According to a report in The Islander of 22nd March 2012, investigator Fiona Stevens, appointed by the Governance Panel of the Local Government Association (LGA) to investigate the Code of Conduct complaints against Kangaroo Island Councillor Rosalie Chirgwin, lodged by Cr Bec Davis and Council employee John Fernandez, alleged that:
“Cr Chirgwin answered the accusations by email but failed to meet with the governance investigator. Investigator Fiona Stevens said the investigation was limited by Cr Chirgwin’s reluctance to provide relevant information and advice.”
Here are the emails exchanged by R. Chirgwin and F. Stevens, which demonstrate that in fact it was the other way round: the LGA investigator failed to meet with Cr Chirgwin as well as the defendant’s witnesses, and failed to provide legitimate clarifications sought by the latter. Despite Ms Stevens writing to Cr Chirgwin:
“If I dont meet you I will only half of the story (…)” [sic]
this flawed LGA investigation process did not stop Ms Stevens from producing two reports (LGA_reports_Chirgwin-Davis-Fernandez_012-02-28) indicting without any qualm and nuance Cr Chirgwin.
To understand the context, one has to know that Cr Chirgwin had already undergone an exhaustive investigation by a Council panel on Cr Davis vast set of complaints (lodged on 2011.03.24), investigation with which she had fully co-operated. At the end of this investigation, all but two of the Davis complaints had been dismissed by the Council panel (of which it must be noted that the chairman, Cr Denholm, was obviously hostile to Cr Chirgwin, having more than once and in public called on her to resign). Unhappy though with the panel conclusion, the majority of the Council had then decided not to accept it and relaunch the investigation process, this time by calling in an external body, the LGA.
Quite logically, Cr Chirgwin was somewhat vexed by this panel report not being taken on board at all by Ms Stevens, and by being submitted once again to the whole tedious process. Nevertheless she did respond to Ms Stevens to the extent that was practical and as an act of courtesy.
Those with an interest in the matter shall be able to make up their own mind by reading thereunder this exchange.
Dr Gabriel Bittar
*******************
Rosalie Chirgwin, 27 March 2012:
Below for your interest: a chain of communications between myself and the investigator Ms Fiona Stevens, that may indicate that both The Islander’s comments and the investigator’s report to council were less than objective.
[RC: This is the original correspondence to me (Rosalie Chirgwin) from the investigator.]
From: fs@centralpsychserv.com.au
Date: Thu, 3 Nov 2011 09:29:54 +1030
Subject: LGA Governance Panel
To: rosaliechirgwin@hotmail.com
Central Psychology Services
Fiona Stevens
BA Dip App Psych
M Psych (Work and Organisational)
Clinical & Forensic Psychologist
18 Ruthven Ave ADELAIDE 5000
+61 08 8410 2342
www.centralpsychserv.com.au
Councillor Chirgwin
I am the member of the LGA Governance Panel who has been appointed to investigate the Code of Conduct complaints made by Councillor Davis and Mr John Fernandez. I have just tried to ring you but was not able to get through so thought I’d try email to let you know this is also a way I am happy to communicate.
I wanted to speak to you regarding times when it would be convenient for you to meet to address these complaints. I am intending to come to the Island as soon as you are available and so would appreciate an indication from you about when this might be possible.
I look forward to hearing from you, I can be contacted via my office on 08 84102342 or via this email address.
With Regards
Fiona Stevens
[RC: I responded as follows:]
On 25/11/2011, at 9:22 PM, Rosalie Chirgwin <rosaliechirgwin@hotmail.com> wrote:
Dear Ms Stevens,
It has been some time since I received your email, and I regret not responding to you sooner, but I have a busy and complicated life.
I understand that you are planning to visit Kangaroo Island next Tuesday and were hoping to have an appointment with me.
That is unfortunate as I have other commitments around that day. Is it possible for you to defer?
In order to be prepared for your impending visit could you please indicate to me your brief?
Who else do you hope to interview with regards to this issue?
How much time do you require with me? (This will help me schedule).
Most importantly, what questions do you plan to put to me?
I look forward to your reply, and to meeting you at the appropriate time.
Yours faithfully,
Cr Rosalie Chirgwin
[RC: Response from investigator Ms Stevens (emphasis by me):]
From: fs@centralpsychserv.com.au
Subject: Re: LGA Governance Panel
Date: Sat, 26 Nov 2011 09:36:21 +1030
To: rosaliechirgwin@hotmail.com
Dear Cr Rosalie Chirgwin
Thank you ++ for your email.
I hope I can adequately answer all your questions. If I don’t please let me know and I’ll attempt to address any concerns you might have that I have missed.
When I didn’t hear back from you in the last few weeks I reluctantly decided to come to KI to ensure that the complaints were addressed in as timely a fashion as possible. I have had to arrange a schedule to do this both at my end and at the Council’s end which would be hard to reverse. I wonder if you would reconsider and make yourself available for Tuesday afternoon to avoid all the disruption that would be required to change from the 29th to another day. I wondered if I stayed over on Tuesday evening and flew back on Wednesday would that help? Then we could meet in the evening? I just don’t want to inadvertently add to the Council’s costs by changing the bookings at this late stage.
The investigation process is about ensuring that all parties talk to the complaint and respond to questioning designed to clarify the position of all parties. My job is then to consider if the Council’s Code of Conduct is breached and if so what that means for all concerned. I want to make sure each person has their say and so allocate at least an hour for each interview. I base the questions on the complaint and on the interview with the complainant so will be formulating what we might discuss in the process of meeting the two persons who have made complaints on the morning of the 29th. It is not a police investigation, it is to try and illuminate what has happened and look for ways as per your Code of Conduct to improve the conduct of all parties.
I hope I’ve been able to answer your questions. I also hope we will be able to meet on Tuesday at a time that suits you, can you let me know your response to this email as soon as possible. It will be very difficult at this stage to change arrangements from my end hence my request for you to reconsider your availability. This was exactly what I was trying to avoid by my earlier email and then letter as I wanted to work around you and your availability and once that was established to organize all the other parties. When you did not respond I went back to Plan B, by far the less preferable option.
Kind regards
Fiona Stevens
[RC: My response, seeking clarification on who is to give evidence:]
On 26/11/2011, at 11:02 AM, Rosalie Chirgwin wrote:
Dear Ms Stevens,
Thank you for your speedy explanation!
Am I correct in thinking that you will only be speaking to Cr Davis, Mr Fernandez and myself?
Yours faithfully,
Cr Rosalie Chirgwin
[RC: Investigator advises she may be too busy to follow due process (emphasis mine):]
From: fs@centralpsychserv.com.au
Subject: Re: LGA Governance Panel
Date: Sun, 27 Nov 2011 12:53:28 +1030
To: rosaliechirgwin@hotmail.com
Central Psychology Services
Fiona Stevens
BA Dip App Psych
M Psych (Work and Organisational)
Clinical & Forensic Psychologist
18 Ruthven Ave ADELAIDE 5000
+61 08 8410 2342
www.centralpsychserv.com.au
Dear Councillor Chirgwin
thank you once again for your emails. I hope the responses I have provided have been helpful to you and will mean that we can meet on Tuesday.
I appreciate that this time may not be suitable for you but as I have said the Council and I have now set the wheels in motion and am very reluctant to change the plans that have been made at this time.
I wonder if you would be able to let me know what you have decided as I would need to let Mayor Bates know as soon as possible regarding your decision as ultimately it is the Council which determines what might happen next. I find this time of the year to be very busy hence I am very reluctant to change the arrangements that have been made. I am keen to conduct the investigation as soon as possible and in the time frame which suits both the others involved in these complaints and my schedule and so am still hoping we can meet on Tuesday afternoon or even Tuesday evening.
I look forward to hearing from you soon,
With Regards
Fiona Stevens
[RC: My response, again requesting basic information normally provided:]
On 28/11/2011, at 1:19 PM, Rosalie Chirgwin wrote:
Dear Ms Stevens,
I was glad to read that you do not wish to add to Council’s costs. One of my electioneering platforms was to cut unnecessary spending and take a more fiscally stringent approach to council affairs on behalf of electors.
As I clearly stated I have other obligations that preclude any meeting with you this week. It is a great pity that you did not persist in your efforts to contact me by phone or email as I am normally readily accessable.
Considering that I am one of the parties it would be a disagreeable waste of ratepayers money to come on Tuesday when as I have indicated I am not available.
I have noted that you intend to look at complaints laid by Cr Davis. Perhaps you are not aware that due process has already been followed over this one, and much time and effort been expended over those vexatious and frivolous complaints. I would consider any more dealing on this matter as harassment.
The issue between Mr Fernandez and myself could be dealt with on another occasion if my friend, Mr Fernandez, so desires. This could well be done by phone.
In any case I request that I have at least 48 hours advance notification of any questions so that I may consider them properly.
Since it is necessary to establish culpability in order to assess a complaint you would be needing to consult witnesses to any misdeeds. I would need to know in advance who you wish to interview, and if you intend to interview them before or after our meeting. I would, of course, reserve the right to have my own witnesses and to have them heard in an equitable manner.
If you intend to pursue this case I need to know by what authority. Could you please show me a copy of your brief, and authorisation to proceed in this manner?
Yours faithfully,
Cr Rosalie Chirgwin
EM, Kangaroo Island Council
[RC: Investigator advises her intent to proceed with input from only one side, admitting it will compromise the investigation (emphasis mine):]
Subject: Re: Proposed visit over alleged breaches of Code of Conduct
From: fs@centralpsychserv.com.au
Date: Mon, 28 Nov 2011 18:03:35 +1030
To: rosaliechirgwin@hotmail.com
Central Psychology Services
Fiona Stevens
BA Dip App Psych
M Psych (Work and Organisational)
Clinical & Forensic Psychologist
18 Ruthven Ave ADELAIDE 5000
+61 08 8410 2342
www.centralpsychserv.com.au
Dear Cr Chirgwin
I am still intending to come to the Island tomorrow to meet with the complainants.
I am still hoping you may change your mind about us meeting when we could have discussed the points you have raised in this email. As the person investigating these complaints my role is to meet with all parties to enable a thorough evaluation of what has been written. If I dont meet you I will only half of the story and so be less able to determine the nature of the complaints and therefore be less able to provide recommendations to Council according to the Code of Conduct. It is by that authority that I am coming to meet you all tomorrow. I sincerely regret that an email and a registered letter was not adequate to ensure we could plan to meet. In lieu of a response from you I had to go to Plan B which I also regret.
With Regards
Fiona Stevens
[RC: I advise the investigator she is ignoring her own investigation criteria:]
From: Rosalie Chirgwin [mailto:rosaliechirgwin@hotmail.com]
Sent: Thursday, 22 December 2011 12:51 PM
To: fs@centralpsychserv.com.au
Subject: RE: Code of Conduct
Dear Ms Stevens,
It seems that circumstances have placed you in a difficult position, and I sympathise with you. Nevertheless I have some problems with your proposition.
As a freeborn Australian citizen I appreciate that our heritage provides that a person is innocent until proven guilty. Proof of guilt requires the cross examination of witnesses and the securing of substantial evidence.
You mention that you intend to look at complaints laid by Cr Davis. I pointed out that these were dealt with at length under a previous Code of Conduct. [ On 28.11.2011 I wrote : “Dear Ms Stevens, Perhaps you are not aware that due process has already been followed over this one, and much time and effort been expended over those vexatious and frivolous complaints. I would consider any more dealing on this matter as harassment.”], yet you did not acknowledge this important factor in your subsequent communications to me.
In the same letter I stated, “Since it is necessary to establish culpability in order to assess a complaint you would be needing to consult witnesses to any misdeeds“ . . . . . and, “I would, of course, reserve the right to have my own witnesses and to have them heard in an equitable manner.” Although you stated on 28.11.11 in a reply to me, “As the person investigating these complaints my role is to meet with all parties to enable a thorough evaluation of what has been written. If I don’t meet you I will only half of the story and so be less able to determine the nature of the complaints”, it is apparent to me that you only met with the complainants and did not take the opportunity to obtain the testimony of other less biased witnesses. [emphasis mine]
With regards to principles of natural justice, something that many people claim to be adhering to, are you aware that this is incompatible with secrecy? It is one of the triumphs of free nations that the courts are open. Secretive examinations are part of the scourge of tyrannical regimes. I doubt that you would approve of such tactics, but I object to the confidentiality you are promoting, and insist that any complaints come out in the open.
In answer to another query you have alluded to your authority, but I would appreciate if you would “please show me a copy of your brief, and authorisation to proceed in this manner“ as previously requested.
Since becoming a ratepayer representative at the last election I have come under a stream of vituperations from a certain sector within council. These have not only hampered my effectiveness as a servant to my community, but have caused me and some of my colleagues an enormous amount of headache and wasted time. Thus I reiterate: “much time and effort been expended over those vexatious and frivolous complaints. I would consider any more dealing on this matter as harassment.”
I realise that this response was not what you would have been hoping for, and I apologise for that, but I have my own dignity and integrity to uphold.
If I can be of any further help to you, please do not hesitate to contact me.
Yours faithfully,
Cr Rosalie Chirgwin
Elected Member, Kangaroo Island Council
*********
END OF EXCHANGE
between Cr Rosalie Chirgwin and LGA investigator Fiona Stevens, Nov-Dec. 2011
From what I hear, “Favoured contractors for council work” seems to be a common spoken concern among people and not a fairytale.
I once believed that a councillor was there to represent the people and help them with their concerns with council. A councillor should be able to relate these concerns to fellow councilllors, and then as adults they examine these concerns without prejudices towards the reporting councillor.
If a councillor is going to be bullied and threatened with every breach of code that can be brought up to censure and destroy that councillor, for merely portraying what has been expected of them as representative of the people, then this behavior would indicate that oneday we will look up and see a RED flag flying above the Australian flag on our council chambers flagpole and council no longer listening to the people.
Linda Davis,
Cygnet River
Perhaps Cr Chirgwin could explain why she did not response to Ms Steven’s original email for over 3 weeks. Having a “busy and complicated life” is hardly an excuse.
It seems to me that Ms Stevens has done a lot to try to meet with Cr Chirgwin (“I sincerely regret that an email and a registered letter was not adequate to ensure we could plan to meet.”). Under these circumstances, I would certainly assume that I was being ignored and must proceed with what information and sources I could access.
I feel that Cr Chirgwin has been her own worst enemy in this matter.
Why is it that much secrecy (which aids corruption, manipulation, bullying, maladministration and wasted resources) is supported by some members of Council, and those who want genuine openness and accountability are criticised to the point of being put through Code of Conduct accusations.
Due to an historically sound fiscal policy and well managed, necessary projects the Kangaroo Island Council is fortunately only in a deep unsustainable debt,… just imagine how serious it would be if maladministration had occurred!
So the reason that ratepayers want increased rates and don’t want questions and answers about the increasing debt is because….?
Perhaps so David.
But how many full on investigations do you feel would be reasonable?
As stated above,
For the First investigation: Cr Chirgwin participated fully. Of the original 15 complaints, many of which should and could have been dealt with during meetings as ‘Points of Order’ but were not. Two of those complaints were upheld by the investigation panel comprising councillors Denholm,(chair) Boxall and myself, and Cr Chirgwin accepted that outcome.
The Second one, (instigated by resolution of the October 2011 meeting): the exchange above relates to this on those same original issues: It produced a different outcome.
The Third? Cr Chirgwin has appealed Council’s decision that accepted without reservations the findings of the LGA enquiry.
The Fourth: Council determined yesterday to ask the Ombudsman to investigate the whole process.
It could be Xmas 2012 or beyond before this is finished. It started back on 24th March 2011, and there are several other complaints more recently referred to this external body.
Direct cash plus indirect costs might total $50,000: but as Shauna does not like questions, I will refrain from asking.
Dear Webmaster,
I wish to respond to the [Local Government Governance Panel (LGGP)] investigator, Ms Stevens’ finding in which she stated that she “is aware that Cr Chirgwin has not signed the current Code of Conduct and so may not accept its value in determining the way a Councillor behaves in their role as an elected member of the community”, being one of the reasons for breach of the Code (Page 8 of LGA-GP Report).
The truth as to why Cr Chirgwin (including Crs Walkom and Liu) has not signed the current Code (not refused as alleged by Ms Stevens) was that there were a number of critical issues which concerned us which needed to be addressed before the Code is adopted. Cr Chirgwin did not refuse the signing of the Code, except deferring the endorsement of this policy until all concerns were addressed.
The main issue which concerned us was that this current policy has not been adopted through proper due processes and consideration of Council. This revised policy should be firstly commented on by Council and approved for public consultation; then amended as appropriate for formal adoption. Without following through this required process, this document is technically illegal and contrary to the Local Government Act.
Council approved this revised policy (Minutes 10.2 of 17 August Meeting) despite three of us opposing it strongly on the grounds that comments and concerns put before Council on the draft policy were ignored, in particular the issue with the 3 basic common law rules which applies to natural justice and procedural fairness which were dismissed and not included in the Procedures.
Since we have raised our concerns with the Council, we have been publicly criticized by other Elected Members and harassed to sign this document against our will.
It is our opinion that the current document “Code of Conduct policy and procedures” is illegal and unconstitutional for the following reasons:
• The revised policy has not been legally adopted because the resolution passed at the August Meeting was merely an approval in principle being a first step leading up to the adoption and implementation of the policy;
• There was no specific resolution passed by Council requiring Elected Members to sign the document;
• Due to substantial alterations made to the original ‘policy & procedures’, the revised document must be taken back to the community for further comments prior to formal consideration of adoption of the policy;
• The ‘3 basic common laws’ for natural justice were absent in the document;
• ‘Right of Appeal’ clause deleted from the original policy is a breach of the Commonwealth of Australia Constitutional Law.
Given the reasons outlined above and while we are happy to respect Council’s decision on approving the Code, we believe that this policy has not been formally adopted by Council. To date our concerns have not been responded to by the Council.
I therefore reject the unwarranted criticism on Cr Chirgwin for failing to sign the Code.