Former Hurstville mayor Con Hindi has won his appeal against a decision by the Office of Local Government to suspend him for two months for alleged misconduct under the Local Government Act.
NSW Civil and Administrative Tribunal (NCAT) Senior Commissioner Philip Durack handed down his findings yesterday clearing Mr Hindi of any wrongdoing or misconduct.
The alleged misconduct concerned the manner in which Mr Hindi had handled a complaint made by a member of staff of the council against former Hurstville Council general manager Victor Lampe.
Mr Lampe was stood down on full pay in May last year over sexual harassment allegations, which a conduct reviewer later found were not sustained.
The Minister for Local Government then ordered an investigation under Section 430 of the Local Government Act into the standard of governance and legal compliance of Hurstville Council.
The resulting report recommended Mr Lampe resume his duties immediately. He resigned soon after.
The Chief Executive of the Office of Local Government (CEOLG) alleged there was negligence by Mr Hindi under the Act because he failed to comply with the requirements of the council’s Code of Conduct by reporting on the allegations about the general manager at a council meeting.
The CEOLG alleged Mr Hindi contravened clauses 8.11 and 8.12 of the council’s Code of Conduct, that is not following the reporting requirements under the code by referring them to the council’s complaints coordinator.
Under the code, the mayor can seek to resolve code of conduct complaints by alternative means such as by counselling, informal discussion and mediation, instead of referring them to the complaints coordinator.
Under these clauses councillors must report breaches of the Code of Conduct but must not make allegations of suspected breaches of the code a council meetings or in other public forums.
In his decision, Commissioner Durack found that Mr Hindi made no breach of the Code of Conduct but did no more than inform councillors of an allegation made by another.
“It is one thing to make the allegation. It is quite another to inform of the existence of an allegation by a third party,” the Commissioner stated in his decision.
He also found that because Mr Hindi had raised the issue in the council’s Committee of the Whole - a meeting of councillors closed to the public - this was not an open meeting of the council and was not a public forum.
“Broadcasting allegations of Code breaches at a meeting open to and attended by the public is a matter of more serious concern for the parties to the allegation than if made to a close meeting of councillors,” Commissioner Durack said in his decision.
Commissioner Durack found that MR Hindi had not breached the Local Government Act or the council’s Code of Conduct.
“Once the complainant gave the go ahead, Mr Hindi promptly got legal advice. That was an appropriate step to take and an appropriate place to turn to for advice,” Commissioner Durack said in his decision.
The suspension by the CEOLG was set aside.
The suspension of Mr Hindi was ordered to occur from May 10, 2016 to July 9, 2016. A stay of that order was granted by the Tribunal on May 11, 2016.
The council was dissolved on May 12. As a consequence, Mr Hindi was, in practical terms, only suspended for one day.
The original reasons given for his suspension included dishonest and self-interest behaviour and breaching of Section 439 of the Local Government Act. These were dropped during the hearing of the appeal.
Mr Hindi welcomed the decision.
“The past eighteen months has involved relentless condemnation by the media and certain political figures ( local and state) for a mayor trying to defend the rights of a young female employee,” he said.
“I was very pleased with the decision handed down by the Senior Commissioner in favour of my appeal. I stood by my decision from the beginning and in consultation with the other Councillors ensured the necessary steps were undertaken to fundamentally persevere the alleged victim’s interest. Justice has prevailed and I applaud my colleagues for standing firm in their support of the young lady.
“My family and I are relieved as we have been going through a very tough time during the past eighteen months. Justice will always prevail.”
Former Hurstville Council mayor Vince Badalati said the Commissioner’s judgment puts into doubt the whole 430 report into Hurstville Council.
“It has been found that what was followed by the majority of councillors was correct in that common law overrides codes,” he said.
“It also brings into questions the actions of a few councillors who used the section 430 report to attack the integrity of other councillors and to destabilise the former Hurstville council.
“The inept Minister Toole was misled by a media campaign orchestrated by three councillors and his biased departmental officers.”
