April 19, 2021
South Burnett councillor Scott Henschen has been cleared of an allegation he engaged in inappropriate conduct.
Mayor Brett Otto announced he had dismissed the complaint at a media conference in Kingaroy on Monday morning.
The complaint, lodged with Council by Cr Henschen’s former campaign manager Judy Schulz, was referred in June 2020 to the Office of the Independent Assessor (OIA).
Ms Schulz outed herself on social media as the person who had lodged the complaint, and Cr Henschen told a Council meeting he was the subject.
The allegation was that Cr Henschen had inappropriately disclosed to a third party communications between Ms Schulz and Cr Henschen.
After a complicated series of events (detailed below) where the complaint bounced back and forth between various official bodies, it arrived back at the South Burnett Regional Council where Mayor Otto had to make the ultimate decision.
Mayor Otto told the media he had followed a very thorough, rigorous and correct process in coming to a decision last Friday about the allegation.
“I can confirm that all parties were notified on Friday at approximately midday … there have been some statements made that that wasn’t the case, but we can confirm that they were all definitely notified at midday on Friday,” Mayor Otto said.
“The matter did take longer than I had hoped. I had initially indicated that I had hoped for it to be resolved by the Wednesday but, from my perspective, I wanted to make sure that the proper process, a very thorough process, of procedural fairness took place to not only ensure that natural justice was provided to the councillor but that all the information that had been provided by the complainant had been thoroughly considered; that we had the appropriate legal advice from external lawyers in making that decision.
“So I felt it was better to take the appropriate amount of time, have full procedural fairness and get the decision right, based on the evidence that was provided (and) the recommendations made by the (Councillor Conduct) Tribunal.”
Mayor Otto said his finding was that there was no finding of any breach of the Councillor Code of Conduct so the complaint was dismissed.
He said there had been “no bias whatsover” in the consideration of this complaint.
“I am very comfortable that I have ticked all the boxes in terms of making sure that this process was one that was very rigorous and appropriate and very much in accordance with Council’s investigation policy, and very much to the level of law in accordance with the Act and regulations,” Mayor Otto said.
The South Burnett Regional Council provided a heavily redacted copy of the Tribunal’s recommendation considered by Mayor Otto (download below), with the names of all parties removed.
CEO Mark Pitt said no estimate had been made yet in regards to the cost of considering this complaint, but said Councils covered the costs of all OIA investigations.
However, Mayor Otto emphasised Council had incurred no costs in relation to Cr Henschen’s recent civil proceedings in Kingaroy Magistrates Court.
“There has been no cost incurred by Council in relation to anything that in any way that was to support Cr Henschen or defend Cr Henschen,” Mayor Otto said.
“All the costs incurred (in dealing with this complaint) were to ensure that Council was acting, in terms of our process, in full compliance with the legislation and regulations, and were interpreting that correctly.
“One had to consider the context that this has been very much an early test case for the new legislation, the Belcarra reforms, that were brought in last year … a test case, we didn’t have a quorum, we couldn’t use a standing committee, what were our options? We did have to seek legal advice.”
Mayor Otto said he felt frustrated he could not defend statements that were made on social media.
“As an elected official, I am not in a position to defend those,” he said.
“They are often inaccurate.”
The Mayor said he had been disappointed to see that Council staff, and in particular the CEO, had been brought into the matter in social media commentary.
“I am absolutely, 100 per cent, certain that (Mr Pitt) has conducted himself with complete honesty and integrity and in full compliance with law,” the Mayor said.
“He has invested a considerable amount of time on this matter to make sure it was done with all procedural fairness, with due diligence and completely in compliance with the law.
“In my view, any criticism of our CEO in relation to this matter, or any other matter, is unwarranted and unfair and I completely refute any statements as to the CEO’s integrity and honesty in dealing with this matter. Should Council feel the need to support the CEO in any way that we possibly can, we would continue to do so, absolutely.”
- External link: Councillor Conduct Tribunal Report – Redacted (4.5Mb PDF)
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Why The Mayor Had The Final Say
The complaint was referred in June 2020 to the Office of the Independent Assessor (OIA). The matter was assessed by the OIA and a response was sought from the Councillor in July 2020.
Having considered all information provided by the parties the OIA referred the matter back to Council on July 31, 2020, to be dealt with by Council under Chapter 5A, Part 2, Division 5 of the Act.
In August 2020, and in accordance with the Councillor Conduct Complaints Investigation Policy (adopted by Council resolution on December 12, 2018) Mayor Otto was empowered to manage the investigation.
In accordance with the Policy, the matter was referred to the Councillor Conduct Tribunal (CCT) in August 2020 for external investigation and to provide an independent recommendation to Council. Council received the CCT report and recommendations on December 15, 2020.
Subsequently due to Declarable Conflict of Interest provisions of the Act, the matter was presented and deferred from the January and February 2021 Ordinary Meetings.
At the March 24, 2021, Ordinary Meeting of Council (after the Mayor having received the necessary Ministerial approval to be present and participate in the decision of this matter) Council delegated to the Mayor the power to decide the matter.
In deciding to dismiss the allegation, the Mayor accepted and adopted the recommendations of the independent investigator, the CCT.
The Mayor also acted in accordance with advice from the CEO, as well as external legal advice.
On April 16, 2021, all parties, including the OIA, were informed of the outcome of this matter.