Office of Local Government v Councillor Bagnall [2014] NSWCATOD 122

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Office of Local Government v Councillor Bagnall [2014] NSWCATOD 122 Hearing dates: On the papers Decision date: 28 October 2014 Jurisdiction: Occupational Division Before: D Patten, Principal Member Decision: Finding that Mr Bagnall guilty of misconduct. Order that he be reprimanded. Catchwords: Councillor-misconduct constituted by inappropriate communications regarding investigation. Legislation Cited: Local Government Act 1993 Category: Principal judgment Parties: Office of Local Government Gary Bagnall Representation: Premier & Cabinet (Applicant) G Bagnal (Respondent) File Number(s): 1420229

reasons for decision 1This matter has been referred to the Tribunal by the Office of Local Government pursuant s440 J of the Local Government Act 1993 (theAct). 2Councillor Gary Bagnall (Mr Bagnall) was elected to Tweed Shire Council in September 2012. On 22 November 2012 he was, in company with Councillor Katie Milne, recorded on closed circuit television climbing over a gate leaving property owned by the Council known as Kinnears Quarry. This was reported to Mr David Keenan, the Councils then General Manager who on 29 November 2012 lodged a code of conduct complaint against the two Councillors and referred it for investigation by a Mr Glen Ratjens. 3Mr Ratjens embarked upon his inquiry on 30 November 2012 and provided a written assessment on 1 December. In that assessment he concluded that the conduct complained of could constitute a breach of the Inclosed Lands Protection Act and also of the Council's Code of Conduct. At that point it appears that Mr Ratjens had not spoken either to Mr Bagnall or Ms Milne. Before he did so his investigation was somewhat overtaken by other events as hereafter related. 4Mr Ratjens lived in a small North Coast town called Uki. His wife operated a business Uki Takeaway in Kyogle Rd Uki. He assisted his wife in the business. 5During the morning of 9 December 2012 Ms Jodie Smith a casual employee of Uki Supermarket located next door to Uki Takeaway was approached by Mr Bagnall. There was a conversation which Ms Smith relates in her statement of 22 May 2013 as follows: 4....."a man who had just bought an ice block approached me and asked if I was the store owner. I replied that I wasn't. The male then started to ask me a series of questions. He said, "who are the owners of the takeaway store?" I said, "Glen and Lorraine" He said, "What does Glen look like?" I said, "Short, my height, brown hair". 5. There was a calendar depicting Lorraine and one of her employees close by. Referring to the photo, the male asked. He said, "Is that Glen's son?" I said, "No" He said, "Does Glen have kids? I said, "Yes, I think so." 6After stating that she felt discomforted by the conversation Ms Smith recorded: 7. He said, "What hours does Glen work at the store." I said, "It all depends, it's never a set routine." 8 There may have been a few more questions but I don't recall them. The man then left the store and I saw him walk up and down the street. I saw the man enter the Happy Herbs store. 7On the same morning viz 9 December 2012 Mr Bagnall entered the Happy Herbs store located on the other side of Uki Takeaway. That store is operated by Dr Brad Hopgood and his wife Saskia. According to Mrs Hopgood's statement of 22 May 2013: 4. Around mid morning on the 9 December 2012, Brad and I were working when a man and his young son entered the store. The first thing I recall him saying was, He said, "Is Glen a nice bloke? Brad said, "he can be." 5. I wasn't involved in the conversation, rather I was present while the conversation was taking place. I recall that the man at one stage said that he was a councillor. He said that he and his son were going fishing. He said that he and another councillor went to the quarry to check out the creek and that Glen was investigating him. 6 When he left the man said, "Mums the word." 7. The conversation lasted about five minutes and it was mainly him talking..... 8Dr Hopgood relates the events in his statement also dated 22 May 2013: 3. I have know Glen and his wife Lorraine for the past two and a half years. We own the Happy Herbs store in Uki, which is next to Glen and Lorraine's take away store. 4. Between 10.30am - 11am on Sunday the 9 of December 2012, I recall a man and his kids entered the store. Saskia was also working at the store, behind the counter. I thought that he was a customer. I approached him and introduced myself. 5. He said "Do you know Glen from next door. I said Yes I do" He said, "Is he a nice guy." At this stage I was suspicious of the male as Uki is a very small and tight knit community. I was also aware of Glen's previous occupation. 6. I don't recall the exact conversation, but it (sic) the man just started talking to me. He said that Glen was investigating him because he had jumped over a gate into a Quarry. He indicated that he was a councillor and that he was assessing the water quality of a creek. I recall him saying that there was a green/brown colour to the water. 7. I remained very quiet, I did not want to provide this person with any information about Glen so I just let him talk. I recall that the man sough (sic sought) confirmation from me that Glen was an ex police officer and criminal investigator and that he was also a university lecturer. 8. The man was asking a lot ot questions about Glen's personal details like, where he lived, did he have any kids, asked about his wife. He wanted to know everything about Glen's life. 9. I recall that I felt very concerned for Glen's welfare at this time, just because of the nature of the questions this person was asking. The man continually used the term, "just between us" 10. The conversation last for about ten minutes. The man started to realise that I was upset about the nature of the conversation and he decided to leave. As he was leaving he said, "Mums the word." 9On the following day Mr Bagnall sent Mr Ratjens an email in response to Mr Ratjens request for an interview; "Thanks Glen. Sounds good to me. For your information, I do not see this process as a personal thing between you and me. I know who you are and you probably know of me and I have friends that know you. I just see this thing as a simple procedural thing. I will be open and honest with you I will not deny that I climbed the fence. Regards Gary Bagnall 10The words "I know who you are and you probably know of me" "and I have friends that know you" reproduced in the email above were in bold face. 11Two further emails were sent by Mr Bagnall to Mr Ratjens. The first sent at 8.44am on 12 December 2012 in reply to Mr Ratjen's email enclosing a draft confidentiality agreement read: "Good morning Glen, I have just read your email. 1.15am you are up very late. I have enquired of the council what powers of investigation they have into "unlawful" activities. Can you please advise me if the conditions of LEPRA Section 201 would apply in the event of your meeting as an independent investigator. I may be exercising my right to remain silent. I will probably be taking legal action against the council as the result of this inquiry. Concerning the request that I sign a confidentiality agreement, at present I am working on a book to be released in 12 months titled "A Year in the Life of a NSW Councillor. The Inside Story." The current chapter will be dealing with this fence issue and therefore I cannot sign a confidentiality statement. Kind Regards Cr Gary Bagnall" 12The second email was sent at 11.13 am the same day. It was copied to other people including representatives of the media. The email read Sorry to bother you again Glen, but council have now informed me that certain staff have been made to sign a similar confidentiality statement concerning this fence Issue, I am wondering why such secrecy is involved with a simple 3 strand barbed wire fence? Now I have been asked to sign one. Have you any idea what is going on here? I have asked questions of a senior staff and have been told the directors have taken my questions and the staff has signed a confidentiality statement now and cannot answer my questions, My questions I have been told have now been sent to some government department in Sydney. I have just received a threatening phone message saying that someone has been into my shop and around to my home and abused me. I have just made a report to Murwillumbah police, they have listened to it and formalised the complaint. You can check with them if you like. Have you any idea of what is going on here? 1 am feeling threatened (that the powers of this organisation are being over exercised on such a simple matter, In the last fortnight I have been told that my emails are being filed, my phone calls are to be registered with council and numerous other things, Some important emails are not being answered by senior council staff. I believe that this is not just over the look on the other side of some flimsy fence. I think this matter now needs to be taken out of the hands of council and placed in the hands of ICAQ. There has to be something else behind Cr Milne and I being treated like this, I am now sending copies of all my correspondence to the press In case something happens to me. and the police have also been alerted to the intimidation, abuse and threats, Regards, Cr Gary Bagnall Sent from my iPad 13The email released to the media and interviews which Mr Bagnall apparently conducted with reporters led to some publicity including an item in Tweed Daily News of 12 December 2012: TWEED councillor Gary Bagnall has received threats since gaining access to a council owned quarry to investigate an environmental issue He says the threats were against his person home and family "There is something going on here which is not immediately apparent. "They are trying to shut us up". Cr Bagnall said Cr Bagnall said the response by the council' s general manager David Keenan following his visit to Kinnears Quarry near Crystal Creek was completely over the top. Mr Keenan complained about Cr Bagnall and Cr Katie Milne stepping over a fence to gain access to the quarry and failing to wear appropriate safety clothing such as hard hats and closed, sturdy shoes Cr Bagnall said the police were investigating the threats made against him and he would approach the Independent Commission Against Corruption (ICAC) to address the larger, hidden issues he felt were behind certain parties trying to silence him. He said the council had asked him to sign a confidentiality agreement covering the quarry issue and the resulting code of conduct complaint. The council also asked him to keep a record of correspondence regarding the issue between Cr Bagnall and third parties. I won't sign a confidentiality agreement. "Everybody needs to know what s going on here," he said. Cr Bagnall said he felt that the issue was not about the quarries but about the alleged pollution of the nearby creek. He said the complaint made against him and Cr Milne was inappropriate and disproportionate. "We simply stepped over a three strand barbed wire fence to see if a recently constructed dam complied with health and safety rules under the act. "Young children often ride down the road and could easily gain access to the site,' Cr Bagnall said. Cr Bagnall said the complaint made by Mr Keenan suggested that he and Cr Milne failed to wear the appropriate clothing necessary to access a construction site. "The sign at the fence told visitors they should wear hard hats and proper shoes. "I visited the quarry together with a council officer who told me to step over the fence and only offered me a high visibility vest "Both of us then entered the site without proper clothing "This is not a construction site and the barbed wire fence is a farm fence and wouldn't keep out anyone or anything apart from animals", Cr Bagnall said. 14Mr Bagnall's conversation's with Ms Smith and Dr Hopgood came to the notice of Mr Ratjens and on 16 December 2012 be complained to the Council about Mr Bagnalls conduct and about the email of 10 December 2012 quoted above. Subsequently, the General Manager referred all outstanding complaints against Mr Bagnall to the Chief Executive Local Government a Division of Premier and Cabinet. The reference also included a complaint that Mr Bagnall had made inappropriate statements to the media. 15The Chief Executive referred the alleged trespass back to the Council in accordance with s440J (a) of the Act. In relation to the complaint of Mr Ratjens the Chief Executive decided that the matter required further investigation and he commissioned an investigation pursuant to s440 H(5) Act. 16Following his investigation the investigator made a written report to the Chief Executive. In it he made adverse findings against Mr Bagnall and recommended that the Chief Executive consider suspending him from civic office for a period not exceeding one month. 17The Chief Executive published the undermentioned decision on 21 May 2014: MATTER: COUNCILLOR GARY BAGNALL, TWEED SHIRE COUNCIL PREVIOUS DECISION "I am of the view that Councillor Bagnall has engaged in misconduct for the reasons outlined in the investigation report. Even though I accept that Councillor Bagnall's actions don't appear to have been driven by malicious intent, it is not acceptable behaviour under any circumstances for a councillor under investigation to make enquiries about the conduct reviewer in the manner in which Councillor Bagnall did. The overriding consideration in this matter, in my view, is that the conduct reviewer genuinely felt intimidated. This behaviour undermines the integrity of the Code of Conduct and its associated processes, which cannot be tolerated. I propose a penalty of suspension from civic office for one month, subject to consideration of Councillor Bagnall's submission on penalty." Ross Woodward Chief Executive 4 March 2014. DECISION: I have carefully re-considered this matter in light of Clr Bagnall's response about the proposed sanction. I have re-read the Departmental Report and all the evidence. I have also considered the circumstances at the time including Clr Bagnall's experience as a councillor and his understanding of the process. As a result, I have changed my position with regard to sanction. I do not resile from my decision that Clr Bagnall's behaviour was improper and that he engaged in misconduct for all the reasons previously stated. However, in view of the fact that at the time he was inexperienced as a councillor and there was no evidence of malicious intent, I have concluded that a lesser sanction/penalty than suspension would be more appropriate. However, the range of penalties available to me in this matter are limited due to the legislation that was in force at the time. I consider that a formal apology to the conduct reviewer together with a reprimand would be more appropriate sanctions. Suspension is a step too far in these circumstances. I have therefore decided to refer the matter to the NCAT with the instruction that the Office's submission to the NCAT is that Clr Bagnall has engaged in misconduct under the provisions of the Act and Code of Conduct. However, the range of penalties available to me in this instance are insufficient in my view because they range from do nothing to suspension, both of which are not appropriate in this circumstance. Ross Woodward Chief Executive Date: 21 May 2014. 18Since December 2012 Mr Bagnall has had a number of opportunities to explain or justify his conduct. In an email to the Chief Executive Local Government which dealt with the allegations then pending against him and obviously postdates 17 January 2013. Mr Bagnall said in relation to his conversations with people in the town ship of Uki: I now turn to the issues raised in the e-mail from Lyn Brown of your Office, to me, dated 17 January, 2013. It was stated "The other matter the Division is examining is an allegation that you may have breached the Council's Code of Conduct by conducting yourself in a manner that was perceived as harassing in relation to your enquiries about the conduct reviewer who was managing the conduct complaint relating to the quarry. This was characterised by you asking questions of various people about the personal particulars of the conduct reviewer". This is a wholly incorrect statement of fact. I made no inquiries of any person regarding the personal particulars of Mr Ratjens. I asked no questions. Furthermore, I offered no comments to any person regarding Mr. Ratjens. The only inquiry I made was to a neighbouring shopkeeper as to the opening hours of his shop (closed at the time), as we had a mutual employee that I wanted to discuss with him. At no time did I ask any question of this person about his personal qualities, make any comment on them or his involvement in the Review. I regard this allegation as completely unfounded. Indeed, I am at a loss to understand how this complaint - a most serious complaint - could have been made in the first place. 19In the same email Mr Bagnall dealt with his email to Mr Ratjens of 10 December 2012: "Harassing behaviour" is understood to be behaviour that a reasonable person would consider to be offensive, humiliating, intimidating or threatening. It is behaviour that creates a hostile environment. I am at a loss to understand how any sensible reading of my e-mail could be construed as offensive, intimidating or threatening. In fact, it is quite to the contrary. I am making it plain that I have no issue with his involvement in this process, or his role as reviewer. On a fair reading of my e-mail, it is clear that I am trying to assure the reviewer that I am not approaching our meeting in an antagonistic manner, and that, as far as I was concerned, it will be conducted in a business-like and civil fashion. 20Regarding the allegation that Mr Bagnall made inappropriate disclosures to the Media he denied that he had disclosed confidential material and asserted that he was simply in a personal capacity defending himself against what he regarded as an inappropriate response by the Council to his alleged trespass. He summarised his position in the following terms: As I have made plain from the start, I consider this to be an excessive and disproportionate response to what was a technical breach of the Code. The reasons given for the objection to my access to the quarry were transparently unpersuasive. I was advised that I was in breach of health and safety regulations as I entered the site without a "hard hat" or protective footwear. In fact, when I revisited the site in company with a senior officer of the council, he instructed me to climb over the very same fence, and neither of us were wearing "hard hats" or protective footwear. Secondly, the Code describes the processes that are to be followed and the sanctions that may be applied for a breach of its terms. These include counselling the councillor and/or requiring the councillor to apologise to any person adversely affected by the breach. The assessment criteria also include "considering alternative and satisfactory means of redress including the mediation of any dispute." Counselling was apparently not even considered. As I stated earlier, I promptly offered on two occasions to apologise to the General Manager. These approaches were rebuffed. The Mayor then invited us to participate in mediation. I was willing to enter mediation. The General Manager refused to participate. When regard is had to the "Case Studies Examples of Good Practice" which is an annexure to the Code of Conduct, the example is given of a council employee using council-equipment in his own time to undertake work. In this case, the Practice Note suggests it would be appropriate "if the General Manager counsels the employee on the use of council resources." I regard my actions in accessing the quarry to be of far less seriousness than a council employee using council equipment for his own purposes. Furthermore, in keeping with the principle that "sunshine is the best disinfectant", I have made the media comments to defend myself against threats received. I have received threats against my person, my home and my family. Although I have reported this to the Murwillumbah police, you will appreciate that their ability to prevent any attack is limited, 21On 23 May 2013 Mr Bagnall was formally interviewed by investigation officers for the Division of Local Government Premier and Cabinet. A transcript of the interview is before me and as I read it Mr Bagnall did not take significant issue with the versions of the conversations recited in the Statements of Ms Smith and Dr and Mrs Hopgood. 22As at December 2012 s440 F of the Act defined misbehaviour by a Councillor to include contravention of the standards of behaviour mandated by a Code of Conduct adopted by a Council. In the case of Tweed Shire Council the adopted code included: "General Conduct 6.1 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: a) contravenes the Act, associated regulations, council's relevant administrative requirements and policies b)is detrimental to the pursuit of the charter of a council c) is improper or unethical d) is an abuse of power or otherwise amounts to misconduct e)causes, comprises or involves intimidation, harassment or verbal abuse f) causes, comprises or involves discrimination, disadvantage or adverse treatment in relation to employment g) causes, comprises or involves prejudice in the provision of service to the community (Schedule 6A)" 23Misbehaviour within s440 F as it was in December 2012 became misconduct within s440F as amended from 1 March 2013. 24When this matter was listed for directions on 2 July 2014 the Hon W Haylen by consent directed that the proceedings be determined on the papers. The power to make such an order is expressly conferred by s 470 B of the Act inter alia where there are no material facts in dispute. Concern was raised about this circumstance after the parties made their submissions in accordance with Mr Haylen's directions. At a hearing conducted by telephone I concluded that there are in truth no material facts in dispute and affirmed the decision that the matter be decided on the papers. 25The concern arose because of paragraphs 2, 3 and 4 of Mr Bagnalls submissions: 2. I do not agree that I asked "a series of personal questions about Mr. Ratjens including enquiries about Mr. Ratjen's wife and children, his appearance and residential address." (Local Government Submission, paragraph 5). 3. Contrary to the submission of the Office of Local Government, there are material facts in dispute between the parties (see Local Government Submission, paragraphs 14 and 17.) 4.These concern (a) my right to make inquiries about the character of Mr Ratjen's to determine if he was biased or had inappropriate links to the (former) Council General Manager, and (b) the manner and content of those inquiries. 26As it seems to me Mr Bagnall does not dispute material or underlying facts but does dispute the proper interpretation to be put on them. Although the email quoted above on its face denies the conversations related by Ms Smith and Dr and Mrs Hopgood, in the interview conducted on 23 May 2013, he seems to resile from taking issue with the actual words they say were used. For that reason I propose to accept that the conversations were accurately recalled. To my mind they have a ring of truth and of course include material which could only have come from Mr Bagnall. To the extent that it is relevant and in the absence of any evidence to the contrary, I accept Mr Bagnall's version of the circumstances surrounding his possibly unlawful entry into the grounds of the Kinnear mine. On that basis there is much to be said for his claim that the Council reacted somewhat disproportionately to a very trivial matter. 27In reaching a conclusion upon the matters referred to the Tribunal I have relied solely on the evidence to which I have made express reference that is the conversations by Mr Bagnall with, or overheard by, Ms Smith and Dr and Mrs Hopgood, the emails I have quoted and the explanations given by Mr Bagnall. I have discarded the other material before me as insufficiently reliable or cogent. 28As appears from no more than a casual glance at the Code it imposes a very high standard of conduct and probity upon Councillors. No doubt it was intended to do just that. 29Being aware that Mr Ratjens had been appointed to conduct an inquiry into his conduct it seem to me unarguable that at the least a Councillor would be acting improperly or unethically by engaging in the conversations Mr Bagnall had with Ms Smith and Dr Hopgood. Even if one accepts as I do that Mr Bagnall was not acting maliciously and did not intend harm to Mr Ratjens, I would categorise his conduct as quite outrageous and it is surprising that a man elected to significant public office did not know better. The natural and virtually inevitable consequence of his conduct was to alarm Mr Ratjens and to compromise the inquiry. His conduct was inappropriate misconceived and wrong. In my view it certainly contravened the Code and constituted misconduct within s440F. 30Likewise in my opinion his overly familiar and patronising email of 10 December 2012 was quite inappropriate for a person in his position. He should have known it was both improper and unethical. I could well understand that the contents of the email were likely to cause Mr Ratjens discomfort and concern particularly in the context of Mr Bagnalls conversations with Ms Smith and Dr Hopgood. 31As to the two emails sent by Mr Bagnall on 12 December I see nothing inappropriate or unethical about them. He was in my view legitimately responding to Mr Ratjens request that he sign a confidentiality agreement. 32In relation to publication of the second email of 12 December to the media and his media statements Mr Bagnall submits that he was acting defensively as he regarded himself as threatened. There is only Mr Bagnall's word for this and there are no particulars of any threat made to him. In all the circumstances however, I do not regard his communications to and with the media as improper. He was entitled to take reasonable steps to defend his public reputation and I do not think that it has been proved that he went beyond the bounds of reasonableness. 33For the above reasons I find the complaint of misconduct against Mr Bagnall proved. Although of course this is a reference by and not in any sense an appeal from a decision of the Chief Executive I respectfully agree with his conclusion that despite proved misconduct an order for suspension is not warranted. The order of the Tribunal is that Mr Bagnall be reprimanded. That is the only order I make as the Tribunal does not seem to have jurisdiction to require Mr Bagnall to apologise to Mr Ratjens.