Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Meineke v Acting Chief Executive, Office of Local Government (No 2) [2017] NSWCATOD 14 Hearing dates: On the papers (last submissions received 2 December 2016) Date of orders: 23 January 2017 Decision date: 23 January 2017 Jurisdiction: Occupational Division Before: Dr J Renwick SC, Senior Member Decision: The decision of the Respondent in relation to the Appellant dated 20 April 2016 is confirmed. Catchwords: CIVIL AND ADMINISTRATIVE TRIBUNAL – Local Government Act 1993 – breach of Code of Conduct –– councillor retained to assist a client have his land compulsorily acquired by the Council of which he was a councillor – paid a standard fee rather than a success fee – one of a number of preconditions to this was having the Council designated in the Local Environmental Plan as the acquisition authority – appellant did not absent himself from two meetings and in relation to one meeting made no declaration –– misconduct established – decision of Respondent confirmed Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Local Government Act 1993 (NSW) Category: Principal judgment Parties: Graeme Peter Meineke (Appellant) Acting Chief Executive, Office of Local Government (Respondent) Representation: Counsel: B Tronson (Respondent) Solicitors: Grahams Solicitors (Appellant) File Number(s): 1620120 REASONS FOR Decision Introduction 1. This is an appeal by the Appellant, Mr Graeme Peter Meineke, formerly a Councillor with Lismore City Council, as a result of a decision made on 20 April 2016 by the Respondent, the Acting Chief Executive, that he had engaged in misconduct within the meaning of Chapter 14 of the Local Government Act 1993 (the Act); and accordingly, he be suspended for a period of three months from any right to be paid a fee or other remuneration for which he would be entitled; and be reprimanded. In my decision of 14 October 2016 (see [2016] NSWCATOD 135) I found misconduct had occurred. For the reasons which follow (which should be read with my earlier decision), I confirm the penalties imposed by the Respondent on 20 April 2016. Submissions 1. In my earlier decision, I said at [42]-[47]: [42] In relation to the first meeting, there was no compliance with the Code. Thus there is misconduct being (s 440F(1)(b): 'a failure by the councillor to comply with an applicable requirement of a code of conduct under section 440'. [43] In relation to the second meeting, there was also no compliance with the Code: the Appellant proceeded from the incorrect premise that there was a pecuniary interest as to which there was no requirement to make a disclosure nor to avoid the conflict by, for example, absenting himself from the meeting and not voting. Section 448(g) of the Act as it then read was inapplicable to non-pecuniary conflicts of interest. It is irrelevant, even by analogy. [44] In the result I have found breaches of the Code and thus misconduct. [45] The Respondent contends that in such circumstances I should affirm the decision already made. [46] I should indicate that I would not be minded to impose more severe penalties than already imposed. [47] Although he has put in some submissions already, I indicated at the hearing that if I reached this stage I would consider any further submissions and evidence from the Appellant, and anything in reply from the Respondent before making my final decision. 1. Further submissions and evidence were received from the Appellant and responded to by the Respondent and I have considered these. 2. The Appellant believed, and continues to believe (contrary to my findings), that there was neither a non-pecuniary conflict of interest nor should such conflict of interest be found was it significant and, in any event, at least in relation to the second instance, it was asserted that there was disclosure because the fact the Appellant had been advising his client, Mr Larrescy was "well-known to Council". 3. In submissions made on his behalf, the Appellant contended that: 1. Mr Larrescy's property was only one of 13 privately owned properties involved in the proposals considered by Council at its two meetings; 2. In the reports to Council for consideration at the meeting, Council's senior strategic planner recommended approval of the proposals by Council; 3. At both meetings, councillors voted unanimously to approve the proposals; 4. At all relevant times, Councillor Meineke believed that it was being alleged by Council that he had a pecuniary conflict of interest, in which case he would have been exempt from having to make a disclosure pursuant to provisions of s 448G of the LGA as the proposals before Council did not affect any change of use of Mr Larrescy's land; 5. At all times, Mr Meineke was open and transparent with Council in his dealings on behalf of Mr Larrescy; 6. At the council meeting on 10 December 2013, Mr Meineke did in fact disclose his involvement on behalf of Mr Larrescy. He did not believe the conflict was "significant" and therefore did not absent himself from voting on the proposal; 7. The only financial interest that Mr Meineke has, was the receipt of his fees of $1,650, which was billed almost 9 months before the matter first came before Council; 8. In the case of Smith… where it is submitted that the conflict of interest was of far greater significance, the only penalty imposed was a suspension from civic office for a period of one month [this is a reference to Office of Local Government v Councillor Smith [2014] NSWCATOD 92]; 9. In the Tribunal decision of Office of Local Government v Petty [2015] NSWCATOD 46, Councillor Petty was found to have failed to disclose a pecuniary interest when the value of his property stood to be devalued by an amount of $175,000 if a nearby property was rezoned industrial. The Tribunal imposed a reprimand as well as ordering that Councillor Petty's right to be paid council fees and his entitlement to be the holder of civic office be suspended for a period of 3 months; and accordingly 10. … Mr Meineke's conduct is at the lowest end at the scale of offending and, at worst, deserves only a reprimand. 1. The Respondent, the Office of Local Government, substantially submits as follows. First, the Code of Conduct is of "great significance" because it assures those dealing with a Council of the standards they can expect to receive. The decision previously made by the Respondent should be confirmed because, Mr Meineke, having been a councillor for over 10 years, it may reasonably be expected he understood (a) Code obligations; and (b) the public purpose behind the conflict provisions, namely perceived conflicts of interest can be as important as actual conflicts, to preserve the Council's reputation and accountability of individual councillors. In any event, it was his responsibility to identify and manage conflicts. I accept these submissions. 2. Reference was also made to reminders that the Appellant had been given at reasonably contemporaneous times as to his obligations in relation to conflicts. His response to receiving a letter from the General Manager concerning conflicts of interest, was to be resentful, to feel "hot under the collar", to dismiss the concerns raised, to refuse to seek further guidance or advice, to believe that he had applied the Code "more rigorously than others" and to say that he genuinely believed the allegations involved the failure to disclose a pecuniary interest. The difficulty with those submissions in so far as they might be thought to support the Appellant, is that when interviewed by the Respondent's investigators in relation to the breaches I have found to be established, the Councillor confirmed his understanding of the allegation that he had breached the Code in relation to non-pecuniary conflicts of interest, the disclosure at the December meeting of a "non-significant interest" is only referable to non-pecuniary interest, the departmental report found significant non-pecuniary conflicts of interest, and the Councillor's own submission to the Tribunal dealt with the topic. 3. Bearing in mind these matters, the Respondent submits that the Appellant has no insight into, nor contrition for, his misconduct, and he acted with reckless disregard for his obligations. 4. In my opinion, the submissions of the Respondent should be accepted for the reasons stated. 5. The decision of the Respondent which the Appellant seeks to challenge should be confirmed. Fundamentally: 1. The misconduct provisions are an important part of preserving the integrity, in fact, and reputation, of the important institution of local government; 2. It is an obligation of councillors to familiarise themselves with the requirements of the Code and to comply with the Code and, as necessary, the Act; 3. In this case, there was a clear breach of the non-pecuniary conflict of interest provisions, those breaches being significant; and 4. While there is no dishonesty or deception, there remains, on the evidence, an unwillingness by the Appellant to accept any wrongdoing, and this must mean there is no contrition or insight into the fact and the nature of the wrongdoing. That is highly relevant on the topic of specific deterrence, whether or not Mr Meineke ever chooses to seek civic office again. 5. I do not find other decisions, which generally turn on their own facts, to be of much assistance. 6. It is important that the conduct is denounced by way of confirming the decision and punishments of the respondent (which I do not find to be excessive), that also serving the purpose of general deterrence to other persons in the Appellant's former position, who might be tempted to behave in a similar fashion. 1. For all of those reasons, the decision under review will be confirmed under s 440L(4)(a) of the Act. 2. My decision is that the decision of the Respondent in relation to the Appellant dated 20 April 2016 is confirmed ****** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 January 2017