Disciplinary measures must be proportionate to misconduct

The decision to suspend a Marrickville Councillor from civic office for two months due to misconduct has been overturned by the NSW Civil and Administrative Tribunal on the basis the penalty was excessive. The Tribunal found there must be misconduct in the entire behaviour of a Councillor justifying a disciplinary response, and the penalty imposed must be appropriate to the breach.

The issue

Councillor Phillips was first elected as a member of Marrickville Council in 2008. On 27 November 2012, a Councillor briefing session was conducted to informally discuss the possibility of Council agreeing to a Meriton proposal in relation to a development in Lewisham. Meriton proposed if Council supported increased density for the development site, it would contribute $5 million to the Council. Although Councillor Phillips was not present at the session, he was later informed by other councillors that the information presented at the briefing session was not confidential. Councillor Phillips was opposed to the proposal and began canvassing community support against it.

The Meriton proposal was listed for discussion again by the Development Assessment Committee of Council on 11 December 2012, with Meriton indicating this meeting was confidential. Councillor Phillips sent an email to the Council Director of Planning disputing the confidential treatment of the Meriton item, since he believed the information provided to the November Councillor briefing was not at the time declared to be confidential.

Councillor Phillips’ efforts to obtain publicity on the matter led to an article appearing in the Sydney Morning Herald on 11 December and an on air interview on ABC Sydney radio on the morning of the same day. Councillor Phillips disclosed to Council that he had revealed to journalists the content of the business paper dealing with the Meriton proposal, but the only materials published were the documents he had received from other Councillors following the original briefing session.

By 13 December 2012, five councillors had lodged complaints with the General Manager of the Council alleging Councillor Phillips had breached a number of clauses of the Code of Conduct, including confidentiality provisions. As required by the Procedures for the Administration of the Code of Conduct, these complaints were referred for consideration by a Conduct Reviewer. On 8 March 2013, the Reviewer provided a report to the Council making a number of recommendations, including a recommendation Councillor Phillips be required to apologise to Council and Meriton unreservedly for his actions. This recommendation was made despite acknowledgement by the Conduct Reviewer that the information provided to the Briefing was not confidential.

At a meeting on 16 April 2013, Council resolved to censure Councillor Phillips for misconduct. Approaches were made to Councillor Phillips requesting him to make the apologies required by resolution of Council but he refused to do so. The matter was then referred to the Local Government Division of the Department of Premier and Cabinet.

On 14 January 2014, the Chief Executive, Division of Local Government, determined to suspend Councillor Phillips from office for two months after a Conduct Reviewer engaged by Council found he had engaged in misconduct as defined in section 440F of the Local Government Act 1993. The misconduct finding was based on Councillor Phillips’ continuing breach of a Council resolution requiring him to apologise for allegedly breaching confidentiality requirements under the Council Code of Conduct.

The decision

The Civil and Administrative Tribunal highlighted how under section 440F of the Local Government Act, misconduct is defined as a contravention of the Act or regulations or the failure to comply with the Code of Conduct. The Tribunal discussed how, in taking disciplinary measures against a councillor under section 440I, the Director-General must be satisfied that there has been misconduct in the entire behaviour of a councillor justifying a disciplinary response. He could not presume misconduct for disclosing confidential information and only deal with the allegation of misconduct for not complying with the resolution requiring an apology.

The Tribunal highlighted the fact a matter is not confidential unless there is a council resolution or delegation to that effect. In this case, the Tribunal could not establish the Business paper concerning Meriton, presented to the original Councillor briefing in November 2012, had b

een resolved by Council or under delegation to be confidential. Therefore, since confidentiality of the Meriton item was crucial to the finding of misconduct against Councillor Phillips, and the confidentiality of the item could not be established, there was no breach of the Code of Conduct.

Accordingly, the Tribunal was unable to conclude Councillor Phillip’s breach was of such seriousness as to warrant one of the highest levels of penalty, namely suspension from office for a period of two months. There was no evidence of actual damage to Meriton and the breach could not be categorised as reckless in circumstances where the Council did not have policies and practices regarding confidentiality in Planning Agreements.

The Tribunal concluded that the most fitting sanction would be to reprimand Councillor Phillips, accepting the importance of the Code of Conduct but also noting the wide range of sanctions available in the case of a breach.

Phillips v Director General, Department of Premier and Cabinet [2014] NSWCATOD 48

Implications for NSW local government

The decision of the NSW Civil and Administrative Tribunal in this matter highlights the importance of establishing misconduct ‘in the entire behaviour of a councillor’ before seeking disciplinary measures in respect of an alleged breach. Where misconduct is established, the penalty imposed must be appropriate to the breach and not excessive.

In addition, a Council matter is not considered confidential unless there is a council resolution or delegation to that effect. It is important for Councils to implement policies and practices in respect of meetings they intend to keep confidential, and express these intentions clearly to councillors involved.

It is also important to note a significant factor behind the Tribunal’s decision was the perceived need to find a balance between preserving the transparency of council business and ensuring legitimate claims to commercial confidentiality as identified in the Local Government Act.