By KIERAN FINNANE
UPDATED 25 February 2020 11.02 am. See below.
A second legal opinion sought by the Town Council recommends that Mayor Damien Ryan adopt a conservative approach when declaring any actual, potential or perceived conflict while he remains in office as mayor and is also a preselected candidate for the Country Liberals.
This second opinion, from legal firm Clayton Utz, additionally takes into account the provisions of the Independent Commission Against Corruption (ICAC) Act. These provisions were not dealt with in the opinion offered by council solicitor Chris Turner, but were raised by councillors who pushed for a further opinion to be sought.
Under the ICAC Act a person will have acted corruptly if they “fail to manage adequately an actual or perceived conflict of interest”.
In addressing “perceived” conflict of interest, the ICAC Act goes further than the Local Government Act and the legislation that will replace it from 1 July.
The mayor’s preselection does not constitute a conflict of interest in itself. However, says Clayton Utz, it is clear that where council is making decisions or statements relevant to issues in the forthcoming NT election or in NT Government or Opposition policy, the Mayor may have a conflict because of “an indirect interest due to conflicting duties”.
The situation is not cut and dried, however, as an exemption arises if the interest is shared with the general public or a substantial section of it. Clayton Utz gives the down-to-earth example of a view about the introduction of a youth curfew, which could make it unclear whether a perceived conflict of interest arises.
The conflict is not so much the issue as how it is managed and the transparency of its management, says Clayton Utz.
In this light, they recommend that the mayor takes a conservative approach to declaring any actual or perceived conflict of interest and proceeds to manage it “adequately”.
They note that the ICAC Act does not give much guidance on what adequate management would look like, and suggest that council look to the Queensland Crime and Misconduct Commission’s ‘Toolkit for Managing Conflicts of Interest in the Public Sector’.
This opinion and the issues arising will no doubt be discussed at tonight’s council meeting. The Alice Springs News will provide an account of that discussion tomorrow.
UPDATE 25 February 2020 11.02 am.
CEO Robert Jennings had a minimalist “take” on the Clayton Utz legal opinion:
“Consistent with the advice from the Alice Springs Town Council Solicitor, Clayton Utz find there to be no conflict for the Mayor based on the preselection as a candidate. The additional inclusion of the ICAC Act and the role of the Mayor in the LG Act do not alter the findings,” he wrote in his report to which the opinion was attached.
He reiterated this at the start of last night’s debate in the end-of-month Ordinary Meeting.
The Elected Members, however, did not agree.
Mayor Damien Ryan left the chamber for the duration of the debate; Deputy Mayor Matt Paterson took over in the chair.
The report makes a clear recommendation that the Mayor be conservative in how he manages the risk for a perceived conflict of interest, Cr Eli Melky pointed out. He couldn’t accept the simple statement that no conflict exists as a true representation of the whole Clayton Utz opinion.
Cr Jimmy Cocking pointed to Clayton Utz’s advice on managing the perception issue as going “to the heart” of what is required of council. Developing “some sort of protocol” would be important “not just for this council, but future councils”.
He pointed to the possible perceived conflict, being raised with him by some members of the public, around the Mayor Ryan’s personal car, with CLP promotional material prominent on its bodywork, being in the council carpark.
Is council “unwittingly” providing support for an election campaign in this way? he asked.
Deputy Mayor Paterson did not agree: all councillors are allowed to park their personal cars in council’s carpark. He also said that Mayor Ryan is “well across” managing his conflict of interest. If council draws up a wish list for government, to be sent to “both sides” in the forthcoming election, “I don’t think the Mayor would be in the room”.
Cr Glen Auricht agreed with Cr Cocking that a summary of how council will manage this situation should be communicated to the government. (The Chief Minister and Deputy Chief Minister have demanded to know this.)
For Cr Marli Banks, the Clayton Utz opinion confirmed her concerns around perceived conflict of interest.
Perceptions require being addressed “as strongly as” actual conflicts and “the fact exists, there is a perception around that vehicle” (the Mayor’s private car being used for his campaign). Protocols should “delineate” how vehicles are being used, so that when council is questioned on the matter, it can respond.
The “crux of the advice” is that the situation requires a “conservative approach”. She would like protocols to include a requirement that if a conflict is raised and debated, its resolution has to go to a vote of council.
Cr Catherine Satour supported the development of a plan as “wise”, given that there are “a lot of grey areas”: community members are unsure who they are speaking to, the Mayor or the candidate; these are genuine concerns and not related to “animosity in this chamber”.
Cr Jamie de Brenni said that in his four years of dealing with the Mayor, he had never seen him stay in the room when a conflict was there. He asked the CEO whether he was “comfortable” with the procedures already in place.
Mr Jennings said that to date there have been “no issues”. He said council’s current protocols are in line with the Act (presumably the Local Government Act, although Clayton Utz has pointed clearly to the relevance of the ICAC Act).
“The reach for a protocol is almost beyond best practice,” said Mr Jennings, “no-one has done it.”
Cr Melky emphasised that this is not about “Damien Ryan, the individual” but about the “very special position” of Mayor, who is the community’s first point of contact with the community, who speaks on behalf of council, attends to its civic and ceremonial obligations, and is involved in countless meetings with members of the public, as his monthly reports attest.
He referred to the precedent sent by Mayor Fran Kilgariff when she ran as a Labor candidate. He couldn’t recall that the sitting government (CLP) caused such a hoo-hah about her position, but she took it upon herself, without seeking legal advice, to step back as council’s principal responding to media.
Council should create conservative protocols to protect the position of Mayor and councillors, he said, as there is “a high likelihood more of us will run in this election”. (He may run, just as he has before.)
He specifically sought the support of Cr de Brenni in his role as a CLP official.
Cr de Brenni asked whether the CEO should work through the issue with the Local Government Association of the NT (LGANT).
Mr Jennings could see value in that – the processes would be applicable NT-wide – but it would take time.
Deputy Mayor Paterson proposed that council reply to the Chief Minister about the advice it had received and ask the CEO to come back to council with information about protocols.
Cr Cocking agreed but said council should let the Chief Minister know that they are developing protocols. And it would be incumbent on council to develop the protocols with the Mayor: “It is not going to work with him not in the room”.
Cr Melky was keen for it all to be done then and there (at this stage the council meeting had been going for at least three hours.)
There was no appetite for that, as Cr Jacinta Price, attending the meeting by phone, made clear: “The CEO is perfectly positioned to do the groundwork come up with suggestions.”
It wasn’t what the Ordinary Meeting should spend its time on, she said, but rather on “core business”.
The final motion, moved Cr Cocking, seconded Cr de Brenni, provided for a letter to go to the Chief Minister and other Ministers to the effect that the Mayor does not have a conflict of interest merely by being a preselected candidate, and that meanwhile council will develop a protocol to manage perceived conflicts both for the Mayor and other Elected Members.
This was passed unanimously, but not before Cr Banks suggested that Cr de Brenni had a conflict in participating in the debate, given his position in the CLP.
Cr de Brenni rejected this angrily: “No way do I ever sit here with my CLP hat on.” He was offended by the suggestion and expected an apology.
Meanwhile Robyn Lambley, MLA for Araluen, the seat Mayor Ryan will be contesting, says between 2004 and 2008 “I had the pleasure of serving as a Councillor and Deputy Mayor under Mayor Fran Kilgariff.
“In 2005 when Fran ran as a candidate for the Labor Party in the seat of Greatorex, the issue of a perceived conflict of interest was raised in council.
“Without fuss and without the expense of two legal opinions, Fran made the sensible and fair decision to refrain from doing media whilst she was a candidate.
“The integrity and reputation of council must always remain front and centre,” says Ms Lambley.