CFP Business Specialist | Local Government Expert | Political Adviser
Extract from the Post Newspapers dated 7 March 2020, page 1, 93.
By Lloyd Gorman
Subiaco’s mayor Penny Taylor, CEO Rochelle Lavery and “some councillors” were scathingly criticised in a blistering judicial decision this week. It vindicated former Subiaco councillor Julie Matheson over her use of the word “paranoia” in a letter to the POST about a culture of secrecy that arose after the 2017 council elections (Closed doors reveal paranoia, POST, September 8, 2018)
The letter was “reasonable and in the interests of the council and the public,” State Administrative Tribunal (SAT) member Bertus de Villiers ruled. He said Ms Matheson had been left with no alternative but to write to the POST. His decision said Ms Matheson “was exposed to a potential abuse of power since the CEO and the mayor did not respond to her repeated reasonable and rational concerns”. He overturned an earlier ﬁnding on a complaint by councillor Jodi Mansﬁeld, a close ally of Ms Taylor. Ms Mansﬁeld had complained to the Local Government Standards Panel, which ruled that Ms Matheson had made improper use of her ofﬁce, reﬂected negatively on the council and council members. It ordered her to make an abject apology.
Local residents then started a fund to pay legal costs for an appeal by Ms Matheson to the tribunal, raising $5800 in two weeks (Free speech challenge: No backdown over ‘paranoia’ Letters POST September 17, 2019).
Five complaints by Ms Taylor against a group of councillors who were not part of a voting bloc that supported her have already been comprehensively dismissed by the standards panel. (Taylor’s gripes backﬁre, POST, April 13, 2019). A private investigator, Brendon Peyton, who the council paid $21,000, wrote reports supporting the complaints including the one by Ms Mansﬁeld against Ms Matheson “The report by Mr Peyton … is largely hearsay and no weight is attached to it,” Mr de Villiers said. “The CEO, the mayor and the councillors who voted for the exclusion of the public on a proper consideration of the events caused itself embarrassment through its disregard of the concerns raised by the applicant [Ms Matheson],” he wrote. “If any harm was done to the reputation of the council or individuals, it was self inﬂicted.”
Ms Matheson repeatedly raised concerns that the public, especially residents of Keightley Road, were shut out of discussions on the Thomas Street development proposal at the August 28, 2018, council meeting by use of an incorrect clause in the Local Government Act. “The tribunal also finds that the CEO, the mayor and the majority of the council closed their minds to the fair and rational concern raised by [Ms Matheson],” Mr de Villiers said. The “seriously ﬂawed process” led to the reputations of some people suffering, particularly those of the mayor and the CEO, but this was not due to ill-will by Ms Matheson, Mr de Villiers said. “The option to publish a very succinct letter to the POST newspaper was reasonable,” he said. “She had no other avenue left to bring light to her concern.” The state was not able to identify any other option left open to Ms Matheson, Mr de Villiers said. The use of the word paranoia did not necessarily indicate mental illness, Mr de Villiers said.
Ms Matheson had contended that the council had “a management style and culture of secrecy and being ‘toxic’, with the aim to exclude the public from discussions that directly impacted their right and interests,” he said. She had pointed to a negative environment and afﬁdavits councillors had to sign without proper legal advice or explanation, the numbering of copies of papers to track down leakers, and the failure of the mayor and CEO to respond to reasonable concerns. Mr Peyton undertook investigations without the knowledge of the people being investigated and an anonymous notation had been added to council minutes to justify an incorrect decision. In the eyes of [Ms Matheson] the culture within the council could therefore be characterised as one of “paranoia”.
In his conclusion Mr de Villiers said that a reasonable person with knowledge of the events at Subiaco council “would not ﬁnd the use of the word paranoia as offensive, degrading or improper”. Ms Matheson had raised in group emails the issue of the council citing an incorrect section of the Local Government Act before, at and after the August 28 meeting, but Ms Taylor and the voting bloc still voted to go behind closed doors to discuss the development application.
Mr de Villiers found that former councillor Hugh Richardson – who was a witness in the hearing – had raised similar concerns at a council forum on August 24, 2018, but was “ignored”. Mr Richardson conﬁrmed Ms Matheson again voiced her objections at the September 4 council meeting when the minutes for the August 28 meeting were to be conﬁrmed. In writing her letter she “acted in the best interests of the council and in accordance with her obligation of ﬁdelity to the council”.
He found that Ms Matheson had reasonable grounds to form the opinion the CEO, mayor and some councillors had unreasonably displayed a refusal to consider the legality of closing the meeting. “It appears that the CEO, mayor and majority of the council were so ﬁxated on excluding the public from the meeting that they closed their minds to the reasonable concerns raised by the applicant,” Mr de Villiers said. “The question must be asked why the CEO, the mayor and the majority of council reacted in the way they did in response to what appears to be an imminently reasonable question posed by the applicant.”
Both Ms Matheson and the Attorney-General agreed “that the circumstances of the [Matheson] matter were unique and not easily compared with other cases”. Mr de Villiers ordered that the standards panel ruling of March 27, 2019, and its sanction of July 8, should be revoked.
Ms Matheson said:
“This appeal win has lifted a heavy burden of evidence from my shoulders and I feel very emotional about the outcome. “I have lived with this burden for more than 18 months, unable to speak about it in public because of the rules of secrecy in local government. “When I stepped down as a councillor I was free to present the evidence to the SAT appeal and I won. “This is also a win for the community and I thank them from the bottom of my heart for their emotional support during this time.”
Mr Richardson said:
“The decision is a clear lesson to inexperienced mayors and councillors. “Do not weaponise the complaints system, unless you are very sure of your facts,” he said. “What ye sow, so shall ye reap.”
Shadow Minister for Local Government, the Hon. Bill Marmion has asked the question from the SAT Decision in Parliament. Read the question here:
SAT Decision 4 March 2020
From the Post Newspapers: