Councillor suspended for being honest
The Division of Local Government has decided to suspend Greens Councillor Max Phillips from office for two months beginning 17 February. Councillor Phillips will appeal the suspension at the Pecuniary Interest & Disciplinary Tribunal, saying that Councillors should not be punished for being honest. “By trying to force an insincere apology from me under threat of sanction, the Council and Division of Local Government were asking me to lie, which I refuse to do,” he said. He noted that dishonesty was is itself a breach of the code of conduct and Local Government Act. Councillor Phillips said such an ethical dilemma should not be forced upon councillors and hoped the Tribunal will agree.
In December 2012 developer Meriton approached Marrickville Council about a voluntary planning agreement to give council $5 million in exchange for a big increase in density and height (from 10 storeys to 20 storeys) at their Lewisham Towers development. Councillor Phillips informed local residents and the media of this proposal based on information given at a non-confidential oral briefing. However, the written agenda item was deemed confidential by council staff and residents were ejected from the public gallery while councillors debated it behind closed doors.
There is a dispute as to whether information was confidential or should have ever been confidential – you can read all about it here.
Former Marrickville Mayor Victor Macri (who had previously met with Meriton to discuss the proposal) moved a censure motion against Councillor Phillips. It stalled at 5-5, and Macri had to use his casting vote to censure Councillor Phillips. Councillor Macri then demanded that Councillor Phillips apologise to both the Council and to Meriton. Councillor Phillips refused to apologise stating that he was not sorry for his actions and felt he had acted ethically and in the best interests of the community. Macri, with the support of Labor and Liberal Councillors then voted to refer the matter to the Division of Local Government.
The bureaucrats at the Division of Local Government pressured Councillor Phillips to apologise, asking whether he had “changed his mind?” Councillor Phillips told them that he had not and that he had stated quite clearly on many occasions – in the council chamber, in the media and to many local residents – that he stood by his actions to ensure the planning matter was public knowledge and was not sorry he had done so.
In his reply to the draft report recommending his suspension Councillor Phillips wrote to the Division of Local Government:
“I note that Section 439(1) of the Act, quoted in the report states: “Every councillor, member of staff of a council and delegate of a council must act honestly […]”
I therefore ask the Division of Local Government to clarify whether it wants me to lie about whether I am sorry or not? If I comply by lying, will I be guilty of misconduct under section 439(1) of the Act? If the Division does want me to lie about this matter, then I request a written justification as to why obedience to a council resolution is more important than truthfulness for good governance in NSW. If such a justification can not be provided, then I submit that the case must be withdrawn.”
The Division of Local Government never replied to this request. Instead the Chief Executive Ross Woodward ordered a two month suspension.
It seems that obedience to a ruling majority on a council is more important than honesty when it comes to local government in NSW. Mr Woodward bases his decision on a precedent set in the case of Lithgow City Councillor Martin Ticehurst who was also suspended for two months. Paragraphs 63 – 65 in the Ticehurst ruling seem to suggest that councillors have no choice but to obey the majority on their council, regardless of circumstances. The ruling concludes:
“Abject refusal to comply with a resolution of council irrespective of whether a Councillor feels she is right or wrong is a serious breach of the code of conduct… The importance of complying with a resolution, no matter how objectionable cannot be overemphasised.”
Councillor Phillips says such blind obedience to the state “smells a bit like a recipe for fascism rather than liberal democracy. Obviously council decisions should have force. However, in this case, it is not a resolution of council dealing with the height of a garage, or the width of a footpath, or the number of childcare places at a centre. The resolution in question is asking for an individual to express a feeling – not usually the jurisdiction of local government – nor any government. Surely something as personal as an apology from an individual should stem from genuine feelings of sorrow and regret, rather than a demand from political opponents or the threat of suspension or some other sanction? What is the point of forcing councillors (or anyone else) to issue insincere apologies?”
Councillor Phillips wonders whether it is some kind of demonstration of the power? “Surely extracting false ‘confessions’ is something that should be left to the history books on Stalinist Russia, not local government in NSW in 2014,” he says.
Councillor Phillips says that he has been put in a genuine ethical dilemma by the Division of Local Government. He asks “what is the greater crime? Refusing to comply with a demand to apologise when you are not sorry, or lying by making an insincere apology?”
“I want to be able to continue to represent my community on council without a suspension, but I refuse to act dishonestly or insincerely even if it means I will be suspended.
“It seems obedience, not ethics is what is most important to the Division of Local Government in NSW. I do not really care what my political opponents or the bureaucrats may say, I am confident I have acted ethically at all times and I’m happy to be judged by my constituents.
“At the end of the day, these are all just shenanigans. The important underlying principle is that planning matters should always be dealt with by decision making authorities in a transparent and public way, and I and my fellow Greens will always stand up for that,” said Councillor Phillips.
The suspension is due to begin on 17 February 2014, however, this may be delayed if the appeal is not heard before that date.