Coorong councillor excused for possible confidentiality breach

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Councillors across South Australia have been cautioned about the way in which they handle sensitive information after questions were raised about an episode at the Coorong council last year.

The Ombudsman SA ended up deciding not to investigate acting Mayor Jonathan Pietzsch over a potential breach of confidentiality rules, the council revealed last week.

Cr Pietzsch had been reported to the ombudsman for providing a copy of confidential legal advice, commissioned by the council, to his own personal lawyer late last year.

Cr Pietzsch then shared a copy of the legal advice he had received – which contained references to the council’s secret legal advice – to the council CEO and other councillors.

No confidential information was ever made available to the wider public, and Murray Bridge News does not suggest any wrongdoing by Cr Pietzsch or the council.

If anything, the episode shines a light on how strict and inflexible are the rules around the handling of confidential information.

The ombudsman suggested the advice had been merely “procedural” anyway.

“I do not consider that it is in the public interest to take further action,” a representative of the ombudsman wrote in a letter published by the council.

“My decision has been finalised, and this file will now be closed.”

Ombudsman, lawyer clash on councillors’ legal rights

As a result of the episode, and at least one other elsewhere in the state, SA Ombudsman Emily Strickland wrote to all South Australian councils, urging them to remind councillors not to share confidential legal advice.

“In these matters, there have been factors which have led my office to conclude that it was not in the public interest to investigate,” she said.

“However, this may not always be the case.

“In the event I receive future complaints regarding alleged breaches ... I will take this reminder into account in assessing whether it is appropriate to investigate.”

South Australia’s Local Government Act prohibits councillors from disclosing confidential information.

Any councillor found by the Ombudsman to have broken that rule could be found to have committed misconduct in public administration, and subjected to penalties in line with the seriousness of the offence.

However, Cr Pietzsch’s solicitor, Mark Gustavsson, urged the ombudsman not to try and limit councillors’ right to independent legal representation.

“The obligation to preserve confidential information is an important feature of local government,” he said in an open letter.

“Equally fundamental, however, is the longstanding common law principle that every person is entitled to obtain independent legal advice in relation to their legal rights and obligations.

“The mere fact that a document bears the notation ‘confidential’, or is otherwise confidential in fact, should not automatically preclude an elected member from providing that material to their own legal adviser for the sole purpose of obtaining legal advice.”

Councillors vote against reimbursing legal fees

In the meantime, the council has decided not to reimburse Cr Pietzsch a sum of more than $1600 for the legal fees he incurred while formulating a response to the ombudsman.

“Those costs were not a private matter – it was in the course of doing his business for council,” Cr Lisa Rowntree argued at the council’s meeting last week.

“He does have a claim here.”

Cr Sharon Bland agreed: “When it comes back where the councillor has no case to answer, and has fronted the fees up-front, I think it is legitimate.”

However, Cr Jeff Arthur was among those who were opposed to the idea of paying back the legal fees.

“Since I’ve been on council, never have a councillor’s legal fees been paid by the council,” he said.

“(He) could have gone to five lawyers and got five different opinions.

“You just open a Pandora’s box, and it’s not our money, it’s ratepayers’ money.”

Councillors voted 3-2 against the reimbursement, with Cr Pietzsch out of the room.

Cr Pietzsch pointed out that he had not chosen to get involved with the Ombudsman.

A report had been made, and he had been required to respond to it in his capacity as a public official.

“I understand the concern around the cost to ratepayers, but if an elected member is brought before an integrity body and found to have no case to answer, it’s part of their duties,” he told Murray Bridge News.

“They have no control over it.

“I was justified and had the grounds to get (the legal advice).”

He said the episode had personally cost him about $4000.

Correction: An earlier version of this story incorrectly stated that the council had voted in favour of reimbursement.