At Wednesday night’s Council Meeting, Penhalluriack attempted to deliver a ‘Right of Reply’. He was gagged repeatedly through his statements by Hyams and co. who numerous times leapt up to protest the relevance of what Penhalluriack was saying. We’ve since received an email from Cr. Penhalluriack which contains much of the statement he attempted to make. We publish this in the public interest.
At stake here is the ability of councillors to express a viewpoint, albeit unpopular, without hindrance, without procedural rules that are used to effectively silence individuals regardless of the merits of their position, and the deliberate and obstructionist manner in which these rules are interpreted and applied. In a council where there is no Notice of Motion, and all proposed motions, amendments, rights of reply, councillor questions and requests for reports are to be announced with 24 hours notice, then it is extremely easy to undermine and even sabotage efforts to get something into the public arena. Such practices do nothing to enhance the public’s perception of a truly democratic organisation and its governance practices.
Here is Penhalluriack’s statement:
“Council Meeting, 2nd November 2011.
Councillor Frank Penhalluriack.
Councillor Right of Reply.
Glen Eira Debates has an anonymous contribution posted earlier today that says that I am a bully, but goes on to point out that I am also shut out of the debate concerning council’s CEO. There is clearly a lot of confusion within the community, and there is a large amount of material which has been declared “confidential” and therefore can’t be included in this reply. However I do make the following points in my own defence.
The mulch storage facility has been in the news consistently. The Age, the Leader, the Bayside Melbourne Weekly and the local blog, Glen Eira Debates, have repeatedly featured stories and comments about this facility. I want to once and for all set the record straight and present the facts:
- My concern over the mulch storage facility is the result of residents writing to me. “I often take my granddaughter to play in the adjacent playground and I am worried about the traffic and the dust generated by the council’s equipment” As well I have concerns for our employees, one of whom has written, concerning the mulch getting wet, “that may increase the risk of composting and subsequently the risk of Legionella.” An employee also wrote “The hazards associated with mulch are well known”. Yet they continued to work there without protective gear until at least the 5th April 2011.
- I followed up on such concerns as is my duty as early as June 2010
- For months nothing was happening despite my frequent requests. On the 28th October an officer wrote “No further action proposed at this time.”
- My recourse to the Audit committee is my right as a councillor, and that committee deliberated on the issue, and found no conflict of interest in my presentation.
- The Arnold investigation was only instigated because of the audit committee.
- The report seemingly went through many versions. What has appeared in public is only the latest one of these versions.
- I have been refused details of these changes, including why they were made.
- I supplied various other scientific studies to all councillors and council officers
- The decision to close the facility was on the vote of 7 to 2, yet the focus of criticism and innuendo has been specifically directed towards me.
In order to counter the continual and misleading media coverage of these events, I have applied under FOI and common law for documents relating to this entire episode. This is what has happened:
- I have not received all the documents I requested
- The processes have been most unusual in that I was given incorrect information by officers which delayed the release of documents; the released documents were not presented in accordance with legal requirements; and my request for a
review by VCAT was also delayed by incorrect advice from council’s officers. - As a councillor I have a common law right to documents which are part of council business. The mulch storage facility is absolutely council business.
- Section 17 of the FOI Act obliges council to assist in sourcing and releasing the documents yet they have briefed Maddocks, a large firm of city solicitors, to resist my claim.
- Documents not released to me are currently the basis of my request for a review by VCAT
- What is the cost of preventing me from seeing these documents, what is council trying to hide, and is the timing of all of this a mere coincidence?
At that point the Mayor declared that what I was saying was not relevant and refused me permission to continue.
Frank.
Glen Eira Debates 
November 3, 2011 at 10:10 PM
Scandalous that’s what this is. Public money being used to fight a councillor’s plea for records that he is perfectly entitled to get. Why? Unless there’s another major cover up going on. I doubt that Maddocks comes cheap anyway. Lawyers and more lawyers are all that Newton knows and who gave him permission to set a bunch of lawyers onto this. Did councillors agree? Did they know? Do they know how much this is costing? Newton is an absolute liability to this council and an expense that just has to be gotten rid of. If councillors did know, then did Tang declare a conflict of interest since he works for Maddocks? If Penhalluriack has got a conflict of interest because he sells a few mulch bags then I’d say that Tang’s conflict of interest is even greater in this case. The whole place just stinks. God save us from all these sleaze bag lawyers.
November 3, 2011 at 10:11 PM
doesn’t tang work for maddock?
November 3, 2011 at 10:48 PM
I interpret the Right of Reply here to mean Right to Make a Statement, as covered by S238 of Glen Eira’s Local Law:
(1) Subject to sub-clause 238(2) a Councillor or member of Council staff may make a statement in response to comments made or reported as having been made about them by a member of the public, a Councillor or any other party–in any media or forum–which the Councillor or member of Council staff believes requires correction in order to balance the views the public might otherwise form.
(2) The statement must be made in writing and included in the notice paper for the next ordinary meeting of Council except where the comments referred to in subclause 238(1) have arisen since the printing of the agenda.
(3) The Councillor or member of Council staff may read the written statement during ordinary business at the ordinary Council meeting specified in clause 238(2).
(4) No debate will be permitted on a statement made under this clause.
So Frank probably should have had his written statement published in the Agenda, or can do so in the Agenda for next Council Meeting. The whole point of (4) above appears to be to stop individual councillors censoring a viewpoint. I further don’t believe that the Points of Order criteria (relevance etc) apply to such a statement. The context for points of order is the Procedure for moving a motion or amendments & conduct of debate. They are not appropriate here, especially as (4) makes clear that debate will not be permitted. The criteria contained in (1) well and truly apply to what Frank wished to say. If he was to be silenced, then it should have been for not having the written statement included in the Agenda. The fact that the CEO is the gatekeeper of the Agenda should not be an impediment as I expect he will continue to conduct himself professionally.
None of us can force councillors to behave ethically, so I’ll simply say I strongly disapprove of Margaret’s stance, and some may well feel it constitutes bullying. There will have to come a point where the Local Government Inspectorate again gets involved, to determine whether the Mayor is acting in accordance with LGA and “our” Local Law or not.
November 3, 2011 at 11:03 PM
By way of contrast and for debate, we thought that residents might find the following extracts from the Moreland City Council’s Meeting Procedures relevant here. The sections we’ve selected focus on the role of the Mayor and his/her obligations. We ask readers to compare and contrast and to ponder the question of whether any of our recent Mayors have in fact lived up to these guidelines and public expectations –
:Mayor
The Mayor’s role should be seen as being at the apex of Council structures in relation to policy making and the setting of Council priorities. The political aspirations of the community are embedded in the role of the Mayor. The Mayor embodies the community’s democratic leadership. The Mayor represents a primary form of accountability and responsible governance. The role of the Mayor includes:
liaising closely with the Chief Executive Officer to ensure effective relationships between Council and its Administration in pursuing Council goals;
creating and maintaining political stability;
embodying the community’s democratic leadership and provide a symbol of democracy to the community;
leading, co-ordinating and providing guidance for Council and Councillors;
chairing Council meetings so as to ensure adequate Council discussions and community debate on key issues, and provide leadership and direction;
speaking publicly about the local government’s role and developments in the community;
representing the municipality at key ceremonial occasions and in political forums;
overseeing the performance of the Chief Executive Officer; and
facilitating appropriate co-ordination of the roles of Portfolio Councillor and Councillor Responsible For to assist these roles in achieving their purposes.
November 3, 2011 at 11:22 PM
Penhalluriack makes one really good point here. He wasn’t the only one to vote to close the mulch storage shed. There were 6 other councillors that voted with him. I don’t ever remember them being pilloried like this man. If they weren’t convinced of the need to close it then they could have voted against. They didn’t so that means that some of the information that came their way must have been pretty convincing at the time.
If the report has been changed then Penhalluriack has got every right to see what was changed and why it was changed. If lawyers are fighting his claims then you can bet there is something to hide. The old story of he who pays the piper pays the tune is probably what’s behind all of this anyway. If a report comes back that you don’t like or doesn’t fit in with your intention then just get it changed. That is the way this mob work. Check out all the consultants reports and this sticks out like a sore thumb.
November 4, 2011 at 7:58 AM
To me this right of reply episode is absolutely appalling.
Penhalluriack
. did not make the decision close the mulch facitility alone, the report was given to Councillors who after reading it voted to close the facility
. did not put that inflamatory notice of the shed advising the closure of the facility, and
. supported Tang’s request for a report on relocating the mulch facility to a more suitable location (where is this report – it is way overdue).
That as a result of this Penhalluriack has been mercilessly slammed by Councillors, the Admin and some residents is bad enough, but it is absolutely appalling to now learn
. that a Councillor, acting in his official role, has to use the FOI process to obtain Council documents
. that Council (i.e. ratepayers) is paying a lawyers to fight his FOI request
. that his right of reply is constanly interjected by other Councillors (Hyams, Lipshutz) and then finally stymmied by the Mayor (serving her third term and therefore should know the rules)
Glen Eira is truly in deep sh*t when these antics occurr. I, for one, believe ratepayers moneys should be spent on providing services to ratepayers. Ratepayers money should not be spent on lawyers to resolve squabbles of elected representatives and supposedly professional officers who can’t play nicely.
November 4, 2011 at 12:31 PM
I’m troubled by this episode.A Councillor knowing that what he says is not subject to questioning or debate, makes serious public allegations against Senior Staff. In my book that Councillor is gutless and a Bully
November 4, 2011 at 1:16 PM
I’m troubled by this episode. A ceo that keeps calling in lawyers at public expense and makes serious allegations against a councillor who is trying to do his job and calls in the goon squad for help. In my book that ceo fits the description you’ve provided Anonymous.
November 4, 2011 at 6:42 PM
To synthesize or sympathise with Frank
I read with interest Cr. FP views on the mulch depot and the associated public and employee health risk associated with handling mulch in this area of Glen Huntly.
And I do admit I agree with you on the broad issues involved. As I believe we should not gamble with people health.
On a very similar issue involving the hazards relating to synthetic grasses, we supplied Frank and all Councillors with a number of scientific report highlighting the dangers of heavy metal contamination to workers and public users coming into contact with these materials.
There was a Glen Eira officers report that actually was presented and minuted to the Agenda, this report honestly highlighted the danger and doubts in using such materials.
Last time we met you were advocating using synthetic playing surfaces, and up until recently were suggesting that a synthetic soccer field be installed just 100 meters away from the closed mulch dump that has caused much controversy.
Please, Cr. Frank lets have some consistency, if you want credibility on public health issues, cherry picking winners and losers in public health undermines your credibility as highlighted here.
I feel fairly safe in saying that the residents of Glen Huntly and in fact all Glen Eira want a clean environment with our parks and fields free of contamination, and as relaxing and environmental friendly and sustainable as we can possibly make.
Not ugly concrete mulch bunkers or synthetic grassed fields made from crumbed recycled cars tyres that contaminate the skin and clothes of users with lead and cadmium, and leach the same metals into the surrounding environment and possibly the watertable.
Cr.Penhalluriack I would like you to post a personal reply on your veiw/s to this comment.