The minutes of last council meeting, especially the in camera items, should be preserved in gold. (Uploaded here) They illustrate how meeting procedures are (legal) meeting procedures only when it suits. The minutes also reveal
- A divided council where we have the ‘gang’ ramming motions through, and the flip-flopping voting patterns of Pilling
- A major stuff up over the creation of the Special Committee the first time around, and the deliberate obfuscation contained in the current minutes. It would take the skill of a cryptologist to make head or tail out of the mess that is now presented as ‘minutes’.
- The failure to document fully both calls for Division, actual motions and oucome of any voting.
We will go through these ‘minutes’ in chronological order:
- Urgent Business: Esakoff announced that she had 2 items of urgent business in the open section of the October 11th Council Meeting. No motion/explanation as required by law. Public questions were then read out. No motion/vote to change order of items. Meanwhile, twice gagging Penhalluriack in his attempt to raise a point of order. Tang & Hyams inform mayor that a motion is needed for urgent business in camera. Finally put and passed 8 to 1.
- Minutes refer to items 10 A (i) – no such item exists!
- The motion put by Esakoff/Hyams asks Councillors ONLY TO CONSIDER THE REPLACEMENT – NOT TO ADOPT. In other words, there needed to be two separate motions put and voted on – with names of movers/seconders and result of these separate votes. According to the minutes this did not happen!
- The motion refers to a ‘replacement delegation’ and that “The Instrument of Delegation authorised by Council resolution on 20 September 2011 be revoked effective immediately.” Whilst these minutes include the records of assembly for the 20th September PRE MEETING, and then the 27th September, there is no mention of any such ‘discussion’, nor the creation of this Special Committee. There is no item listed which could in any shape or form reflect this decision. Again, residents should wonder how accurately the minutes fulfil their legal obligation in noting the topics, or the requisite Section 89(2) items. Instead of an ‘accurate’ and ‘true’ record of meetings we believe these minutes are designed to hide, obfuscate, and maintain the secrecy which is the hallmark of this council.
- Why one week after the secret creation of this Special Committee should the delegated power be ‘revoked’ and a new set of powers incorporated – unless there has been a major (and legal?) stuff up?
- Most unusual and possibly illegal is the following clause: “The Committee shall attempt to reach all decisions by way of consensus between members”. The Local Government Act is entirely prescriptive on this – voting is mandatory. There is no escape clause which sanctions ‘consensus’. Is this clause included we wonder so that the voting pattern of each councillor does not have to be recorded in the minutes? Another neat sleight of hand perhaps?
- The Schedule: again an intriguing piece of work! The inclusion of specific reference to the Occupational Health & Safety Act, 2004 is not only unusual (given that this would be implicit in any event and covers all employees and possibly councillors) but that it is now directly tied into the (re)appointment of the CEO. Why include this, except to ‘legalise’ the exclusion of Penhalluriack perhaps?
- We then get this masterful paragraph under ‘Limitations’ – “The Special Committee may by resolution determine to obtain legal advice in relation to matters within its delegation from law firms determined by it from time to time and may nominate one or more of its members to provide instructions and receive communications on behalf of the Committee. Legal fees and disbursements incurred by a nominee must not exceed $5000 (GST exclusive) in respect of any one matter without the prior consent of the Committee”. Does this ‘Limitation’ relate to legal fees in drawing up the contract? Bullying charges? Anyone being sued? What happens if there is more that ‘one matter’ – does this mean that council can spend squillions on lawyers and it’s still all under delegation?
COMPARISON WITH THE 20TH SEPTEMBER DELEGATION/SCHEDULE
There are some vital changes to the new delegation powers and wording in what is presumably the two schedules. We present them in parallel
|
October 11th Version |
September 20th Version |
| All of Council’s powers, discretions and authorities conferred or imposed by:– the Local Government Act 1989;- the Occupational Health and Safety Act 2004; and – any other Act, in so far as such legislation has application to any matter relating to or affecting the employment of the Chief Executive Officer and including the authority to do all things necessary or convenient to be done for or in connection with the performance of those functions, duties and powers. |
To exercise Council’s powers, discretions and authorities to perform Council’s functions under the Local Government Act 1989 with respect to all matters involving the Chief Executive Officer’s Contract including but not limited to his performance review and exercise of Council’s option to renew his Contract of Employment and do all things necessary or convenient to be done for or in connection with the performance of those functions, duties and powers. |
Other points of difference:
- Esakoff is named as the councillor who called a division, yet NO NAME is recorded for the call of division for the September 20th meeting! No motion is printed either!
- Lawyers fees are not included in the 20th September meeting but are under ‘limitations’ for the 11th October version
- Earlier version included Performance Assessment of CEO – now gone from the October version.
- Earlier version cited verbatim the terms of the 2009 reappointment (ie council’s ‘option’ to reappoint) – again missing!
- Pilling appears to have switched sides and Lobo has aligned himself with ‘the gang’!
COMMENTS
These minutes we believe are perhaps incomplete. There are two Delegations provided, but possibly only 1 full Schedule! Are we therefore to assume that both Schedules are identical? Or what is marked as ‘Schedule’ on page 1329, is in fact NOT the ‘official’ Schedule? If so, then it is a pathetic effort for an important legal document! If on the other hand, it isn’t the official Schedule, then why hasn’t the real one been included in the minutes? And why is it headed ‘Schedule’? Is this simply intended to confuse and hide the truth?
All in all, this entire matter –processes, reporting, and even need for such a committee – has been done in secrecy and without full and upfront disclosure and transparency. We can only speculate as to why there should be the creation and then the almost immediate revocation of the delegatory powers of this committee. Who is behind these shenanigans and why? What role have Newton, Esakoff, Lipshutz and Hyams played in all this? With 3 lawyers on council and a corporate counsel to boot, residents must be scratching their heads and wondering at the competency of all involved and the ceaseless machinations which continue to dog Glen Eira. Most importantly, the minutes themselves are a total shambles. Whether this is deliberate or not we will leave up to our readers to decide.
Glen Eira Debates 
October 16, 2011 at 5:35 PM
The skull duggery that goes on and is permitted to go on by the majority of these councillors is unconscionable. There is no respect for the intent of the law and no respect for residents.
October 16, 2011 at 6:36 PM
If you’re charitable you could describe it as a stuff-up. Its possible something more sinister is at work though, given the multiple abuses of LGA. I originally was stunned to hear of the creation of a Special Committee consisting of 8 councillors in which Cr Penhalluriack was specifically excluded.
There was a veiled reference in the Agenda of 20 Sep to an item 12.6, which might have been where the resolution to establish the committee was made. However the Minutes contain NO mention of Item 12.6. LGA 93(6)(a) requires the Minutes to contain details of the proceedings and resolutions made. The Minutes for 11 Oct make clear such a resolution *was* made. At that meeting nobody sought to correct the Minutes of the previous meeting. There are no relevant reports or a summarry of relevant reports considered in the decision making process either [LGA 93(6)(d)].
Worse still, as advertised the Special Committee has already met and unceremoniously ejected the public and a democratically elected councillor for reasons that have not been made public. Its Minutes are secret (assuming they exist as required by LGA). Or are they “prescribed documents”, for which there is a Right Of Inspection?
Now we have the latest incident of dubious behaviour. Urgent Business (but discussed under Consideration Of Confidential Items) has been used to establish a replacement Delegation to the CEO Contractual Arrangements Special Committee aka The Gang Of 8. Again no reasons were given. A possible clue is the appearance of the Occupational Health and Safety Act 2004.
That set me to wonder…what relevance is OHSA to a CEO’s contractual arrangments? Indeed, what does Worksafe have to say about bullying? So I consulted one of their publications, “Preventing And Responding To Bullying At Work”, only to find the following example of indirect bullying: “deliberately excluding someone from workplace activities”. It led me to wonder whether a committee of 8 (out of 9) councillors qualified.
October 16, 2011 at 9:43 PM
Each time the ceo contract comes up we end up with lawyers, threats of bullying and legal challenges by Newton. The same thing is happening again. There’s the bullying, the special funds set aside for lawyers and the discrediting of potential opponents. Reprobate’s question of who is the real bully in all of this deserves close attention. If this council reappoints Newton then they are stark raving mad and gutless.
October 16, 2011 at 9:12 PM
I’ve had to read these minutes at least three times in the effort to follow what’s gone on – and I’m still not convinced that I’ve understood what’s actually happened. Nothing should be as convoluted as this unless it is 100% intentional. The Newton and Burke and Lipshutz philosophy is that you make it as difficult as you can so no-one will follow or they’ll be so bored by all the legal clap trap that they’ll give up. The other trick of the trade is that the important words and phrases are buried deep in the waffle so they’re well camouflaged and require digging out to fully comprehend their significance. Nothing but nothing is straight forward here and I’ll bet my life that this is what they wanted.
The heading of ‘Schedule’ is the worst offence and the most devious. Reading it quickly most people would assume that this is the official and legal document. It’s not! The word has been employed to suggest it is and nothing else.We’re dealing with a council that is totally lacking scruples and doesn’t give a stuff about the legislation and its objectives. All those who voted for the creation of this committee should be roundly condemned and sacked. They’ve betrayed the code of conduct they signed to be honest and accountable and to represent the voters. This committee is a modern day lynch mob designed to get Penhalluriack and to reappoint Newton.
October 16, 2011 at 10:28 PM
We have the records of assembly for the pre-meeting of September 20th and then the meeting of 27th September in the one set of minutes for October 11th. My argument is that if both of these records of assembly could be made public then there is no excuse whatsoever why the records of assembly for the in camera items couldn’t also have been included in October 11th agenda. They aren’t there because certain people clearly didn’t want them out in public. This is censorship and unlawful and shouldn’t be allowed to go on unchallenged.
October 18, 2011 at 8:20 AM
With confidential items the outcome is made public when there is an outcome. If there is no outcome then there is nothing to report. If something is confidential then you could hardly expect a ball by ball description of meetings. The records of assembly should never be public anyway. It is a stupid part of the Act and needs to be removed. If three councillors want to have a talk they must have a public servant taking notes of what they talk about. I don’t know where else in the world this goes on. It all goes back to the way the ALP conducts itself with factions.
October 17, 2011 at 1:27 PM
Hisotry has shown how the truth wins in the end. Each day residents are learning more of the truth.
October 17, 2011 at 7:42 PM
From today’s Melbourne Bayside Weekly –
Rebecca Thistleton
Residents slam council’s secret CEO meeting RESIDENTS have criticised Glen Eira councillors’ decision to veil meetings in secrecy, saying they have a right to know what their elected representatives are deciding.
Last week, councillors met behind closed doors to discuss the contract of its chief executive, Andrew Newton. They have refused to comment on the meeting’s content or outcome.
Glen Eira Residents Association president Don Dunstan said councillors owed it to their constituents to reveal what they were deciding for the council’s future.
Mr Dunstan said the secret meeting was another example of the council’s lack of regard for public transparency.
Glen Eira’s mayor and councillors have declined to comment on what was discussed at the ‘‘in camera’’ meeting on October 4. Cr Margaret Esakoff said all matters discussed were confidential.
A public notice stated that the meeting of the CEO contractual arrangements special committee was expected to be closed to the public.
The CEO’s contract is due to expire in April next year. In April 2010, Mr Newton was reappointed as CEO for a two-year term, with an annual $320,000 salary package. He has been Glen Eira CEO since 2000.
Glen Eira has the option of advertising the position or offering Mr Newton another contract.
Councillor Frank Penhalluriack, who is not a member of the special committee, was excluded from the meeting. He later said he had been gagged.
In August, MWB reported that councillors refused to confirm whether Mr Newton had sought legal advice in relation to allegations that Cr Penhalluriack had bullied him.
Mr Newton did not answer questions about his position before the MWB deadline.
October 17, 2011 at 9:42 PM
These events and their sequence are pretty incredible. There’s no doubt that this is a divided council as shown by the voting – 5 to 4, and then 6 to 3. Both votes bode ill for the future of this council. This is more than simple disagreement between councillors. These votes show the power block in operation and their disregard for all facets of the law as the last council meeting clearly shows. The conservatism of Lipshutz, Hyams, Esakoff, Tang have seen the most draconian procedures put in place (notice of motion, handing control again and again to Newton) to the detrimiment I suggest of residents. Their latest outrage has been the gagging and exclusion of Penhaluriack and their obvious backing of Newton.
October 18, 2011 at 9:21 AM
Heard a news story on 3AW last night about Frank being investigated regarding the mulch facility. 80% of news originates from press releases. The remaining 20% would be police reports or from reporters. Taking this into account it is highly probable that someone sees an advantage in ensuring that Frank looks bad and is being proactive. “Glen Eira councillor investigated for conflict of interest.” Emotive stuff. Things don’t just happen. There is a game on here with more than councillors playing.
October 18, 2011 at 7:18 PM
The official “minutes” of the now defunct first Special Committee still have not appeared on council’s website. The meeting took place; motions were passed. There is a legal obligation to make these minutes available. What are these people hiding?
October 18, 2011 at 10:25 PM
This is all very strange – and is an early indication that this process is going to be as problematic as the last.
Reading the two motions, I can’t really see any differences of major significance or anything in the first motion that would require its replacement with the second.
As far as I can see the only significant differences between the two motions are –
That the second motion does not specify membership of the committee (and the first motion which specified membership was revoked).
That the resolutions are to be made public and incorporated in the minutes.
That the committee may obtain legal advice.
That’s about it!!!
So the questions we need answered are –
Why was the first resolution revoked and replaced with the second?
Who are the members of the committee? Was that contained in a different motion that has not been made public?
What is the significance of giving the committee explicit powers to seek legal advice? The first motion gave the committee “all council powers” which I presume includes seeking legal advice. Is it there to place a limit on spending on legal advice?
Why did Cr Pilling vote for the first motion but against the second?
In fact why is a special committee required at all? In the past the process has been handled by council, in camera of course.
Too many questions, not enough answers.
October 19, 2011 at 6:32 PM
No mystery at all. Nine councillors means that a vote of 5 is required to reappoint Newton. Get rid of one and then you cast the odds in your favour – 4 to reappoint and 4 to advertise. That means that her ladyship gets the casting vote and Newton is in by the skin of his teeth. Lobo’s the essential link. Since this man says nothing anymore and doesn’t appear to do anything anymore then the questions should be why he has suddenly defected to the Lipshutz side when there have been plenty of incidents in council where they were hurling insults at each other. No doubt about it – politics does make some strange bedfellow and residents just keep getting screwed.