The City of Melbourne tabled the report of the Councillor Conduct Panel in response to a complaint lodge by Councillor Jackie Watts in 2011
The report was publishedearlier today and attached to the City of Melbourne’s Minutes
The order of the Panel is that the Application for a Councillor Conduct Panel made by Councillor Jackie Watts on or about 6 February 2013 in respect of Councillor Robert Doyle be dismissed pursuant to section 81J(1)(e) of the Local Government Act 1989.
Dated: 21 August 2013
Full Text of report. (Format altered in data conversion).
In the matter of the Local Government Act 1989 and In the matter of an application for a Councillor Conduct Panel, City of Melbourne
COUNCILLOR JACKIE WATTS (Applicant)
COUNCILLOR ROBERT DOYLE, LORD MAYOR (Respondent)
REASONS FOR DETERMINATION (REVISED)
1. Councillor Jackie Watts lodged an application with the CCP Registrar, City of Melbourne, on or about 6 February 2013 asserting that Councillor Robert Doyle, Lord Mayor, was in breach of the City’s Councillor Code of Conduct (“the Code”).
2. Cr Watts’ application was supported by two documents identified respectively as “Statement 1” and “Statement 2”.
3. On 7 March 2012, following a Directions Hearing held by the Panel on 6 March 2012, which both parties attended, Directions were issued which required Cr.
Watts to identify the provisions of the Code that were said to have been breached by Cr. Doyle; to set out the matters that were said to constitute the breaches; and to provide relevant documentary evidence. The Directions required Cr. Doyle to respond and to provide any supporting documentary evidence.
4. In response, on 17 March 2013, Cr. Watts submitted a document headed: “Statement 3 —As requested at Directions Hearing March 6, 2013”. In that document he provisions of the Code relied upon were stated as:
- The Councillor Conduct Principles; Primary Principle, Clause 2.1; General Principles, Clause 2.1; • Misuse of Position, Clause 3.1;
- Values and Behaviours, Clauses 4.1 and 4.4;
- Protocols Supporting Decision-Making Structures and City Representation Role, Clause 5.
1 Paragraph 72 of these Reasons has been amended to correct an error with respect to the application of the Meeting Procedures Code.
5. Cr. Watts did riot relate each of the above provisions of the Code to all of the specific allegations made in her Application, but did so in respect of some. That has left the Panel the task of attempting to elucidate the precise breach alleged, in some cases. However, the Panel understands Cr. Watts’ argument, in essence, to be that the “pattern of behaviours over time (August 22011 — November 2012)” of Cr. Doyle, demonstrated in the allegations made against him, substantiates the several breaches of the Code alleged and noted above.
6. With regard to the alleged “pattern of behaviours over time” Cr. Watts states, under the heading “Complaint Context” that:
From the outset, a pattern of behaviour emerged in which RD acted towards JW in a manner, which was disrespec tf ul, and de-stabilising. JW experienced unnecessary anxiety and exclusion, which impeded her work. –
7. A hearing was held before the Panel on 16 May 2013 at which both parties made oral submissions.
8. Subsequent to the hearing, further documents and submissions were provided to the Panel. The provision of further material was not in compliance with the Directions of the Panel. At the hearing, Cr. Watts’ expressed her intention of providing such material. This was quite properly objected to by Cr. Doyle, in view of the Directions previously given and the need to bring the matter to finality. However, the Panel has determined to receive further material and to take it into account in the interests of achieving completeness in the determination of the’issues raised by the Application.
The impugned conduct
9. Although, as noted, Cr. Watts’ application is in respect of the pattern of behaviour alleged to have been engaged in by Cr. Doyle, it will be necessary for the Panel to examine and make findings in respect of each allegation.
10. Before discussing the allegations, and the response of Cr. Doyle, we set out each of the matters relied upon by Cr. Watts (retaining the numbering used in “Statement 3”:
4.1 Refusal to assign Portfolio responsibility, to IW during her entire first term on Council (August-2011 — October 2012);
4.2 The Personal Explanation/Statement Episode (September — October 2011);
4.3 The Bullying and Harassment episode (March — April 2012);
4.4 RD Warning Councillor (April 2012);
4:5 Incident at Special Confidential Meeting (September 4 2012);
4.6 RD Refusal to participate in mediation and ‘conditional’ mediation (October 2012 — February 2013);
4.7 Sustained pattern of behavior including exclusion, disrespect, n, (sic) lack of Recognition at Meetings during JW entire first term (August 2011 — October 2012);
4.8 Attempt to discredit TW’s complaint at Directions Hearing (March 6, 2013).
11. Cr. Watts says that she repeatedly put forward requests that some form of Portfolio responsibility be allocated to her. It was her expectation when joining the Council that she would be allocated portfolio responsibilities, possibly as Deputy Chair, until she became familiar with Council operations and protocols.
She argued that, without portfolio responsibilities, “[c]ouncillors are denied access, to information, access to officers, and suffer from a lack of exposure to the electorate…[w]ithout a Portfolio a Councillor is effectively ‘disenfranchised’.
12. Cr. Watts set out a number occasions or opportunities that she believed would allow her to attain Portfolio responsibilities, butt despite the existence of such opportunities, no allocation was made to her. It is unnecessary to set them out here.
13. Cr. Doyle’s response to this ground of application was that the allocation of Portfolio responsibilities was a matter reposed in him by a prior decision of the Council.
14. Subsequent to the hearing Cr. Watts, in a document dated 21 May 2013 provided to the Panel, asserted that the previous decision of Council referred to by Cr. Doyle “…would not have granted to any Lord Mayor the right to make decisions based upon a whim or a personal agenda without objective criteria”. She argued that a Councillor who sought, but was denied, portfolio responsibilities over an extended period should “be provided with the criteria upon which decisions were made”, noting that she was not provided with any such explanation.
15. This ground of complaint concerns the alleged conduct of Cr. Doyle in respect of a Personal Explanation given by Cr. Ken Ong at a Council meeting held on 13 September 2011. That Personal Explanation was said to be a response to a motion put by Cr. Watts at the Council meeting on 6 September 2011which called upon the Minister for Local Government to undertake a review of the -City of Melbourne Act, which motion was lost.
16. Cr. Watts complains that she was given no prior notice of the motion : She says that the right to make a Personal Explanation had been availed of only once in the previous decade. She says that Councillor Ong had “struggled with meeting ‘ protocol in the past” and was likely to have sought advice before adopting what she referred to as “this unusual procedural device”.
17. It was of concern to Cr. Watts that the Personal Explanation given had misinterpreted the substance of her motion of 6 September 2011, had implied racist intent, was critical of those who spoke in support of her motion, and of those in the comMunity who supported the motion. She believed that the allegations or innuendo contained in the Personal Explanation had the potential to damage her reputation.
18. When she spoke with the Deputy Lord Mayor (Cr. Riley), Cr. Riley denied that either she or Cr. Doyle had prior knowledge of the Personal Explanation.
19. Subsequently, Cr. Watts says she learned that Cr. Ong had been assisted by Cr. Doyle with his Personal Explanation and learned this, it appears, from constituents who had attended a meeting of the Coalition of Residents and Business Associations which had been addressed by Cr. Ong. Cr. Watts believed that officers of the Council had attended the meeting, and approached Cr. Ong for notes taken by Council officers at the meeting. Cr. Ong refused to provide such notes and, at a Councillor-only meeting, Cr. Doyle refused to support her request for such notes.
20. Subsequently, on 4 October 2011, Cr. Watts presented her own Personal Explanation. During the course of which she alleges that Cr. Doyle blatantly ignored her and rudely conferred with officers. Further, in that meeting Cr. Watts also submitted an Urgent Motion to enable her Personal Explanation to be recorded in the Minutes, noting that Cr. Ong’s Personal Explanation had been recorded in the minutes. Cr. Watts claims that, in respect of that motion, Cr. Doyle: “used his majority on Council to defeat [the motion] and deny her natural justice”.
21. The Notes of the meeting held between Cr. Ong and COREA representatives on 14 October 2011 were provided to the Panel by Cr. Watts. In her document of 21 May 2013 (“Evidence and Clarification post Hearing, 16 May 2013”) Cr Watts states that “[t]hese notes were circulated amongst CoRBA members at the time.”
22. In response to Cr. Watts’ claim, Cr. Doyle submitted to the Panel a statement dated 24 May 2013 signed by Cr. Ong. In that statement Cr. Ong says that thern Personal Statement he presented was prepared by him “and was not done with any assistance from the Lord Mayor or any other Councillors”. ‘He says further that he had consulted with the Council’s Manager of Governance as to his ability to make such a statement, and denies having colluded with the Lord Mayor or other Councillors as to the matter. Although he had mentioned to Cr. Doyle his desire to make a statement relating to comments made by CORBA in their submission to the Future Melbourne Committee meeting, the contents of his personal statement were not discussed with him.
23. At the hearing before the Panel, Cr. Doyle denied that he had had any involvement with the preparation or content of Cr. Ong’s statement.
24. The Panel notes that there is an apparent conflict between the Notes of the meeting between CORBA and Cr. Ong on 14 October 2011 and Cr. Ong’s statement dated 24 May 2013. In the Notes, it is stated that: “Cr Ong advised that it was only on the weekend before FMC2 that he drafted a response statement and discussed it with the Lord Mayor”.
25. Subsequent to the hearing the Panel was provided With a copy of the Melbourne City Council Conduct of Meetings Local Law 2010 and the Meetings Procedure Code. The latter makes provision in cl. 3.17(r) for Personal Explanations. At sub-para.(i)(B) it is provided that a copy of the Personal Explanation is to be provided to all Councillors at the meeting where the personal explanation is to be made and read out word for word. It is to be observed that there is-no requirement for prior notice of the personal explanation to be given to Councillors. The Personal Explanation is required to be appended to the minutes of the meeting at which it is made “without the need for further commentary in the minutes”.
26. Cr. Watts complains that Cr. Doyle was instrumental in securing a vote of Councillors which had the consequence that her personal explanation was not appended to the Minutes. Cr. Doyle’s response at the hearing before the Panel was that he denied holding any “locked in” majority of Councillors.
Alleged bullying and harassment, March-April 2012
27. This allegation arises out of complaints made by Council officers to the Chief Executive Officer as to the conduct of Cr. Watts in approaching and questioning officers of the Council. Cr_ Watts’ concern, however, as stated in her “Statement 3” is with “…the damaging manner in which [Cr. Doyle] chose to progress or ‘resolve’ the matters raised by the CEO” and the pattern of behavior that she says was subsequently engaged in by Cr. Doyle being, she says, to attack her “in a manner designed to de-stabilise, intimidate and suppress”.
28. In summary, Cr. Watts relies upon the following matters:
- On 17 April 2012 Cr. Doyle invited Cr. Watts to his office ostensibly to discuss a motion pertaining to the Library. Instead, once in the Lord Mayor’s office, she was informed by Cr. Doyle that he had received a complaint from the CEO about her detailed questioning of officers. Cr. Doyle’s Chief of Staff was also present.
- At the meeting in the Lord Mayor’s office, Cr. Doyle told Cr. Watts that the complaints were serious and could possibly result in her dismissal from Council, but gave her no further information about the complaint. Cr. Watts says that Cr. Doyle told her that she should consider obtaining independent legal advice. Cr. Watts also states that, had she realized the purpose of the meeting, she would have brought a witness or note-taker with her. She inferred that the purpose of the meeting was to alarm or intimidate her.
- When she became aware of the true nature of the complaints she considered that they were not as Cr. Doyle had originally described, and that in fact “…officers appeared to be genuinely concerned that [Cr. Watts] should be made aware so that she would not be inadvertently compromised” and amounted to constructive feedback from officers.
- In light of her appreciation of the true nature of the officers’ concerns, Cr. Watts says that she sought from Cr. Doyle “clarification on the way forward” noting the absence of an internal dispute resolution process under the City of Melbourne Councillor Code of Conduct.
- Cr. Watts says that thereafter Cr. Doyle “persisted in taking a controlling position in the matter, attempting to frame the matter in terms of [Cr. Watts] being incompetent” with no understanding of her role on the Council and suggesting that the officers complaints ought to be referred to a Councillor Conduct Panel.
- Cr. Watts asserts that Cr. Doyle later withdrew these “threats” in a letter sent to her, but that the tone of the letter was “… extremely disrespectful and insulting alleging that [Cr. Watts’] behavior had somehow changed”.
- Cr. Watts then complains that, despite suggesting that she obtain independent legal advice, Cr. Doyle refused to support her in proposing a motion at a Councillor-only meeting for reimbursement, and she decided not to proceed with the motion.
29. In her oral submissions at the hearing, Cr. Watts put that Cr. Doyle was opportunistic in the manner that the complaints were handled and in an attempt to destabilize her and leave her without resources. She also suggested that the complaint against her was not pursued legally because it had no substance, and denied that she had been provided with all the information, and had been “spooked” by the meeting she had with Cr. Doyle and his Chief of Staff. The way in which Cr. Doyle chose to progress the matter was inflammatory and distressing. Email exthanges with Cr. Doyle, she said, painted her as a vexatious person.
30. Cr. Doyle, in his written submissions dated 3 April 2013, asserts that Cr. Watts conducted herself towards Council officers in a way which gave rise to complaints to the Chief Executive Officer, which were referred by the CEO to the Lord Mayor then to Cr. Watts. Cr. Doyle notes that Cr. Watts had been provided with the documentation which was the foundation of the complaints by officers, and considers that Cr. Watts’ characterization of the complaints as no more than “constructive feedback from officers” as demonstrating a lack of insight and lack of understanding as to the serious issues raised in that complaint process. Cr. Doyle refers also to legal advice obtained from Maddocks, Solicitors, which was confirmatory of inappropriate conduct on the part of Cr. Watts.
31. Further, Cr. Doyle argues that Cr. Watts has failed to make out her allegations as to Cr. Doyle’s conduct in that she has failed to provide elaboration or any specifics. In particular he noted that she referred to “a series of hostile emails” without producing them. Cr. Doyle asserts that he has at all times sought to deal with Cr. Watts with respect and patience.
32. In his oral submissions to the hearing, Cr. Doyle did not concede that no case had been found in respect of the conduct by Cr. Watts complained of by Council officers. He suggested that what he had done in respect of the officers’ complaints was consistent with the advice from Maddocks, and that it was necessary for him to respond to Cr. Watts because the CEO had raised the matter with him Further, Cr. Doyle denied that it had been suggested that Cr. Watts obtain her own legal advice, but rather that she had been offered training through Maddocks.
33. The Panel notes the correspondence between the Manager, Governance and the Chief Executive Officer and the Lord Mayor with respect to the complaints by officers against Cr. Watts. The complaints were referred by the Manager Governance Services to the CEO, who suggested that the matter be referred to the Lord Mayor. What appears to be in-house legal advice was sought by and provided to the CEO by Mr Kim Wood. Numerous emails sent by or on behalf of Cr Watts to Council officers were, it appears, provided to the CEO and senior management of the Council.
34. The Panel has also been provided with a copy of a Memorandum from the CEO, Dr. Alexander, dated 26 March 2012 addressed to the Lord Mayor attaching a note she received from the Manager Governance Services dated 23 March 2012, and attaching various documents emanating from Cr. Watts to Council officers.
Dr. Alexander concluded her Memorandum by stating: “I share Keith’s concerns about Cr. Watts’ behavior in relation to the two matters.”
35. Cr. Watts provided the Panel with copies of correspondence between herself and Cr. Doyle on the question of the conduct of Cr. Doyle towards her in respect of the allegations that she had acted inappropriately towards Council officers. These are the following:
Watts to Doyle, 16 April 2012. Cr Watts writes noting her agreement that a meeting with the CEO would be useful, in the hope that it will bring clarity and a satisfactory resolution to the situation. She goes on to say:
I am pleased that we have both recognized that the CoM Councillor Code of Conduct is deficient in that it makes no provision for an ‘internal dispute resolution process’ and obviously, this omission should be rectified at the first opportunity.
I am also pleased that you agree that it is reasonable of me to request an assurance that the CoM will fund, should this prove to be necessary, my seeking independent legal advice on the matters raised.
So My objective for the meeting is, if possible [sic], clarify the following:
1. What obligations do CoM officers have to provide Councillors with Council-held information on matters of interest to constituents?
2. What specific processes are available to a Councillor (without portfolio) to request detailed information from CoM officers?
3. What specific actions are available to Councillors when not satisfied with the scope, quality and accuracy of the information provided by CoM staff?
4. What is the specific legislative, regulatory or policy basis of the CoM’s position on the questions posed above?
Doyle to Watts, 16 April 2012.
Cr. Doyle writes that he is not sure that Cr. Watts has grasped the immediate seriousness of the situation and says:
…this is not an opportunity for you to preemptively pose yet more questions to frame your preferred outcomes of the meeting. My invitation to you is to take part in an agreed informal meeting to seek agreement on next steps.. .1 am not the arbiter or mediator in this situation. I do not have a particular view of the allegations, contrary to your email. Therefore another Councillor, or a legal or governance representative for your or the CEO is not appropriate at this meeting.
My role is to determine whether your behavior could be seen to have an improper effect on City of Melbourne officers. It is the effect of your behavior on them that is at issue: not your view of the behavior/questioning/tone of your conduct.
It is my intention to proceed with the meeting as planned….
Watts to Doyle — 16 April 2012. Cr. Watts writes:
I gather from your email. [of the same date] that there is no (or never was no) intention on your part to seek a constructive resolution of the matter at the proposed meeting.
I find it regrettable that you perceive that I”pre-emptively pose yet more questions to frame your preferred outcomes of the meeting”.
What I was seeking from this meeting was clarification and establishing a ‘way forward’.
Your response in seeking ‘an agreement to next steps’, seems to suggest that you have indeed pre-judged me and pre-determined the outcome of our meeting.
As discussed, I like any reasonable and prudent person, will not agree to any ‘next steps’ without first seeking independent legal advice…
I am puzzled as to the reason that you propose meeting at all if no genuinely constructive outcome is being sought.
Nevertheless, in the spirit of goodwill and co-operation, I am prepared to proceed with a meeting; but, given the tone of your email, I must insist that an observer of my choice be present.
Doyle to Watts —18 April 2012. Cr. Doyle states that he is acting in good faith on a complaint made by the CEO; that he is endeavouring to ensure that good practices and procedures protect Councillors from risk of breaching the Act and that: “My role is to be a facilitator not mediator or arbiter in a meeting between yourself and the CEO… [pjlease do not engage with further questions, assumptions or assertions about the meeting or my role and motives. I have made all these matters clear”. A meeting date of 19 April 2012 was proposed.
• Email — Doyle to Watts 19 April 2012 which states:
…it is now three weeks since I first raised the issue of the CEO’s letter to me regarding concerns about your behavior.
On 30 March I offered governance advice and training regarding the Local Government Act. My note to you specifically limits the offer of independent legal advice from Maddocks to this advice and training.
I must now insist that you either commit to a meeting with the CEO and myself as facilitator without third parties in an attempt to resolve the concerns raised in the CEO’s letter; or that you indicate that you do not wish such a meeting to take place.
Further delays are unacceptable.
It is a normal process for the CEO and Councillors to meet in order to resolve problems. It is not a situation where legal advice is required. If you believe it is necessary then it’s a matter for you to fund.
I need your response to be unequivocal and either accept the proposed meeting or decline it.
• Email — Watts to Doyle 20 April 2012 in which she denies that she objects to a meeting taking place, but rather welcomes the opportunity, but states: “…as I have previously stated: given the seriousness of the allegations, your notes and emailed comments to date,”I am not prepared to meet with you or the CEO on this matter at this time on the conditions that you have imposed, that is to say, without the benefit of legal advice and the presence of an independent witness.”
36. Some resolution of the matter appears to have been reached by 9 May 2012 for on that date Cr. Doyle wrote to Cr. Watts stating that he had investigated a range of resolutions of the complaint and that: “I am loathe at this time to proceed to the Councillor Conduct Panel process, or the alternative of requesting the Chief Municipal Inspector to investigate. Such public processes can do no good to the reputation of anyone involved, especially yourself” The letter went on, inter alia, to assert that, contrary to the views of Cr. Watts, the Code of Conduct was adequate; that not having legal advice and representation did not prevents a meeting of CEO and Councillor; and refuting her suggestion that she had been offered legal representation rather than training in governance through the legal firm of Maddocks.
37. Cr. Doyle’s letter concluded:
Given that yOur behaviours have changed, I plan to close the matter. If however, there is a resumption of behavior resulting in a further complaint to me, I will not hesitate to act and move these matters to formal, external investigation.
Cr. Doyle Warning Councillor
38. Cr. Watts says that she informed Councillors by email about the circumstances described above under the heading Alleged bullying and harassment, March-April 2012. The gravamen of her complaint about Cr. Doyle is that he warned “at least one fellow Councillor Brian Shanahan in a threatening manner that he would be wise to distance himself from [Cr. Watts1”. This ground of complaint also asserts 10 that Cr. Doyle had spoken to an (unnamed, but presumed by the Panel to be Mr Peter Clarke) former Councillor and in which conversation he described Cr. Watts as “difficult”, suggesting that the Council had functioned better before Cr. Watts joined the Council.
39. Subsequent to the hearing, Cr. Watts made contact with Cr. Shanahan, and submitted a chain of email correspondence that she had with him. In doing so, Cr. Watts claimed not to have understood the requirement of the Panel that all evidence to be relied upon be available at the hearing, despite clear Directions having been given by the Panel.
40. At the hearing, Cr. Doyle objected to Cr. Watts being provided with further opportunities to develop her case, and in the Panel’s view, that objection was well-founded having regard to the clear directions of the Panel and the opportunities that were available to Cr. Watts to have all evidence ready and available for the hearing. Nevertheless the Panel has been prepared to receive the material Cr. Watts provided.
41. In his email to Cr. Watts dated 27 May 2013 Cr Shanahan stated:
I would first like to place on record my astonishment that the Councillor Conduct Panel is not able to interview relevant people such as myself The Lord Mayor did speak to me in this context concerning Councillor Watts.
He was emphatic that I should not support her and in fact should distance myselffi-om her. I did not take his comments as casual “in passing remarks”.
Councillor Watts has advised me previously of the conflict [and misunderstanding] between her and the Lord Mayor. The clear intent of the Lord Mayor’s conversation was for me to dista ‘ nce myself on all matters concerning Councillor Watts and supporting her on any issue that was against the majority position of Council [almost inevitably the Lord Mayor’s position as well] and would be seen very unfavourably in his eyes. I might add that I did not take this rather emphatic advice.
42. Cr. Shanahan concluded by stating that he was available to provide further comment, answer questions or appear before the Panel if requested. The Panel has not considered it necessary to do so.
43. What Cr. Watts, in her email to Cr. Shanahan, asked him to respond to was the following:
I had submitted 14 pages of material detailing incidents where Doyle showed disrespect towards me (there isn’t a clause in CCcode specifically on ‘bullying) : In my statement I referred to Doyle showing disrespect towards me by warning you against me.
Doyle did not deny speaking to you but said that his recollection was it was merely [sic] casual remark about this matter which in his view had the potential to discredit council.
44: The Panel notes that Cr. Shanahan said nothing in support of Cr. Watts’ contention, in her memorandum to the Panel dated 21 May 2013, that “Cr. Shanahan was disturbed enough by those inappropriate comments to make me aware of the depth of Cr. Doyle’s hostile attitude towards me and towards this entire matter which was at that point officially unresolved.”
45. At the hearing, Cr. Doyle’s denied that he had had other than informal discussions with Cr. Shanahan. He said that he had told Cr. Shanahan that the issue of the conduct of Cr. Watts toward officers in her role as a Councillor was a very difficult matter and that she should not get involved whilst Cr. Doyle attempted to sort it out.
46. Cr. Doyle responded to Cr. Shanahan’s email in his Response to Cr. Watts dated 30 May 2013. The response was as follows:
a. The conversation between the LM and Cr Shanahan was “casual” in the sense of informal and impromptu, but not offhand.
b. My recollection of that conversation is that I did caution Cr. Shanahan not to get involved in the process of a formal complaint by the CEO against Cr. Waits, which I was dealing with under 6.1 of the Code of Conduct.
c. Cr. Shanahan ‘s statement studiously avoids repeating Cr. Watts ‘ allegation of “threatening” behavior by me. Instead he chooses to infer my motives. His inference is not supported by evidence and is wrong.
Incident at ,SPecial Confidential Meeting, 4 September 2012
47. At a Special Confidential Meeting of Council held on 4 September 2012 the business before the meeting concerned the appointment of members of the Board of CityWide. Cr. Watts moved a motion that that the item be deferred to a date subsequent to the forthcoming Council election. The motion was put and lost.
The substantive motion was then put, debated, and adopted. Cr. Watts spoke against of the motion; Cr. Doyle spoke in favour.
48. In closing the debate, Cr. Doyle denied that the process of decision-making in respect of appointment of Board members had been “unseemly” and referred to what he described at the self-serving self-indulgence of such person, he presumed to be a Councillor, who leaked confidential information to the press concerning the processes of nomination of Board members of City Wide.
49. At certain points during Cr. Doyle’s closing address, Cr. Watts interrupted him.
She observed that Cr. Doyle appeared to be speaking directly to her when referring to “leaks” by Councillors. She objected to the inappropriateness of his language and to what she described as his “tirade” and the “provocative” statements made in the course of closing the debate. She objected that Cr. Doyle’s comments constituted an abuse of the meeting procedure.
50. In her submission to the Panel, Cr. Watts acknowledged that “voices were raised”.
Cr. Watts alleges that members of the public would confirm that shouting was heard coming from the Council Chamber, however no evidence was called which was confirmatory of this. The Panel notes ; having listened to the audio recording of the debate which was provided to the Panel by Cr. Doyle, that Cr. Doyle’s response could certainly be described as animated, assertive and forceful and that Cr. Watts’ responses or interjections were certainly voluble, vigorous and also forceful.
51. It is also put by Cr. Watts that Cr. Doyle’s remarks, which she described as • “hostile, aggressive and provocative”, “…impugned both [Cr. Watts] reputation and professional conduct. Although the public were ‘obviously excluded from the meeting, senior officers and support staff were present”. Cr. Watts says that she found the conduct of Cr. Doyle professionally and personally offensive, claiming that:
[Cr. Doyle] clearly failed to treat her with respect and did not have due regard to her opinions, beliefs, rights and responsibilities.
52. Cr. Doyle’s response to this allegation, in his written submissions, dated 3 April 2013 asserts that he “…conducted the meeting in an efficient and appropriate manner and dealt with all Councillors, including Councillor Watts, with respect and courtesy.”
53. Before the Panel, Cr. Doyle observed that the names of two Directors of CityWide had been made public and that the leak had damaged the reputation of Council.
He denied that his statements at the meeting about the breach of confidentiality were directed at Cr. Watts. Cr. Watts’ response at the hearing was to say that whilst making observations about breach of confidentiality at the meeting, Cr. Doyle maintained eye contact with her, and that she felt that his comments and behavior was “very nasty”.
Cr. Doyle’s refusal to participate in mediation and “conditional” mediation, October 2012 — February 2013
54. Cr. Watts informed the Panel that, with regard to the mediation of her complaint against Cr. Doyle made in 2012, although a mediator had been appointed, and although Cr. Watts had engaged in an individual session with the mediator, Cr. Doyle declined to participate in further mediation until either Cr. Watts withdrew her compliant, or until the conclusion of the 2012 election.
55. Following the election of a new Council, Cr. Watts sought, through the CEO, to resume the mediation process. She understood from the mediator that, although Cr. Doyle had met with her, he had imposed further conditions upon his participation in the process, these being that:
• Cr. Watts withdraw her complaint;
• there be no reference to past behaviour; and
• the agenda for mediation be limited to discussion about the future.
56. Cr. Watts’ therefore claimed that, despite her being willing to undertake mediation in accordance with c1.6.2 of the Code, “the process did not lead to any resolution because [Cr. Doyle] would not participate.
57. At the hearing, Cr. Watts re-emphasized the understanding conveyed in her complaint. She submitted that the Code of Conduct ought to be changed, so that an external mediator should be required.
58. Cr. Doyle’s response, as contained in his submissions of 3 April 2012, acknowledges his reluctance to engage in a formal process with Cr. Watts and says that this was so because of her resistance to his attempts to get her together with the CEO to discuss the earlier complaints against her.
59. Although Cr. Doyle says that he has at all times been prepared to sit down with Cr. Watts (the Panel assumes by this that he means in an ‘informal’ way) to “discuss her complaint as well as problems that have arisen from her earlier conduct and how we could work together on a constructive basis in the future”.
He also goes on to note that he would have been prepared to “attend .a joint mediation session if all issues concerning Councillor Watts and [him] were to be discussed”.
60. Cr. Doyle further submits that Cr. Watts was not bound to participate in mediation on the basis that he suggested; nor, he says, was he bound to participate on the basis that Cr. Watts suggested. He argues that his decision not to participate in the mediation process did not constitute a breach of the Code of Conduct.
Sustained pattern of behavior including exclusion, disrespect, lack of recognition at meetings, August 2011— October 2012
61. This ground concerns the conduct alleged to have been engaged in by Cr. Doyle as Chairman of meetings of Council or Committees. There are several aspects to Cr. Watts’ complaint.
a. she -was habitually marginalized at meetings, seldom recognized as a ‘seconder’ of motions and consequently rarely recorded in the Minutes of meetings;
b. Cr. Doyle, though his control of meetings, and superior knowledge of meetings protocol, attempted to confuse and humiliate Cr. Watts;
c. in respect of motions put by Cr. Watts, Cr. Doyle adopted an approach directed to embarrassing her in public, employing disrespectful, dismissive and disparaging language and tone;
d. Cr. Doyle habitually misrepresented Cr. Watts or attempted to trivialize her comments at meetings, adopted a scoffing and disparaging tone in dismissing her views; and e. when she sought to have a procedure for recording Councillors’ comments in the minutes, she was rebuffed — but the same proposal, when proposed by Cr. Kanis — was accepted. – x ,
62. In respect of these matters, whilst Cr. Watts acknowledged that Minutes of meetings may not reveal the conduct complained of, she nevertheless asked the Panel to undertake a “scan of the minutes” to reveal that she was rarely recorded as a seconder of motions. It is, however, inappropriate for the Panel to trawl through minutes of the meetings held between August 2011 and October 2012, as Cr. Watts suggested, to attempt to substantiate her contention. That was and is a matter for Cr. Watts as a party to the proceeding, not the Panel.
63. Cr. Doyle’s response, contained in his submission dated 3 April 2013, acknowledged that it is his responsibility to control proceedings, and submitted that demonstrating a superior knowledge of meeting protocol does not constitute a breach of the Code of Conduct. He also notes that Cr. Watts does not give any examples in support of her contention that his language, tone and demeanour were disrespectful. He observes, in agreement With Cr. Watts, that substantiation of such claims by reference to minutes would be impossible. Further, Cr. Doyle denies that he repeatedly misrepresented or attempted to trivialize Cr. Watts’.comments and notes that no examples have been provided by Cr. Watts.
64. At the hearing before the Panel, Cr. Doyle maintained this position, stating that Cr Watts had advanced only general and vague assertions about her subjective grievances, as to which there was no possibility of providing evidence.
Attempt to discredit Cr. Watts’ complaint at Directions Hearing, 6 March 2013
65. Under this head, Cr. Watts seeks to argue that, at the Panel’s Directions Hearing, Cr. Doyle attempted to misrepresent the complaints, embodied in her Application to the Panel, and disputes the submissions that Cr. Doyle made at the Directions Hearing on the subject of mediation.
66. These are not separate grounds of application. It is inappropriate for them to be raised in this manner They add nothing to the complaint, and the Panel declines to deal with them, other than to record that the Panel finds nothing inappropriate in the conduct and demeanour of either party at the Directions Hearing.
CONSIDERATION AND FINDINGS Portfolio responsibility
67. Cr. Watts does not dispute that, in the period to which her application relates, the prerogative of allocation of portfolio responsibilities was the province of the Lord Mayor, and reposed in Cr. Doyle as the holder of that office. On the evidence provided by Cr. Watts, it is possible that there may have been, from time to time, occasions on which it might have been open to Cr. Doyle to allocate some form of portfolio responsibility to her.
68. The Panel will assume,- for present purposes, that the prerogative exercised by the Lord Mayor in allocating portfolios must not be exercised according to “whim or personal agenda”. The Panel accepts that Cr. Watts was disappointed that, in the period concerned, she was not allocated portfolio responsibility. However, there is nothing in the evidence to show that the failure of Cr. Doyle to allocate portfolio responsibility to her was based on whim or personal agenda or any is improper motive. A failure to allocate portfolio responsibility does not, of itself, lead to the inference that a “whim” or “personal agenda” was the reason.
69. Consequently the Panel finds that no breach by Cr. Doyle of the Code has been established.
70. The Panel has noted the conflict between the Notes of Cr. Ong’s meeting with CORBA representatives and his written statement provided to Cr. Doyle. Both Cr. Doyle and Cr. Ong have denied that the former participated in the preparation of the Personal Statement. Whilst the Panel has concerns about what is recorded as being Cr. Ong’s statement at the meeting with CORBA representatives, as against his written statement to the Panel, in the absence of evidence from the person who may have taken the notes at the meeting, on balance the Panel is constrained to accept the evidence of Cr. Ong in his written statement and of Cr. Doyle’s evidence at the hearing.
71. However, even had Cr. Doyle discussed with Cr. Ong the statement that was to be made at the Council meeting on 13 September 2011, the Panel is of the view that no impropriety attaches to consultations and discussions of this kind. We see no impropriety in a Councillor discussing a matter of concern to him or her with the Lord Mayor. Further, we are satisfied on the basis of Cr. Ong’s statement that the only advice he received was as to the procedural vehicle by means of which he could bring his concerns to the attention of Council. This was provided by the Manager Governance Services and was something that it was entirely appropriate for him to do.
72. Under the terms of the Meeting Procedures Code as it now stands, Cr. Watts would have been entitled to have her Personal Explanation appended to the Minutes. That was not the case in 2011. The decision not to append the text of Cr.Watts’ Personal Explanation to the Minutes was a vote of the Councillors acting as • a determinative body, not an act of Cr. Doyle acting alone.
72. Cr. Watts argues that Cr. Doyle was able to command a block vote which, in effect, prevented her Personal Explanation being appended to the Minutes.
However there is no basis upon which the Panel may go behind a particular vote.
There is nothing surprising in the circumstance that a majority of Councillors may agree upon, or disagree with, a particular course of conduct. Cr. Doyle denies that he was influential or instrumental in bringing about the outcome complained of by Cr. Watts. Even if he was, having regard to the processes of local government bodies . , or any formal committee meeting, the Panel is unable to find that any breach of the Code of Conduct has occurred.
Alleged bullying and harassment, March-April 2012
73. It is clear that complaints were made by Council officers which were ventilated by the Manager Governance to the Chief Executive Officer, Dr. Alexander and in turn to the Lord Mayor. It is not for the Panel to pass upon the validity of those complaints, or to make any determination whether those grounds of complaint 16 might raise issues with respect to the compliance by Cr. Watts with her obligations under the Local Government Act, and we do not do so. There is no material before the Panel which leads us to doubt that the complaints were not advanced out of genuine concern as to the issues raised.
74. The Panel has set out above the history and text of email exchanges between Cr. Watts and Cr. Doyle. It appears that Cr. Watts steadfastly refused to attend to meet with the CEO and the Lord Mayor, other than on her own terms. As appears to the Panel, she never did engage directly with the CEO on the matters of complaint.
75. Cr. Watts’ complaints appear to centre upon a requirement she sought to impose of having either an independent third person present (what may often be referred to in other contexts as a ‘support person’) or a legal practitioner. She also sought that she should have access to legal advice. There is a conflict in the evidence as to whether or not Cr. Doyle offered Cr. Watts an opportunity to obtain legal advice at the expense of Council. Cr. Doyle says that the offer was as to governance training through Maddocks. The Panel understands that Cr. Watts obtained legal advice — though that advice, and its subject matter, is not in evidence before us. On balance, having regard to the various communications on the subject the Panel accepts the Cr. Doyle’s appreciation of the issue is the more probable.
76. In the Panel’s view, it was appropriate for the Lord Mayor to propose that he be in attendance at the meeting between the CEO and Cr. Watts, particularly in the limited capacity that he proposed in his communications with Cr. Watts. The Panel sees nothing objectionable about that proposed role.
77. More difficult is the question whether Cr. Watts should have been allowed the meet with the CEO with the support of an independent person. As the matter evolved; no meeting with the CEO occurred. Consequently, it would not be possible for Cr. Watts to demonstrate any actual prejudice from the absence of such a support person.
78. In the circumstances the Panel is unable to see that the conduct of Cr. Doyle towards Cr. Watts in respect of the complaints by officers, and the investigation and resolution of those complaints, was other than appropriate. Consequently the Panel is unable to find that any breach of the Code of Conduct has been committed by Cr. Doyle.
Cr. Doyle Warning Councillor
79. Cr. Doyle accepts that he did caution Cr. Shanahan not to get involved in the processes attending the complaint by the CEO with respect to Cr. Watts. The complaint was of a serious nature. It entailed a possible beach of the Local Government Act. There had been suggestions that a Councillor Conduct Panel might be established in consequence of the complaints, and there was a possibility that the complaints might have been referred to the Municipal Inspectorate.
80. The management of these complaints was, as appears to the Panel, to have been a matter of some complexity if not sensitivity. We see nothing inappropriate in the Lord Mayor, as the person responsible for resolving the complaint, interceding between the CEO and Cr. Watts, taking steps to ensure that the matter was dealt with in a manner that did not inflame or complicate the central issues involved in the complaint. It was consistent in our view for Cr. Doyle, in his capacity as Lord Mayor, to counsel Cr. Shanahan to avoid engaging in or assisting in conduct that might prevent the complaint being resolved without un – necessary rancour and in a manner that did not damage the reputation of the Council.
81. The Panel is satisfied that there was nothing in the conduct of Cr. Doyle with respect to Cr. Shanahan that constitutes a breach of the Code of Conduct.
Incident at Special Confidential Meeting, 4 September 2013
82. The Panel, having listened to the recording of the meeting, does not accept that Cr. Doyle, in his closing statement, was other than appropriate in the level of his voice, though his manner and tone was as we have described above. Indeed, whilst it is difficult to judge solely on the basis of an audio recording of the meeting, it would appear to the Panel from that recording that the interjections and remarks of Cr. Watts were at least equal in volume to those emanating from Cr. Doyle.
83. In the absence of evidence from persons who may have been outside the meeting room as to what might have been audible, the Panel is not able to infer that the language used inside the room would have been audible outside.
84. It is of concern that, when Cr. Doyle addressed the issue of leaks of confidential information by a Councillor, that Cr. Watts perceived that Cr. Doyle engaged in eye contact with her. We do accept that Cr. Doyle’s comments were passionate and direct and have no doubt that Cr. Watts perceived that the comments were directed at her. Cr. Doyle submits that his remarks were directed at the Councillors as a whole. In the absence of direct evidence of observations, other than the voice recording, it is not possible for the Panel to say that Cr. Doyle directed his comments about an alleged breach of confidentiality to Cr. Watts.
85. The Panel is satisfied that there was nothing in the conduct of Cr. Doyle at the Special Confidential Meeting that constitutes a breach of the Code of Conduct.
Cr. Doyle’s refusal to participate in mediation and “conditional” mediation, October 2012 — February 2013
86. Cr. Doyle concedes that he was unwilling to participate in a formal mediation with Cr. Watts other than on his own terms, which have been explained above.
He also states that he Would not expect Cr. Watts to participate on terms that she did not accept. The Panel is left in some uncertainty as to Cr. Doyle’s intention when he submits that he would participate in a mediation where all issues between him and Cr. Watts were available for discussion. It is unclear whether that specific proposition was put to Cr. Watts at any time.
87. However, the central issue for the Panel is whether or not a refusal or failure to• participate in a mediation, except upon particular terms, may constitute a breach of the Code. As befits arrangements for dispute resolution, the provision made in cl. 6 of the Code of Conduct is not prescriptive, but is flexible and aspirational, based on an assumption that the parties in dispute will conduct themselves with a measure of openness and good will. Given that the process is non-prescriptive, it is difficult in the Panel’s estimation to establish that the imposition of conditions upon mediation is readily characterised as constituting a breach of the Code. Both Cr. Doyle and Cr. Watts imposed, or sought to impose conditions. In the circumstances it is not possible to find that any breach of the Code has occurred.
Sustained pattern of behavior including exclusion, disrespect, lack of recognition at meetings, August 2011 — October 2012
88. Cr. Watts’ claim under this head is, as she acknowledges, one which is difficult to prove. As noted above, it is not for the Panel to embark upon the task of examining a large volume of minutes of Council and Committee meetings. Even if such a survey resulted in a finding that Cr. Watts was rarely recorded as the seconder of motions, that would show little or nothing about the conduct of the meetings. Equally, in the case of allegations about demeaning or dismissive conduct, the minutes would reveal nothing These may be matters appropriate for independent witness evidence, as to which there is none. But in any event, questions whether conduct is, for instance, demeaning, are matters of impression and subjective judgment. The evidence before the Panel consists only of accusation and denial. In the circumstances the Panel is unable to find that the allegation is substantiated.
Attempt to discredit Cr. Watts’ complaint at Directions Hearing, 6 March 2013
89. For the reasons given at paragraph 65 and 66 above, the Panel declines to entertain this complaint.
The “Pattern of behaviour” claim
90. As noted above at para. 5, Cr. Watts sought to raise, as a separate ground of complaint, that Cr. Doyle had engaged in “a pattern of behaviors over time” which itself constituted or demonstrated a breach of the Code of Conduct.
91. The Panel has found that none of the allegations against Cr. Doyle has been substantiated.
92. Whilst it may be theoretically possible for a Panel to find that a pattern of behavior is substantiated, even though the individual circumstances on which the pattern is alleged to be founded, have not been made out — the principle perhaps being that the whole being greater than the sum of the parts — in the Panel’s opinion this is not such a case.
93. This is because the Act requires that particular breaches of specific provisions of a Code of Conduct must be substantiated before an adverse finding may be made against a Councillor. A “pattern of behaviour” is not itself tangible complaint of breach of the Code, particularly in circumstances where what is sought is a finding of misconduct.
Dated: 21 August 2013
Chairperson, List “A” Legal Member
“List B”, Governance Member