YORK'S REAL ESTATE SALE OF THE CENTURY

URGENT
Tonight's the Night! 

  Notice of Special Electors Meeting

Posted on: Wednesday, 15 July 2015 at 9:52:04 AM

A Special Electors' Meeting will be held on Monday 27 July 2015 commencing at 6:00 pm at the York Town Hall, York.

PURPOSE OF THE MEETING:

• The Shire of York Annual Budget 2015/16
• Purchase of Lots 800 & 801 South Street, York
• Borrowing $625,000 to fund the purchase of Lots 800 & 801 South Street, York

GRAEME SIMPSON

Acting Chief Executive Officer 

*******  

SOLD!  IT'S YOURS NOW, SUCKERS

Regards, Jimmy the Rat

The Old Convent School, aka Chalkies, aka The Rodent's Revenge

[Settlement is scheduled for next week.  The Offer and Acceptance is available for public scrutiny at the Shire offices in Joaquina Street. JP 290715]

Below is Minister Tony Simpson’s reply to Jane Ferro’s and my open letter posted here on Saturday 4 July 2015.  The letter raised issues arising from the proposed purchase of the Old Convent School.

As you can see, the minister’s reply is addressed not to Jane or me but to Mr. David Templeman, shadow minister for local government and (I was surprised to discover) the Wheatbelt. 

You may recall that Mr. Templeman was among those copied in to our letter.  He kindly forwarded a copy to the Minister, who no doubt would otherwise simply have ignored it, as has everyone who was copied in apart from Mr. Templeman.

(Click to enlarge)

Now, here is my take on Minister Simpson’s response.

As we expected, the minister and his advisers have avoided the issues we raised by resorting to a legalistic mode of argument.  Unfortunately for the minister, that approach has made him look foolish and evasive.

Let’s examine what he’s written point by point, pausing for a grim chuckle now and then.

Sneaking the deal through

It is the case, as the minister says, that former commissioner James Best in calling a Special Council Meeting at short notice on 2 July 2015 met the requirements of section 5.5 of the Local Government Act.  That is not the issue.  What is at issue is whether or not he should have called the meeting at such short notice, considering the gravity and controversial nature of what he was proposing to do.

It seems most likely that his intention was to sneak the Old Convent School deal through with as little public scrutiny as possible.  The people of York were kept in the dark about it up to the very last minute.  We were given no opportunity to object to or influence it in any way. 

‘I am the Council’

Mr. Best’s attitude as commissioner was dictatorial.  As far as he was concerned, he could do more or less what he wished.  He actually said, at the meeting on 2 July, ‘I am the council’.  If he had said it in French—‘Le conseil, c’est moi’—he would have sounded just like Louis XIV.

Having the authority to do something, such as calling a meeting at very short notice or purchasing property from your friends at ratepayers’ expense, does not impose an obligation to do such things or confer a moral right to do them.  In a democracy, the exercise of authority at any level must be carried out, as far as humanly possible, with the full knowledge of those affected by it and in their best interests. 

The people of York have made it as clear as can be that they want neither the property nor the debt that comes with it.

The commissioner did not act in their best interests.  After warning us that York was heading for insolvency, he compounded the shire’s financial woes by secretly setting out to borrow a large sum of money for the purchase of a property, the Old Convent School, from business people in York with whom he had become friendly while commissioner.   

Some of us have misgivings, to put it mildly, about the probity of that arrangement.

 James Best the Sun King

"Le conseil municipal du comté de York, c’était moi!"  (I was the York Shire Council!)

Clever—or just crafty?

Mr. Best may not be as clever as he seems to think he is, but he is craftier than we might have imagined.  As a cover for the proposed purchase, he dredged up a couple of antique town planning documents, one dating back to 1977 and the other to 2006, which he said suggested something along the lines of a town square in the space currently occupied by a park.  This idea became his justification for the purchase of the Old Convent School. 

If Mr. Best were really clever, instead of merely crafty, he would have buttressed his proposal with a fully costed business plan.  He would have made provision in the budget for repair and renovation of the building, which from all accounts is not in very good condition, and for the subsequent development of the town square project.  He did neither of those things. 

A ‘concept plan’—which is what accompanied the proposal—is not a business plan.  Moreover, the budget provides only for the purchase of the property, with nothing left over for improvements.  Is the Old Convent School to sit there slowly dilapidating until the Shire of York wins first prize in Lotto and can afford to undertake a program of restoration?

Getting value for money—or not, as the case may be

What most gives Mr. Best away, however, is his failure to get a sworn valuation from a licensed land valuer before agreeing to buy the property.  Property values in York have been sliding towards Antarctica for several years. 

Mysteriously, though, if Mr. Best is to be believed, the Old Convent School—which before he decided to buy it for us had languished on the market for two years or more, attracting very little attention from prospective buyers—has remained immune from this process, increasing very significantly in value since his friends bought it in 2009.

Still, would it not have been prudent to obtain a sworn valuation, to make sure that the people of York were getting value for money?  Yes—but not if the point of the exercise was not to get value for money for the people of York, but to confer a benefit on one’s friends.

Acting CEO Graeme Simpson defended the failure to get a sworn valuation on the grounds that the law only requires it when a local government is selling a property, not when it is proposing to acquire one.  If that’s true—and I can scarcely believe it, but that’s what he said—it’s a potent recipe for corruption.

Consulting the community

It may be true, as the minister asserts, that the commissioner wasn’t legally obliged before deciding to buy the property ‘to consult with the community about the expenditure of local government funds’. 

However, that isn’t the point.  The point is that no honest and rational administrator would have made such a decision at such a time and in such circumstances without community consultation.  That may come as a shock to Minister Simpson, who seems to believe that morality plays no part in local government, and that it’s OK to do anything, regardless of circumstances, that the law says you can do.

Corrupt or not corrupt?  That is the question

Finally, let’s look at Minister Simpson’s concluding paragraph, where he comments on the relevance of section 83 of the WA Criminal Code to the actions of his protégé Mr. Best.

The section isn’t hard to understand.  It says that a public officer (Mr. Best as commissioner was one of those) who:

‘…without lawful authority or a reasonable excuse…acts corruptly in the performance or discharge of the functions of his office or employment, so as to gain a benefit, whether pecuniary or otherwise, for any person, or so as to cause a detriment, whether pecuniary or otherwise, to any person, is guilty of a crime and is liable to imprisonment for 7 years’.

Incredibly, Minister Simpson interprets this to mean that if a public officer acts corruptly, but does so while acting within the scope of his lawful authority, he is exempt from the rigours of the criminal law.

A moment’s reflection reveals this to be absurd.  A police officer may have lawful authority to search licensing records, but if he does so in order to provide information to a member of the public, whether or not he is paid to do so, he is guilty of an offence.  A shire CEO may have lawful authority to employ staff in lucrative positions, but if in exercising that authority he appoints his friend’s daughter to some such position regardless of merit and without declaring an interest, he too commits an offence.  I’m sure readers can come up with many other apposite examples. *

The minister’s interpretation of the section is another potent recipe for corruption.  I hope for his sake it doesn’t say more about him than he could possibly want us to know.

I’m not alleging Mr. Best acted corruptly.  What I’m saying is that the circumstances surrounding the purchase of the Old Convent School are sufficiently questionable to warrant investigation, and if wrongdoing were to be proved, there would be no good reason not to charge him under section 83.

What will the minister do now?

Probably nothing of use or value to the good people of York, but my hunch is that he will go on covering for Mr. Best.

As I see it, Minister Simpson is stuck between the proverbial rock and hard place.  On the one hand, it is now evident that James Best, his choice as commissioner, has been a disaster for York and may have abused his lawful authority in that role. 

On the other hand, as a senior politician, Minister Simpson cannot allow his judgement to be called into question.  He had plenty of notice that Mr. Best had failed lamentably to act in the interests and attract the respect, trust, and goodwill of the York community.  The minister did nothing to correct the situation.  It is now much too late to blame his advisers, so Minister Simpson’s political instinct tells him to bury the problem and brazen the matter out.

Not very edifying, but that’s government for you.

James Plumridge

* The following learned comments on the law relating to section 83 of the Criminal Code were included with my article, 'In the Court of Community Opinion', published on this blog on 26 June 2015.

Keep up, Minister!  Read our blog!  You'll be so much better informed!

The word ‘corruptly’ is not defined in the Code.  It is to be given its ordinary meaning which, in my opinion, when one is concerned with the quality of the act or omission which is said to be corrupt, will involve the notion that there has been a dereliction of duty, an element of fault, some perversion of the proper performance of the duties of office…If the misconduct of that kind is performed by the accused for the purpose of gaining a benefit or causing a detriment, and the misconduct is without lawful authority or a reasonable excuse, then the offence of corruption, defined by section 83 of the code, will have been established. (Emphasis added)

Murray J. The State of Western Australia v Burke [No.3] [2010] WASC 110, p. 22

[Section 83] is to be read and understood to make criminal an act undertaken by a public officer, which could include an act which is ordinarily properly performed by that officer in the conduct of his duties, but which is a corrupt act because it is performed for the purpose of gaining a benefit or causing a detriment…(Emphasis added)

Rowland J. The State of Western Australia v Burke [No.3] [2010] WASC 110, p.22-23

SO LONG, SUCKERS!