes of the Act. The Act provides for a range of penalties that may be imposed on councilors for misconduct, including suspension or disqualification from civic office. A councillor who has been suspended on three or more occasions for misconduct is automatically disqualified from holding office for five years. (Emphasis added)
3. The primary clause of the Code relied on by the applicant is cl 8.12 which provides: You must not make allegations of suspected breaches of this code at council meetings or in public forums.
4. Secondary clauses of the Code relied on are: 1. cl 3.1, particularly pars (c) and (d), which provides: 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: … (c) is improper or unethical (d) is an abuse of power or otherwise amounts to misconduct … 1. cl 3.2, which provides: You must act lawfully, honestly and exercise a reasonable degree of care and diligence in carrying out your functions under the [LGA] or any other Act. 1. cl 4.2 which provides: You must avoid or appropriately manage any conflict of interests. The onus is on you to identify a conflict of interests and take the appropriate action to manage the conflict in favour of your public duty. 1. cl 4.3 which provides: Any conflict of interests must be managed to uphold the probity of council decision-making. When considering whether or not you have a conflict of interests, it is always important to think about how others would view your situation. 1. cl 4.7 which provides: Pecuniary interests are regulated by Chapter 14, Part 2 of the [LGA]. The [LGA] requires that: a) councillors and designated persons lodge an initial and an annual written disclosure of interests that could potentially be in conflict with their public or professional duties (section 449) b) councillors and members of council committees disclose an interest and the nature of that interest at a meeting, leave the meeting and be out of sight of the meeting and not participate in discussions or voting on the matter (section 451) 1. cll 4.12 to 4.17, which require non-pecuniary conflicts of interest to be managed in a particular way, including through disclosure in writing or at a relevant meeting of all such interests (cll 4.12, 4.13), and with a distinction (cl 4.14) drawn between significant conflicts of interest (which must be identified and either the source of conflict removed or the councillor must have no involvement in the matter: cll 4.15, 4.16) and "less than significant" conflicts of interest (which must be disclosed and explained: cl 4.17); 2. cl 8.12 which provides: You must not make allegations of suspected breaches of this code at council meetings or in public forums.

Consideration

1. There are two grounds relied on for seeking these orders.
2. I note at the outset that I accept the applicant's submission that: 1. an allegation of a breach of the Code can be made even if the person making the allegation does not say words to the effect of "X breached clause Y of the Code", or even "X breached the Code"; and 2. is sufficient that an allegation is made that certain conduct occurred (or, potentially, that certain conduct occurred and was wrong or improper), where that conduct (if it in fact occurred) would be a breach of the Code.
3. To find otherwise would mean that a councillor could avoid making an allegation that another councillor breached the Code simply by avoiding use of words to the effect ". . . in breach of clause X of the Code" when describing the conduct complained of.
4. I also accept that is unnecessary to consider whether the alleged conduct was, or would have been, a breach of the Code.
5. Finally, I agree that Clr Shelley's remarks must be understood in the context of his Speech as a whole. While each individual allegation is an allegation of improper or wrong conduct, when Clr Shelley's words are read as a whole, it is clear, and I find, that he was alleging that Clrs Webb, Thompson and Martens had engaged in inappropriate or unethical conduct (cl 3.1(c)) of the Code).

Ground One

1. The first ground of the application is that, on 1 June 2016, at an Ordinary Meeting of the Council, Clr Shelley breached cl 8.12 of the Code by making allegations against Councillors Webb, Thompson and Martens, in circumstances where those allegations amounted to allegations that those councillors had breached the Code.
2. There are eight particulars to Ground One.
3. Particular (1) is that Clr Shelley alleged that Councillors Webb, Thompson and Martens had acted in circumstances where they had conflicts of interest, including perceived conflicts of interest, by attending a rate review committee (RRC) meeting (referred to as a rates reference group), or more than one such meeting. The applicant submits that this allegation constituted an allegation of a breach or breaches of one or more of cll 3.1 (specifically par (c)), 4.2, 4.3, 4.7 and 4.12 to 4.17 of the Code.
4. I do not find this particular established, I do not consider that the mere attendance at a RRC meeting, even assuming that the councillors had a conflict of interest, amounts to a breach of any clause of the Code.
5. Particular (2) is that Clr Shelley alleged that Councillors Webb, Thompson and Martens had acted in circumstances where they had conflicts of interest, including perceived conflicts of interest, by actively taking part in a RRC meeting, or more than one such meeting. The applicant submits that this allegation constituted an allegation of a breach or breaches of one or more of cll 3.1 (specifically par (c)), 4.2, 4.3, 4.7 and 4.12 to 4.17 of the Code.
6. Clr Shelley stated at the Meeting: Now 3 Councillors however, Councillor Webb, Thompson and Councillor Martens . . . attended reference groups and whether through ignorance, arrogance or something worse they perverted and influenced the recommendation to Council which would give them a significant financial gain as all three have significant land holdings.
7. I find that this amounts to an allegation that Councillors Webb, Thompson and Martens had acted in circumstances where they had conflicts of interest, including perceived conflicts of interest, by actively taking part in a RRC meeting, or more than one such meeting.
8. Clause 3.1 of the Code provides that a councillor must not act in a way that is improper or unethical (cl 3.1(c)). These terms are not defined in the Code, the Act or in any relevant regulation. They are not special or technical terms and should bear their ordinary English meaning. The Macquarie Dictionary relevantly defines these adjectives as follows: Improper 1. not proper; not strictly belonging, applicable, or right: an improper use for a thing. 2. not in accordance with propriety of behaviour, manners, etc.: improper conduct. 3. unsuitable or inappropriate, as for the purpose or occasion: improper tools. 4. abnormal or irregular. Unethical 1. contrary to moral precept; immoral. 2. in contravention of some code of professional conduct.
9. I find that a breach of cll 3.1(c) is established. The tenor and effect of the Speech is to suggest that the councillors' behavior was not proper and inappropriate, and contravened their obligations as councilors (which I find to be "some code" of professional conduct).
10. I also consider that a breach of cl 4.2 is established, that is, I think it clear that the Speech suggests that the councillors failed to avoid or appropriately manage a conflict of interest ("They then tried to vote in favour of the current recommendation from the group that was put before Council . . . and influenced the recommendation to Council which would give them significant financial gain as all 3 have significant land holdings").
11. I do not find that breaches of cl 4.3, or cll 4.12 to 4.17 are established. I do not find that these matters naturally arise from the effect or tenor of the Speech, even if taken as a whole.
12. Particular (3) is that Clr Shelley alleged that Councillors Webb, Thompson and Martens had acted in circumstances where they had conflicts of interest, including perceived conflicts of interest, by promoting and arguing for a 20% reduction in farm rates at a RRC meeting, or more than one such meeting. The applicant submits that this allegation constitutes an allegation of a breach or breaches of one or more of cll 3.1 (specifically par (c)), 4.2, 4.3, 4.7 and 4.12 to 4.17 of the Code.
13. Clr Shelley stated at the Meeting: Now 3 Councillors however, Councillor Webb, Thompson and Councillor Martens, not only attended reference groups but actively took part in promoting and arguing for a 20% reduction in farm rates over a period of time and an increase to other rate categories to compensate for this. They then tried to vote in favour of the current recommendation from the group that was put before Council
14. I find this Particular established, and that this is a breach of cll 3.1(c) and 4.2 of the Code. I do not find that breaches of cl 4.3, or cll 4.12 to 4.17 are established. I do not find that these matters naturally arise from the effect or tenor of the Speech, even if taken as a whole.
15. Particular (4) is that Clr Shelley alleged that Councillors Webb, Thompson and Martens had acted in circumstances where they had conflicts of interest, including perceived conflicts of interest, by attempting to vote at a RRC meeting, or more than one such meeting. The applicant submits that this allegation constitutes an allegation of a breach or breaches of one or more of cll 3.1 (specifically par (c)), 4.2, 4.3, 4.7 and 4.12 to 4.17 of the Code.
16. Given my findings above and the admitted content of the Speech, I find this Particular established, and that this is a breach of cll 3.1(c) and 4.2 of the Code. I do not find the breaches of cll 4.3, and 4.12 to 4.17 of the Code to be established.
17. Particular (5) is that Clr Shelley alleged that Councillors Webb, Thompson and Martens had perverted and influenced the recommendation made by the RRC to Council. The applicant submits that this allegation constituted an allegation of a breach or breaches of one or more of cll 3.1 (specifically pars (c) and/or (d)) and 3.2 of the Code.
18. The Macquarie Dictionary relevantly defines the verb "pervert" as: 1. to turn away from the right course. 2. to lead astray morally. 3. to lead into mental error or false judgement. 4. to bring over to a religious belief regarded as false or wrong. 5. to turn to an improper use; misapply. 6. to distort. 7. to bring to a less excellent state, vitiate, or debase. 8. Pathology to change to what is unnatural or abnormal. 9. to affect with perversion.
19. Given my findings above, and the admitted content of the Speech, in particular Clr Shelley's statement that: [t]he problem with this is whether through ignorance, arrogance or something worse they [that is the three councillors] perverted and influenced the recommendation to Council which would give them significant financial gain as all 3 have significant land holdings
20. I find this Particular established, and that this is a breach of cll 3.1(c) and 3.2 of the Code.
21. Particular (6) is that Clr Shelley alleged that Councillors Webb, Thompson and Martens had corrupted the recommendation made by the RRC to Council. The applicant submits that this allegation constitutes an allegation of a breach or breaches of one or more of cll 3.1 (specifically pars (c) and/or (d)) and 3.2 of the Code.
22. The Macquarie Dictionary relevantly defines the verb "corrupted" as: 7. to destroy the integrity of; cause to be dishonest, disloyal, etc., especially by bribery. 8. to lower morally; pervert; deprave. 9. to infect; taint. 10. to make putrid or putrescent. 11. to alter (a language, text, etc.) for the worse; debase.
23. Clr Shelley admits that he said: You cannot appoint an independent rates reference group, participate and argue a point of view in those meetings then vote on the recommendation you corrupted then claim that you are allowed under the Local Government Act. It doesn't work that way, ethically or morally.
24. In Clr Shelley's following statement, namely: I will leave it to outside agencies to decide whether this undeclared significant pecuniary conflict of interest and actions by those three councillors is found to be corrupt or not
25. Clr Shelley is attempting to make a distinction between him making an allegation, but leaving it to others to determine whether or not the allegation is made out. It is sufficient for the purposes of this particular for the applicant to establish that Clr Shelley made the allegation. I find this Particular established, and that this is a breach of cll 3.1(c) and 3.2 of the Code.
26. Particular (7) is that Clr Shelley alleged that, by attending the Council Meeting and proposing to vote on the recommendation made to Council by the RRC, Councillors Webb, Thompson and Martens were not acting ethically or morally. The applicant submits that this allegation constitutes an allegation of a breach of cl 3.1 (c) of the Code.
27. The Macquarie Dictionary relevantly defines the adjective "ethical" as: 1. relating to or dealing with morals or the principles of morality; relating to right and wrong in conduct. 2. in accordance with the rules or standards for right conduct or practice, especially the standards of a profession: it is not considered ethical for doctors to advertise. 3. of, relating to, or designating a food which is produced under conditions which do not involve the mistreatment of people or animals, or misuse of the environment: ethical food; ethical eating; ethical farming.
28. The Macquarie Dictionary relevantly defines the adverb "morally" as: 1. in a moral manner. 2. from a moral point of view. 3. virtuously. 4. virtually; practically.
29. In turn, relevantly defines the adjective "moral" as: 1. relating to or concerned with right conduct or the distinction between right or wrong: moral considerations. 2. concerned with the principles or rules of right conduct; ethical: moral philosophy. 3. expressing or conveying truths or counsel as to right conduct, as a speaker, a literary work, etc.; moralising. 4. founded on the fundamental principles of right conduct rather than on enactment or custom: moral rights. 5. capable of conforming to the rules of right conduct. 6. conforming to the rules of right conduct (opposed to immoral): a moral man. 7. sexually virtuous; chaste. 8. of, relating to, or producing an effect upon the mind, feelings, or on results generally: a moral victory; moral support. 9. depending upon what is observed of human nature and actions or of things generally, rather than upon demonstration: moral evidence. 10. resting upon convincing grounds of probability: a moral certainty.
30. Given my findings above, and, in particular Clr Shelley's statements that: The problem with this is whether through ignorance, arrogance or something worse they perverted and influenced the recommendation to Council which would give them significant financial gain as all 3 have significant land holdings. You cannot appoint an independent rates reference group, participate and argue a point of view in those meetings then vote on the recommendation you corrupted then claim that you are allowed under the Local Government Act. It doesn't work that way, ethically or morally. … Now however after the corrupted recommendation from the rates reference group . . .
31. I find this Particular established, and that this is a breach of cll 3.1(c) and 3.2 of the Code.
32. I do not find that Clr Shelley's statement: I will leave it to outside agencies to decide whether this undeclared significant pecuniary conflict of interest and actions by these 3 councillors is found to be corrupt or not
33. detracts from this conclusion.
34. Particular (8) is that Clr Shelley alleged that Councillors Webb, Thompson and Martens had an undeclared significant pecuniary conflict of interest that was, or may have been, or that he suspected to be, corrupt. The applicant submits that this allegation constitutes an allegation of a breach or breaches of one or more of cll 3.1 (specifically par (c)), 3.2, 4.2, 4.3, 4.7 and 4.12 to 4.17 of the Code.
35. Given my findings above, the admitted content of the Speech and, in particular, Clr Shelley's statement that: You cannot appoint an independent rates reference group, participate and argue a point of view in those meetings then vote on the recommendation you corrupted then claim that you are allowed under the Local Government Act. It doesn't work that way, ethically or morally. … Now however after the corrupted recommendation from the rates reference group . . .
36. I find this Particular established. Again, I do not find that Clr Shelley's disclaimer affects this conclusion.
37. I find that the making of this allegation was a breach of cll 3.1(c) and 3.2 of the Code. I do not find breaches of cll 4.2, 4.3, 4.7 and 4.12 to 4.17 of the Code established.
38. In conclusion, I find that: 1. Particular (1) not established; 2. Particulars (2) to (8) established.
39. Accordingly, I find Ground One of the application established.

Ground Two

1. The second ground relied on is that, on or about 2 June 2016, Clr Shelley breached cl 8.12 of the Code by making allegations against Councillors Webb, Thompson and Martens on the Facebook page "KandosRylstone 2 Towns but 1 Community" (Facebook Page), in circumstances where those allegations amounted to allegations that those councillors had breached the Code.
2. As Clr Shelley repeated on the Facebook Post the allegations he made at the Meeting, the applicant repeats Particulars (1) to (8) of Ground One.
3. A preliminary issue is whether or not the Facebook Post was made by Clr Shelley or occurred in carrying out of his functions as a Council official: Part 1 (Introduction) and Part 2 (Purpose of the Code of Conduct) of the Code. The applicant submits that this is the case. He submits, in summary, that: 1. the bulk of Part 1 of the Facebook Post is a direct transcript of the Speech from 1 June 2016. A person who makes a speech in a particular capacity (that of councillor), who then publishes that speech in a more public forum, must be engaging in that publication in the same capacity: that of councillor; 2. the opening paragraphs of Part 1 of the Facebook Post, preceding the transcript of the Speech, are as follows: 1. a heading, "Council Meeting Breakdown Part One"; 2. a summary of "Wins" and "Partial wins", and a statement of the decision about rates; and 3. a "dig" at Clr Webb. 1. Clr Shelley is reporting to his community, his constituents, on the meeting of Council which took place on 1 June 2016, his actions and his results (and including a political comment). This can only be understood one way: as the action of a councillor, carrying out the functions of a councillor; and 2. in Part 2 of the Facebook Post, Clr Shelley sets out "my arguments at Council for local issues". This can only be understood as a report to his constituents, that is, it is the action of a councillor, carrying out the functions of a councillor.
4. On the other hand, Clr Shelley submits that his Facebook page "started life" as an election tool over 10 years ago and has morphed into the "community page" which he still administers. He says that the disclaimer "complies with distinguishing myself speaking on behalf of Council or as an individual". He submits that he uses the Facebook page to "communicate to my community about anything that affects it", and that it is a "tool of communication" which is appreciated by his community. He points to various references in support of this proposition.
5. I consider that there is substance in the applicant's submissions, and I reject those of Clr Shelley. The Facebook Post was inextricably linked to Clr Shelley's work as a councillor, and the carrying out his functions as a councillor. This is obvious by the very nature of the publication, which a posting of the very speech, virtually verbatim, that he made in the Council chamber the day before. I find therefore Clr Shelley was carrying out his functions as a Council official when he published the Facebook Post on 2 June 2016. I reject his submission that the making of the disclaimer: [a]ll views . . . are personal and as a rate payer, not in any official capacity or otherwise as a Councillor
6. somehow detracts from that statement being characterized, in substance, as that of Clr Shelley in his capacity as a councillor.
7. In those circumstances, I come to the same conclusions as I did in relation to Particulars (1) to (8) of Ground One; that is: 1. Particular (1) is not established; 2. Particulars (2) to (8) are established.
8. Accordingly, I find Ground Two of the application established.

Conclusion

1. Given these findings I am satisfied that Clr Shelley has breached cl 8.12 of the Code and has engaged in misconduct as defined in definition of misconduct in s 440F(1)(b) of the Act, namely, a failure by the councillor to comply with an applicable requirement of a code of conduct under s 440.

Disciplinary orders

1. The applicant seeks the following orders: 1. an order pursuant to s 482A(2)(c) of the Act that Clr Shelley be suspended from civic office; 2. in the alternative to Order 1, an order pursuant to s 482A(2)(d) of the Act that Clr Shelley's right to be paid any fee or other remuneration be suspended; 3. further or in the alternative to Orders 1 and 2, an order pursuant to s 482A(2)(b) of the Act that Clr Shelley be reprimanded; 4. such other order as the Tribunal sees fit.

Relevant Principles

1. I accept, as submitted by the applicant, that proceedings under Pt 3 (Complaints concerning non-disclosure and proceedings before NCAT) of Ch 14 (Honesty and Disclosure of Interests) of the Act are disciplinary in nature. The principles relevant to professional disciplinary matters are relevant to such proceedings, although there may be some variation due to the differences between misconduct in elected office and professional misconduct.
2. I also accept that, as with professional disciplinary matters, the Tribunal's jurisdiction is at least in part protective, both of the public and of the maintenance of high standards in the ranks of local councillors: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637-638. The important but indirect effects of a disciplinary order (recognised in NSW Bar Association v Meakes [2006] NSWCA 340) are relevant to orders made in respect of a local councillor, namely:

• the order reminds other councillors of the public interest in the maintenance of high standards;
• the order may give emphasis to the unacceptability of the conduct involved; and
• by speaking to the public at large, the order seeks to maintain confidence in the standard of conduct of local councillors.

1. Section 482A(2) of the Act provides: The Tribunal may, if it finds that the behaviour concerned warrants action under this section: (a) counsel the councillor, or (b) reprimand the councillor, or (c) suspend the councillor from civic office for a period not exceeding 6 months, or (c1) disqualify the councillor from holding civic office for a period not exceeding 5 years, or (d) suspend the councillor's right to be paid any fee or other remuneration, to which the councillor would otherwise be entitled as the holder of the civic office, in respect of a period not exceeding 6 months (without suspending the councillor from civic office for that period).
2. The applicant seeks an order for suspension. He submits that such an order would demonstrate that the Tribunal, on behalf of the community and acting in protection of the public interest, takes a serious view of the conduct in issue. The applicant submits that Clr Shelley has demonstrated a disregard and contempt for his fellow councillors, and that Clr Shelley's conduct strikes at the heart of the operation of local government. It is conduct likely to not only bring the Council into disrepute but, more widely, to bring local government into disrepute if it is not met with sanction.
3. The applicant submits, and I accept, that factors that the Tribunal is entitled to take into account include:

• what is necessary to "punish the councillor's failure to comply with the statutory obligations", including obligations under the Code: Mehajer v Chief Executive of the Office of Local Government [2014] NSWSC 1804 at [13];
• whether the proposed orders will prevent Clr Shelley from exercising any functions as a councillor, and the impact of this on constituents: Mehajer at [13], [15];
• whether there have been any previous findings of misconduct: Mehajer at [15]; Phillips v Director General, Department of Premier and Cabinet [2014] NSWCATOD 48 at [52]; and
• the lack of any acknowledgement of, or apology or remorse for, the conduct by Clr Shelley, and the lack of any insight into the conduct on his part.

1. The applicant submits, and I accept, that it is relevant that Clr Shelley was an experienced councillor, having been first elected in 2006, and that his failure to comply with his obligations is deserving of a greater degree of censure than similar conduct by a less experienced councillor.
2. I further accept that Clr Shelley has expressed no remorse whatsoever for his conduct, and that further comments made during the meeting (namely to Clr Thompson): "We'll let ICAC worry about that"
3. and to Clr Webb "I never accused anyone of being corrupt. … you have to worry about it somewhere else I reckon",
4. suggest a lack of remorse. I note that on 6 June 2016, Clr Shelley responded to the General Manager of the Council stating "[a]s for [the] complaint about my facebook page, I stand by everything I post on this page".
5. Indeed, Clr Shelley told me during the hearing that he would be lying if he expressed remorse, regret or understanding.
6. For his part, Clr Shelley makes a variety of irrelevant submissions about the conduct of the applicant and his motivation in bringing the application. He criticises the applicant's "attitude, bias and lack of understanding".
7. Relevantly, Clr Shelley submits that: 1. the "statement [he] made is not in question", but "the context and circumstances are"; 2. he has a "strong belief" in honesty and accountability, and that being a councillor is a form of community service; 3. his commitment to his community can be seen in the purchase of the Rylstone Newsagency in 2004, and the incorporation into Newsagency the Post Office which closed in 2006; 4. in his time as Councillor he had never had any business before the Council, and he always votes on what he thinks "is right", and has never been influenced by others;
8. More relevantly, Clr Shelley states that the following matters explain the context of his conduct in making the speech: I knew Mr. Clapham, Crs Webb, Thompson or Martens may also ask this question in open day before the meeting, or during the debate as Crs Webb and Thompson, as I understood were members of Mr Clapham's group with Cr Martens having a long history of voting with Cr Thompson on a large variety of issues. I was very aware of the code of conduct and did everything I could not to breach it whilst giving an honest, transparent and accountable answer. I wrote the answer to his question down so not to deviate and breach the code. It certainly was not a speech but a response to a question. I also showed the answer to the General Manager Mr. Cam and the Mayor Cr. Kennedy prior to the meeting. My recollection of those conversations was Cr. Kennedy had concerns where I stated that the decision from the rates review committee was corrupted by the actions of the 3 councillors but I explained I was not calling them corrupt but that they influenced and changed the course of the review which was deemed an independent rate review committee. Hence corrupting the decision. I don't recall Mr. Cam warning against it, if he did I would have taken his advice, that's not to say that Cr. Kennedy or Mr Cam is in anyway responsible, I am responsible for what I say in Council. This is only mentioned as a demonstration on my efforts to not breach the code. Everything I stated in my response was true, accurate and in the public arena prior to my response.

Conclusion

1. For the above reasons, I find both grounds of the application established. I accept that Clr Shelley believes that he did not breach the Code, but I reject the proposition that there was no such breach. Quite clearly, Clr Shelley made the statements attributed to him at the Council meeting, and then repeated those statements the following day on his Facebook page. Indeed, Clr Shelley accepts that he made the statements as alleged. I reject Clr Shelley's submissions that the Facebook Post should be characterised as a personal view, and unrelated to his work as a councillor.
2. This is a matter where the appropriate disciplinary action is the recording of a reprimand, together with the fact that a public hearing into this application has been held and these reasons will be widely available. I would have been minded to impose a harsher disciplinary action, such as a fine or suspension, were it not for the following matters.
3. First, the fact that Clr Shelley showed his proposed answer to General Manager Cam and Mayor Kennedy. This was not challenged by the applicant, and while it does not excuse Clr Shelley's conduct, it does demonstrate he was aware of an potential issue and sought some advice about it and how to avoid issues which might arise.
4. Secondly, there are no previous complaints of misconduct. Hopefully, the conduct is a "one off". This can be contrasted with the conduct of the respondent in Office of Local Government v Neville [2018] NSWCATOD 31, where the Tribunal, in addition to reprimanding the respondent councillor, suspended him for a period of two months. However, there the councillor had, amongst other matters, failed to complete returns in the form prescribed by the regulations in accordance with the provisions of s 449(3) of the Act for a period of 15 years.
5. Thirdly, while Clr Shelley lacks insight into his conduct, he presented as a man of considerable integrity. I have no doubt that he serves his community in a principled way and acts in what he perceives to be his community's best interests. The fourteen character references persons he provided to the Tribunal attest to this.
6. However, at the end of the day, there is a Code of Conduct, by which all councillors must abide. Clr Shelley is an experienced councillor who admits that he is aware of the Code. He must abide by its spirit and letter. In the event that further complaints are established, a future Tribunal may well consider harsher disciplinary outcomes.
7. Clr Shelley submitted that, were I to find the complaints established, that I order him to be undergo counselling rather than to take any other disciplinary action. I decline that invitation. I consider that the conduct the subject of the complaints sufficiently serious to warrant the imposition of a reprimand. I would however encourage Clr Shelley to investigate with Council the availability of suitable counselling or ethics courses which may assist him in understanding why his conduct amounted to a number of breaches of the Code.

Costs

1. The applicant indicated during the course of the hearing that in the event it was successful, no order for costs would be sought. Accordingly, I make no order as to costs.

Orders 1. Grounds One and Two of the application are established. 2. The respondent is reprimanded.

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: 29 June 2018