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
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
