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City councillor broke the law, Ombudsman finds

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An Adelaide City Councillor broke the law last year by failing to declare a conflict of interest, the State Ombudsman has found.

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As InDaily exclusively revealed, area councillor Sandy Wilkinson conceded last year he had voted for a motion that might indirectly financially benefit his own business.

Wilkinson, a heritage consultant, voted to increase a council subsidy for professional services related to heritage restoration at a council meeting in November last year.

He stressed at the time that the subsidy was paid directly to homeowners, rather than directly to heritage professionals, and insisted his actions at the meeting were entirely appropriate.

But an investigation by SA Ombudsman Wayne Lines, to be presented at tomorrow evening’s council meeting, has found Wilkinson breached the Local Government Act, and the council’s code of conduct, by failing to declare an actual, and a perceived, conflict of interest in the matter.

Lines’ report says: “I am of the view that the conflict between Cr Wilkinson’s personal interest and the public interest might have led to a decision that was contrary to the public interest…” and that “my view is that Cr Wilkinson breached the provisions of section 75A of the Local Government Act”.

The report recommends Wilkinson offer a public apology “to remedy this error”, which he has agreed to do.

Area councillor Anne Moran proposed the November 2016 motion, and the amendment that increased the professional fees subsidy under the Heritage Incentives Scheme.

She told InDaily last year that she had offered to move the amendment in Wilkinson’s place, and assumed that he had checked that it was appropriate for him to remain in the chamber, enter the debate and vote on the matter.

“I, too, was nervous that he had been too close [to the matter] and so was Sandy,” she said, adding that “when [Wilkinson] was debating, I know there was a bit of a mutter through the ranks”.

Lines asked Wilkinson, during an interview under oath, why Moran moved the motion.

“Um, [it was] something something I discussed with her and she, she uh…was on the same, of the same view that, [increasing the subsidy was] something Council should do,” Wilkinson is quoted in Lines’ report as saying during the interview.

The following exchange between Lines and Wilkinson is reproduced further into the transcript of the interview:

Q. … Did you ask her [Moran] to move the motion?

A. Um…we’d discussed it and I…recall she said, well I’m happy to move that.

Q. Did you ask her at any stage to move on your behalf?

A. Um… [long pause]…

[Wilkinson’s solicitor, former Deputy Lord Mayor Mark Hamilton: If you can’t recall, there’s three answers – yes, no, I cannot recall.]

[Legal officer: I remind you that you are on oath.]

A. I mean I can’t specifically recall, but we certainly did discuss it and I put up the idea. In terms of the essence of the idea, I put forward the idea. And my recollection is she was, ah…of the same view that it’s a good idea and offered to do it, and I said that’s great.

Then, later in the interview:

Q. Was there any particular reason that you didn’t move the motion yourself, given this was something you had a view about?

A. [Pause]… Well, I think um…uhh…uhhh, the uh…[long pause]…it’s probably better coming from somebody on Council who’s not directly involved in something like that.

Lines notes in his report that: “I am of the view that in asking Cr Moran to move the motion on his behalf, Cr Wilkinson was in some way aware that he ought not to be involved in the moving of the amendments without declaring an interest.”

“During his interview, as reflected in the transcript above, Cr Wilkinson was hesitant to respond to questions about this issue, in addition to questions about whether he had received training in regard to the conflict of interest provisions [of the Local Government Act] that were introduced in March 2016.

“I also note that Cr Wilkinson accepted that it was his responsibility as an elected member to ensure he was aware of, and understood conflict of interest provisions at all times.”

In a statement provided to Lines’ investigation, Moran said: “Sandy and I had a very short conversation about a staff recommendation regarding financial assistance for the payment or professional fees for heritage work … Sandy drafted the amendment to the motion and I offered to move it.”

“… When I said eyebrows were raised when he did that [participated in the debate and voted on the motion] it was because the councillors are alarmed by the new laws and in my opinion are being over cautious and nervous (sic) I was comfortable Sandy had no conflict but had and interest so it was better for me to move it.

“… I was nervous because of the stricter rules that’s all.”

Lines found that Wilkinson did not have a material conflict of interest in the outcome of the November 2016 motion – but he did have both actual and perceived conflicts of interest in it.

A failure to meet the requirements of the Local Government Act where there is a material conflict of interest could have carried penalties of up to $15,000 and four years imprisonment.

Lines’ found that: “although Cr Wilkinson conceded it was possible that he could share in a benefit as a result of an increase to the [Heritage Incentives Scheme] subsidy, I am persuaded … that it is unlikely that Cr Wilkinson would as opposed to could obtain a benefit”.

“The use of the word ‘would’ [in the Local Government Act] indicates that there must be more than a strong possibility, and it would be necessary to establish a clear link between the effects of the member’s vote and that member then obtaining a benefit or loss.

“… Whilst it is possible that the effect of the increase to the Heritage Incentives Scheme subsidy could result in more members of the public undertaking restoration work, leading to more people engaging Cr Wilkinson’s heritage service more often, there is no evidence that this would happen.”

He added that “although Cr Wilkinson told media that the motion had the potential to indirectly financially benefit his business, I accept Cr Wilkinson’s response during his interview that he had been caught off guard by questioning from the [InDaily] journalist, and that he may not have fully understood the weight or possible inferences that could be drawn from his comments”.

Wilkinson had told the November 2016 meeting that subsidy results in “more good conservation work” occurring.

“I think that this is a component which people are sometimes reluctant to, sort of, pay to get assistance for, and when they’ve got somebody who is providing that service they often then do more conservation works and they do it properly and authentically,” he said at the time.

“That’s where people need the additional incentive to actually do that part of it.

“It results in better conservation outcomes and more good conservation work actually happening.”

Wilkinson told InDaily the following month he had voted for the motion because “it’s important that the council is doing everything it can to encourage people to be restoring their heritage buildings in Adelaide”.

“That’s where I’m coming from,” he added.

Wilkinson’s public apology is reproduced in full below.

You can find Lines’ full report in the agenda for tomorrow evening’s council meeting – on page 435.

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