ANOTHER OPEN LETTER TO MINISTER TONY SIMPSON

 
 

7 August 2015

Hon. Tony Simpson MLA

Minister for Local Government

Level 8, Dumas House

2 Havelock Street

WEST PERTH WA 6005

Your ref. 49-08450

Emailed to Minister.Simpson@dpc.wa.gov.au

Dear Minister Simpson

SHIRE OF YORK—PURCHASE OF LOTS 800-801 SOUTH STREET (‘CHALKIES’)

I refer to your letter dated 20 July 2015, addressed to my friend Jane Ferro and me, and to our open letter addressed to you and posted on my blog ‘The REAL Voice of York’ on 4 July 2015.  This is also an open letter.

Ms Ferro has authorised me to respond on her behalf.

I note with some surprise that your letter is virtually identical to one of the same date that you sent to Mr. David Templeman MLA.   Given the length and complexity of our open letter, I would have expected a more detailed and considered response.

With respect, you seem to have some difficulty understanding that what may be within the scope of legislated authority may also be beyond the pale and contrary to community expectations.

It is the case, as you say, that former commissioner James Best in calling special council meetings at short notice 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 is also true that Mr. Best as commissioner had the power to purchase property without consulting the community and was not legally obliged to defer the above purchase pending the return of the suspended council. 

Again, that is not the issue. Having the legal power to do something does not impose an obligation or confer a moral right to do it in the teeth of public opposition, anger and dismay.

It is, I submit, foolish and wrong to ignore the moral dimension in judging the propriety of Mr. Best’s conduct. 

What I find truly astonishing in your letter is the statement that the provisions of section 83 of the Criminal Code ‘relate only to when a public officer is acting without lawful authority’.

You seem to have misinterpreted the section 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. 

Justices Murray and Rowland addressed this exact question in The State of Western Australia v Burke [No.3] [2010] WASC 110.  Justice Murray said (p.22): 

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].

According to Justice Rowland (pp. 22-23):

[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].

It follows that, lawful authority or not, if Mr. Best acted as he did to obtain a benefit for his friends, or to inflict a detriment on the people of York, he has acted corruptly and is guilty of an offence under Section 83 of the Criminal Code. 

The circumstantial case against Mr. Best seems very strong.  The relevant circumstances are these:

1.              While in York, Mr. Best became friendly with the owners of ‘Chalkies’, formerly known as the Old Convent School, Lots 800-801 South Street, York.

2.              The owners of Chalkies had been trying to sell the property for at least two years.  It had attracted little interest from prospective buyers.  It is rumoured that the owners may have been experiencing serious financial difficulties following their purchase of a hotel in the main street of York.

3.              Mr. Best did not earn, and in the view of many residents, did little or nothing to deserve the respect and trust of the York community.  On several occasions he was heard to express fear and dislike of what he wrongly believed to be the generally violent and tendentious character of York residents.  He changed the venue of council meetings from our iconic Town Hall to licensed premises at the York recreation centre, on the ridiculous grounds that the Town Hall had been historically a place of ‘negativity’ and confrontation.  

4.              Mr. Best failed to interest the community at large in his program of ‘visioning’ and ‘ideation’.  For many of us, rightly or wrongly, he came across as lacking the personality, analytical ability and humility necessary to carry out such a program in a town and shire like York.

5.              Especially towards the end of his period in office, Mr. Best showed contempt for those who disagreed with his conduct of the shire’s affairs. 

This contempt was displayed at special council meetings held at very short notice to ram through not only an ill-considered annual budget incorporating a massive rates rise, but also the purchase of Chalkies at a price believed by many to considerably exceed its current market value. 

He displayed fear of as well as contempt for the people of York by needlessly requesting for those meetings the attendance of armed police.

6.              The annual budget passed by Mr. Best made provision for the purchase of Chalkies but suspiciously, none for repair and restoration of the property or indeed for the development of a ‘town square’ project of which the purchase supposedly formed part and which Mr. Best put forward as justification for the purchase. 

This alleged town square project was not included in the current strategic plan adopted by council and residents a few years previously.  To lend the project, and purchase of Chalkies, some semblance of propriety, Mr. Best dredged up from deep within the archives planning documents from 1977 (!) and 2006 that allegedly made reference to such a project.

It is evident from the consulting engineer’s report that the property would require extensive and expensive restoration work before anything much could be done with it. 

7.              Worse, and a significant feature of the case against him, Mr. Best did not, as prudence would require, obtain a sworn valuation of the property from a licensed land valuer.  He did not instruct Acting CEO Graeme Simpson to obtain one. At the special council meeting held on 6 July 2015, Mr. Simpson excused this failure by saying that a local government only has to obtain such a valuation when selling a property, not when buying one. 

If what the Acting CEO told us is true, the rules need to be changed very quickly because as they stand they encourage and facilitate corruption.

Did Mr. Best’s failure to obtain a sworn valuation reflect a determination to ensure that the owners of Chalkies got the money they needed rather than what the property was actually worth?

8.              I believe it is usual, though perhaps not necessary, for a local government to put up a business case for a proposed new development requiring the purchase of property or other financial commitment.  Mr. Best’s proposal did not include a properly costed business plan.

9.              For some months, Mr. Best had been telling us that the shire was in serious financial trouble, with the corollary that this was the fault of residents who asked questions via FOI.  Yet he had no hesitation in requesting a loan of $625,000 from WA Treasury Corporation to enable the Shire to buy Chalkies from his friends.

As I’m sure you know, and as was confirmed by Shire President Reid at a recent special meeting, the Shire of York has no plans to develop Mr. Best’s town square project.  What Mr. Best has done is land York residents with a white elephant that the Shire will probably end up selling at a considerable loss.

10.          In these circumstances, why did Mr. Best act as he did?  Stupidity is one possible explanation, but I am willing as a matter of courtesy to discount it.

It is doubtful that Mr. Best’s motives had anything to do with a desire to benefit York.  Instead, it seems most likely on a circumstantial basis that what he had in mind was to confer a benefit on people who had befriended him during his sojourn here.

Another popular but less likely explanation is that he acted from bitterness towards a community that had rejected him, and took revenge on us by increasing our indebtedness, thus causing us a detriment.

Of course, both explanations could be true in varying degrees.

Regardless of what motivated Mr. Best, there appears to be a prima facie case against him that merits investigation.

I remind you, Minister, of your personal responsibility, and that of your advisers, for the calamitous presence of Mr. Best in York.  Many of us are still scratching our heads in wonder at the damage he managed to cause during the relatively short time he was here.  It would be wrong of you just to wash your hands of the consequences of your decision to appoint him as commissioner.

May I suggest that you take time out of your busy schedule to visit York and tell us at a public meeting why you made that decision and what you intend to do to make reparation for it.  I’m sure you will be treated with courtesy and won’t require the attendance of armed police.

Yours sincerely,

James Plumridge

(Dr) James Plumridge, Ph.D

cc. Hon. Colin Barnett MLA ; Hon. Mia Davies;  Hon. Paul Brown; Hon. David Templeman; James Best