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Item
10.5 - Attachment 1 |
Final
report of Investigator |
PARRAMATTA
DETERMINATION
COMPLAINT BY XXXX CONCERNING
CONDUCT OF CR ANDREW BIDE ON
Background
This is a Determination by a sole reviewer pursuant to
Parramatta City Council's Code of Conduct adopted
The complaint the subject of this Determination was directed
to the Lord Mayor by the Complainant, XXXX, by a document dated
A copy of the document dated
My initial function upon referral of the Complaint to me was to determine in accordance with clause 12.19 of the Code whether to make enquiries into the Complaint, resolve the Complaint by the use of alternative and appropriate strategies, make enquiries into the Complaint, not make enquiries into the Complaint, or engage another qualified person to enquire into the Complaint. In this regard I decided to make enquiries into the Complaint.
Having made that decision, I wrote to the Complainant indicating my appointment and role and the process which I intended to adopt in reviewing the complaint. A copy of that letter was also forwarded to Cr Bide inviting him to raise any issues concerning the process which I proposed to adopt. Neither the Complainant nor Cr Bide objected in any way to that process.
After some delay caused by the Complainant's apparent
inability to attend a meeting with me, he attended at my office on
· Clause 6.1(e): that the conduct caused, comprised or involved intimidation, harassment or verbal abuse;
· Clause 6.3: that Cr Bide's conduct failed to treat the Complainant with respect.
Factual Issues
Following receipt of the Complaint by Council's
Having interviewed both the Complainant and Cr Bide, in the course of which interviews each was referred to the written comments of the other, there is remarkably little disagreement between them on what in fact occurred and I find any disagreements to be immaterial to this Determination. The issue for me to determine is whether or not the conduct amounted to a breach or breaches of the Code in the manner claimed by the Complainant.
With the knowledge and agreement of both the Complainant and Cr Bide I have spoken to other Councillors present at the time of Cr Bide's alleged behaviour giving rise to the Complaint, these being Crs Lim, Lloyd and Maitra. Generally what those Councillors saw or heard is not inconsistent with the written material provided to me by the Complainant and Cr Bide. A number of these Councillors were aware that the Complainant and Cr Bide had known each other since boyhood having grown up as neighbours and having gone to the same school and there is an element of doubt as to whether the events on the evening were a disagreement between two old acquaintances or a Councillor/constituent disagreement. Whilst there is probably an element of both, I have preferred to take the view that in the context of events which took place immediately following a Council meeting in which Cr Bide had participated and at which the Complainant had attended and raised issues that I should treat the events purely at the level of Councillor/constituent.
Cr Chedid was also invited to speak to me concerning the Complaint. He made attempts to contact me, but such contact was not made by the time I considered that I should make this Determination. I do not consider that the absence of an interview with Cr Chedid in any way affects my decisions reflected in this Determination. He was not mentioned by the Complainant in his Complaint and was mentioned by Cr Bide only as being one of the Councillors with whom Cr Bide was discussing business when the Complainant sought to interrupt that meeting.
The facts giving rise to the Complaint are:
· That the Complainant was invited following the meeting back to the function room (sometimes called the Lord Mayor's room) in accordance with the customs of the Council to participate in drinks and savouries.
· That Cr Bide and some of his Councillor colleagues were engaged in a discussion concerning Council business in the Lord Mayor's room when they were approached by the Complainant who had some photographs and who wished to discuss a matter relating to a Council issue with those Councillors. In Cr Bide's words, the Complainant "butted in" to involve himself in the conversation and was told by one or other of the Councillors in that group that they were having a private conversation in which they did not wish to involve the Complainant. The Complainant's attempts to join in the conversation with these Councillors occurred on more than one occasion.
· That after the Complainant left the Lord Mayor's room Cr Bide closed the door to that room from inside and also closed the second entrance door to that room from the kitchen, although that door was left slightly ajar.
· That the Complainant re-entered the Lord Mayor's room through the side door at which time Cr Bide left the room to continue his discussions with certain of his colleagues in a corner of the Council Chamber in an effort to gain privacy.
· That before long the Complainant came in on that meeting, uninvited, and was requested by one of the Councillors to leave in words similar to "Mr XXXX can you leave as we are having a meeting?" Despite that request, the Complainant insisted on showing Cr Lloyd some photographs of flooding and upon leaving the room raised with Cr Bide the issue of having been locked out of the Lord Mayor's room and accused Cr Bide of being rude to him.
· That a discussion took place between the Complainant and Cr Bide concerning use of the Lord Mayor's room and whether or not Cr Bide had been rude. In the course of that conversation Cr Bide offered an apology to the Complainant if he had offended him by excluding him from the Lord Mayor's room by closing the door. It should be noted that the Complainant, in interview, generally agreed with Cr Bide's version of the discussion concerning rudeness.
· That during the conversation with Cr Bide referred to in the previous point, the Complainant became visibly angry and distressed, became aggressive and shook his right index finger and arm at Cr Bide. At the lift door while leaving the floor the Complainant said to Cr Bide words to the following effect "You'd better watch yourself. You have not heard the last from me." At interview the Complainant acknowledged using such words but believed he had used them not at the lift but at the meeting and that he had also stated to Cr Bide "You've made this personal."
· That when Cr Bide closed the doors of the Lord Mayor's room referred to above, a bag of the Complainant containing papers and his mobile telephone were within the room. Whilst that may have caused distress to the Complainant, I am satisfied that Cr Bide had no idea that the Complainant's bag was in the room and that closure of the doors may have caused any distress to the Complainant. However the Complainant gained access to the room via the partly closed other door without undue delay.
· That it is clear that the Complainant was very distressed by the events on the evening. It is equally clear that the Complainant's behaviour towards Cr Bide distressed that Councillor who has stated that he had fears for the safety of himself and his family as the Complainant lives within about 500 metres of Cr Bide.
In my initial interview with the Complainant, he felt that the apology offered by Cr Bide referred to above was a "token" apology but seemed prepared to withdraw the Complaint on the basis of a more formal apology by Cr Bide and to give an apology to Cr Bide for any conduct of the Complainant which may have caused the Councillor to have concern. At a subsequent meeting with Cr Bide he agreed to give his apology provided that the Complainant likewise apologised for the Complainant's conduct and that the details of the “settlement” remained confidential. A document was prepared but at a second interview with the Complainant he withdrew his consent to the settlement for reasons which are irrelevant to this Determination.
As soon as it became apparent to me that the settlement of the Complaint would not proceed, I took steps to contact the other Councillors who had been present during aspects of the events complained of. The delay in producing this Determination has been caused both by a lengthy delay in the Complainant attending for the second interview and my need to contact the various Councillors.
I am satisfied that the Complainant was greatly upset by the events the subject of his Complaint on the evening. However I am also satisfied that the Complainant’s reaction to being briefly separated from his belongings was a significant over reaction quite in excess of what might have been expected from a person in the Complainant's position. I have concluded that it would be difficult indeed to characterise Cr Bide's words or actions as "intimidation, harassment or verbal abuse" particularly in circumstances where there is no significant difference between the Complainant's and Cr Bide's version of the events which occurred on the evening.
The other alleged breach of the Code relates to Cr Bide's obligation to treat (in this case) the Complainant with respect. The only conduct by Cr Bide which, in my opinion, could possibly be construed to show a lack of respect for the Complainant would be the closing of the door into the Lord Mayor's room intending to deprive the Complainant from access to his bag and/or the conduct of Cr Bide in seeking that the Complainant did not interrupt the meetings which he was engaged in with other Councillors. As I read the report of the verbal exchange provided by Cr Bide, and which the Complainant acknowledges is a fair rendering of what was said, I cannot be satisfied that the rudeness alleged by the Complainant would be considered as rudeness by an objective observer. Undoubtedly Cr Bide said some things to the Complainant about the Complainant's conduct and activities which the Complainant did not like but it appears to me that what was said was fair comment in the context of the persistent interruptions of the private meetings with other Councillors in which Cr Bide was engaged in or seeking to engage in.
If I am wrong in my view of Cr Bide's conduct then I can certainly say that any breach of the Code by him would be at the very lowest level of culpability. The upset which may have been caused to the Complainant is a factor of the Complainant's personality and concern for his mother's welfare (as he is her carer) when he was temporarily and fleetingly separated from his mobile phone in his bag left in the Lord Mayor's room when Cr Bide closed its doors rather than any conduct on the part of Cr Bide intended to cause such separation.
In making these comments I am aware that one of the Councillors whom I interviewed over the phone considered that Cr Bide may have shown a lack of respect for the Complainant by showing anger but in my view holders of civic office have a right to show emotion in the conduct of carrying out their functions provided that their conduct is reasonable in all the circumstances. I consider that Cr Bide's conduct was reasonable in the circumstances of the events of that evening.
Finding
I find that the conduct of Cr Bide of which the Complainant complains did not breach the Code.
In making this finding I am mindful that the preamble to clause 6.1 of the Code generalises a Councillor's conduct obligations as "not to conduct yourself in carrying out your functions in a manner that is likely to bring the Council or holders of civic office into disrepute". It is clear to me that Cr Bide's conduct complained of brought neither the Council, himself nor other Councillors nor Council officers into disrepute.
Recommendations
Clause 14.9 of the Code lists recommendations to be made where a reviewer determines that a breach of the Code his occurred. As I have determined that there is no such breach then it is inappropriate and unnecessary for me to make any recommendations particularly of the kind referred to in that clause.
When initially reviewing the Complaint it appeared to me that there may be some deficiency in Council's protocols as to the use of the Lord Mayor's room. It has become increasingly clear in my investigation that the use of that room has not been the subject of regular "abuse" by either Councillors or members of the public who have access to it and that the problem which occurred on the evening of 26 July last was a "one off" type of problem not likely to be repeated. Nevertheless, it may be that at the conclusion of Council meetings the Mayor or presiding Councillor may well invite the public to the Lord Mayor's room but with some rider to the effect that privacy of Councillors and others discussing Council business should be respected.
John R Boland