The VCAT Daily Law List for tomorrow contains the following item under ‘Directions Hearing’ –
“9:30 AM G8/2012 Councillor Conduct Panel – Glen Eira CC Donna Graham, Councillor Conduct Panel – Glen Eira CC Margaret Esakoff v Mr Frank Penhalluriak”
This is really a startling development and adds another tawdry and expensive item to the saga of poor governance in Glen Eira. We surmise the following:
- Council, or individual councillors, have sent Penhalluriack to a Councillor Conduct Panel. Since Glen Eira CC is noted and Esakoff was the Mayor last year, we conclude this is a formal Council decision taken some time back and again in secret. This may explain the countless in camera items over the past few months that referred to ‘legal advice’. Start counting the cost!
- If this has ended up at VCAT, then one of two things must have happened. Either the Panel directed that the matters be heard at VCAT, but only after they’ve found a case of misconduct – which is unlikely since under legislation council has 28 days to publish the findings – OR Penhalluriack himself (as the respondent) has asked for the issue to go to VCAT. This is within his rights.
- Since no findings have been included in council minutes, we conclude that Penhalluriack has decided to ask for a full VCAT hearing.
The consequences of this are enormous. According to the MAV, a panel hearing would be a minimum of $1500 just for the sitting members. This does not include lawyers’ work prior to this. The legal fees for one lawyer at the Heritage Panel review which lasted a few hours was $9,000. We cringe at how much this may have cost. Next, there’s the fees for lawyers at VCAT – and if this goes for 2 or 3 days, then we’re literally talking tens and tens of thousands of dollars. If Penhalluriack chooses to employ a QC, then Council pays for his legal bills as well. All in all, ratepayers could be looking at something in the vicinity of well over $100,000 – and for what?
As to the actual charges, then again, we have to conclude that they involve things like Newton’s allegations of ‘bullying’ and since Penhalluriack was excluded from the CEO Special Committee, which had as part of its schedule the extraordinary clause of Occupational & Health matters, then let’s throw in potential conflict of interest claims as well. We’re sure there are countless other charges.
The fact that ratepayers’ money is being expended on, what in our view, is an attempt to silence an outspoken councillor, then this signals the death of free speech in Glen Eira. It also signals the death of councillors daring to question administrators and seeking quantified justifications for their recommendations. If councillors voted for this action, then they are culpable in the wastage of resident funds and in foresaking their commitment to transparency, accountability and good governance.
Glen Eira Debates 
February 16, 2012 at 5:59 PM
What a way to run a council. Penny pinching everywhere else but it’s okay to spend stacks on lawyers and bogus bullying charges. If I were Penhalluriack I’d get myself the most expensive lawyer in Australia and then call every single one of these so and sos to give evidence and then tear them to shreds. Have already got a mental picture of Esakoff fading away under the pressure and Lipshutz and Hyams and Newton sweating like little piglets under cross examination. This should be heaps of fun and maybe just maybe we’ll get closer to the truth about how this rotten place really works.
February 16, 2012 at 5:59 PM
Frank can take care of himself, he is a big boy
And how many time has this blog heralded the death of free speech in Glen Eira
This blog suppresses free speech by censoring important issues about councillors, and ignoring the elephant in the room concerning the power block on ruling councillors
February 16, 2012 at 9:08 PM
Frank can handle himself. Well, that may or may not be true. He hasn’t been what you would call a successful Councillor. Getting himself excluded when his votes and opinions were needed most. You cannot simply turn up at the town hall and shoot your mouth off and expect that people will say that is OK he only being honest. He has proved that his style will get you nowhere. It is very sad that it has ended up this way. If Frank had been prepared to learn a bit about politics he would have had some influence. There is no doubt that he has had some influence but not in the way he intended. Politics is an art, often call the, “art of the possible”.
February 16, 2012 at 6:25 PM
Frank’s “crime” is that he has tried to make Newton accountable and for that he has to be shut up and got rid of. If there is bullying going on then I sure know where it’s coming from and it’s not from Penhalluriack.
The power block as someone calls them have really shot themselves in the foot this time. Hundreds of thousands of dollars probably going into lawyers pockets that hasn’t been budgeted for and all to gag one councillor and get rid of him. It’s disgusting behaviour and shows us exactly what kind of people are running this council and it sure isn’t in the best interests of residents.
February 16, 2012 at 6:39 PM
Can residents sue a Council for incompetence and misappropriating funds to serve the interests of one or two individuals?
February 16, 2012 at 6:45 PM
I doubt your figures are accurate GE. However,compared to the cost to us all of GESAC this is small fry. If it leads to us breaking the hold on Council by the councillors who suppress and dissemble and exposes the hold Newton and his sycophants have on Council, bring it on. It also might wake up some residents from their somnolence as we approach municipal elections.
Interesting the the Glen Eira Leader is once again asleep at the wheel. And/or merely the PR arm of the Council. Disgraceful!
February 16, 2012 at 7:45 PM
Gesac is admittedly a huge burden, but I still wouldn’t call what this is costing as “chicken-feed”. We mustn’t forget the O’Neill report and who knows how much that cost – to obviously get the result that was desired. It’s totally incomprehensible to me how council after council is literally falling over itself to do the bidding of one man. In 2005 there were legal threats by him and in all probability this continued in 2008 and nothing would surprise me about 2011. The Penhalluriack charges are just icing on the cake and the attempt to “neutralise” his influence, especially with an election coming up. Silence Penhalluriack and maybe he won’t stand again so the door is open for a bunch of new councillors who will be given a year’s “indoctrination” before they vote on renewing Newton’s contract for another 5 years. I’d classify all this as political thuggery played out on a group of naive and/or complicit councillors. With Penhalluriack out of the election race we should start looking at who has the most to gain (apart from Newton) with his demise. I’d point the finger at Lipshutz since he has obviously ruffled quite a few feathers over the journey and with his arrogance, support of C60, and many other things, his support base would have to be waning dramatically.
I also hope that this VCAT case brings all the skull duggery to light and that those councillors who thought they were immune from accounting for their decisions are hauled into VCAT and made to confess to all their sins. That in itself would be worth the hundreds of thousands of dollars that are likely to be spent on this case.
February 16, 2012 at 9:17 PM
The naivity may be with you my friend. You are guessing at what went on when you were not there, never the less you are prepared to cast a judgement on people. I am glad that I do not have to be judged by you when you are prepared to take a guess at what has happened.
February 16, 2012 at 10:51 PM
If I’m passing judgement as you say, (although I would call this expressing a point of view) then I believe that past history bears me out in relation to Newton. It is on the public record that legal proceedings were threatened by him in 2005. It is also on record that he has employed bullying allegations in the past as well. My reading of the current situation and its implications for the upcoming elections are admittedly hypothetical, but I would maintain quite feasible and logical. You are of course quite at liberty to disagree with my reading of events – that’s your privilege and right in an open society. I would very much like to read why you believe that my opinion is naive and what your view is on current and past events. Perhaps then others might judge who is naive?
February 17, 2012 at 7:05 AM
Your assumptions are based on what you know and not what you don’t know and this probably lines up with what you want to think is happening.
Let’s leave it at that.
February 16, 2012 at 9:41 PM
The description is rather vague (perhaps intentionally so)–is it a preparatory step to a Councillor Conduct panel hearing, or has the matter been referred to VCAT? There is no right to representation at a Panel hearing, unless the Panel decides its necessary to ensure the hearing is conducted fairly.
Its not clear who the respondent is either (or does the respondent’s name appear second?). We can probably make an informed guess, despite the appalling treatment handed out to Frank in Council as documented in Council’s Minutes. Remember, Council has repeatedly failed to comply with the requirements of LGA. The behaviour of the 8 councillors towards Frank, by excluding him, have engaged in behaviour that OH&S considers harassment. Margaret’s repeated abuses of Local Law to silence Frank, and amazing “apology” to Andrew Newton in which she wilfully misrepresented Frank’s reasonable question, should also be closely examined. Its all incompatible with the Councillors’ Code Of Conduct 2009.
Regardless of whether a matter is considered by Council in secret, there is still an obligation on Council to document its resolutions in the Minutes, and that should apply to a resolution to make an application to a Councillor Conduct Panel.
February 16, 2012 at 11:13 PM
Reprobate, what should happen has no meaning in Glen Eira. Unless it’s spelt out in the law with no squirming out loopholes available you can bet that our 3 lawyers and Newton will use this to their advantage. The Municipal Inspector made this really clear. How many times did he say that there’s no breach of the local government act. That doesn’t mean that what they’re doing is okay – just that it’s not illegal because there’s nothing in the law to make it illegal. They’re not exonerated – they’re just damn lucky. But I think that everyone’s luck must run out eventually and perhaps this is one of those times?
February 16, 2012 at 11:16 PM
Well this is an interesting turn of events – and hopefully a long overdue resolution of the bullying claims against Cr Penhalluriack (if that is in fact the subject of the hearing).
Glen Eira, you state that you are sure there are “countless other charges”. I’m not sure how you can say that unless you have additional information you are not sharing with your readers. Could it be that one of the charges might relate to divulging confidential information – just speculating here but I think you know what I mean.
Reprobate, from reading the listings it seems most likely that the complainant is the second named. Which implies (as you have suggested Glen Eira) that Frank has initiated the hearing.
Note this reference form MAV website regarding Councillor Conduct panels –
http://www.mav.asn.au/policy-services/governance/councillor-conduct-panels/Pages/default.aspx
This states that “An application for a VCAT review of the panel decision must be made by the applicant or the respondent within 28 days of the panel giving a statement of reasons.”
This implies that a Councillor Conduct panel needs to make a determination before an application can be made to VCAT. It does not say that the findings of the panel must be made public.
So the most likely interpretation is that the panel have made a finding against Cr Penhalluriack and that he is now taking it to VCAT.
February 16, 2012 at 11:38 PM
Thank you for your comment Glen Huntly. Just to clarify a few things:
1. The Local Government Act (Section 81D (1)states: “A Councillor who is the subject of an application made under section 81B
(the respondent) may apply to the Councillor Conduct Panel for referral of the matter to VCAT at any time before the Panel determines the matter ‘.
2. The Act goes on to include: “A Councillor Conduct Panel must refer an application made under section 81B to VCAT for determination if the respondent makes an application under subsection (1).” Section 81B reads: “An application for a Councillor Conduct Panel to make a finding of misconduct against a Councillor, or to authorise an application to VCAT for a finding of serious misconduct, may be made by-
(a) the Council, following a resolution of the Council to make an
application to a Councillor Conduct Panel under this section in
respect of a Councillor’s conduct; or
(b) a Councillor; or
(c) a group of Councillors.”
3. As far as reporting the results of Councillor Conduct Panels, again here’s what the Act says (Section 81M(2)]: “A copy of the decision given to the Council under subsection (1)(a) must be tabled at the next ordinary meeting of the Council and recorded in the minutes for that meeting”.
4. All of the above tells us that since no decision has been tabled by council under the requirement of this legislation, that Penhalluriack must have requested that the matter go straight to VCAT. The Panel can only recommend VCAT AFTER it has made a finding of misconduct, not before.
5. Glen Huntly, you take us too literally! When we say “we are sure there are other charges” then apart from being a mere figure of speech, we also base our arguments on the following: (a) if Council is prepared to spend all this money and go to these lengths, then we are indeed “sure” that bullying is not the only complaint against Penhalluriack. (b) if you’re already going this far, then why not attempt to throw the whole kitchen sink at him? Remember the old adage – throw enough mud and some of it just might stick? Perhaps some of the charges may include “leaking confidential information” – we do not know! However, if this is included, then it should be an extremely interesting case as to why certain information is “confidential” and the (over)use of secrecy in this council, don’t you think? As for “additional information” – we would love it! Could you please supply us with some since you seem to be in the know?
February 17, 2012 at 12:19 AM
Fair enough, Glen Eira.
But according to the Local Government Act, this isn’t the only scenario where an application can go to VCAT before a determination is made.
It also states-
81D (3) A Councillor Conduct Panel may refer an application made under section 81B to VCAT for determination if the Panel considers that it cannot make a determination because a person fails to attend a Panel hearing or to provide information that the Panel has requested.
and
81J (1) After a Councillor Conduct Panel has conducted a hearing, the Panel may—
(b) authorise an applicant to make an application to VCAT if the Panel considers that there are reasonable grounds on which VCAT may make a finding of serious misconduct against a Councillor.
Do you think either of these are possible?
I’d also note that going to VCAT increases the risks for Cr Penhalluriack as it seems that the penalties available to VCAT are greater than the penalties that can be applied by the Councillor Conduct panel.
February 17, 2012 at 12:35 AM
You can say simple things about complex matters and be totally wrong most of the time, and some situations are indefinable, as Frank would be finding out, Frank has a good nose for bad smells, but a wooden tongue
If Frank, is up to his true form, he will, well and truly shoot himself dead, right in front of the Conduct Panel, his enemies unworthy of their position themselves, were just smart enough to give him the opportunity to do so
The panel is not there to find out the truth or hand-out justice, it is there to sanitise odours. Unfortunately spraying Frank down with PineoClean isn’t going to remove the stink that hangs over Glen Eira.
When councillors hide behind a fabric of lies and disguises hiding who they are, and the primary reasons they seek office for. Victims like Frank will be the collateral damage of such people, and maybe, so are we all
Scrub them clean at the next election or you with suffer in odourium forever
February 17, 2012 at 12:57 AM
Wishing Cr. Frank Penhulliarack a fair deal at last!
Whenever I attended council meetings I came hoem mentally disturbed at the way Mayor Esakoff treated Cr Penhalliarack or allowed some the other gang members and their friends treat Cr. Penhuilliarack. I found it difficult to sleep at times and could not believe how he was always prepard to head into the chamber and try so hopelessly to fight battles for us his constituents and for other members of the whole municipality. Knowing VCAt the member will make the usual judgement with a bit each way!
I hope Mr Newton listens at this VCAT hearing as he proved rude beyond belief at the meeting in the Ormond Elderly citizens chatting while concerned residents came along to tell of their concerns at the council’s invitation.
HE DID NOT SEEM TO CARE AT REPORTS THAT WATER FLOWED THROUGH THEIR HOMES OR THAT WE ARE FED UP WITH HIS MULTIPLE DEVELOPMENT PLAN AS HE PROPPED UP THE WALL ON SHOW AND CHATTED AWAY CONTINUALLY. WHAT DISGRACEFUL BEHAVIOUR I WOULD EXPECT MORE FROM A CHILD BUT NOT A MAN WHO IS COSTING RATEPAYERS WELL OVER $350,000.00. Incidentally he REFUSES TO meet with anyone and in this instance he was physically present but disinterested and he maybe even prevented others from hearing with his chatter.
February 17, 2012 at 1:02 AM
In the lead article above, the writer referred to “The death of free speech at Glen Eira Council”. You must be joking, free speech by our elected councillors was outlawed years ago by Cr Lipshutz and the mob. It was all done under the guise of the Lipshutz “No Surprises” policy.
Councillors now have no right to ask questions at council meetings, they must ask permission first (at a secret assembly or ‘Briefing’ Meeting). Note that, by law, the secret meetings have no power to make any decisions at all, about any Council matters. All decisions made by councillors at these secret meetings, especially those seeking to controlling councillors questions, are therefore completely illegal.
In the present state of Glen Eira’s decline, things at Council meetings are orchestrated, and everything on the agenda has to be approved by the (unelected) CEO, Mr Newton. Worse, there is no agenda item for Councillor’s Ordinary Business, where councillors would have the right to raise issues they consider to be of importance. That is why Cr Penhalluriack and other councillors cannot ask penetrating questions or do their normal councillor duties. They do try, but the mob stop them.
I always thought secret arrangements, secret deals, and secret decisions were illegal. I must be old-fashioned.
Now I ask, how can all this happen, when we have a plethora of lawyers on council? We have three legally trained councillors, and have employed Donna Graham, as Glen Eira’s own in-house “Corporate Counsel”. That makes four lawyer types. Remember Donna Graham and Margaret Esakoff last years Mayor, are both named in tomorrow’s VCAT proceeding, so I expect a lawyers bun fight.
February 17, 2012 at 8:52 AM
I’ve always be interested in Council matters (talked to Councillors, attending Council Meetings etc.) and having moved to Glen Eira (3yrs ago from Manningham which features the protagonistic Steven Mayne) I must admit I have not paid much attention to the bullying posts on this blog site – having seen Mayne in action and how Manningham handles him why would I.
To now have the alleged bullying charges confirmed via a VCAT hearing leaves me gobsmacked. From attending GE Council Meetings, I always got the impression that Frank was the one being bullied – Tang, Lipshutz, Hyams and Esakoff – postively light up when Frank gets up to speak and they can’t wait to “amend” or challenge what ever he says. At one meeting Magee described their antics “as playing tennis” with a councillor request that Frank had made.
I have no doubt that the cost is $100K and rising. All the secretive preparatory work to bring this to the start of the VCAT proocess would have cost a pretty penny – not to mention the hidden cost of Admin staff spending their time gathering evidence and spending time in the legal eagles.
Who knows how long this will drag on and since it could involve council paid QC’s on both sides the sky is the limit.
Council is continually fobbing off residents with “no funds” when real requests for additional services are requested. Yet Council is willing spending $100+K on pretty squabbles (Frank doesn’t even rate on the Steven Mayne Bullying Index) rather than dealing with real issues.
May I point out to Counci that
. as a ratepayer I resent my rates being spent in this way
. I am not a bottomless pit
February 17, 2012 at 9:29 AM
This blog raised the allegations of bullying charges against Penhalluriak about a year ago and now it’s come to VCAT with Council (a.k.a. you and me) footing the bill (a bill about to be subject to a double QC fee escalation?).
Does anyone else find this totally unacceptable?
Councillors and Senior Administrators are supposedly mature highly skilled professionals – adept at handling difficult situations and focussed on benefitting the community – yet here we find that is clearly not the case. Not only is it not the case, but Council’s actions have prevented public scrutiny and it is costing ratepayers heaps. This sorry tale should have it’s pin pulled now.
In this pathetic instance, not one Cr. or Senior Administrator is worthy of their title.
February 17, 2012 at 10:34 AM
Glen Eira you are really more stupid than I thought. In 2005 Frank’s Nominee on Council Peter Goudge was charged and found guilty in the Melbourne Magistrates Court following the Municipal Inspection by 2 Inspectors one of who was a Lawyer.I repeat Frank’s Nominee. Why not wait untill we know whats going on before blaming everyone but Frank. You Glen Eira will have egg on your face no matter what happens.
February 17, 2012 at 1:48 PM
How’s business Noel?