From the minutes of 28th February 2012.
OUTCOME OF CONSIDERATION OF CERTAIN CONFIDENTIAL ITEMS
Item 10 Urgent Business
Crs Hyams/Tang
That a matter relating to the VCAT matter between Council and Cr Penhalluriack be considered as an item of Urgent Business.
The MOTION was put and CARRIED.
(a) Crs Hyams/Lipshutz
1. That Council place on the public record the resolution for Item 12.5 of the Ordinary Council Meeting of November 2, 2011, relating to a Councillor Conduct Panel, other than paragraph 5 which relates to legal advice, and all attachments.
2. That the following facts be placed on the public record:
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As a result of concerns that some of Councillor Penhalluriack’s conduct towards Council officers and staff may cause Council to be in breach of its occupational health and safety obligations to provide a safe work place, Council unanimously resolved to engage a solicitor with expertise in occupational health and safety to investigate these concerns.
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As a summary of the investigation report records, some of Councillor Penhalluriack’s conduct towards Council officers and staff was inappropriate. The summary recommended, among other things, that Councillor Penhalluriack be referred to a Councillor Conduct Panel to review his behaviour towards officers, his conduct during the investigation with respect to confidentiality and his compliance with clauses 4.5, 5.2, 5.9 and 5.12 of the Councillors’ Code of Conduct.
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Councillor Penhalluriack participated in various Council discussions and determinations in relation to the above matters. Councillors believed that this conduct breached the conflict of interest provisions of the Local Government Act. Those councillors present therefore unanimously resolved, at the Ordinary Council Meeting of 2 November 2011, to make an application to a Councillor Conduct Panel and to seek a finding of misconduct against Councillor Penhalluriack for these alleged breaches.
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Councillor Penhalluriack denies these allegations and exercised his right to refer the matter to VCAT for determination. While Councillor Esakoff, as then mayor, was appointed as Council’s representative for the purposes of the Councillor Conduct Panel and in accordance with the legislation that states that the applicant must be a councillor or councillors, once the matter was referred to VCAT, it was possible, and therefore appropriate, that Glen Eira City Council be named as the applicant.
That this resolution be incorporated in the public minutes of this Meeting.
9.45pm Cr Penhalluriack left the Chamber.
The MOTION was put and CARRIED unanimously.
ORDINARY COUNCIL MEETING – MINUTES 2 NOVEMBER 2011
Item 12.5
LEGAL ADVICE COUNCILLOR CONDUCT PANEL
Enquiries: Peter Jones
Director Community Services
This item is confidential pursuant to s 89(2) (f) “legal advice”, and (h) “may prejudice the Council or any person” of the Local Government Act 1989.
10.45PM The CEO and Cr Penhalluriack left the Chamber.
Crs Lipshutz/Esakoff
1. That Council make an application to a Councillor Conduct Panel under section 81B(1) of the Local Government Act 1989 in respect of the conduct of Councillor Penhalluriack for alleged breaches of Councils code of Conduct and the Local Government Act in the form generally of the attached application. (Attachment 1 Application for the establishment of a Councillor Conduct Panel)
2. That Council seek a finding of misconduct against Cr. Penhalluriack.
3. That Council record that its internal dispute resolution process does not apply to this situation and that the matters are incapable of being resolved internally.
4. That Councillor Margaret Esakoff be appointed as Council’s representative for the purposes of the application to the Councillor Conduct Panel.
5. REDACTED.
REDACTED
AMENDMENT
Crs Hyams/Forge
Except that all references to a failure to declare a conflict of interest in relation to the mulch facility be removed from the application for the establishment of a Councillor Conduct Panel.
The AMENDMENT was put and CARRIED and on becoming the SUBSTANTIVE MOTION was again put and CARRIED unanimously.
+++++++++++++++++++++++++++++++++
Item 12.1
Crs Lipshutz/Pilling
That Council:
i) Note the Elster Creek Trail, including part of the shared path, encroaches onto the title of properties at 14 and 16 Hopkins Street, McKinnon.
ii) Note that the owners of 14 Hopkins Street intend to erect a new fence on the rear title boundary of this property.
iii) Note the owners of 16 Hopkins Street have applied to Council for a Town Planning Permit to subdivide this property into three lots including a lot along the rear. Further, that the owner agrees to gift the rear lot to Council to create a 1.5 metre buffer between the shared path and private property.
iv) Subject to approving the Town Planning Permit for the subdivision of 16 Hopkins Street, agrees to pay the owner all reasonable costs to prepare necessary plans and transfer the rear lot to Council.
v) Advise the owners of 14 and 16 Hopkins Street of Council’s decision including thanking the owners of 16 Hopkins Street for agreeing to gift the rear lot to Council.
vi) Incorporate this resolution in the public section of these minutes.
The MOTION was put and CARRIED unanimously.
Glen Eira Debates 
March 2, 2012 at 3:09 PM
I must admit to reading all this with a fair bit of anger and total distrust. The community has been kept totally in the dark about all of these issues. Huge expenses are sure to follow and again residents have not been given any indication as to why, nor how much this has cost and will continue to cost. All has been hidden. If it weren’t for Glen Eira Debates and their exposes then I’m positive that none of this would even have made it into the minutes. They’ve been right on the fence lines along the Trail and have been right about the bullying allegations. The first matter is trivial in comparison to the Penhalluriack case but this doesn’t explain why the item was in camera to begin with. Without the publicity generated by the blog I doubt whether this would have resulted in the current admission confirming everything that was previously stated such as council building on private land. This has resulted in more expenses for ratepayers in officers’ time and financial transactions and confirms the poor if not totally incompetent planning that’s clearly gone on.
The Penhalluriack VCAT case is another example that when something’s already out in public that’s when Council decides to put out a flimsy set of minutes. It’s all too late. I’ve also got some real misgivings about what we’re told here. There was no “internal dispute resolution” according to these minutes but if the allegations include bullying then Worksafe and the councillor code of conduct recommend “mediation”. What needs clarification is who made the decision that “internal dispute resolution” doesn’t apply and who made the decision that the issues couldn’t be resolved? It’s fascinating to say that mediation wasn’t attempted and then to conclude that it would have failed or been impossible. Instead we’ve now got a full blown VCAT and possible court case that will in all probability involve QCs, lawyers, and witnesses and will amount to huge sums. The bottom line is that we have a group of councillors who don’t seem to care how much public money they waste. That’s more than being irresponsible. It amounts to negligence.
March 2, 2012 at 3:52 PM
From these minutes the fence moving is set to continue with No. 14 property exercising their legal rights.
March 2, 2012 at 5:57 PM
Senior Counsels cost between 3 and 5 thousand per day. Conservatively that means for a 5 day hearing around $28,000 for both sides. If it goes for a week then add another $16 or so thousand. Then there’s the solicitors or barristers who briefed. Maybe another $20 thousand or so. The conduct panel itself must have cost quite a few thousand in lawyers and paying members. Add another $5 or so. O’Neill would have earned a nice little sum here as well. Let’s add another $30 thousand at least. I’ve probably left out heaps of lawyers who wrote out the charges that should be another couple of thousand. Wow, we’re really get up there now and this comes on top of the bullshit we hear in council meetings where these bozos are arguing about spending an extra 20 or 30 thousand that isn’t in the SRP or strategy plan. Hey bozos – is any of this in the strategic plan or just in Newton’s head?
March 2, 2012 at 9:52 PM
The Frank business smells like set-up to me, lets hope it backfires on the perpetrators, if they throw enough mud they will be the ones with the dirty hands.
March 2, 2012 at 10:46 PM
Still no coverage in the Glen Eira Leader of the Penhalluriack matter. What a weak toadying excuse for a newspaper that Council PR sheet is. Grrr!
March 2, 2012 at 10:58 PM
I’ve just spent the last 20 minutes reading the Councillors Code of Conduct and paying close attention to the sections that Penhalluriack is accused of breaking. It’s a total joke. I’ve copied the sections and can’t believe that this is likely to cost us well over a hundred thousand dollars. Nothing in these clauses is a hanging offence even if there is a smidgeon of truth in the charges. This is kindergarten stuff and Newton and all those councillors who voted for this have got a lot of explaining to do. These are the sections –
4.5 RESPECT
4.5.1 Councillors must treat each other and all persons with respect and
have due regard to the opinions, beliefs, rights and responsibilities of
other Councillors, Council officers and other persons.
4.5.2 As a member of the Council respect the decision making processes of
the Council which are based on decisions of the majority of the Council
HARASSMENT AND DISCRIMINATION
Councillors must not harass, bully, vilify, or discriminate against
colleagues, staff members or members of the public. They must
discourage others if they do so. This includes harassment and
discrimination on the grounds of sex, pregnancy, age, race (including
their colour, nationality, descent, ethnic or religious background),
political affiliation, marital status, impairment, sexual orientation,
gender identity, parental status or status as a carer, breast feeding,
physical features, industrial activity or personal association.
CONFIDENTIAL INFORMATION
Information is confidential as provided under section 77 of the Act,
where:
5.9.1 The information was provided to the Council or Special
Committee in relation to a matter considered in a meeting
closed to members of the public in accordance with section
89(2) of the Act, and the Council or Special Committee has
not passed a resolution that the information is not
confidential; or
5.9.2 The information has been designated as confidential
information by a resolution of the Council or Special
Committee which specifies the relevant grounds applying
under section 89(2) of the Act and the Council has not
passed a resolution that the information is not confidential; or
5.9.3 The information has been designated in writing as
confidential information by the Chief Executive Officer
specifying the ground(s) applying under section 89(2) of the
Act and the Council has not passed a resolution that the
information is not confidential.
5.12 OBLIGATIONS DURING MEETINGS
Councillors must conduct themselves in accordance with Council’s
Local Law in relation to Meeting Procedures during Council and
Committee Meetings..
During all Council-related meetings and assemblies (whether statutory
or informal) Councillors must conduct themselves constructively in
order to assist the Meeting to deal with its agenda and transact its
business in an orderly way and behave consistently with the principles
set out herein. Councillors must respect the chair, other Councillors,
officers, other parties and any members of the public.
March 2, 2012 at 11:42 PM
The past 12 months or so have included copious “legal advice” items for in camera discussions. Many of them we now realise relate specifically to the Penhalluriack affair and to the reappointment of the CEO. Some of these are also listed in the various Records of Assembly.
Records of Assembly are required by law to list the names of all present; the topics discussed, and the declarations of conflict of interest. When items were listed as “legal advice” and generally pertaining to OH & S matters there is the notation that the ‘CEO left the room” or “Cr. Penhalluriack left the room” – often to reappear a minute or so later. Worse, there is the occasional sentence that says the CEO and officers apart from Peter Jones (DCS) were ‘asked to leave the room’ or that the meetings ‘resumed’ and all the officers except the DCS had left the room. There is it seems, NO ‘CONFLICT OF INTEREST’ declaration included in these Records of Assembly at such points. Hence this council appears to once again have total disregard for the legal requirements. Given the option of adherence to good governance and accurate reporting, even casual readers of these ‘records’ would be justified in concluding that the Glen Eira modus operandi is to keep everything as vague as it possibly can and to conveniently ignore what is legally required, or simply to subvert the requirement via legalistic gymnastics – such as ‘asked to leave the room’. No-one is asked to leave the room unless it is thought that they have a conflict of interest in the matter! The fact that at every council meeting these records are accepted without a single murmur, or even one comment, is another black mark against all councillors!
March 3, 2012 at 11:35 AM
Lets not forget that Esakoff is a disgraced sacked councillor herself.
In there wisdom they make her Council’s representative for the Conduct Panel
What’s her opening line going to be, “Hi remember me”
Holy mother these people are nuts, what are they thinking.
Franks legal-eagles should drop that little reminder here and there.
Let’s get Tont Mokbel to chair the justice reform committee, and the Catholic church to run child minding centres, sounds good to me
March 3, 2012 at 4:22 PM
What a mess. Council continues its tradition of failing to comply with its own Local Law. It is not sufficient for Council to resolve to consider a matter as urgent business: it must also be “a matter of an urgent nature [that] has arisen since circulation of the notice paper”. The matter here is to document a carefully selected subset of what transpired in secret on 2 Nov. There is no mention of what has arisen since Friday 24 Feb.
The publication of resolutions made in the Minutes of a meeting is a requirement of LGA. Clearly Council has repeatedly breached LGA by failing to do so, and Council has incurred significant costs at our expense without explaining why.
It is a matter of public record that Council has engaged in repeated and unreasonable behaviour directed at Cr Penhalluriack, behaviour that could be considered bullying. This includes specifically excluding him from the decision to reappoint the current CEO, the extraordinary public statement by Cr Esakoff in which she wilfully misrepresented a question Frank asked, the repeated abuses of our Local Law to silence Frank, and the legal fight to deny him information applied for under FOI considered relevant to the allegations made against him.
The motion from 28 Feb includes the inflammatory preface “That the following facts be placed on the public record”. It then proceeds to list various untested opinions as “fact”. If the summary of the investigation report by a solicitor finds that Cr Penhalluriack has engaged in inappropriate conduct then it should be clearly labelled as such. Instead it has been used to reinforce the prejudices of the councillors. The text of the motion doesn’t disclose the relationship between the investigating solicitor and council [as an example, whether the firm the solicitor works for receives a lot of council business], and it appears it covers matters outside the brief given. It leaps from an OH&S matter, to allegations of conflict of interest, Code of Conduct violations and the like.
If the 28 Feb motion is to be believed, the recommendations from the investigation include referring Cr Penhalluriack to a Councillor Conduct Panel to review his behaviour, conduct, and compliance. Oddly, it doesn’t mention applying to make a finding of misconduct. Council can apply under 81B(1)(a) so I don’t know what the crap is about “the applicant must be a councillor or councillors”.
Since the matter has now appeared at VCAT, it has been revealed that the allegations are vague and lack specifics. More money has to be spent just to get to the point where there is a case to be answered.
Maybe councillors need to be reminded of sections 3C and 3D of LGA, and in the case of conflict of interest allegations, the significance of 79C.
March 3, 2012 at 6:47 PM
It’s also worth mentioning that what we’re told is that the investigation found that “some of Councillor Penhalluriack’s conduct towards Council officers and staff was inappropriate”. It doesn’t say bullying, just “inappropriate” and then leaps to other bits from the silly code of conduct. This sounds like a wild goose chase. “Inappropriate” is surely a subjective interpretation and doesn’t logically lead to the conclusion of “misconduct”. If Newton thinks he’s being bullied then that’s his view alone. I don’t think that if the investigator’s report had concluded that Penhalluriack was a bully, then that word would be left out in these minutes. Newton and Burke would make double sure that it’s there in spades. My guess is that this wasn’t the conclusion and that they’re grasping at straws in a personal vendetta against one councillor who is actually doing his job by asking Newton to explain himself and to justify why large amounts of money are being wasted. That’s Penhalluriack’s job and it’s also par for the course for Newton to resort to the ploy of blaming everyone else for his failings and then adding the word bully to boot. It’s happened in the past and looks like it’s happened again and all at our cost.
March 4, 2012 at 4:33 PM
Anonymous no: 7 – Did you know that Cr. Esakoff in December 2010/2011 was nominated by Cr. Pilling and seconded by Cr. Penhullariack to be the Mayor for the third time? of course with an opening statement by Cr. Pilling that she was the “mother of the council”.
If she really was the “mother”, was it not her responsibility and foresight to make sure that one of her own member of the Councilor bullying allegation be detected before it reached to the stage that is in and costing loads of tax payer money? Also, the issue of allocation of basketball decisions at GESAC was during here reign! Does it not show that she clearly did not have what it takes to run a Mayors office and that to repeatedly for three terms? What was then the Deputy Mayor’s advice to the Mayor?
It clearly shows that the gang of four will do anything to retain their power to do things they see advantageous to their own interest at the cost of ratepayers.
It is unfortune that not many people come to the gallery to watch, who is doing what, with their elected Councillors, however there is a need for this site to be advertised through the local newspapers so that everyone knows your source.