Part of a 2015-16 [ICAC] Maladministration finding has surfaced at the nearly bankrupt District Council of Coober Pedy. Councillors try to close a public road. Councillor, potential developer then offered to purchase the road/land.  Council commited Maladministration says ICAC. 

Dear Editor,  As I settled in to read the Kelledy Jones Report, (re: above) I thought, ‘this has the making of a courtroom drama played out in our Local Council Chambers’!

The cast of characters could consist of

* a Councillor/ Developer,
* a Councillor/ Potential Contractor,
* a $93,726 proposed costing,
* a 176 metre stretch of dirt road,
* qualified legal and engineering advice sought and tabled,
* Councillors who apologise and leave Chambers because of a conflict of interest, and
* a supporting cast of Acting Chief Executive Officers, with somewhat dubious experience.

After finishing the report I realised this was not possible as a film or television courtroom drama, but instead maybe a Mack Sennett short comedy bordering on farce.

There are not many criteria that result in a finding that “Council did commit Maladministration in public administration” as stated in this report.

KJL’s assessment was that no malice or specific intent was involved.
Section 5(b) of the ICAC Act provides that “maladministration” in public administration includes conduct resulting from impropriety, incompetence or negligence.

Section 5(c) of the ICAC Act provides that maladministration “is to be assessed having regard to relevant statutory provisions and administrative instructions and directions”.

The fact that this REPORT has now surfaced about events that occurred at meetings held in Chambers in 2015 is telling.

Council may like to borrow the mantra of “Keeping the Community Informed” but in these circumstances and considering there have been over 40 Section 90 meetings in the past 12 months, it rings hollow.

The maladministration finding applies to Council as a whole, and does not apportion individual blame.

The late public revelation of the existence of this document in 2018 in the matter of the unnamed road which would seem a “bread and butter” issue for Council to resolve, tests the capacity and trust in Council to act in the Community’s best interest.  Yet again Council fails.

Non public confirmation of the reports recommendations being adopted by Council since 2015 could mean that every decision made by Council since then, has the potential of being investigated for risk of further maladministration.

This statement, given as evidence, to KJL ( Kelledy Jones Lawyers ) by former Acting CEO sums up the contribution of those involved.

“But at that point, you know, I am only the Acting and I’m not an expert in being a CEO by any stretch.” 

George Pavlidis,  COOBER PEDY     [CPRT: Thursday 22 March 2018]

The finding of Maladministration in Public Administration by the Coober Pedy District Council in 2015 can be found titled, Kelledy Jones Report at this link: OR at https://www.cooberpedy.sa.gov.au/webdata/resources/minutesAgendas/Kelledy%20Jones%20Report.pdf   (The DCCP appears to have blocked this link.)  

-See new link here:  Kelledy Jones Report

Related documents here: Section 270 Review Report of decision to close a road

CONCLUSIONS
226. On the basis of the report received by the OPI, as outlined to the Council by the  Commissioner and the evidence available to us in this investigation, we find that there was no evidence of malice or specific intent involved in proposing and passing resolution C63-15 at its meeting of 21 April 2015. However, in setting Council on a course to undertake a road closure process at that meeting, the Council did commit maladministration in public administration within the meaning of section 5(4) of the ICAC Act.

227. We find that this error can be largely attributed to the inexperience of certain elected members and the acting CEO.

228. This conclusion has been reached on the following basis:

228.1. the principles of administrative law that apply to all public authority decision
makers, particularly where a proposed decision will impact the rights and interests of a third party or parties;

228.2. while resolution C63-15 did not constitute a final decision, those affected by the proposed road closure had not been formally consulted pursuant to sections 9 and 10 of the Roads (Opening and Closing) Act 1991;

228.3. in these circumstances the Resort, the Croatian Club, the Coober Pedy Miners Association and owners1occupiers of residential premises on Flinders Street were all impacted by the resolution of the Council to embark on a road closure process of the unnamed road. In our opinion, these parties, at the very least, were required to be consulted with before the resolution was made:

228.4. likewise, there was also no justifiable basis to enter into a lengthy and expensive road closure process. Rather than attempting to deal with the issue of public consultation at the 21 April 2015 meeting, the Council should have merely amended the motion from the February 2015 meeting, so that it accurately reflected the intention of the Council not to commit Council funds to form and seal the unnamed road;

228.5. the proposal to commit the Council to a formal road closure process, in the
absence of any information from Council administration, expert reports or legal advice was ill-informed and negligent; and

228.6. section 6(a) of the LG Act places an obligation upon the Council to make
decisions on a representative, informed and responsible basis. In our opinion, this obligation could not be satisfied in circumstances where resolution C63-15 was carried, in the absence of any further, relevant information.

RECOMMENDATIONS
229. Where an investigation has determined that a breach of the ICAC Act has occurred,
the breach must be the subject of a Report, setting out the action taken and the reasons for that action.

230. It is then, of course, a matter for the Council to consider what (remedial) action, if
any, it wishes to take.

231. Having now concluded that in the passing of resolution C63-15, and setting the
Council on a course to undertake a road closure process such that the Council did
commit maladministration in public administration (within the meaning of section 5(4)
of the ICAC Act), to now remedy the error, it is recommended that the Council:

231 .I.  resolve to rescind paragraph 2.1 of resolution C63-15;

231.2. resolve that the priorities, as set out in the 10 year road plan be reviewed;

231.3. resolve that the costings in the 10 year plan be reviewed;

231.4. resolve that once reviewed, the 10 year road plan be the subject of public consultation, pursuant to the Council’s Public Consultation Policy, before  finalisation;

231.5. note in the resolution that the 10 year road plan provides the Council with
guidance only with regards to proposed roadworks; and

231.6. note in the resolution that the Council is required to consider any proposal for
road works, outside of the 10 year road plan, on its merits;

232. Further, it is recommended that the elected members undertake training, as required by regulation 8AA of the Local Government (General) Regulations 2013 as a matter of urgency and, in any event, before mid November 2015.

233. While it is noted that regulation 12(4) of the Local Government (Procedures at
Meetings) Regulations 2013 provides that if a motion to revoke or amend a resolution is lost, a motion to the same effect cannot be brought until after the expiration of 12 months or until after the next general election, (whichever is the sooner), the proposed recommendation at 228.1 above is not a “motion to the same effect” as that proposed by Cr Rapaic, which was to rescind C63-15 in its entirety and so may be dealt with by the Council.

234. Moving forward then, in the absence of any further proposal that the Resort might
want to submit, the Council, having already resolved not to contribute to the forming and sealing of the unnamed road (assuming that the above Recommendations are endorsed by the Council), it would seem redundant to now embark on a public
consultation process regarding the expenditure of Council funds on these works,

235. For the avoidance of doubt, it is also to be noted that the unnamed road was and is,
a “road” for the purposes of the LG Act and it is open for any member of the public
to drive along, and use, that road.

236. This Report concludes the investigation of the report to the OPI by KJL.

237. The Council is now required to provide a copy of the final Report to the
Commissioner by 29 September 2016, together with an explanation as to the action
taken (as recommended at paragraph 231 and 232 above), or if no action is to be
taken, the reasons why.

KELLEDY JONES LAWYERS
MICHAEL KELLEDY

KELLEDY JONES LAWYERS
TRACY RIDDLE

Editor’s note:  Nothing relating to remedial action ‘taken or not’ has been visibly published!