Outcomes of adjourned Council Meeting on 27 June

29 June 2017

Item CM/10.2/17.06 – CONFIDENTIAL REPORT – Code of Conduct Complaint – May 2016

Resolution adopted by Waverley Council 27 June 2017:

That Council:

A. Treats this report as confidential in accordance with section 11(3) of the Local Government Act 1993, as it relates to a matter specified in section 10A(2)(i) of the Local Government Act 1993. The report contains alleged contraventions of any code of conduct requirements applicable under section 440.

B. Notes that the Office of Local Government (OLG) review of the OCM Investigation Report and related matters determined the following:

“With respect to Council's meeting on 17 May 2016, OLG notes the following:

  • Cr Betts made a decision as to the result of the vote on the voices and appears to have been satisfied that the majority of councillors had voted for the motion to adjourn the meeting. Having obtained the audio recording of the meeting in question from Council, OLG believes that it was reasonably open to Cr Betts to arrive at the decision she did.

  • the investigators determined, and OLG agrees, that a division was not demanded in the manner prescribed under clause 251(3).

  • under these circumstances:
− Cr Betts' decision as to the result of the vote was final; and
− Neither the Act nor the Regulation required Cr Betts to initiate a division or confirm the outcome of the vote by other means.

In light of this, it is not clear to OLG that the final investigation report sufficiently establishes that Cr Betts' conduct was inconsistent with her obligations under the Act and Regulation, or that Cr Betts failed to exercise a reasonable degree of care and diligence in carrying out her functions as chairperson under the Act.”

C. Therefore:

1. Notes the letter from OLG attached to this report

2. Notes the OCM Investigation Report into the Code of Conduct complaints attached to this report.

3. In view of the findings of the OLG letter, resolves not to adopt;

a. Recommendation 1 of the OCM Report
b. The findings of inappropriate conduct contained within the OCM Report

4. Finds that in accordance with the Review of the OCM Investigation by the OLG:
a. Cr Betts acted within her obligations under the Act and Regulations.
b. She did exercise a reasonable degree of care and diligence in carrying out her role as chairperson under the Act. 
c. Cr Betts did not illegally adjourn the meeting on Tuesday 17 May 2016.
d. Cr Betts made a decision about the result of the vote on the voices and the OLG, having obtained the audio recording of the meeting, believes that it was reasonably open for Cr Betts to have arrived at the decision she did. 
e. Cr Betts was therefore not guilty of any inappropriate conduct, and
f. No sanction should be imposed on Cr Betts.

5. Expresses great concern that OCM’s:
a. Failure to ensure the ‘confidentiality’ of their final findings to Complainants; and 
b. Failure to establish that Cr Betts’ conduct was inconsistent with her obligations under the Act and Regulation – as outlined by OLG has led to misleading, inaccurate and harmful statements regarding Cr Betts’ conduct being discussed in the press, local blogs and the NSW Parliament, causing her to experience considerable financial, emotional and reputational impact that ought to be remedied.

6. Requests the General Manager to meet with OCM to request that they:
a. Explain their findings in the light of the OLG review.
b. Explain why they did not immediately discount the allegations that the Mayor “illegally” closed the meeting when, as acknowledged and in reality, the Mayor only adjourned the meeting, and then explain why they did not acknowledge the difference in the report.
c. Explain why they released their findings to complainants without a confidentiality clause, and 
d. Outline how OCM intends to remedy the harm that this oversight has caused to Mayor Cr Sally Betts and Waverley Council.

7. Should immediately ensure that the OLG “Guide to Code of Conduct processes for complainants” becomes a part of Council’s and any Reviewer processes, in particular the paragraph which states “As a complainant you should not make public allegations of suspected breaches of the code or disclose information about the consideration of a matter under the code”.

8. Agrees that Council’s Code of Meeting Practice should be urgently reviewed in line with the recommendations of the OCM Report.

9. Endorses public release of the OLG letter and the OCM Report simultaneously, subject to OLG approval.