Geoff Helisma
At the August 23 Clarence Valley Council (CVC) meeting, councillors Karen Toms and Debrah Novak voted against issuing a mayoral apology to four of the valley’s citizens, regarding CVC’s enforcement of its Unreasonable Complainant Conduct (UCC) policy, however, on the day before the December 4, 2021, election the two councillors called an extraordinary meeting to do exactly that.
The December meeting was a shambles, as evidenced by its minutes available on CVC’s website.
The end result: the four councillors who stood for re-election (Ellem, toms, Novak and Clancy) were defeated 5-4 by those who retired.
Councillors Toms and Novak’s motion had sought to “direct the Acting General Manager [AGM Laura Black] to release Mr and Mrs Robert Cairns and Mr Shane Powell from their classification under Council’s Unreasonable Complainants Conduct policy immediately [and to] advise them in writing within seven days [that] their restricted access to services has been lifted by council resolution and [to] include an apology for departing from [CVC’s] UCC procedure”.
Meanwhile, at the June 28, 2022, CVC meeting, councillors unanimously decided to “defer” consideration of the Managing Unreasonable Conduct by Complainants policy and “referred [it] to a councillor workshop for discussion prior to reporting back to Council”.
At the August 23 CVC meeting, Cr Bill Day failed to gain majority support for his notice of motion (NOM) that, “Mayor Tiley send[s] a letter of apology to Lynne & Bob Cairns, Shane Powell and John Hagger, advising that Council’s Unreasonable Complainant Conduct policy has been incorrectly invoked and restrictions unnecessarily imposed upon them, [and that] a copy of this apology be placed on CVC’s files for these citizens including Electronic Content Management (ECM) records.”
However, the ‘general manager comment’ to Cr Day’s NOM stated: “There has been no independent review of the process followed and, as such, there is no evidence that CVC’s Unreasonable Complainant Conduct policy has been incorrectly invoked or that restrictions have been unnecessarily imposed.”
During debate, Cr Day mentioned a letter, dated August 22, that the AGM had shared with councillors on the eve of the CVC meeting.
Clues regarding why the six dissenting councillors (Toms, Novak, Smith, Johnstone, Whaites and Pickering) chose to remain silent are touched upon in the letter from the NSW Ombudsman office’s manager of inquiries and resolution, Veronica Brogden, who responded to a complaint lodged by acting general manager (AGM) Laura Black.
Ms Brogden advised Ms Black, “Should you wish to correct public understanding of this matter, you have in your possession a copy of our letter to Ms Cairns.
“In the circumstances, nothing in the Ombudsman Act 1974 restricts the disclosure of this correspondence to others.
“That extends, of course, to this letter as well.”
On July 4, 2022, Ms Black submitted a “complaint about [investigation officer] Michael Conaty’s response to Ms Lynne Cairns’ complaint”; Ms Brogden apologised for the delay, which she said was due to an internal misdirection at the Ombudsman’s office.
“You raise concerns about our response to a complaint by Ms Cairns, dated November 16, 2021,” Ms Brogden wrote.
She quoted part of Mr Conaty’s response, which acknowledged that [general manager Ashley] Lindsay had “apologised to you [Ms Cairns] on 5 November 2021 for how CVC had handled the GIPA applications you had lodged, and which formed, in part, the subject matter of your complaint).
“However, I do NOT consider this departure from best practice is of sufficient gravity [that] it would be appropriate to make this matter the subject of an investigation under the Ombudsman Act,” Mr Conaty wrote.
Expanding on Mr Conaty’s statement, Ms Brogden wrote, “The records state that Mr Lindsay agreed [in a telephone conversation on November 10, 2021, that] there was a departure from the UCC policy, by not sending a warning letter…
“Based on this advice, it appears the departure from policy had been confirmed…
“Accordingly, I cannot agree that the [ombudsman’s] decision was based solely on the words of Ms Cairns.
“Notwithstanding a ‘departure from policy’, this in itself is not evidence that the council’s actions were wrong or unreasonable.
“As you are no doubt aware, policy merely provides guidance to the user as to how they may exercise their discretion.
“Policies are not laws, and no policy is capable of covering all circumstances that might arise…
“Departing from policy does not amount to unlawfulness, nor in this circumstance an action so unreasonable as to demonstrate ‘wrong conduct’ pursuant to s.26 of the Ombudsman Act 1974.
“It was on this basis that Mr Conaty’s decision was to NOT [Ombudsman’s emphasis] make the conduct subject to formal investigation, and no formal findings of this nature were made.”
CVC declined the Independent’s request for a copy of the NSW Ombudsman’s office letter.
A spokesperson wrote in an email, “The advice I have received is that the same GIPA rules around requesting documents apply for the Ombudsman’s letter.”