Investigation into the disclosure of information by a councillor of the City of Casey

 

Whistleblowers Protection Act 2001

Investigation into the disclosure of information by a councillor of the City of Casey

March 2010

Ordered to be printed

Victorian government printer

Session 2006-10

P.P. No. 284

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LETTER TO THE LEGISLATIVE COUNCIL AND THE LEGISLATIVE ASSEMBLY

To

The Honourable the President of the Legislative Council and

The Honourable the Speaker of the Legislative Assembly

Pursuant to section 103 of the Whistleblowers Protection Act 2001, I present to the Parliament the report on my investigation into the disclosure of information by a councillor of the City of Casey.

G E Brouwer

OMBUDSMAN

10 March 2010

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CONTENTS

Chronology of events

5

Executive summary

6

Section 22A ofthe Whistleblowers Protection Act 2001

8

Background

9

Public interest disclosure

9

Investigation methodology

9

Responsibilities of councillors

9

The City of Casey

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Organisation of the Motorbike Riders Association of Australia

 

Cranbourne GP Run

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THE INVESTIGATION

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Selection of a major media partner

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Request for confidential contracts

11

Expression of interest evalution panel

12

Expression of interest process

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Disclosure of information

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CONCLUSIONS

17

RECOMMENDATIONS

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Appendix 1

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Relevant provisions

 

Local Government Act 1989

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The City of Casey’s Councillors’Code of Conduct

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The City of Casey’s Local Law 1

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Appendix 2

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Email from Councillor Bradford to Manager A (requesting previous contracts between Star News Ltd and the City of Casey)

Appendix 3

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Email from Councillor Bradford to Manager A (requesting that an expression of interest process be instigated)

Appendix 4

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Extract from the City of Casey’s Operational Guidelines for the Motorbike Riders Association of Australia Cranbourne GP Run Organising Committee

Appendix 5

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Email from Mr Strachan to Manager B (revealing council information had been disclosed)

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CHRONOLOGYOFEVENTS

1996

Organising Committee is created to organise the Motorbike Riders Association of Australian Cranbourne GP Run (MRA GP Run).

2003

Councillor Bradford is appointed as chairperson of the Organising Committee.

2006

CouncillorBradfordsuggeststheimplementationofamajormediapartnerfortheMRAGPRun.

2006-08

Star News is consecutively contracted as major media partner for the MRA GP Run.

2009

23–25March

Councillor Bradford makes three requests to the City of Casey for copies of previous MRA GP Run major media partner contracts; these requests are denied.

22May

Councillor Bradford requests that an expression of interest process is held for the 2009 MRA GP Run major media partner and proposes that he be a member of the expression of interest evaluation panel; these requests are accepted.

15July

Expression of interest invitations are issued.

27July

Expressionofinterestresponsedatecloses;twosubmissionsarereceived.

05August

First meeting of the evaluation panel is held.

10August

 

9.30am

second meeting of the evaluation panel is scheduled.

10.21am

Clarification email from the Leader is sent to the City of Casey.

10.40 – 11.15am

Panel is reconvened to discuss response; Star News is selected as the

 

preferred major media partner.

11.40 and 11.45am

Two telephone calls made from Councillor Bradford’s mobile to

 

mr Strachan’s direct line.

11.51am

email from Mr Strachan is sent to the City of Casey.

11.55am

mr Strachan attempts to recall the email.

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EXECUTIVE SUMMARY

1.On 9 September 2009, I received a disclosure under the Whistleblowers Protection Act 2001 concerning the conduct of Councillor Kevin Bradford, an elected councillor of the City of Casey (Casey).

2.It was alleged that Councillor Bradford had improperly disclosed information regarding the outcome of a council expression of interest process to an unsuccessful bidder. It was also alleged that he did this in an attempt to provide the unsuccessful bidder with an opportunity to secure a contract as the major media partner of the Motorbike Riders Association of Australia Cranbourne GP Run (MRA GP Run).

3.I determined the allegation to be a public interest disclosure.

4.The MRA GP Run is an annual group motorcycle ride hosted by Casey on the weekend of the

Australian Motorcycle Grand Prix. It is a significant event for Casey and involves a wave-off to motorcyclists passing through Cranbourne on their way to Phillip Island.

5.Since 1996, Casey has had an MRA GP Run Organising Committee to provide ‘input and active assistance in the organisation of the MRA Cranbourne GP Run’. The members of the Organising Committee are selected annually and it has been chaired by Councillor Bradford since 2003.

6.Email evidence obtained by my officers demonstrates that Councillor Bradford made several unsuccessful attempts to obtain confidential information relating to Casey’s contractual arrangements for previous MRA GP Run media partnerships with Star News Ltd.

7.In 2009, Councillor Bradford was instrumental in extending the opportunity for other local media to be considered for the major media partnership via an expression of interest process. Councillor Bradford then successfully sought to become a member of the panel which evaluated the media outlets’ responses.

8.The panel met on two occasions and voted in preference of Star News as major media partner for the MRA GP Run.

9.Councillor Bradford’s phone records identify that shortly after the completion of the final panel meeting he made two telephone calls from his mobile telephone to the direct phone line of Mr Peter Strachan. Mr Strachan is employed by a rival bidder, the Leader Newspapers Pty Ltd, as Editor of the Berwick Leader, Cranbourne Leader and Pakenham-Cardinia Leader.

10.Within minutes of these calls being made, Mr Strachan sent an email to staff at the Leader which included details of the winning bid and conveyed advice on how to counter it. It stated that this information had been passed to Mr Strachan by an individual described as ‘our man’. Mr Strachan, apparently inadvertently, sent the email to a staff member at Casey. He subsequently attempted to retrieve the email.

11.At interview, Mr Strachan refused to answer questions on the ground of self incrimination. In a document provided by his lawyer, Mr Strachan submitted that:

If a councillor is found to have breached any provision of the Local Government Act then it is possible that Mr Strachan has aided or been knowingly concerned in the commission of the offence.

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12.At interview, the other panel members denied contacting the Leader at the relevant time. This evidence was supported by their telephone records.

13.Councillor Bradford denied that he attempted to obtain copies of Casey’s previous contracts with Star News. This is inconsistent with other evidence available to me, including an email sent by Councillor Bradford to a manager at Casey on 23 March 2009, requesting the ‘actual agreement, (terms of contract)’ between Casey and Star News for the 2006, 2007 and 2008 MRA GP Runs.

14.At interview, Councillor Bradford’s initial account about the timing of his phone calls to the Leader was contradicted by his telephone records. Councillor Bradford further altered his evidence when confronted with these records.

15.I am satisfied that Mr Strachan’s email and Councillor Bradford’s telephone records support the conclusion that Councillor Bradford improperly disclosed information to Mr Strachan on 10 August 2009. This is apparently inconsistent with his obligations pursuant to section 76D(1)(a) of the Local Government Act 1989 as well as clause 6(2)(a) of Casey’s Councillors’ Code of Conduct.1

16.Mr Strachan declined to respond to my questions about the email and his contact with Councillor Bradford on the grounds that to do so may incriminate him. I need to make it clear that I read nothing into the fact that Mr Strachan has claimed the privilege of self incrimination. Claiming the privilege is not, nor do I take it as an acceptance that Mr

Bradford improperly provided him with council information. However I consider, based on the other evidence I have received and in the absence of any persuasive contrary evidence, that this is the only conclusion that I can draw.

17.I have recommended that the Minister for Local Government consider the matters dealt with in this report and determine what action should be taken. I have also recommended that Casey preclude councillors from being members of panels during procurement processes and that it clarify the role of the Organising Committee. Casey has accepted my recommendations.

1 Extracts of the relevant provisions of the Local Government Act and the Code are reproduced in Appendix 1.

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SECTION 22A OF THE WHISTLEBLOWERS PROTECTION ACT 2001

18.This report is made pursuant to section 103 of the Whistleblowers Protection Act and includes the name of the person against whom the protected disclosure was made.

19.Section 22A of the Whistleblowers Protection Act provides that I may disclose, in a report referred to in section 103 of that Act, particulars likely to lead to the identification of a person against whom a protected disclosure has been made if I determine it is in the public interest to do so and if I set out in the report the reasons why I have reached that determination.

20.Having considered the four matters referred to in section 22A(2), I have determined it is in the public interest to identify the subject of the public interest disclosure in this matter by disclosing the following particulars: the subject’s name, occupation and personal details. I have made this determination for a number of reasons.

21.I consider that it is in the public interest for the subject of a public interest disclosure to be identified in a report to Parliament when the report and the disclosure concern allegations of improper conduct by persons holding public offices of certain significance, such as the office of councillor. This is particularly so when the report indicates that there is merit in the allegations against the public officer.

22.This public interest is derived from the nature of such public offices. In this instance, the public interest arises from the role and duties of the office of councillor; the democratic nature of the selection process for that office; the control that councillors jointly exercise over public assets, infrastructure and the spending of public monies; as well as from the obligations of councillors to the people of their municipality and to the State of Victoria.

23.The public interest, in this instance, is also derived from the:

constitutional significance of the office of councillor and of local government, as recognised by Part IIA of the Constitution Act 1975 (Victoria)

essential role that councillors play in the good governance of local areas, as recognised by section 74A(1A)(b)(ii) of the Constitution Act

conduct obligations imposed on councillors by Division 1A, Part 4 of the Local Government Act.

24.I do not believe that the public interest identified above can be satisfied by any means other than by identifying the subject of the disclosure. In this matter, I consider that confidentiality is not appropriate as it runs counter to the public interest.

25.This report concerns an investigation into a public interest disclosure concerning a person who was a councillor when the alleged misconduct occurred and concludes that there is merit in this allegation. As such, I consider that the public interest necessitates that the identity of the councillor be disclosed in my report.

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BACKGROUND

Public interest disclosure

26.On 9 September 2009, I received a disclosure concerning the conduct of Councillor Bradford, an elected councillor of Casey.

27.It was alleged that Councillor Bradford had improperly disclosed information regarding the outcome of a council expression of interest process, regarding a major media partner, for the MRA GP Run to an unsuccessful bidder. It was alleged that he did this in an attempt to subvert the process by which the bids were evaluated.

28.I determined the allegation to be a public interest disclosure under the Whistleblowers Protection Act and then wrote to the Mayor of Casey and the whistleblower to notify them of my intention to investigate the matter.

Investigation methodology

29.During the investigation my office:

interviewed a number of witnesses

reviewed telephone records

examined Casey email records

considered Casey policies and procedures

undertook a forensic analysis of the Casey-issued laptop used by Councillor Bradford.

30.Section 61 of the Whistleblowers Protection Act requires that I must not make any comment adverse to any person in a report unless that person has been given an opportunity to be heard in the matter and their defence is fairly set out in the report.

31.I provided such opportunities to Councillor Bradford and Mr Strachan. Councillor Bradford responded and I have set out his response in the relevant sections of this report. Mr Strachan declined the opportunity to provide comment.

Responsibilities of councillors

32.Victoria has 79 councils which represent over five million people.2 The Local Government Act establishes and regulates these councils. Section 3 of the Local Government Act sets out that the primary objective of a local council is ‘to endeavour to achieve the best outcomes for the local community having regard to the long term and cumulative effects of those decisions’.

33.The Local Government Act governs standards of behaviour that councillors must follow. It prescribes the following oath, which must be taken before a person may act as a councillor:

I will undertake the duties of the office of Councillor in the best interests of the people in the municipal district of [insert municipal district here] and faithfully and impartially carry out the functions, powers, authorities and discretions vested in me under the Local Government Act 1989 or any other Act to the best of my skill and judgment.3

2Australian Bureau of Statistics, 3101.0 Australian Demographic Statistics, March 2009. See <http://www.abs.gov.au/ausstats/abs@.nsf/mf/3101.0>.

3Local Government Act s63(1).

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34.To ensure that councillors act in the best interests of the community, the Local Government Act makes it an offence for councillors to misuse their position to attempt to gain an advantage for themselves or for any other person.4 This can occur if a councillor makes improper use of information acquired as a result of the position he or she held or holds.5

The City of Casey

35.In 1994, the City of Berwick and the City of Cranbourne were merged to establish Casey. Casey is approximately 35 kilometres from Melbourne’s central business district and includes the suburbs of Cranbourne, Berwick, Devon Meadows and Narre Warren. There are over 240,000 residents living in Casey who are represented by eleven elected local councillors.

36.Casey has a ‘Councillors’ Code of Conduct’ as required by section 76(C) of the Local Government Act. The code requires councillors to treat council information appropriately by ‘Not using information gained by virtue of being a councillor for any purpose than to exercise our role as a councillor’.6 A breach of the code is an offence under Local Law 1.7

Organisation of the Motorbike Riders Association of Australia Cranbourne gp Run

37.The MRA GP Run is an annual group motorcycle ride hosted by Casey on the weekend of the Australian Motorcycle Grand Prix. It is a major event for Casey and involves a wave-off to motorcyclists passing through Cranbourne on their way to Phillip Island.

38.Since 1996, Casey has had an MRA GP Run Organising Committee to provide ‘input and active assistance in the organisation of the MRA Cranbourne GP Run’. The Organising Committee is currently chaired by Councillor Bradford and comprises representatives from Victoria Police, the Motorcycle Riders Association Australia, the Cranbourne Chamber of Commerce and Industry, the community and Casey.

4Local Government Act s76D(1)(a). Failure to comply with these obligations is an offence against the Local Government Act and carries a penalty of 600 penalty units and/or imprisonment for five years.

5Local Government Act s76D(2)(a).

6Casey’s Councillors’ Code of Conduct, clause 6.2(a).

7Extracts of the relevant provisions of the Local Government Act, the Councillors’ Code of Conduct and Local Law 1 are reproduced in Appendix 1.

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THE INVESTIGATION

Selection of a major media partner

39.Councillor Bradford was elected as councillor for Casey in 2003 and remains current in that role. He served as Mayor in 2005 and 2006 and Deputy Mayor in 2006 and 2007.

40.When Mayor in 2006, Councillor Bradford requested that a manager (Manager A) at Casey recruit a media partner to publicise the MRA GP Run.

41.A sponsorship proposal for a major media partner was designed by Manager A. Star News was consecutively contracted and provided this role in 2006, 2007 and 2008.

Request for confidential contracts

42.On 23 March 2009, Councillor Bradford emailed Manager A and requested that they provide him with the copies of the contracts between Casey and Star News for the 2006, 2007 and

2008 MRA GP Runs. Specifically, he asked for the ‘actual agreement, (terms of contract)’.8

43.Manager A declined Councillor Bradford’s request, advising him that the contracts were

‘commercial-in-confidence’. Councillor Bradford made two further requests to Manager A for the contracts on 24 and 25 March 2009. These requests were also denied.9

44.At interview on 2 December 2009, Councillor Bradford denied that he had requested the contracts themselves, stating:

I didn’t want [Manager A] to send me the actual, you know contract, ‘cause I’m aware of of [sic] privacy issues or whatever it is but I was actually just after a brief run down of what they are to provide…

45.However, I note that Councillor Bradford’s email of 23 March 2009 requests the ‘actual agreement, (terms of contract)’. When asked about this wording, Councillor Bradford stated:

Yeah well that’s, probably, yeah I mean I suppose I was a bit sort of uh annoyed that, again, this is a case where you know the officers were just putting up a a [sic] stone wall to a councillor because it was protecting one of their long-term relationships [with Star News]…

46.When interviewed by my investigators, Councillor Bradford stated that the reason he needed the information was:

To discuss the the the [sic] value that um this um sponsorship does or has with the the [sic] event, the committee wanted to know firstly what is the Star News Group actually doing.

47.The Organising Committee’s first meeting for 2009 was scheduled for 21 May 2009, approximately two months after Councillor Bradford requested the documentation.

8Copies of the email exchanges between Manager A and Councillor Bradford are attached at Appendix 2.

9Supra.

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48.In response to my comments in my draft report, Councillor Bradford stated:

My initial email sent to [Manager A], dated 23rd March, was a simple request to obtain a basic list of inclusions supplied by the Star News Group for the previous years media sponsorship arrangement with the council, so as to bring this information to the entire organizing committee for the opportunity to investigate the possibilities of improving the level of media coverage to this event.

Each member of the organizing committee, including myself, at the first meeting signed a ‘confidentiality agreement’, which every member including myself signed. It was explained by council officers that signing this and agreeing to the terms of the

confidentiality agreement allowed ‘confidential’ information to be viewed and discussed.

It is the role of this committee, as endorsed by Council, to organize and improve this event. Advertising the event is a major part in ensuring the event is as successful as possible. It is commonsense to suggest that in order to improve the media sponsorship of the event that the committee, entrusted by the council [sic], should have access to what previous levels of sponsorship included so as to improve upon this.

49.Councillor Bradford also commented:

The Star News Group was subsequently given the opportunity to be the media sponsor for the 2006 year. The following two years, the Star News Group was ‘automatically’ [his emphasis] appointed as the media partner without any opportunity for the other two media outlets, being the Journal and the Leader, to have the opportunity to have the same benefit as the Star news group [sic].

It was discussed by the organizing committee (2009), which included council officers, members of the Victoria Police, external organizations and members of the public, that this gave the impression [of] ‘unfairness’ and perceived ‘bias’ towards this particular media outlet by the council and a public perception of ‘favoritism [sic] by Council to one media outlet, being the Star News Group over the other two media outlets.

Expression of interest evalution panel

50.On 22 May 2009, Councillor Bradford emailed Manager A to advise that the Organising Committee had recommended all three local newspapers be invited to submit proposals to be the MRA GP Run’s major media partner.10

51.In this email, he asked if Manager A could initiate an expression of interest process for the selection of a major media partner and also form a panel to evaluate the responses received.

Specifically, Councillor Bradford stated:

Can you please let me know if you are able to create a suitable program to seek and [sic] EOI [expression of interest] from the three local papers and the formation of a sub-committee consisting of myself, either two or three other members of the

Organising Committee and most likely yourself to evaluate the EOI’s [sic], or do you require a resolution of Council to proceed with this invitation. [sic]

52.Manager A then formed an evaluation panel which consisted of another two managers at Casey, a community representative, and Councillor Bradford.

10 See Appendix 3 for the email exchange.

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Expression of interest process

53.The expression of interest invitations were drafted and sent to three local media outlets: the Leader, Star News and the Fairfax Journal. The expression of interest closed on 27 July 2009 and responses were received from Star News and the Leader.

54.The responses were collated by another manager on the panel (Manager B) who presented them to the panel at a meeting held on 5 August 2009. The panel identified gaps in the information supplied by the applicants including the date of the post-event editorial, details of a strategy for preventing conflict of interest, and the circulation and readership of the papers. A decision was made to adjourn the meeting to allow Manager B to obtain clarification from the newspapers.

55.Once this clarification was received, the panel was recalled and met on 10 August 2009.

During the meeting, it was noted that the Leader’s response to Casey’s request for clarification included the following statement:

Please note that it is expected that the City of Casey contribute towards promoting the event in the wrap.

56.To obtain further clarification regarding the specific amount of contribution expected, Manager

B left the meeting to contact a staff member (Staff Member A) at the Leader. Staff Member A responded to him via email and clarified that a contribution of $2,400 was required. This email was carbon copied to other staff members at the Leader including Mr Peter Strachan, Editor of the Berwick Leader, Cranbourne Leader and Pakenham-Cardinia Leader.

57.The meeting was re-convened and this information was discussed amongst the panel. At the end of the meeting, each member scored the expression of interest responses against set criteria. These scores were collated and it was decided that Star News was the panel’s preferred major media partner for the MRA GP Run.

58.At interview, Councillor Bradford advised that Manager B was to provide the outcome of the expression of interest process to both applicants, stating:

The last thing we spoke about was, I think I asked what the process was and and [Manager B] said he was going out right there and then to contact the um the um two um outlets.

Disclosure of information

59.At interview, Manager B said that the meeting finished at approximately 11.15 am, and that he returned to his office afterwards. He then received an email – recorded as being sent at 11.51 am – from Mr Strachan to Staff Member A at the Leader and himself, and carbon copied to other staff at the Leader, stating:

Our man’s just come back to us. Says we’ve gone in too high with that $2400 and at this stage we’ve lost out to The Star at $1500. We won on every other front.

He says a bid of $1400 may save it. Says [Manager B] would have to refer a lower bid, but also warns the vote on this is to be three officers and two councillors.

He thinks the stumbling block is the $2400 - but that may just be the excuse. (In other words, if it wasn’t that, they might just have found some other reason. Sorry, I don’t know how to advise. I don’t think our man saw the vote including the input of three officers) [.]11

11 This email is re-produced in Appendix 5.

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60.Manager B’s email records demonstrate that at 11.55 am, Mr Strachan attempted to recall the email from Manager B’s email inbox. However, as Manager B had already opened the email, it was not able to be recalled.

61.My investigators examined the expression of interest documentation including the bid submitted by Star News. This material confirmed that Star News’ bid proposed a cost of $1,500 to Casey, the amount quoted in Mr Strachan’s email.

62.The email chain accompanying this email included the clarification email Staff Member A had previously sent to Manager B. It appears that Manager B was inadvertently included in the distribution list for Mr Strachan’s email.

63.My investigators reviewed telephone records, including those of 10 August 2009, of each member of the panel. I identified that after the second panel meeting, and before the email was received by Manager B, two telephone calls were placed from Councillor Bradford’s mobile phone to Mr Strachan’s direct phone line at 11.40 am and 11.45 am. This review found that no other panel member telephoned the Leader on 10 August 2009. They also denied doing so on oath.

64.Mr Strachan was interviewed on 12 November 2009. He was accompanied by his legal representative. Mr Strachan confirmed his email and telephone contact details. When questioned about the contents of the above email and whether he had received telephone contact from Councillor Bradford, Mr Strachan declined to answer on the basis of legal advice that to do so may incriminate him.

65.Section 56(3) of the Whistleblowers Protection Act states:

Subject to subsections (1) and (2) and section 55, a person cannot be compelled for the purposes of an investigation by the Ombudsman of a disclosed matter to produce any document or give any evidence that the person could not be compelled to produce or give in proceedings before a court.

66.Mr Strachan was invited to provide written reasons as to the grounds on which he believed he could claim the privilege of self incrimination and therefore not be compelled to give evidence in my investigation. Mr Strachan subsequently submitted, in a document provided by his lawyer, the following grounds on which he based his claim of the privilege of self incrimination:

The investigation is into alleged impropriety of a councillor. There is a strong chance that this will lead to a prosecution of the councillor pursuant to the provisions of the Local Government Act 1989. In particular, it may lead to a prosecution under section 77 of that act [sic].

Section 239 of the Local Government Act 1989 makes it an offence for any person who aids, abets, counsels, procures or is in any way knowingly concerned in the commission of an offence against the Act. There is therefore risk that Mr Strachan could be charged with an accessorial offence as a result of evidence he may give.

Mr Strachan is therefore entitled to the protection of the privilege against self- incrimination and is lawfully entitled to refuse to answer questions that may tend to incriminate him.

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Section 77 of the Local Government Act states:

(1) A person who is, or has been, a Councillor or a member of a special committee, must not release information that the person knows, or should reasonably know, is confidential information.

67.After consideration of Mr Strachan’s reasons, I allowed the claim.

68.At interview on 2 December 2009, Councillor Bradford confirmed that he placed two telephone calls to the Leader on 10 August 2009 and spoke to Mr Strachan on the second phone call. He advised that he ‘spoke to Peter, later that day um [sic] late in the afternoon’.

69.When questioned further about this, Councillor Bradford changed his response and stated that he had contacted the Leader about an hour after the meeting. He said:

I spoke to them after…roughly about an hour later or something like that…I had a message on my phone to ring uh the Leader anyway in relation to a uh an issue that was being discussed at council.

70.My officers showed Councillor Bradford his telephone records which detailed the times of these calls which showed no record of a voicemail retrieval being made until 12.10 pm on 10 August 2009. Councillor Bradford responded:

Well normally when I walk out of a, as I said, probably soon as I hit the footpath outside the building I’ll listen to my messages…so I don’t know, yeah.

71.Councillor Bradford admitted to my officers that he advised Mr Strachan that the Leader had been unsuccessful in the expression of interest application, stating:

I said to Peter Strachan that I presume you’ve been contacted by [Manager B] to say that you know you haven’t been awarded the the [sic] tender and he said ‘No’ and I went ‘Oh’ and that was it.

72.Councillor Bradford stated that when he disclosed this information, he did so under the impression that Manager B had already told the Leader the outcome of the expression of interest process.

73.Councillor Bradford denied releasing any information to Mr Strachan other than that the

Leader had not been successful in the expression of interest process. Specifically, he denied disclosing the Star News’ quote of $1,500.

74.When Councillor Bradford was asked if he was ‘our man’ he said:

Definitely not.

75.In response to my comments in my draft report, Councillor Bradford stated that:

In agreeing that I in fact made these two calls, as evidenced by my mobile phone records, it is important to note that both phone calls were made ‘after’ the evaluation panel, of which I was one of the members, deciding upon the EOI’s [expression of interests] submitted in relation the [sic] MRA GP Wave Off event that, the decision had been finalized and agreed unanimously, including my vote, that the Star News Group be appointed as the 2009 official media sponsor.

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During the record of interview, I confirmed that I in fact suggested to Mr. Strachan his paper had been unsuccessful in its attempt to be the official media partner. I further deny that I made any further comments to Mr. Strachan.

Neither I, nor the Leader Newspaper, via the comment I inadvertently made to Mr. Strachan, gained ‘any advantage’ as the decision to appoint the Star News Group had already been finalized.

76.While I note Councillor Bradford’s response that his ‘vote’ was part of a unanimous decision to appoint Star News, evidence obtained during my investigation demonstrates his preference for the appointment of the Leader. Casey’s file contains scoring sheets completed by panel members recording their assessment of each bid against eight criteria. At interview

Councillor Bradford was shown the score sheet marked with his initials and confirmed it to be his. The score sheet shows that Councillor Bradford awarded superior scores to the Leader in five of the eight criteria and scored the two applicants equally on the remaining criteria.

77.Finally, Councillor Bradford added:

I have been a Councillor since 2003 and since this time have never been accused of breaching any form of confidentiality, a fact that I am proud of.

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CONCLUSIONS

78.I consider that Councillor Bradford made several attempts to obtain sensitive information relating to Casey’s contractual arrangements with Star News for previous MRA GP Run media partnerships. Councillor Bradford’s evidence that he was not seeking a copy of the actual contract was inconsistent with the other evidence, particularly his email of 23 March 2009.

79.Councillor Bradford was also instrumental in ensuring that an expression of interest process was undertaken to extend the opportunity for this major media partnership to other media outlets and proposed himself as a member of the selection panel evaluating these responses.

80.Councillor Bradford’s phone records indicate that he placed two telephone calls to Mr Strachan’s direct phone line shortly after the completion of the panel meeting. He also said that Mr Strachan was unaware that the Leader was unsuccessful in the expression of interest process prior to him making these calls.

81.I do not accept that it would be reasonable for Councillor Bradford to assume that Manager B had already advised the Leader of the outcome of the expression of interest process, given the short period of time between the end of the panel meeting and the time of Councillor Bradford’s contact with Mr Strachan.

82.Records indicate that Mr Strachan’s email, referring to ‘our man’ and Star News’ quote, was made six minutes after Councillor Bradford’s phone call. Mr Strachan’s email refers to the information having been ‘just’ provided to him.

83.My review of email correspondence between Star News and Casey confirmed that the information in Mr Strachan’s email, that Star News had quoted Casey $1,500 for the media partnership, is accurate. Mr Strachan refused to answer questions on the basis that to

do so may implicate him in an offence related to a councillor’s disclosure of confidential information.

84.I need to make it clear that I read nothing into the fact that Mr Strachan has claimed the privilege of self incrimination. Claiming the privilege is not, nor do I take it as an acceptance that Mr Bradford improperly provided him with the information. However, based on the other evidence I have received, and in the absence of any persuasive contrary evidence, I consider this is the only conclusion I can draw.

85.My examination of the telephone records of every other panel member found no evidence that any other panel member contacted the Leader at the relevant time. When asked at interview under oath, every other panel member denied providing information about Star News’ quote to Mr Strachan.

86.Mr Strachan’s email also indicates his informant was a male with direct involvement in the decision-making process. The only other male on the panel was Manager B, who Mr Strachan refers to by name in the third person. The content of his email supports the view that Manager B was not the male to whom Mr Strachan was referring.

87.The timing of Councillor Bradford’s telephone contact with the Leader is important due to the short period of time between the end of the panel meeting and Mr Strachan’s email being sent. I note that Councillor Bradford’s initial account regarding the time he telephoned the Leader was changed when he was questioned further about these calls.

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88.I note Mr Strachan has declined to provide an explanation of the email; Councillor Bradford’s contact with him; or his attempt to recall this email. On the basis of the documentary evidence available to me, including the email and Councillor Bradford’s telephone records,

I am of the opinion that Councillor Bradford improperly disclosed sensitive council information to Mr Strachan on 10 August 2009. This appears to have been done for the purpose of benefiting either Mr Strachan or his employer.

89.In my view, this conduct appears inconsistent with section 76D(1)(a) of the Local Government Act as well as clause 6(2)(a) of the Council’s code. I do not consider that providing information to Mr Strachan, in the manner which I consider he has done, is a use consistent with his role as a councillor.

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RECOMMENDATIONS

I recommend that:

Recommendation 1

The Minister for Local Government consider the matters dealt with in this report and determine what action should be taken.

Recommendation 2

Casey review its procurement processes and amend them where necessary to preclude councillors from membership of assessment panels.

Casey response

‘Council adopted a new Procurement Policy on 17 November 2009. A recommendation will be made to Council to amend this policy and preclude Councillors from membership of procurement assessment panels.’

Recommendation 3

Casey clarify the role of the MRA GP Run Organising Committee and ensure the participation of councillors and non elected persons is consistent with the provisions of the

Local Government Act 1989.

Casey response

‘At its meeting on 15 December 2009 Council resolved that a review be undertaken of the Cranbourne GP Wave Off event, including a review of the operational guidelines for the

Organising Committee. This review will ensure that the role of the Committee is clarified and that participation of any person on this Committee is consistent with the provisions of the

Local Government Act 1989.’

G E Brouwer

OMBUDSMAN

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APPENDIX 1 – Relevant provisions

Local Government Act 1989

Part 1A – Local Government Charter

3A What is the purpose of local government?

The purpose of local government is to provide a system under which Councils perform the functions and exercise the powers conferred by or under this Act and any other Act for the peace, order and good government of their municipal districts.

3B How is a Council constituted?

A Council consists of its Councillors who are democratically elected in accordance with this Act.

3C Objectives of a Council

(1)The primary objective of a Council is to endeavour to achieve the best outcomes for the local community having regard to the long term and cumulative effects of decisions.

(2)In seeking to achieve its primary objective, a Council must have regard to the following facilitating objectives –

(a)to promote the social, economic and environmental viability and sustainability of the municipal district;

(b)to ensure that resources are used efficiently and effectively and services are provided in accordance with the Best Value Principles to best meet the needs of the local community;

(c)to improve the overall quality of life of people in the local community;

(d)to promote appropriate business and employment opportunities;

(e)to ensure that services and facilities provided by the Council are accessible and equitable;

(f)to ensure the equitable imposition of rates and charges;

(g)to ensure transparency and accountability in Council decision making.

3D What is the role of a Council?

(1)A Council is elected to provide leadership for the good governance of the

municipal district and the local community.

(2)The role of a Council includes –

(a)acting as a representative government by taking into account the diverse needs of the local community in decision making;

(b)providing leadership by establishing strategic objectives and monitoring their achievement;

(c)maintaining the viability of the Council by ensuring that resources are managed in a responsible and accountable manner;

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(d)advocating the interests of the local community to other communities and governments;

(e)acting as a responsible partner in government by taking into account the needs of other communities;

(f)fostering community cohesion and encouraging active participation in civic life.

76B Primary principle of Councillor conduct

It is a primary principle of Councillor conduct that, in performing the role of a

Councillor, a Councillor must –

(a)act with integrity; and

(b)impartially exercise his or her responsibilities in the interests of the local community; and

(c)not improperly seek to confer an advantage or disadvantage on any person.

76D Misuse of position

(1)A person who is, or has been, a Councillor or member of a special committee must not misuse his or her position –

(a)to gain or attempt to gain, directly or indirectly, an advantage for themselves or for any other person; or

(b)to cause, or attempt to cause, detriment to the Council or another person.

100 penalty units.

(2)For the purposes of this section, circumstances involving the misuse of a position by a person who is, or has been, a Councillor or member of a special committee include –

(a)making improper use of information acquired as a result of the position he or she held or holds; or

(b)disclosing information that is confidential information within the meaning of section 77(2); or

(c)directing or improperly influencing, or seeking to direct or improperly influence, a member of Council staff in contravention of section 76E; or

(d)exercising or performing, or purporting to exercise or perform, a power, duty or function that he or she is not authorised to exercise or perform; or

(e)using public funds or resources in a manner that is improper or unauthorised; or

(f)failing to disclose a conflict of interest as required under this Division.

(3)This section –

(a)has effect in addition to, and not in derogation from, any Act or law relating to the criminal or civil liability of Councillors or members of special committees; and

(b)does not prevent the institution of any criminal or civil proceedings in respect of that liability.

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The City of Casey’s Councillors’ Code of Conduct

6Information and Confidentiality

6.1As Councillors, we will have access to information that may at times be confidential. As such, we will respect the confidentiality of information we receive in the course of performing our duties and responsibilities, and will not under any circumstances convey, electronically, verbally, or in writing, information to a third party for as long as it continues to be confidential.

6.2Councillors will treat council information appropriately by:

a)Not using information gained by virtue of being a councillor for any purpose than to exercise our role as a councillor;

b)Respecting Council’s policies in relation to public comments and communications with the media;

c)Not releasing information deemed “confidential information” in accordance with section 77 of the Act;

d)Recognising the requirements of the Information Privacy Act 2000 regarding the access, use and release of personal information;

e)Adhering to Council policies relating to accessing Council information.

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The City of Casey’s Local Law 1

43.Code of Conduct

43.1Councillors must comply with the Councillors’ Code of Conduct.

43.2A Councillor who fails to comply with the Councillors’ Code of Conduct is guilty of an offence.

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APPENDIX 2 – Email from Councillor Bradford to Manager A (requesting previous contracts between Star News Ltd and the City of Casey)

From: Cr Kevin Bradford

Sent: Monday, March 23, 2009 2:01 PM

To:

Subject:

Can you please provide me a list of agreements between the City of Caseyand [sic] the Star Newsgroup in relation to the MRA GP Wave Off.

Thank you

Cr. Kevin Bradford.

Mayfield Ward - City of Casey

From:

Sent: Mon 23/03/2009 2:38 PM

To: Cr Kevin Bradford

Subject: RE:

Hi Kevin

Star News has been the major media partner for the GP run since 2006 so there were agreements in 2006, 2007 and 2008.

Regards

 

 

 

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From: Cr Kevin Bradford

Sent: Monday, March 23, 2009 2:42 PM

To:

Subject: RE:

Appreciate that information, which I was aware of, however, what I am after is the actual agreement, (terms of contract), for example, the Star news agrees to provide a wrap around etc......

The latest agreement would be suffice,

Thank you

Cr. Kevin Bradford.

Mayfield Ward - City of Casey

From:

Sent: Tue 24/03/2009 9:25 AM

To: Cr Kevin Bradford

Subject: RE:

Hi Kevin

Unfortunately I am unable to supply a copy of the actual agreement due to commercial-in- confidence reasons.

Regards

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From: Cr Kevin Bradford

Sent: Tuesday, March 24, 2009 10:15 AM

To:

Subject: RE:

As you would be aware, it was due to my intuitive when Mayor, that introduced the idea of having a media partner. Further, it was during a meeting between , possibly another PR person representing the Star News Group, you and I that in the first instance sat down in the Mayors office to negotiate the desired outcome acceptable to both parties.

The only step that I have not been personally involved with was the actual drafting and signing of the final contract between the two parties.

I find it totally offensive and very disappointing [his emphasis] that having initiated the idea of a communications partner, after being heavily involved in the actual initial discussions defining the agreed terms of such a partnership and being the councils elected Chairperson of the organising committee, that I am being denied a simple request seeking terms of the current agreement so as to ascertain if their is any chance of improving or adding to the position as ‘Media Partner’ to benefit the event.

Again,, I ask that you provide me with relevant details of what is being offered by the Star News Group in the past. I assume, the previous contracts you mentioned are for a year by year basis and as such, the Organising Committee has not yet approved a new contract. As such, the commercial in-confidence of previous contracts would not be current.

I hope that I will not be forced to raise this as a Notice of Motion, similar to the a [sic] councillors recent Notice of Motion requesting Tea & Coffee to be provided in the council chamber.

I look forward to your reply,

Thank you

Cr. Kevin Bradford.

Mayfield Ward - City of Casey

 

 

 

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From:

Sent: Wed 25/03/2009 1:21 PM

To: Cr Kevin Bradford

Subject: RE:

Hi Kevin

I’m sorry you found my response “offensive and very disappointing”. I have discussed this issue with various people including the Mayor, CEO, Director Corporate Services, Manager Contracts and Purchasing, and Manager Arts and Leisure, and all concur with the original advice I gave you.

Regards

From: Cr Kevin Bradford

Sent: Wednesday, March 25, 2009 1:26 PM

To:

Subject: RE:

Please let me know a time suitable to yourself, where I can come and view the most current contract in your presence.

Thank you

Cr. Kevin Bradford.

Mayfield Ward - City of Casey

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From:

Sent: Wed 25/03/2009 2:08 PM

To: Cr Kevin Bradford

Subject: RE:

Hi Kevin

I’m not trying to be difficult; however, in discussing this with other staff it was pointed out to me that Councillors have the same level of access to Council documents as does a member of the

community. So, unfortunately, the document to which you are referring is not one that can be either emailed or viewed in the presence of a Council officer.

I hope this clarifies the situation.

Regards

From: Cr Kevin Bradford

Sent: Wednesday, March 25, 2009 5:05 PM

To:

Subject: RE:

I will bring this up with the organising committee and most likely a future council meeting. In the meantime, I would like to request that a new contract is NOT [his emphasis] to be entered into with any media partner at this stage for the MRA GP Wave Off.

Thank you

Cr. Kevin Bradford.

Mayfield Ward - City of Casey

From:

Sent: Thursday, March 26, 2009 10:01 AM

To: Cr Kevin Bradford

Cc:

Subject: RE:

Noted, Kevin.

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APPENDIX 3 – Email from Councillor Bradford to Manager A (requesting that an expression of interest process be instigated)

From: Cr Kevin Bradford

Sent: Friday, May 22, 2009 10:31 AM

To:

Subject:

At the first meeting of the Organising Committee for the MRA GP Wave Off, it was agreed that it would be beneficial to the event, to invite all three local papers to submit a proposal to be the events main media partner for this coming year.

Can you please let me know if you are able to create a suitable program to seek and EOI from the three local papers and the formation of a sub-committee consisting of myself, either two or three other members of the Organising Committee and most likely yourself to evaluate the EOI’s, or do you require a resolution of Council to proceed with this invitation.

Thanks [sic] you

Kevin

Cr. Kevin Bradford.

Mayfield Ward - City of Casey

Please Note: This message may contain privileged and confidential information. If you are not the intended recipient, you must not disclose, distribute, copy or use the information contained in this email or any attachments. If you have received this message in error, please notify the City of Casey by return email and delete this email and any attachments from your system.

Any views expressed in this message are those of the individual sender and may not necessarily reflect the view of the City of Casey.

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APPENDIX 4 – Extract from the City of Casey’s Operational Guidelines for the Motorbike Riders Association of Australia Cranbourne gp Run Organising Committee

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APPENDIX 5 – Email from Mr Strachan to Manager B (revealing council information had been disclosed)

From: Strachan, Peter [mailto:strachanp@leadernewspapers.com.au]

Sent: Monday, 10 August 2009 11:51 AM

To: [Staff member A], [Manager B]

Cc:

Subject: RE: Wrap

Hi [staff member A],

Our man’s just come back to us. Says we’ve gone in too high with that $2400 and at this stage we’ve lost out to The Star at $1500. We won on every other front.

He says a bid of $1400 may save it. Says [Manager B] would have to refer a lower bid, but also warns the vote on this is to be three officers and two councillors.

He thinks the stumbling block is the $2400 - but that may just be the excuse. (In other words, if it wasn’t that, they might just have found some other reason. Sorry, I don’t know how to advise. I don’t think our man saw the vote including the input of three officers) [sic]

Rgds S

Peter Strachan | Editor

____________________________________________________________

Berwick Leader, Cranbourne Leader, Pakenham-Cardinia Leader

2/11 Gloucester Avenue, Berwick 3806

Direct +61 3 9771 9900 | Fax +61 3 5996 7212

Email strachanp@leadernewspapers.com.au

News Limited is committed to making a long-term positive impact on climate change. Please consider our environment before printing this email. For details on what you can do, go to www.1degree.net.au.

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Ombudsman’s Reports 2004-10

2010

Ombudsman’s recommendations – Report on their implementation

February 2010

2009

Investigation into the handling of drug exhibits at the Victoria Police Forensic Services Centre

December 2009

Own motion investigation into the Department of Human

Services – Child Protection Program

November 2009

Own motion investigation into the tendering and contracting of information and technology services within Victoria Police

November 2009

Brookland Greens Estate – Investigation into methane gas leaks

October 2009

A report of investigations into the City of Port Phillip

August 2009

An investigation into the Transport Accident Commission’s and the Victorian WorkCover Authority’s administrative processes for medical practitioner billing

July 2009

Whistleblowers Protection Act 2001 Conflict of interest and abuse of power by a building inspector at Brimbank City Council

June 2009

Whistleblowers Protection Act 2001 Investigation into the alleged improper conduct of councillors at Brimbank City Council

May 2009

Investigation into corporate governance at Moorabool Shire Council

April 2009

Crime statistics and police numbers

March 2009

2008

Whistleblowers Protection Act 2001 Report of an investigation into issues at Bayside Health

October 2008

Probity controls in public hospitals for the procurement of non-clinical goods and services

August 2008

Investigation into contraband entering a prison and related issues

June 2008

Conflict of interest in local government

March 2008

Conflict of interest in the public sector

March 2008

2007

Investigation into VicRoads’ driver licensing arrangements

December 2007

Investigation into the disclosure of electronic communications addressed to the Member for Evelyn and related matters

November 2007

Investigation into the use of excessive force at the Melbourne Custody Centre

November 2007

Investigation into the Office of Housing’s tender process for the cleaning and gardening maintenance contract – CNG 2007

October 2007

Investigation into a disclosure about WorkSafe’s and Victoria Police’s handling of a bullying and harassment complaint

April 2007

Own motion investigation into the policies and procedures of the planning department at the City of Greater Geelong

February 2007

2006

Conditions for persons in custody

July 2006

Review of the Freedom of Information Act 1982

June 2006

Investigation into parking infringement notices issued by Melbourne City Council

April 2006

Improving responses to allegations involving sexual assault

March 2006

2005

Investigation into the handling, storage and transfer of prisoner property in Victorian prisons

December 2005

Whistleblowers Protection Act 2001 Ombudsman’s guidelines October 2005

Own motion investigation into VicRoads registration practices

June 2005

Complaint handling guide for the Victorian Public Sector 2005

May 2005

Review of the Freedom of Information Act 1982 Discussion paper

May 2005

Review of complaint handling in Victorian universities

May 2005

Investigation into the conduct of council officers in the administration of the Shire of Melton

March 2005

Discussion paper on improving responses to sexual abuse allegations

February 2005

2004

Essendon Rental Housing Co-operative (ERHC)

December 2004

Complaint about the Medical Practitioners Board of Victoria

December 2004

Ceja task force drug related corruption – second interim report of Ombudsman Victoria

June 2004