Lord mayor Nuatali Nelmes has dismissed a community group's approach to lodge a code of conduct complaint against council CEO Jeremy Bath about Christine Everingham's ban from a council consultation group.
But the group has questioned the "thoroughness" of the mayor's investigation and called on councillors to refer the matter to an "independent investigator".
Cr Nelmes recently responded to a letter from Hunter Community Forum - a coalition of community groups which Dr Everingham is a member of - that outlined a code of conduct complaint about Mr Bath.
HCF co-coordinators Therese Doyle and Ron Brown wrote to the mayor in late May, alleging CEO Jeremy Bath had, in terminating Dr Everingham from the Harbour Foreshore Community Reference Group in March, breached the staff code of conduct as his actions constituted "acting contrary to statutory requirements" and "an abuse of power".
Dr Everingham, a Newcastle East resident and the coordinator of a community garden in Foreshore Park, was kicked off the planning group for allegedly "physically poking and pushing" a council employee at a public drop-in session in February.
She admitted to being angry on the day in question about the planned park overhaul, but said she "did not touch anyone" and the allegations were "outrageous".
She sought legal advice which indicated council had used the wrong policy and applied that policy wrongly to justify her dismissal.
Hunter Community Forum said in its letter to the mayor that the actions of the CEO had "breached council's obligation to the complainant under council's Code of Conduct requirements".
"The CEO failed to offer Dr Everingham 'an opportunity to respond to the allegation'," it said. "The CEO advised Dr Everingham by letter of both the allegation and the sanction on the 2nd March, 17 days after the alleged incident without any consultation."
The lord mayor, who handles complaints about the CEO, wrote back to HCF in mid-June, dismissing the matter as her advice indicated it did not constitute a code of conduct complaint.
She said the complaint was "premised on an assertion that the CEO had overall conduct of the matter", but the sanctions imposed on Dr Everingham had been "applied by the public officer".
The complaint was not supported by sufficient evidence, she said, and did not "reflect the full processes and actions undertaken by staff".
"I am satisfied that [council] staff followed the appropriate escalation procedures set out in the policy," she said. "I am confident that staff have appropriately followed [council's] published procedures ... and that in addition [the] public officer has addressed these matters directly with Ms Everingham or her legal representative."
Cr Nelmes said the Code of Conduct for Committee Members, Delegates of Council and Council Advisors did not apply to the Harbour Foreshore Community Reference Group. "therefore it was not available ... to consider Ms Everingham's actions under the procedures".
However in a subsequent letter dated June 30, Hunter Community Forum questions the "thoroughness" of the "investigation into the substance of our complaint".
It maintains that the incident should have been dealt with under the Code of Conduct for Committee Members, Delegates of Council and Council Advisors as Dr Everingham "was required to agree in writing" to abide by it as a member of the Harbour Foreshore CRG.
If the matter were dealt with under the Code of Conduct, Dr Everingham should have had the allegations put to her and been given an opportunity to respond.
HCF also suggests Mr Bath breached the Code of Conduct for Staff by "overseeing a council policy that was inappropriately applied to dismiss Dr Everingham".
"The CEO ... has not complied with his duties set out in council's Code of Conduct ... in failing to apply the correct policy. As a result of this failure, Dr Everingham has not received procedural fairness," HCF wrote.
It asked the mayor to review her determination and instigate a "thorough investigation in order to restore public confidence in council's treatment" of Dr Everingham. With the lord mayor yet to respond, HCF wrote to all councillors this week asking for the complaint to be referred to an "independent investigator", noting the Harbour Foreshore CRG's terms of reference states the Code of Conduct does apply to the group's members.
"We also encourage councillors to initiate a review of the MUCCP and undertake to amend it to ensure that members of Committees of Council are offered procedural fairness in line with the original Model Policy published by the Ombudsman in 2013 and the Council Code of Conduct procedures that they are required to accept," it wrote to councillors.
A council spokesperson said the second letter was still being considered "in accordance with the Procedures for Administration of the Code of Conduct".
Cr Nelmes said she was disappointed Hunter Community Forum had "chosen to breach the complaint protocols and send these unsubstantiated complaints to media and others".
Mr Bath said the complaint was "quite strange given the decision to ban Dr Everingham wasn't made or communicated by me".
"As Dr Everingham is aware, the decision was made by the public officer," he said. "Regardless, it's never ever acceptable to threaten, abuse or touch a council employee and I fully support the decision to restrict Dr Everingham's interaction with City of Newcastle for at least 12 months."
Dr Everingham, who is banned from council premises for a year and limited to contacting it only in writing, said it had been "infuriating" and "incredibly distressing" to have not been given the opportunity to respond to the allegations and sanction. She said she had considered Supreme Court legal action but "who can afford that".
"I can't afford to go to the Supreme Court. There is the Office of Local Government and the Ombudsman, but they're not interested ... in something like this," she said. "I can't go into the council building, I can't talk to key staff ... I have to work with [council] staff [at the community garden].
"I just want people to know how processes and policies are being used, basically to silence dissent."
