In late august 2011, we received the ombudsman’s response to our complaints to him about the mayor’s apparent irregular actions at and in association with some meetings.
During the course of the ombudsman’s investigation of our complaints the mayor has so far spent a total of “$4,254 on lawyers to defend ombudsman [sic] complaint against the mayor” without council’s approval for this expenditure. This high cost appears to have been to try to establish some legal argument/justification for the original irregular actions.
The full relevant sections from the ombudsman’s report on how and the reasons why the council ended up acting “contrary to law” follow. People can form their own opinions from this report, but it is important to note that the ombudsman considered this matter serious enough to proceed with it as a full investigation.
This extract is from our own non confidential copies of OmbudsmanSA’s report, dated 26 August 2011, ref. 2011/02795
Councillors Ken Liu, Graham Walkom and Rosalie Chirgwin, 2011.11.03
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Whether the mayor has wrongly failed to make available to elected members reports relating to the matter
29. The third issue is whether the incident reports should now be disclosed. I understand that the mayor indicated at the special meeting held on 7 January 2011 that the reports would be disclosed, and that the content of the reports was outlined in the report completed by Mr Warner and considered at the council meeting held on 8 March 2011.
30. I note that Cr Walkom asked a question on notice for the council meeting held on 13 April 2011 in relation to this matter. I understand this was dealt with in confidence at that meeting,3 and that in reliance upon legal advice the reports have not been released.
3 http://www.kangarooisland.sa.gov.au/webdata/resources/files/201 10413-Council-Minutes.pdf, Item 20.7
31. Under section 61 of the Act, a member of a council is entitled, in connection with the performance or discharge of their functions or duties, to have access to any relevant council document. lt provides as follows:
61- Access to information by members of councils
(1) A member of a council is entitled at any reasonable time, in connection with the performance or discharge of the functions or duties of the member (whether under this or another Act), without charge, to have access to any relevant council document, including (but not limited to)-
(a) a copy of a written contract entered into by the council, or a copy of a document relating to a contract that is proposed to be entered into by the council;
(b) accounting records kept by the council;
(c) financial statements and other documents prepared by the council under Chapter 8.
32. In my view, section 61 confers an entitlement to ‘any relevant council document’, and this can include documents that have been treated by the council as confidential.
33. I accept that that there may be occupational health and safety reasons why disclosure of the documents may be resisted, and that the council has an obligation to eliminate all risks to its employees which can be reasonably foreseen and avoided. However, in my view this does not override the councillors’ entitlement under section 61.
34. The mayor has suggested to me that the members’ entitlement to information arises only ‘in connection with the performance or discharge of the functions or duties of the member’, and that:
…… having determined the matter, access has been refused because the council is now functious (sic) officio. This means that neither the Council nor its members have further work to do in relation to the matter, which is reinforced by the fact that Ms Noon is no longer employed by the Council. Accordingly, the incident reports have no relevance to the performance or discharge of council members’ functions or duties, which means that members are not entitled to access them under section 61 of the Act.
35. ln her response to my revised provisional report the mayor outlined a further argument on this question. She stated that because Cr Walkom would have a prescribed interest in the agenda item, he is prohibited from exercising any decision-making function regarding the matter, including in relation to decisions to maintain the related documents as confidential. She states that accordingly, the reports do not constitute information that is relevant to ‘the performance or discharge of his functions and duties as an elected member’. Accordingly, he is not entitled to access the reports under section 61.
36. The mayor has further suggested that the integrity of the complaints process requires that confidentiality of the information is maintained and not disclosed to the complainants; that there is a risk that ‘the disclosure of the incident reports will require the Council and/or individual members to unnecessarily revisit the matter’; and that it is reasonably likely that the provision of the reports to the complainants ‘may result in the disclosure of confidential information to members of the public, Parliament and/or the media, which has the potential to bring the council into disrepute and create a potential civil liability exposure’.
37. In this case, the incident reports remain subject to a council confidentiality order made at the council meeting held on 8 March 2011. Under that order, the documents are required to remain confidential for five years subject to review every 12 months under section 91(9) (a) of the Act. I note also that under section 62(3) the councillors must not make improper use of information acquired by virtue of their position to gain an advantage or to cause detriment to the council.
38. I have noted the arguments put by the mayor, but I consider that the complainants have a legal entitlement to the documents, under section 61(3) of the Act. I do not consider that the council is functus officio, as it may yet be required to deal with various issues arising from this matter. For example, under section 91(9) (a) of the Act it has an obligation to review the confidentiality order made in relation to the matter at the meeting of 8 March 2011.
39. Further, whilst I agree with the mayor that Cr Walkom may well have a prescribed interest in any relevant agenda item, I do not agree with her that this means that the reports cannot constitute information that is relevant to the performance or discharge of Cr Walkom’s functions and duties as an elected member. One of his duties as an elected member is to consider whether he should declare an interest. In my view, he cannot fulfil this duty if he does not have access to the relevant council documents.
40. Accordingly, my final view is that in failing to provide elected members with the incident reports, the council has acted in a way that is contrary to law within the meaning of section 25(1) (a) of the Ombudsman Act 1972.
After all the finger pointing, harassment, public character assassinations which Crs Graham Walkom, Ken Liu and Rosalie Chirgwin have had to endure since being elected, we now have the Ombudsman’s Report advising us that it was the Mayor and council who acted in a way contrary to law.
That is that “(…) the complainants have a legal entitlement to the documents, under section 61(3) of the Act.”[38.]
Another pertinent statement made by the Ombudsman is “In my view, he [councillor Walkom] cannot fulfil this duty if he does not have access to the relevant council documents.” [39.]
He also goes on to report that “(…) I do not agree with her [the Mayor] that this means that the reports cannot constitute information that is relevant to the performance or discharge of Councillor Walkom’s function and duties as an elected member.” [39.]
Haven’t many ratepayers being saying the same thing in various letters to the Islander in defence of the said councillors?
Who knows perhaps other Councillors may need to ask similar questions in the future; this report, thanks to the abovenamed councillors who brought this matter up to the Ombudsman, will help them feel free to ask.
I believe this has been the crux of most of the angst in council since these three councillors have been elected. I trust they will be given the apology they deserve.