Based on a careful reading of the report, the public should be concerned about the role of Ombudsman in investigating people as distinct from government organisations, practices, and legislation. I’d be furious if a report was written as maliciously about me. As for the timing, designed to prejudice a matter before VCAT, one good thing to emerge so far from VCAT is that it criticized the lack of specifics in Council’s case. The Ombudsman makes the same mistakes, and adds several of his own. The overall impression is that the Ombudsman is not a reasonable person, is incapable of critically analysing information, and is prepared to use his incredible coercive powers to assist (MODERATORS: phrase deleted) of a fellow bureaucrat.
Analyzing the report properly would take a similar amount of space to that of the Ombudsman’s, which would be about as tedious as his own report. For the moment I’ll just make the following general comments.
The report is not about conflict of interest, poor governance and bullying at the City of Glen Eira Council. The report makes that claim, but the contents reveal that the report is only concerned with Cr Penhalluriack. No investigation of poor governance or bullying by other members of council or council staff has been done.
Although Worksafe appears in a list of reports done by the Ombudsman, there is no appearance of Worksafe with respect to various accusations made about bullying, harrassment, humiliation. Its almost as if Council is aware that should Worksafe be involved, the behaviour of other individuals, include the Mayor and CEO, would be examined. Maybe they have received legal advice warning them not to involve Worksafe. I have previously pointed out some behaviours that constitute bullying according to examples provided by Worksafe. Incidentally, there is only one piece of evidence in the report concerning harrassment, and the victim was Cr Penhalluriack.
The expression “conflict of interest” is bandied about in the report carelessly. “Conflict of Interest” is defined in Local Government Act, which also places limitations on what is conflict of interest. Both Cr Penhalluriack and the Ombudsman are aware of LGA 77A(4). The Ombudsman sneeringly dismisses it (“irrelevant”), but doesn’t say why. Quite simply, the Ombudsman despite *all* the evidence available to him concerning the mulch heap, doesn’t see it as a health issue. Even the CEO did though, taking some actions to soften the criticism when it emerged that the facility was a health risk and was poorly operated. The CEO, as the driving force for the relocation, is embarrassed about his failure to do due diligence about the site and its operation.
The interpretation of 77A(4) is critical to much that is at stake here–whether a perceived conflict (as defined) can “reasonably be regarded as capable of influencing any actions or decisions of the relevant person in relation to the matter”. The Ombudsman has revealed elsewhere his belief that $20 is sufficient to be capable of influencing an officer. [Unless they’re Musical Viva tickets.] The trouble with being a martinet and expecting others to follow is that it leads to poor governance. Few of us were happy that a Gang of Four (GoF) were given delegated authority for matters as important as C60. It came about because of the interpretation some councillors placed on matters as trivial as having a drink with a member of MRC executive. (MODERATORS: Sentence deleted).
There is a particularly telling section in the report, #151, in which the Ombudsman quotes uncritically a Council resolution to make certain matters public. From the resolution: “and in accordance with the legislation that states that the applicant must be a Councillor or Councillors”. Of course, the legislation doesn’t state that. The legislation very clearly provides 81B(1)(a), meaning Council can apply. It is symptomatic of the carelessness plaguing both investigations and Council’s efforts, in which honesty and integrity have been sacrificed.
The Ombudsman claims repeatedly that council officers have been diverted by Cr Penhalluriack’s behaviour and not focusing on what they should be. He didn’t provide any evidence or justification for saying this, although the lack of structure plans, open space, openness in decision-making does support the view that council and officers haven’t been doing what they should.
The Ombudsman also makes the extraordinary claim, without evidence, that Cr Penhalluriack’s “services on the council have not been of assistance to the good government of the City of Glen Eira”. This is an unforgivable abuse of his powers. Cr Penhalluriack has been prepared to ask questions and to analyze critically Council reports, and at least made a token effort to resist the culture of secrecy that pervades our council. Accountability is so important, it appears multiple times in the Preamble, the very *first* section, of LGA. The Ombudsman has not been elected to his office and is not accountable to the people of Victoria. If he doesn’t like elected representatives then he should advocate shorter terms for Council like we once had.
In several places the Ombudsman refers to carefully selected past incidents in an attempt to use prejudice to strengthen the case against Cr Penhalluriack. The Ombudsman should have known, given his extraordinary coercive powers, of the long history of ill-feeling between the CEO and Cr Penhalluriack, (MODERATORS: phrase deleted). He should also have known of the matter between the CEO and Cr Grossbard previously, of the sacking of Council in 2005, the members of that council who are currently councillors, of the manner in which Andrew contributed to (some may say engineered) the downfall of a previous CEO, of the embarrassing “apology” issued by Cr Esakoff to the CEO concerning the seeking of the reasons why a long list of requested reports had not been published in Council Minutes, the hissy fit he threw in public when Cr Penhalluriack asked his reasonable question. This should have been either stated or acknowledged when attaching weight to the statements he accepted uncritically and the ones he rejected when statements conflicted.
And so it goes. Instead of improving governance in Glen Eira, such as by tackling the excessive use of secrecy, the Ombudsman has chosen to add to the problem. Only he knows why.
Glen Eira Debates 
March 30, 2012 at 1:17 PM
which resident is this article by? Not much credibility
March 30, 2012 at 1:17 PM
Thanks Reprobate for your considered comments! I also have grave concerns about the report which I read with interest yesterday. I note that the Ombudsman refers to speeches made at council meetings by Lipshutz and Hyams about how council functioning has been negatively affected by Cr Penhalluriack’s behaviour. The Ombudsman has taken these speeches as fact even though they are only opinion and appear to have been made specifically for the purpose of being considered by the ombudsman in his report – I think this reflects a very serious issue with how the ombudsman goes about his work
March 30, 2012 at 1:40 PM
Dear anonymous, we doubt that these little “speeches” were made at Council meetings. Rather they probably occurred when interviewed by the Ombudsman.
March 30, 2012 at 1:53 PM
The Ombudsmans report is a political document. If it was 100% factual it would not need the protection of the Parliament. The injustice is that people take it as being fact when it may not be fact. Good thing they don’t let these people investigate real crimes. The should use this report when they train police. Be a glaring demonstration of what not to do.
March 30, 2012 at 2:02 PM
The report makes for sickening reading in its inability to be impartial and truly investigative as the resident author points out. Newton is simply exonerated throughout and his refusal to accept mediation, which council should have insisted on, is passed over with the unquestioning comment that Newton simply “declined” to go to mediation.
Mediation would not have worked but this does not excuse the slanted views perpetrated in the report. There is sloppiness throughout in both thinking and in the language. Numerous times Penhalluriack is referred to as Mr instead of Cr. All trivial I grant, but taken together they reveal a mindset that is inexcusable for an ombudsman. There is a total absence of any questioning of the O’Neill report such as the validity of the process and the conclusions reached. They are accepted at face value and don’t appear to be challenged or investigated as they should have been.
I have real qualms about the O’Neill report itself and how this has possibly been engineered by officers and the gang. We’re told that Penhalluriack has not had access to the full report. How can this be? On what legal, moral and ethical ground has he been denied access to a report which principally finds him guilty of all allegations and yet he has not been given the right to follow through on the logic of O’Neill’s findings. None of this would stand up in a real court of law and I hope that Penhalluriack fights this tooth and nail. Not merely to prove his innocence, but to expose the nastiness and poor governance that have crippled this council under the Newton reign.
March 30, 2012 at 3:05 PM
I don’t have time to read and analyse the report in detail – and I don’t know enough about what really happenned to judge what happenned. But I can say from flicking over the Ombudsman’s report – it struck me as VERY onesided and biased. I know it’s not a court – but the standard of review of evidence, and basing opinions on evidence appeared very low. Local government seems to be crippled by the combination of winky pops, broad conflict of interest claims, administration bullying claims, and a flawed ombudsman. It’s a case of overegulation with an unreliable arbiter. Can anyone get this on Australian Story or Four Corners?
March 30, 2012 at 8:01 PM
We all await the VCAT decision. Maybe then when your mate Frank ‘s behavior is examined publically you will change your biased minds. He was given opportunities to defend himself and he refused, One could conclude that you cannot defend the indefencable.
March 30, 2012 at 8:33 PM
Lets wait until the election and see what a landslide win Penhalluriack achieves. The mood on the streets is all for Frank and Newtons and Burkes days numbered.
April 2, 2012 at 11:42 AM
IF foul air is ok for toddlers and school children then are cars ,tractors, trucks, trailers safe near a park gateway (except it does not have a gate)??????