Lord Mayor censured

From tonight's council meeting...

ITEM-62 CCL 01/06/2010 - CODE OF CONDUCT SOLE REVIEWER'S REPORT ON COMPLAINT AGAINST THE LORD MAYOR COUNCILLOR TATE

Councillor Sharpe moved a procedural motion to deal with Item 64 before Item 62.

PROCEDURAL MOTION MOTION: (COUNCILLORS S SHARPE/B LUKE) That item 64 - Empire Park Bar Beach - Skate Park Facility / Bat Ball Court be brought forward subject to public interest in the gallery.

The procedural motion was put to the meeting and declared defeated.

MOTION: (COUNCILLORS T CRAKANTHORP/S SHARPE)
1 Council receives the report.

2 Council find the Lord Mayor has breached sections 7.2, 7.3, 7.13 and 7.18 of Council’s Code of Conduct in relation to his failure to adequately disclose and manage a non pecuniary conflict of interests with Almona Pty Limited and companies and persons related to Almona Pty Limited.

3 Council censure the Lord Mayor for that breach.

Councillor Crakanthorp addressed the meeting and exceeded his time limit.

Councillor Buman requested an extension of one minute to Councillor Crakanthorp's address.

PROCEDURAL MOTION
RESOLVED: (COUNCILLORS A BUMAN/S SHARPE)
Councillor Crakanthorp's address be extended for one minute.

Councillor Osborne gave notice of a foreshadowed motion, that being the recommendation from the General Manager to defer the matter to allow the Lord Mayor and his advisors to comment on the supplementary report from the Sole Reviewer.

The Lord Mayor indicated that when the vote was taken on this item he would step down from the Chair.

The Lord Mayor proceeded to read a prepared statement to the meeting. The Lord Mayor requested that the prepared statement read in his address be recorded in the minutes.

The Lord Mayor exceeded his time limit of three minutes.

Councillor Buman sought an extension of time.

PROCEDURAL MOTION
RESOLVED: (COUNCILLORS A BUMAN/S SHARPE)
The Lord Mayor be granted an extension of time.

Following further reading of the statement from the Lord Mayor, and a point of order raised by Councillor Buman, the Lord Mayor moved an extension of one minute.

PROCEDURAL MOTION
RESOLVED: (THE LORD MAYOR/COUNCILLOR N NELMES)
The Lord Mayor be granted an extension of time.

During his address, the Lord Mayor and Councillor Cook moved for a further extension of half a minute.

PROCEDURAL MOTION
MOTION: (THE LORD MAYOR/COUNCILLOR B COOK)
The Lord Mayor be granted half minute extension.

The procedural motion was put to the meeting and a show of hands was requested which resulted as follows:
For the motion: 5
Against the motion: 7

The procedural motion was declared defeated on the result of five votes to seven votes.

The Lord Mayor's statement read as follows:

"Unfortunately notwithstanding the dictates of natural justice I have not been afforded the opportunity to respond to the supplementary report of the Code of Conduct Reviewer prior to that report being provided to other Councillors.

I have also not been afforded the courtesy of a copy of the original report provided by the Code of Conduct Reviewer nor the brief provided to the Reviewer.

Given that the supplementary report of the Code of Conduct Reviewer has now issued, I am obliged to respond to that report.

The Code of Conduct Reviewer has come to the conclusion that I have breached the Code of Conduct as it applies to Newcastle City Council. For a number of reasons which are set out below I do not agree with that conclusion. The Code of Conduct Reviewer indicates that the Code of Conduct places onus on the individual to decide whether a conflict of interest exists.

The Code of Conduct Reviewer acknowledges that I disclosed to Council the fact of a donation made in the 2007 State Election Campaign by a company, which company is related to the applicant in the matter before Council.

Accordingly I complied with the Code of Conduct in making that deliberation.

The Code of Conduct Reviewer even when presented with the opportunity to do so does not provide any detail of the manner in which such disclosure is alleged to be inconsistent with the Code of Conduct or indeed unsatisfactory.

The form of disclosure is consistent with the disclosures made from time to time by other councillors (and I've got copies Councillors if you would like to read your disclosures).

The Code of Conduct Reviewer then goes on to say that I did not manage the non-pecuniary interest that I disclosed to the Council meeting.

Unfortunately once again the Code of Conduct Reviewer, having had the opportunity of preparing two reports, does not explain the manner in which I fail to manage the disclosure that I made a the relevant Council meetings.

One would expect that as the Code of Conduct Review indicates that it is for the individual to decide whether a conflict of interest exists and that in order to find that a conflict of interest does exist, and has not been properly managed, the Reviewer should clearly indicate the manner in which the disclosure is not sufficient or the manner in which any alleged conflict has not been properly managed.

As a result of this matter arising I have sought legal advice from my own advisors and from an independent Barrister. These legal advisors are to the effect that the report of the Code of Conduct Reviewer is flawed.

They have also supported in the stance in respect of this matter by an opinion from a well respected Local Government commentator. The prominent Local Government commentator, having reviewed all the material, was of the opinion that a reasonable person properly informed as required by the Code of Conduct, would be most unlikely to conclude that I would be likely to have been influenced in any way by the circumstances arising from this matter.

The prominent Local Government commentator also raises the issue that if a councillor is to be criticised for a lack of management or any perceived conflict of interest then the Reviewer should at least specify the steps that he says should be taken.

It would have been easier for me to decline to participate in the decision making process which has been the subject of the Code of Conduct report, however, as an elected Councillor there are a number of issues which have to be considered when making such decisions.

Councillors have roles and responsibilities bestowed on them by the Local Government Act. These roles and responsibilities include as a member of the Governing body of the Council to direct and control the affairs of the Council and as an elected person to represent the interests of residents and ratepayers and to provide leadership and guidance to the community.

It would be wrong for a councillor to use the Code of Conduct to avoid shouldering a burden of these roles and responsibilities. It is also wrong for any persons who may not agree with the decision that a councillor makes to endeavour to use the Code of Conduct to force a councillor out of the decision making process simply because they perceive that a councillor might not support their particular view.

My initial decision to allow the matter to be released to the public for consideration is consistent with the ideals of community consultation and allowing the community to have input into the decision making process of the Council in respect of matters which could be of significant impact upon the community. It must be concluded that persons who lodged the complaints which led to the Reviewer's review, were persons who were opposed to the development of the Maryville markets but who were not willing to allow the community as a whole to express the community's view on such development.

Once elected councillors are responsible for the whole of the community and Local Government area, not part thereof. These people sought to disenfranchise the wider community. The issue which is highlighted is that when a small number of persons are dissatisfied with a decision, that small number of persons are able to lodge complaints against a councillor.

As was indicated in the address by former Commissioner, Independent Commissioner Against Corruption, the Honourable Jerrold Cripps, he said "it unfortunately is the case that in Local Government when people do not get the outcome they want from local council, their first, not all but mostly first response, is that council must be corrupt and therefore identify the corruption reference of a conflict of interest".

Given the circumstances in which the complaints arose on 4 May 2010, the comments made by certain councillors when this matter first came before the Council and in particular that when considering the report of the Code of Conduct Reviewer certain councillors took the opportunity to raise during discussion issues which were not only not relevant to the report of the Code of Conduct Reviewer but have not formed any part of any complaint clearly indicates that the comments of his Honour Justice Cripps have strong relevance and that this whole exercise has all the hallmarks of a political witch hunt.

Indeed the comments made by certain councillors amount to pre-judgement of the sort referred to in the case McGovern versus Ku-ring-gai Council as noted by Justice Cripps in his address. Indeed I have also been accused of endeavouring to influence other councillors to support the view that I took at the Council meeting, the subject of the complaints made to Council.

I challenge any person to bring forward any evidence that I endeavoured to influence any other councillor to either exercise their vote in a particular manner or not attend at the Council meeting on the night the matter was considered." Following the mover's right of reply the Lord Mayor stepped down and requested the Deputy Lord Mayor to take the chair. The Lord Mayor requested the Deputy Lord Mayor to take the vote by division.

The Deputy Lord Mayor put the motion to the meeting and called for a division which resulted as follows:

For the motion: Councillors G Boyd, A Buman, S Claydon, T Crakanthorp, M Jackson, M King, B Luke, N Nelmes, M Osborne and S Sharpe.
Against the motion: The Lord Mayor and Councillor B Cook

The Deputy Lord Mayor declared the motion carried on the division of ten votes to two votes.

RESOLVED: (COUNCILLORS T CRAKANTHORP/S SHARPE)
1 Council receives the report.

2 Council find the Lord Mayor has breached sections 7.2, 7.3, 7.13 and 7.18 of Council’s Code of Conduct in relation to his failure to adequately disclose and manage a non pecuniary conflict of interests with Almona Pty Limited and companies and persons related to Almona Pty Limited.

3 Council censure the Lord Mayor for that breach.