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ICAC finds NSW SES Commissioner corrupt, recommends dismissal

Wednesday 28 May 2014

The NSW Independent Commission Against Corruption (ICAC) has found that NSW State Emergency Service (SES) Commissioner Murray Kear engaged in corrupt conduct through failing to properly investigate allegations against Deputy Commissioner Steven Pearce, and by dismissing Deputy Commissioner Tara McCarthy from her employment with the SES substantially in reprisal for her making allegations against Mr Pearce.

In its report, Investigation into the conduct of the commissioner of the NSW State Emergency Service, released today, the Commission finds that Commissioner Kear deliberately failed to properly investigate allegations made by Ms McCarthy against Mr Pearce, in relation to the circumstances in which the SES entered into two contracts, the use of SES funds to purchase roof racks and electric brakes for Mr Pearce's car, the obtaining of an SES vehicle for an SES manager, and the potential falsification of diary entries, because of his friendship with Mr Pearce.

The Commission is of the opinion that the minister for police and emergency services should give consideration to taking action against Commissioner Kear for disciplinary offences of misconduct with a view to his dismissal.

The report notes that on 14 May 2013, Commissioner Kear dismissed Ms McCarthy from her position as an SES deputy commissioner and told Ms McCarthy that he had decided to dismiss her because he had lost trust and confidence in her. Ms McCarthy contacted the ICAC the following day and alleged that, amongst other things, she had been dismissed by Commissioner Kear following reports she had made to him that Mr Pearce may have engaged in corrupt conduct. Mr Kear contacted the Commission on 17 May 2013 and said that he anticipated that Ms McCarthy would complain to the ICAC about her dismissal but that there was no substance to her allegations of impropriety.

The Commission is satisfied that Commissioner Kear dismissed Ms McCarthy substantially because of the allegations she had made against Mr Pearce. In coming to that conclusion, the ICAC has considered that Ms McCarthy was performing satisfactory work at the time of her dismissal – a matter acknowledged by Commissioner Kear – and a pattern of partial treatment of Mr Pearce by Commissioner Kear leading up to Ms McCarthy's dismissal.

The report notes that Commissioner Kear and Mr Pearce were both former officers of what is known as Fire and Rescue NSW and had known each other from at least 2006. Commissioner Kear admitted to the ICAC that he and Mr Pearce had been friends and mates since 2008, although he stated previously that he did not have a longstanding friendship with Mr Pearce. Commissioner Kear sat on the original interview panel when Mr Pearce first applied to join the SES, but did not disclose a conflict of interest.  Mr Pearce was not appointed at that time, but was later appointed by Commissioner Kear from a reserve list that Commissioner Kear activated, again without declaring a conflict of interest. He also failed to disclose the friendship between himself and Mr Pearce while he dealt with Ms McCarthy's complaints about Mr Pearce's conduct.

The Commission found that Ms McCarthy made a number of public interest disclosures to Commissioner Kear, including in relation to Mr Pearce's credit card misuse and his inappropriate conduct with respect to two contracts. The ICAC is of the opinion that the advice of the Director of Public Prosecutions should be obtained with respect to the prosecution of Commissioner Kear for an offence under the Public Interest Disclosures Act 1994 of taking detrimental action in reprisal for a person making a public interest disclosure.

The ICAC held a public inquiry as part of the investigation over four days commencing on 3 December 2013. Former Commissioner the Hon David Ipp AO QC presided at the public inquiry, at which nine witnesses gave evidence.

Media contact: ICAC Manager Communications & Media Nicole Thomas 02 8281 5799 / 0417 467 801

Investigation report   Fact sheet