F— Off, Idiot:

‘Freedom of Information’ in the Shire of York           James Plumridge                                 

The objects of the FOI Act are to enable the public to participate more effectively in governing the State and to make the persons and bodies that are responsible for State and local government more accountable to the public.  The FOI Act achieves this by creating a general right of access to documents; providing a means to ensure personal information is accurate, complete, up to date and not misleading; and requiring that certain documents concerning State and local government operations be made available to the public.  Dealing with requests under the FOI Act is not merely an administrative process but is a means of dispensing justice to the people of Western Australia.

               

Sven Bluemmel, WA FOI Commissioner: Annual Report 2013-2014

The letter killeth, the spirit giveth life.

St Paul: 2 Corinthians 3:6

A history lesson: CEO Hooper shows his hand and gets a well-deserved slap on the wrist

On 26 February 2014, an exasperated CEO Ray Hooper wrote to the Freedom of Information Commissioner.  He wanted a ‘ruling’ on a person he described as ‘vexatious’.   The person in question had for several years been tormenting the CEO by asking questions in Public Question Time, many of them about expenditure on the CEO’s corporate credit card. 

To make matters worse for Mr. Hooper, that ‘vexatious’ scallywag had persistently and insistently exercised his rights under the Freedom of Information Act 1992 (‘the Act’).  His doing so had allegedly generated heaps of unnecessary work for the Shire administration and constituted a huge drain on the public purse.

Mr. Hooper was always much incensed by questions relating to his corporate credit card.  Until quite recently, it was hard to see why.  Now that information about his credit card usage is leaking into the public domain, we are in a better position to understand his and the Shire’s reluctance to disclose it.

I haven’t seen Mr. Hooper’s letter, but we can safely infer its contents from the polite and carefully reasoned reply dated 13 March 2014 and written by Ms Grace Grandia of the Commission’s Advice and Awareness section.

These are the main points of what Ms Grandia had to say:

·         The Act gives agencies ‘discretion to disclose information outside the processes of the Act’.  Whenever possible, an agency should provide information without forcing an applicant to rely on the Act to get it.

·         The Commissioner can only rule on a matter ‘that comes before him as a complaint under the FOI Act’, not on a person as Mr. Hooper had requested.

·         A person’s right to access information held by an agency is not affected by what that agency believes to be the applicant’s motives for wanting it.

·         Credit card statements for the Commission are published on its website and available for public inspection (a hint, perhaps, that Mr. Hooper should reconsider his attitude to disclosure).

·         The Commissioner has the power to waive a requirement to consult with third parties regarding information that might serve to identify them.

·         If an agency is concerned that an FOI application will divert resources ‘away from its other operations’, it is obliged to help the applicant to narrow its scope.

·         An agency may provide access to information ‘outside the Act’ by allowing a person to inspect it in situ.  This saves time and resources because it sidesteps the need to consult third parties.

·         The Commissioner may decide not to deal with a complaint ‘if it is frivolous, vexatious, misconceived or lacking in substance’.  It is the complaint that is deemed to be vexatious, not the complainant.

It must have seemed obvious to Ms Grandia that Mr. Hooper was not overly familiar with the Act, and had failed to perceive that it is actually about disclosing information, not restricting it.  In that, he was and remains far from alone.

The past never dies: or, the ghost of Hooper present and to come

Why is the sorry tale of CEO Hooper’s failure to grasp the meaning and purpose of the Act still relevant today?  Isn’t it merely one of those ‘historical issues’ that the DLGC and the Commissioner have begged us to cast aside in the interests of ‘moving on’?

The answer to those questions may be found in the latest Briefing Paper to Council as a late report from the Deputy CEO, Tyhscha Cochrane.  Under the rubric ‘4.5.1 Freedom of Information’, Ms Cochrane asks Commissioner Best to consider ‘the current and potential future impact’ on Shire resources of having to deal with FOI applications. 

To support her request, Ms Cochrane produces a flurry of statistics including an estimate that processing FOI applications will cost the Shire $84,986 in (I presume) the next financial year.  She recommends that the Commissioner acknowledge ‘the additional cost associated with Freedom of Information applications, i.e. consultants, staff time and use of legal aid’.  What he’s supposed to do after acknowledging it, Ms Cochrane doesn’t tell us.

I suspect that the real purpose of Ms Cochrane’s report is to shame members of the public into not making FOI applications. Not only would that save the Shire administration tens of thousands of dollars (as she believes); it would also help to perpetuate the Hooperesque culture of secrecy and concealment that has continued to flourish at the Shire into the present day. 

 ‘First thing we do, let’s hang all the lawyers’

In her report, Ms Cochrane cites paying for legal advice and the help of ‘consultants’ as an ‘additional cost’ of FOI applications. 

I have evidence of a payment of $1170.98 to Feinauer Commercial Lawyers dated 27 February 2015 and ascribed to ‘Legal Advice – Freedom of Information’.

It is true that as an agency within the meaning of the Act, the Shire is obliged to comply in every particular with the Act and associated regulations. But why should it need lawyers to advise it on compliance with the Act?

I don’t know what application or applications that payment applied to, but I’m sure there have been other such payments.  I’m also sure that consulting Feinauer Lawyers was unnecessary, as all such consultations must have been.

The Shire is obliged to appoint an FOI coordinator.  That’s a responsible job.  It requires training in the requirements of the FOI Act and regulations.  It also requires a grasp of the spirit as well as the letter of the law.  The FOI coordinator should know enough to advise colleagues on most of the legal, technical and even moral issues that may arise from processing FOI applications.

If issues crop up that are too complex for the FOI Coordinator, that officer can take a leaf out of CEO Hooper’s book and seek advice from the FOI Commissioner’s office.

Advice from that source is given readily, costs nothing and as Ms Grandia’s letter demonstrates reflects the spirit as well as the letter of the law.  Why shell out ratepayers’ money if you can get what you need gratis from the State’s leading experts in the field?

Scurrying off to lawyers to get advice on how to obstruct an application—I doubt that it’s ever to get advice on how better to assist the applicant—is not only expensive, it’s also contrary to the spirit of the Act.  

What ‘consultants’ who are not lawyers can usefully tell the Shire about FOI is not clear to me.  Perhaps Ms Cochrane would care to explain, with suitable examples, before she toddles off on leave.

The Act provides scope for exemption, for example of documents containing legally privileged material, but exemptions are not mandatory.  Like all other ‘agencies’, the Shire has a choice: it can decide to provide information whether or not that information is technically exempt.

In short, the Act emphasises the public’s right to obtain information, not an agency’s ability to withhold it.

Local government agencies thumbing their noses at the Act

It is clear from the FOI Commissioner’s latest report that he isn’t happy with ‘a small number of local government agencies’ that have ‘a disappointing attitude towards compliance with the Act’. I’d be surprised if the Shire of York isn’t one of them.

According to the Commissioner, an FOI decision made by a local government agency is 8 times more likely to be the subject of external review than one made by a State government agency.

He considers it ‘good practice’ for an agency ‘to make as much material as possible publicly available on [its] website, for example information relating to credit card expenditure’.

Just imagine if the Shire of York administration, under Mr. Hooper’s leadership, had engaged in ‘good practice’ of that kind.  How much anguish would have been avoided over the past 10 years, and how much public money saved!

In 2013-2014, local government agencies were responsible for 28 requests for external reviews to the FOI Commissioner.  Four of them, a startling 15%, emanated from the Shire of York.  In the same period, the Shire of York (population 3500) received 16 FOI applications.  Compare that with the 17 applications received by the City of Gosnells (population 120,000).

Something funny in York’s water, or something rotten in the Shire?

Saving money: or, a walk on the wild side

Ms Cochrane’s report would cease to have much relevance to the Shire’s budget if the Shire were to adopt a strategy of cooperation with FOI applicants instead of one based on the supposition that anyone asking for information is an enemy who should be cut down.

Here are some suggestions that might help:

1.                   On receiving an application, begin by assuming that the applicant should be given every document they ask for, instead of automatically looking for ways to limit what they can have. This will save time and money by doing away in many instances with the need for internal as well as external reviews.

2.                   Nothing connected with the expenditure of public money should ever be regarded as exempt from disclosure.  That includes staff appointments, staff salaries and related costs.  It includes expenditure on public works of every kind as well as corporate credit cards.  It includes tenders for contracts, too—but only after the contracts are awarded.

3.                    Put everything to do with expenditure of public money online—every estimate, invoice, payment, receipt, data entry.  That will save the Shire a fortune, because many FOI applications have to do with such expenditure and the Act says in effect that an agency doesn’t have to provide information an applicant can obtain elsewhere.

4.                   Never fight or obstruct an application because disclosure would reveal incompetence, corruption, wrong-doing generally or even an honest mistake.

5.                   Where possible, invite enquirers to inspect documents at the Shire office.  Install a photocopier they can use for a suitable fee.

6.                   Remember that there is nothing in the Shire’s mandate even remotely resembling an issue of national security or prestige.  The only justification for secrecy in government at any level is that releasing information would put individuals or society as a whole in harm’s way.  The fact that disclosure might damage your own or a friend or colleague’s feelings or career prospects is completely irrelevant to the task of processing an FOI application.

I doubt these suggestions would be embraced with any enthusiasm by many local authorities—even though, or perhaps because, they would help to make nepotism, patronage and other forms of corruption difficult if not impossible to sustain.

Readers may have their own suggestions.  I hope they will share them on the blog.   This is where a bit of ‘visioning’ might come in handy.

The culture of an agency in regard to attitudes about concepts of openness, accountability and transparency is considered inextricably linked to how well FOI applications are administered by the agency and whether the intent of the FOI Act is met.  For FOI to be administered effectively, efficiently and fairly within agencies, it is important for Ministers, CEOs and FOI Coordinators to have a strong commitment to the principles and promotion of openness, accountability and transparency.

   Sven Bluemmel, WA FOI Commissioner: Annual Report 2013-2014

I only ask for information.

  ‘Rosa Dartle’, in Charles Dickens: David Copperfield 

Graeme Simpson invokes legal doctrine of Reasonable Person to rule out possibility of Shire chicanery

‘No attempt to falsify public records,’ he says

In Notes from Underground 6, I cited evidence that in December 2012 the York Shire Council had falsified the minutes of the November 2012 Council meeting. 

It had done so by substituting ‘Balladong Farm’ for ‘vexatious residents’ as the main topic of a meeting with Ms Elisabeth Stevenson of the Shire’s lawyers, McLeods. CEO Hooper, DCEO Cochrane, and Crs Tony Boyle and Roy Scott  (listed here in order of importance) attended the meeting. 

According to credit card records, the meeting with Ms Stevenson was followed by a ratepayer-funded luncheon (including alcoholic beverages) at the 7^th Avenue Bar and Restaurant in Midland, and a little later by icecreams for the CEO and DCEO in Mundaring.  The full cost of those refreshments was allocated ingeniously to ‘Training and Conference’ expenses.

DCEO Cochrane later tried to persuade Ms Stevenson that the meeting had been not about ‘vexatious residents’ but about ‘Balladong Farm’. This would have brought Ms Stevenson’s recollection into line with the falsified minutes.  Ms Stevenson politely declined to cooperate in this Orwellian revising of the past.

Acting CEO Graeme Simpson has since described DCEO Cochrane as ‘an exemplary employee.’  

‘A well settled Rule of Law’

In November 2012, CEO Hooper, accompanied by Crs Boyle and Scott, repeated the pattern by meeting with David Morris of the DLGC in Perth to discuss ‘a vexatious ratepayer,’ then swanning off to Midland for another ratepayer-funded nosh-up and gargle in the same dining establishment as before.

This time, even more ingeniously, luncheon expenses were allocated to a conference in Perth that had concluded eleven days before the meeting with Mr. Morris took place.

Questioned about this odd fact by one of the usual ‘passionate extremist’ suspects, Acting CEO Simpson described it as ‘a not uncommon error’ arising from having to deal with ‘repetitive data entries.’

Then, donning wig and gown, sticking his thumbs in his waistcoat pockets and puffing out his cheeks, Acting CEO Simpson delivered the following sonorous judgement:

The Reasonable Person principle is a well settled Rule of Law that is clear and does not need to be proved. In my opinion there has not been any attempt by Mr Ray Hooper or others to falsify public records or change the allocation costs in the Shire record. The costs have been allocated to the correct account but the function identified incorrectly.

I’m not quite sure what the Reasonable Person is doing here.  I think Mr. Simpson is arguing that since no reasonable person would interpret the facts of the case as an indication that public records had been falsified, he doesn’t have to justify his opinion: res ipsa loquitur, as the lawyers say.   

Honestly, I think he’s talking through his hat.

Mr. Simpson seems to have thrown in the Reasonable Person (aka ‘the man on the Clapham omnibus’, in Australia ‘the man on the Bondi tram’) ostensibly to demonstrate his profound knowledge of law but actually to bamboozle the enquirer.  Using a bit of fake legal erudition or unusual words like ‘acolyte’ was a favourite technique of former CEO Hooper’s for keeping councillors as well as ratepayers firmly at heel.

Anyway, back to the November 2012 minutes.  Faced with the evidence, you’d have to be pretty dense or pretty desperate to deny that they were falsified at the Council meeting in December 2012.

There is no reason for Mr. Simpson to be desperate.  He was not a party to the crime.  But this is what he wrote to a friend of mine last week, after my Notes had laid bare the facts for the whole world to see:

I have checked on the Minutes of the Council meeting of 19 May 2014 and I am of the view that no reasonable thinking person could come to a conclusion that anybody has attempted to falsify a public record.

Is he trying to convince us he’s an idiot? Or is he just a true-blue Aussie team player doing the right thing by his mates? 

The verdict is yours.

By James Plumridge, our Crime and Corruption Correspondent, reporting from New Baghdad

NOTES FROM UNDERGROUND 7 James Plumridge

Incorporating Negativity Times, The Line-in-the-Sand Review, and The Persona Non Grata Gazette

Hooper days are here again…

Even in my wildest ‘visionings’, it never occurred to me that the new regime imposed by Minister Simpson might resort to the techniques of community control so familiar to us from the days of the Hooper-Boyle-Hooper ascendancy.

In those days, the rules went something like this.  If you were nice to the Shire Council and administration, did what Shire officials told you to do without complaint and didn’t ask embarrassing questions about how the Shire spent your rates money, you were unlikely to attract unfavourable attention from the Kremlin in Joaquina Street.

If you were friendly with Shire Councillors or senior officials, you might get special privileges, like a job you weren’t qualified to do, a contract not advertised or put out to tender or permission to install a swimming pool that didn’t fully accord with planning regulations.  You might even get to buy an historic piece of real estate for considerably less than its current market value.

On the other hand, if you were one of those nosy ratbags who tormented the Shire with troublesome requests for information, either during Public Question Time or by exercising your rights under the Freedom of Information Act 1992, you might have found yourself on the receiving end of various not-so-petty humiliations. These included being shouted at and publicly defamed by Shire Presidents, sinister visits from Shire employees and the arbitrary enforcement without prior negotiation of local government laws.

Don’t believe me?  Read the Fitz Gerald Report, posted in a truncated form in July 2014 and still accessible on this blog.  If anything, what I’ve just written is an understatement.

But enough of these ‘historical issues’ as the Department of Local Government and Communities and James Best like to call them.  Here’s a rather disturbing story from the present day, though to tell it as it should be told we need to go back a little in time, at least to last September.

Rates, refunds and reimbursements

The story concerns a resident whom I shall call Ms B.  I begin by saying that I have only a slight acquaintance with Ms B.  I have met her a few times, and have had a couple of brief conversations with her.  She has not approached me regarding what I am about to write. I have not told her of my intention to write it. 

In the minutes for September 2014  (pp.44-47), Council moved to defer to the October meeting consideration of a matter presented under the misleading heading ‘9.4.2 Rates Write Off.’  In fact, the officer recommendation was to write off interest charges and legal costs relating to unpaid rates, not the rates themselves. 

On 10 October 2014, Ms B wrote to former Acting CEO Michael Keeble asking for a refund of legal costs of $2638.51 and interest charges of $375.93. Ms B described those amounts as being related to a legal action discontinued by the Shire before it was to be heard in court.

In addition, Ms B asked for a refund of $800 in legal costs relating to ‘a caveat that was never actioned.’

At its meeting in October 2014, Council resolved (Resolution 111014) that the amounts specified in Ms B’s letter be reimbursed to her using money ‘from Tourism and Town promotions.’  The resolution passed 4/2, with Crs Hooper and Duperouzel asking for their opposition to be recorded.

Shortly afterwards, the Shire paid Ms B $800.  She has never received the legal costs refund of $2638.51 that the Council voted to pay her.

The first time I spoke to Ms B was at a friend’s house two or three months ago.  She joined briefly in a conversation about events in York.  Somebody—not me—made a mildly derogatory remark about Commissioner Best.  Immediately, Ms B sprang to the Commissioner’s defence.  She said he had listened sympathetically to her story and promised to do something about the money she believed was due to her.  She was adamant in her opinion that we should give him a fair go.  The notorious ‘passionate extremists’ present, to whom her comments were addressed, fell silent, suitably abashed.

Since then, some have remarked on a change in Ms B’s attitude. In a word, it appears to have soured.  As I recall, the change became apparent in posts on this blog to which Ms B had courageously subscribed her name.

Cynic that I am, I was therefore less than surprised to read in this month’s briefing information agenda a report from Acting CEO Graeme Simpson seeking the Commissioner’s approval ‘to revoke Council Resolution 111014.’ 

Now, I don’t know enough to have an opinion as to whether or not Ms B is entitled to the reimbursement she requested.  But I’m puzzled by the following words offered by Mr. Simpson in defence of his desire to have that resolution revoked.  He says:

‘The refund of rates monies [sic] has not yet been paid, as investigations are ongoing into the matter.  Funds for rates and charges were not paid by the landowner [i.e. Ms B] at the time, therefore justification to refund monies to a person that did not pay them is not warranted.   All outstanding funds that had accumulated from 2007 to 2012 were paid by the mortgagee in possession at the time of settlement, not by the landowner.’

Hold it right there, Mr. Simpson.  Unless I am gravely mistaken, Ms B has never asked for the return of moneys that somebody else had paid.  The subject of her claim was not a rates refund but a reimbursement of legal costs and interest charges.  That was also the subject of Resolution 111014.  (And how long should it take to ‘investigate’ a simple matter like this?)

I can see that Acting CEO Simpson and Commissioner Best might not be too pleased to see Ms B posting hostile comments on the blog.  I know from personal experience that in the world according to Commissioner Best contributing to the blog makes one persona non grata*. But that’s no excuse for seeking to have Resolution 111014 revoked on spurious grounds, presumably to teach Ms B a lesson.  The only other explanation would be rank incompetence on Mr. Simpson’s part. 

Whatever the rights and wrongs of Ms B‘s situation, Resolution 111014 was passed by a Council duly elected by the people of York, consisting of councillors who live here and have a longstanding commitment to the York community. 

It should not be open to revocation by somebody who wasn’t elected, doesn’t live here, doesn’t like us, thinks we’re violent, calls us names, condemns our opinions, rubbishes our blog, is here as Minister Tony Simpson’s gauleiter and probably can’t wait to shake York’s dust from his heels forever.

For heaven’s sake, Commissioner, take your own advice: get ‘future-focussed’, give the lady the money she was promised and move on.

And while we’re on the subject of bureaucratic retaliation…

Readers may recall that in late February and early March of this year a Shire ranger was directed on at least three occasions to take photographs of material exhibited in the windows of the Saints’ home in Avon Terrace.

The material consisted mainly of copies of news reports and official documents but included extracts from this blog relating to alleged misconduct on the part of former CEO Ray Hooper.

To the best of my recollection, there was nothing in the windows that referred to current employees of the Shire.  (There is now—a photograph of the Ranger taking photographs.)

Simon Saint telephoned Commissioner Best to ask him why the Ranger was taking those photos.  The Commissioner said it was because the Shire’s insurers’ lawyers had requested them.  I believe Mr. Best introduced the word ‘defamation’ into their conversation.

On 3 March 2015, following the last of the Ranger’s visits, Simon Saint emailed Acting CEO Simpson asking for confirmation that the Shire’s insurers’ lawyers had instructed him to obtain the photos in question.  He added: ‘Could you also confirm to me who exactly is being defamed?’

After 5 weeks, and a couple of reminders, Mr. Saint received the following response dated 8 April 2015:

‘Dear Mr. Saint,

I have a very clear responsibility to ensure I maintain a safe working environment for all employees of the Shire of York.  Monitoring publication of issues raised in the public domain is only one facet of the task.

Regards

Graeme’

Leaving aside the obvious fact that it reveals Mr. Simpson to be a truly outstanding monument to pomposity, this silly sentence is virtually meaningless as a response to Mr. Saint’s inquiry. How was the material in the Saints’ window relevant to current employees of the Shire of York?  And why so many visits, when one would have sufficed? Did Mr. Simpson think he had a duty to protect former CEO Hooper, who had left the service of the Council almost a year before?

As I recall pointing out at the time, if Mr. Hooper was contemplating an action in defamation, it would have had to be taken against Mr. Saint, not the Shire.  In that case, Mr. Hooper should have got his lawyers to arrange a photographer for him—or arranged for one himself.  The job shouldn’t have been done at ratepayers’ expense.

No, this was about intimidation, not information, like the threats of legal action that have been made against contributors to this blog.  It’s back to the bad old days, I’m sorry to say.

*PERSONAL NOTE:  Without going into details, I have recently discovered that I myself am persona non grata with Commissioner Best.  I can’t imagine why.  It must have something to do with the cartoons accompanying my articles rather than the articles themselves, which would only offend humourless, self-important people with scant concern for historical issues.  I do not produce the cartoons and am not consulted about them.  Mr. Best, I have no artistic talent and am not to blame.  I’m not the only one around with a sense of humour and the ability to puncture inflated egos.

NOTES FROM UNDERGROUND 6 James Plumridge

Incorporating Negativity Times and The Line-in-the-Sand Review

The Case of the Falsified Minutes:  A Mysterious Tale from the Shire of York

In a minute there is time

For decisions and revisions which a minute will reverse…

T.S. Eliot: The Love Song of J. Alfred Prufrock

Prologue

Minutes are meant to be a true and accurate record of what took place in a meeting. Their purpose is to present an honest account of what was reported to and discussed at the meeting, and what decisions were made.

Minutes of shire meetings are public documents compiled by a public officer.  This gives them a special status at law and imposes special responsibilities on the people who have a hand in producing them.  

The story that follows is about falsifying a public document, namely the minutes of an Ordinary Meeting of the York Shire Council.  If carried out ‘corruptly’ – that is, to gain a benefit for someone, or to cause someone a detriment – falsifying Shire minutes could in theory land the perpetrator or perpetrators in prison for seven years. 

For this case, you, readers, are the jury. It’s for you to decide whether or not the falsification was carried out corruptly, and with corrupt intent.

Chapter 1: Goodness gracious, the man’s vexatious

Our story begins in 2008, when a York ratepayer who doesn’t want to be named—let’s call him ‘Mr. Templar’—aroused the wrath of Shire of York CEO Ray Hooper by asking questions during Public Question Time about how the Shire was spending ratepayers’ money.

At first Mr. Templar’s questions were directed at spending on the CEO’s corporate credit card; later, he broadened their scope to include other concerns, notably the cost of building and running the York Recreation Centre. 

The answers he wanted were not state secrets.  They were about the expenditure of public money.  They should have been freely available to anyone who asked for them.

That was not the view of CEO Hooper, or of the Council he ruled over.  For years, under the successive presidencies of Councillors Hooper and Boyle, Council resisted Mr. Templar’s questioning, reducing him to the expensive and time-consuming necessity of pursuing his enquiries by way of Freedom of Information (FOI) applications.

In so doing, CEO Hooper and his minions on Council managed to create the impression that the Shire had something to hide.  So Mr. Templar ratcheted up his efforts to get at the truth.

Mr. Templar’s FOI applications caused the Shire administration a lot of work.  Most of that work could easily have been avoided just by giving him the information he wanted when he asked for it.  CEO Hooper was never going to do that. Instead, he and the Council threw dust in the public’s eyes by blaming Mr. Templar for the cost of work that their own intransigence was making necessary.

Eventually somebody came up with the bright idea of having Mr. Templar declared a ‘vexatious ratepayer.’  Why should Ray and his acolytes* be forced to put up with somebody asking questions they didn’t like and would rather not have to answer?

*  Acolyte:  a word incorrectly employed by former CEO Hooper as a term of opprobrium. From Gk. akolouthos, ‘follower.’ 

Chapter 2:  Send in the clowns

On 4 September 2012 CEO Hooper telephoned the Shire’s solicitors, McLeods, and spoke to their special counsel, Elisabeth Stevenson. 

On the morning of Friday 7 September 2012, he filled out and signed purchase order number 19327 for legal advice on two topics:  ‘FOI processes’ and ‘vexatious people,’ with $1000 allocated to each.  Then, accompanied by Shire President Tony Boyle, Deputy President Roy Scott, and Deputy CEO Tyhscha Cochrane, he visited Ms Stevenson at her Claremont office.

As councillors, Mr. Boyle and Mr. Scott had no business accompanying CEO Hooper and DCEO Cochrane on that excursion.  It’s an iron rule of local government that councillors concern themselves with governance and administrators with administration.  The matters for discussion were supposedly administrative in nature.

By their presence at the meeting, Crs Boyle and Scott were involving themselves in administrative issues. The correct course would have been for the CEO to get advice from Ms Stevenson (perhaps with DCEO Cochrane taking notes) and to convey that advice to Council.

Crs Boyle and Scott should have known this.  But they had their own private reason for going on pilgrimage to Claremont with the CEO and his deputy.

One of the topics raised at the meeting was a fire-and-brimstone verse from the Book of Revelation that Mr. Templar had emailed to CEO Hooper to pass on to Crs Boyle and Scott. We know Mr. Templar’s message was discussed at the meeting because of what Cr Scott told Sgt Gubanyi of the York Police in an email dated 13 September 2012, and because Ms Stevenson referred to it in an email sent on the same day as the meeting to CEO Hooper and DCEO Cochrane.

It seems the verse had an effect on both councillors that would have pleased its divinely inspired author.  It seems to have shaken them up so badly, they felt they had to obtain legal advice at ratepayers’ expense as to what could be done to stop Mr. Templar persecuting them with terrifying verses from the Bible.  (No, he isn’t a Jehovah’s Witness.)

However, the issue as discussed boiled down to this: did Mr. Templar’s apocalyptic message constitute a ‘record’ as defined by the State Records Act 2000?  In other words, had it been sent to them in their capacity as councillors, in which event they had to declare it to the Shire?  In her email, Ms Stevenson uses the example of ‘a quotation from scripture’ to illustrate her considered opinion that they might, or might not, be obliged to declare it.

On the ‘vexatious person’ question, the gravamen of Ms Stevenson’s advice would probably have been that there is nothing in the law to prevent people from asking questions, however annoying, and no way of declaring questioners ‘vexatious.’ She would have given similar advice regarding ‘FOI processes.’ 

Ms Stevenson’s advice cost the ratepayers of York $1353 inclusive of GST.  To that, we can add the cost of travel and meals for four people.  The advice might have been cheaper if obtained via a telephone conference call, but that would have deprived our four wild-goose-chasers of a nice day out and the opportunity to splurge on lunches using the CEO’s corporate credit card.

Chapter 3:  What the Invoice Said

The Shire received McLeods’ invoice for those services on 9 October 2012.  The invoice is numbered 69654.  It relates McLeods’ case number, 32449, both to the Shire’s purchase order 19327 and to the words ‘vexatious ratepayer.’   It does not mention ‘FOI processes,’ but as we shall see they were discussed.

As well as a charge of $92.20 inclusive of GST for Mr. Hooper’s initial phone call, and the $1353 for advice given during the meeting, the invoice includes a charge of $541.20 inclusive of GST for ‘Reviewing development approval compliance report’ on 8 September 2012.  This ‘review’ referred to one of Mr. Templar’s business ventures.

Observe how CEO Hooper’s phrase ‘vexatious people’ has narrowed down to a single ‘vexatious ratepayer.’  Money appears to have been spent and working time lost in a vain quest for some legal way to stop a lone ratepayer from persisting in asking embarrassing questions about Shire spending.

McLeods’ invoice 69654 is listed on the schedule of ‘municipal electronic payments’ for October 2012 that was submitted for approval to the ordinary meeting of Council held on 19 November 2012.   It appears there under the description ‘LEGAL INSTRUCTION – VEXATIOUS RATEPAYER’ and was minuted accordingly.

Chapter 4: Falsification, that’s the name of the game

At the Ordinary Council Meeting on 17 September 2012, Shire President Tony Boyle barred Mr Templar from asking questions in Public Question Time on the spurious and irrelevant grounds that his FOI applications were placing too great a strain on Shire resources. He barred Mrs Templar, too, in her case without giving a reason.

I think we can safely assume that this action did not reflect Ms Stevenson’s legal advice.  More likely it was Councillor Boyle skipping off on a grandiose frolic of his own, with CEO Hooper pulling the strings.

On 29 November 2012, Mr Templar applied to the Shire under FOI legislation for documents relating to McLeods’ invoice 69654 (see Chapter 5).

Then a strange thing happened.  At its ordinary meeting on 17 December 2012, Council falsified the minutes of the November meeting.   This cannot have been an accident.  It must have been a deliberate act, carried out presumably on the recommendation of CEO Hooper.

Under item 7, ‘Confirmation of minutes of previous meeting’, the December minutes read as follows:

‘Corrections – under payments there is an amount of $1992.10 for vexatious ratepayer.  Incorrect terminology used – should have read – rateability of Balladong Estate and processes for FOI.’ (Emphasis added.)

There follows resolution 011212, moved by Cr Pat Hooper and seconded by Cr Mark Duperouzel:

‘That the minutes of the Ordinary Council Meeting held on November 19, 2012 be confirmed as a correct record of proceedings subject to the correct terminology being used for the designated payment voucher.’ (Emphasis added.)

Invoice 69654 makes no mention of the rateability of Balladong Estate.

So why were the minutes changed?  Was it done to disguise the fact that a fairly large sum of money had been spent in a vain attempt to find a legal mechanism for having a ratepayer declared ‘vexatious,’ and to evade questions about that expenditure from Mr. Templar and his friends?

Or was there a more sinister motive?

Chapter 5:  Why Falsify the Minutes?

In cases like this, the question of motive is usually vexed.  Who, after all, can penetrate the obscure workings of the municipal mind as exemplified in CEO Hooper and Cr Tony Boyle?

But here are some clues. 

On 25 September 2012, the Templars submitted to the DLGC a complaint about Shire President Boyle’s conduct at the Ordinary Council Meeting on 17 September.

On 15 October 2012, Council voted to engage McLeods to act for the Shire in planning compliance prosecutions.  At that time, the Shire was contemplating such a prosecution against Mr. Templar.

On 29 October 2012, Mrs Templar complained to the DLGC that Crs Boyle and Scott had improperly attended a meeting with the Shire’s lawyers on 7 September 2012 and used that as an opportunity to obtain legal advice at ratepayers’ expense relating to a so-called ‘vexatious ratepayer,’ namely Mr. Templar.

On 18 February 2013, Mr. Brad Jolly, a panjandrum of the DLGC who is no stranger to the pages of this blog, responded to Mrs Templar’s complaint about Crs Boyle and Scott.  He wrote:

‘The Department’s enquiries with the Shire and the elected members the subject of the complaint revealed that McLeods have not acted for either Cr Scott or Cr Boyle for any matter that was submitted to the Local Government Standards Panel either presently or in the past 12 months.’

Ladies and gentlemen of the jury, you would think it odd, would you not, if when investigating an alleged crime the police gathered evidence only from the alleged criminals. 

Mr. Jolly was at worst lying through his teeth or at best ignorantly mistaken.  He may not have understood the meaning of the word ‘act’ as it applies to legal practitioners. Ms Stevenson advised Crs Boyle and Scott as well as CEO Hooper and his deputy about a communication from Mr. Templar (and indirectly from the Almighty) and its status under the State Records Act.  That is to say, she acted for them by giving them legal advice.  The fact that they didn’t have to pay for that advice was irrelevant.  York ratepayers paid for it for them.

If Crs Boyle and Scott had not attended the meeting in Ms Stevenson’s office, and had relied on CEO Hooper to relay her advice to them, as they should have done, there would have been no problem and the Council would have had no need to resort to falsifying the minutes.

As some lawyers have discovered to their cost, if they give legal advice to anybody, even casually in a drunken state at a party, they may be said to have ‘acted’ for that person. This means among other things that they can’t accept instructions from another party in a dispute involving the person they advised. 

Mr. Jolly may have been under the misapprehension that ‘act’ means ‘represent in court.’  It doesn’t, and he should have known better, but he’s only a minor character in this story so I’m inclined to give him, somewhat grudgingly, the benefit of the doubt. 

Chapter 6:  Tyhscha Has a Memory Lapse

On Tuesday 8 January 2013, DCEO Thyscha Cochrane emailed Elisabeth Stevenson regarding McLeods’ invoice 69654. She says she is writing ‘Further to enquiries made by a York ratepayer regarding vexatious ratepayer.’

Ms Cochrane wants to win Ms Stevenson’s support for the correction.  She asks her to confirm that invoice 69654 was really about Balladong Farm and not about ‘vexatious ratepayers.’  She asserts that ‘from memory vexatious ratepayers was probably only a few minutes of discussion and the rest was Balladong Rating and FOI.’

Ms Stevenson responded by email on the same day.  She must have wondered why Ms Cochrane was relying on her memory instead of reading her own notes of the meeting, and why she hadn’t checked the relevant purchase order and invoice.  As we’ve seen, neither of those documents mentions Balladong Estate. 

In her response, Ms Stevenson says that the meeting ‘dealt with questions that arose within the context of dealing with a person considered to be vexatious’ but her advice had covered ‘generally applicable processes not the person per se.’  She points out that the purchase order relates to legal advice on ‘FOI processes’ and ‘vexatious people.’ 

Ms Stevenson lists topics she gave advice on during the meeting: FOI processes, the State Records Act [i.e. the Boyle-Scott conundrum], Public Question Time and development approval compliance.  She says that ‘some of the meeting was about Balladong,’ but that ‘the predominant part was about FOI procedures and related matters…’ She states categorically that she didn’t ‘record any notes about the charitable exemption claim’ and ‘did not charge any of the time at the meeting to the charitable exemption file (Balladong Estate).’

For anyone familiar with the ways of the legal profession, that last remark proves conclusively that the amount of time spent discussing Balladong would have been negligible, hardly more than a mention.

So much, then, for Ms Cochrane’s email to Ms Stevenson.  Ms Cochrane did her best, but it’s hard to change the recollection of a person who keeps comprehensive notes and pays scrupulous attention to the truth.

According to witnesses, Tyhscha Cochrane, Shire Deputy CEO, disciple and protégée of CEO Hooper, wept bitter tears when her boss resigned because she was afraid she might lose her job as a consequence of his departure.

Chapter 7:  Fudging the issue

You might think that following Ms Stevenson’s email the Shire would immediately have set about ‘correcting the correction.’ Think again.

The Templars were still barred from asking questions, but a friend stepped into the breach.  During Public Question Time on 18 February 2013, she asked:  ‘Can Council explain why it is trying to cover up legal costs in relation to a vexatious ratepayer?’ 

The Shire’s response: ‘Council is not trying to cover up any matter and it has simply ensured that the Minutes correctly record the processes.’   

That was a deliberate lie.

Nothing was done to correct the ‘corrected’ minutes of 19 November 2012 until the Ordinary Council Meeting of 19 May 2014, a month after CEO Hooper had resigned.  Action was only taken then because Mr. Templar had complained about the ‘corrected’ minute to the new Shire President, Cr Matthew Reid.

Resolution 190514, moved by Cr Smythe and seconded by Cr Wallace, states:

‘That the minutes of the Ordinary Council Meeting held on November 19, 2012 be confirmed as a correct record of proceedings acknowledging that various matters were discussed with McLeods including questions that arose within the context of dealing with a person considered to be vexatious.’

This resolution—probably crafted by Acting CEO Michael Keeble—followed a discussion of Ms Stevenson’s response to DCEO Cochrane’s email of 8 January 2013. 

The resolution is a feeble and faintly dishonest attempt to set matters straight.  It doesn’t explain why the change was necessary.  Instead, it fudges the issue, smothering it with opaque and viscous prose.  That’s modern corporate governance for you.

Chapter 8: Oh no, not probity blues again…

The DLGC’s so-called ‘probity audit’ of the Shire started at the beginning of 2014. So Departmental officials were almost certainly present at the Council meeting of 19 May 2014. In that case, they would have heard about the sequence of events leading to the unanimous passing of resolution 190514.

However, the deliberate falsification of minutes that occurred in December 2012—a possibly criminal act—seems to have passed them by.

Perhaps they lacked interest in the matter because responsibility for it couldn’t be traced to their intended victim Shire President Matthew Reid.   Reid was their target; Boyle was their ally and a friend of the powerful, including Premier Barnett who was recently photographed at the Boyle property in York; Scott was off the scene.  As we’ve come to expect with DLGC, the real villains got off scot-free.

Epilogue

Papers associated with this story were sent to the Corruption and Crime Commission.  The Commission forwarded them to Acting CEO Graeme Simpson, asking him to investigate.  I’m told that request has not been acted on and the papers are still sitting on Mr. Simpson’s desk.

Shire of York purchase order 19327

McLeods invoice page 1

McLeods invoice page 2

                             

Confirmation that meeting on 7 September 2012 was NOT to discuss charitable exemption

Email from DCEO Cochrane in an attempt to remind/coerce McLeods for reason of meeting

Confirmation that meeting on 7 September 2012 was NOT about or invoiced as charitable exemption