Posted on February 28, 2017 by

Councillors behaving badly – NCAT sanctions over the last 12 months

Over the last 12 months, several Councillors from across NSW have been disciplined for various breaches of their obligations under their respective Council’s Codes of Conduct and for misconduct under the Local Government Act 1993. This blog provides some examples of the NSW Civil and Administrative Tribunal’s (NCAT) decisions and highlights NCAT’s inclination to impose significant sanctions on those civic office holders held to have breached their conduct obligations. 

Passas

Julie Passas, a Councillor at Ashfield Council (now part of the newly amalgamated Inner West Council) was found to have:

• breached various clauses of the Council’s Code of Conduct at a variety of Council meetings between 21 February 2013 and 26 May 2015, essentially by being disruptive, by refusing to abide by the Mayor’s procedural rulings, and refusing to accept that she needed to leave the Council chamber when so directed by the Mayor following the requisite three warnings;
• had an inappropriate and direct interaction with a Council employee / staff member;
• refused to give an apology as formally resolved by the Council; and
• refused to undertake training on the Code of Conduct in accordance with the Council resolution.

As a result of the above adverse findings, Councillor Passas was found to have engaged in misconduct and was disqualified from holding civic office for a period of 3 months.

Meineke

Graeme Meineke, formerly a Councillor with Lismore City Council, failed to declare a non-pecuniary conflict of interest during two 2013 Council meetings in which Council resolved to acquire certain parcels of land under the Land Acquisition (Just Terms Compensation) Act 1991.

As well as being a Councillor, Mr Meineke was a planning consultant who represented one of the landowners whose land Council proposed to acquire. The failure to declare this interest was found to have breached Council’s Code of Conduct and was therefore misconduct within the meaning of the Local Government Act 1993.

Mr Meineke was no longer a Councillor at the time of his hearing before NCAT and therefore received the following sanctions:

• a 3 month suspension from any right to be paid a fee or other remuneration for which he would be entitled; and
• a reprimand.

Ticehurst

Martin Ticehurst, Deputy Mayor of Lithgow City Council was found to have engaged in misconduct for the following reasons:

• On 27 October 2014, he swore at the Mayor, calling her twice a “bitch” and also threatening her by saying “I hope you choke on your sandwich” ;
• He refused to give an apology as formally resolved by Council; and
• On 1 June 2015 following a Council meeting, he acted in an aggressive, rude, intimidating and embarrassing manner toward a member of the public.

Over a period of 7 years prior to this decision, Councillor Ticehurst had been suspended from office on six previous occasions with each suspension ranging from 1 month to 4 months in duration.

NCAT imposed a 5 month suspension on Councillor Ticehurst for his misconduct on this occasion. Consequently, because it was the “third or subsequent such suspension order” against him, by virtue of s275(1A) of the Local Government Act 1993, Councillor Ticehurst was disqualified from holding civic office for 5 years.

Section 275(1A) was introduced in November 2015 as a further deterrent for repeat offenders and reinforces the need for Councillors to take their obligations as civic office holders seriously and learn from any previous suspensions imposed on them.

 

Take Home Message

The sanctions imposed in the cases above demonstrate that NCAT considers Councillor misconduct to be a serious issue.

Councillors need to be mindful of their conduct obligations. Regularly reading the Council’s Code of Conduct will assist with keeping these obligations in the forefront of their mind. Further, with the introduction of section 232(1)(g) of the Local Government Act 1993, which requires Councillors to make all reasonable efforts to acquire and maintain the skills necessary to perform the role of a Councillor, it is possible that penalties for breaches of the Code of Conduct are more likely to increase than decrease.

With Council elections for amalgamated Councils on the horizon, candidates should keep  these obligations in mind as they seek election to these positions in newly formed Councils.

For advice regarding Councillor misconduct, Code of Conduct and Local Government Act related issues, please contact Sue Puckeridge, Partner on 8235 9702 or email sue.puckeridge@lindsaytaylorlawyers.com.au