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COUNCIL MEETING 6 APRIL 2010 – GENERAL BUSINESS ITEM 6. COMPLAINT

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					                                 COUNCIL MEETING 6 APRIL 2010 – GENERAL BUSINESS
                                                 ITEM 6. COMPLAINT – COUNCILLOR D LIM



Report by James Ng, Solicitor


RECOMMENDATION

That Council note the report regarding the following conduct by Councillor D Lim:

(a) That while an investigation was being carried out by Council’s Conduct Reviewer into
    Code of Conduct complaints made by a resident against Councillor Lim, Councillor
    Lim wrote a letter to the partners at the resident’s place of employment.

(b) That Councillor Lim wrote the letter for private purposes on his purported Council
    letterhead, which was not approved by Council.

    a.   That Councillor Lim’s letter was designed to intimidate and harass the
         complainant.

    b.   That Councillor Lim misused his position in writing the letter.

(c) That Council resolve that it is satisfied that Councillor Lim’s conduct is in breach of
    the Code of Conduct and the Local Government Act 1993 and that this conduct
    constitutes misbehaviour under the Act.

(d) That Council resolve that it is satisfied on the grounds set out in paragraph 1 that
    Councillor Lim should be censured.

(e) That Council formally censure Councillor Lim.

(f) That Council resolve to write to the partners at the complainant’s place of employment
    that Council does not endorse Councillor Lim’s conduct in writing to them on his
    purported official letterhead for private purposes.



PURPOSE OF REPORT

To advise Council of an incident of misbehaviour by Cr D Lim and to recommend appropriate
action by Council under the Local Government Act 1993 (the Act).


REPORT

The General Manager has received a number of complaints from a Strathfield resident alleging
that he was insulted and verbally abused by Cr Lim in public on three occasions in 2009. These
complaints are presently the subject of investigation by Council’s Conduct Reviewer.

In December 2009, while investigations were pending, the resident complained to the General
Manager that Cr Lim had written a letter to all the partners at his place of employment under
purported official letterhead in what the complainant described as an attempt to intimidate and
harass him (for copies of these letters, please refer to the confidential attachments).



                                              6.1
                                    COUNCIL MEETING 6 APRIL 2010 – GENERAL BUSINESS
                                                     ITEM 6. COMPLAINT – COUNCILLOR D LIM



As noted by the complainant, at no time did any of his complaints refer to his occupation or place
of employment. Accordingly, the logical conclusion is that Cr Lim deliberately searched and
identified the complainant’s occupation and place of employment for the purpose of writing to the
partners there. Also, none of the partners are referred to in the complaints or have any
connection to them.

The complainant has provided a copy of Cr Lim’s letter to the General Manager. The letter
referred to the complaints by the resident, asserted that they are unsubstantiated allegations and
suggested that they be defamatory. Further, Cr Lim asked the partners whether they or their firm
endorsed the complaints by the resident.

It is of concern that Cr Lim’s letter was under Council letterhead, which was not provided or
approved by Council. The letterhead includes the name ‘Strathfield Municipal Council’ and gives
Council’s street address, telephone number and website address. This gives the impression that
Cr Lim’s letter is an official letter endorsed by Council when it is not.

I accept that Cr Lim’s letter was designed to harass and intimidate the resident as a result of the
complaints made against him by the resident. This is in breach of clause 2.6.3 of the Complaints
Handling Policy which states that:

      Complainants will not be subjected to any form of prejudice or harassment in reprisal of
      their complaint

Further, legal advice indicates that Cr Lim’s conduct in writing the letter is likely to have breached
the Code of Conduct as well as the following provisions of the Act:

      1.     Conduct that contravenes all or specified provisions of this Act or the regulations in all
             or specified circumstances.

             …

      3.     Improper or unethical conduct

      4.     Abuse of power and other misconduct

      5.     Action causing, comprising or involving any of the following:

             (a) intimidation, harassment or verbal abuse

             …

       (Schedule 6A)

Under the Act, such conduct constitutes ‘misbehaviour’, which is defined as:

      (a)    a contravention by the councillor of this Act or the regulations,

      (b)    a failure by the councillor to comply with an applicable requirement of a code of
             conduct as required under section 440 (5),
(s440F(1))




                                                  6.2
                                  COUNCIL MEETING 6 APRIL 2010 – GENERAL BUSINESS
                                                   ITEM 6. COMPLAINT – COUNCILLOR D LIM



Censure

Council may deal with the misbehaviour by censuring Cr Lim in accordance with s440G of the
Act:

     1.    A council may by resolution at a meeting formally censure a councillor for
           misbehaviour.

     2.    A formal censure resolution may not be passed except by a motion to that effect of
           which notice has been duly given in accordance with regulations made under section
           360 and, if applicable, the council’s code of meeting practice.

     3.    A council may pass a formal censure resolution only if it is satisfied that the councillor
           has misbehaved on one or more occasions.

     4.    The council must specify in the formal censure resolution the grounds on which it is
           satisfied that the councillor should be censured.

     5.    A motion for a formal censure resolution may, without limitation, be moved on the
           report of a committee of the council and any such report must be recorded in the
           minutes of the meeting of the council.

It is not necessary for the Conduct Review Committee/Reviewer to make enquiries into the
matter in order for Council to formally censure Councillor Lim for misuse of his position and
Council’s letterhead.

Complaint to the Director-General

In addition, the Act also enables the General Manager or any other public official to make a
complaint to the Director-General regarding the conduct of a Councillor (s429A). A Council
resolution is not required for a complaint to be made.

Letter to the Partners

It would be appropriate for Council to write to the partners at the complainant’s place of
employment to advise that Council does not endorse the conduct of Cr Lim in writing to them on
Council letterhead for private purposes.


REFERRAL FROM OTHER DEPARTMENT

No referral was required.


FINANCIAL IMPLICATIONS

Other than the Council resources that are being used in managing these complaints, there are no
financial implications.




                                                6.3
                                   COUNCIL MEETING 6 APRIL 2010 – GENERAL BUSINESS
                                                   ITEM 6. COMPLAINT – COUNCILLOR D LIM



ATTACHMENTS

1.   Confidential attachment to be circulated to Councillors under separate cover.


Report approved by:

               Neale Redman
        Director Corporate Services




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