Penhalluriack started asking a series of questions –
(1) Asked if the Noel Arnold (consultant’s report) actually tested the mulch itself and if it was done, ‘to provide details’ of results and costs
(2) When was this done?
(3) Whether this work ‘was included in Noel Arnold Associate’s final report’. If it wasn’t included in their report then Penhalluriack wanted officers to explain why it wasn’t included.
(4) Quoted Newton as saying that the cost was $5000 and Penhalluriack asked whether this was the cost at the 5th April or whether there was additional work done ‘prior to the 5th April’ which wasn’t in the Newton report to council.
(5) Said that the original quote was ‘$2,000-$3000’ but wanted to know what the total ‘amount paid’ was.
At this point Lipshutz raised a ‘Point of Order’
LIPSHUTZ: ‘I suggest the question is improper’ (in breach of the Local Government Act and the ombudsman’s report about Penhalluriack and the mulch facility. Stated that Penhalluriack had tried to get this information via his FOI application which failed) ‘and is now seeking the same information’. Also didn’t like the ‘way the question is framed’ and its criticism of officers ‘that there is wrong doing on the part of officers’….’that once again is inappropriate conduct’.
HYAMS: ‘I am going to uphold that point of order’. Agreed that because of the ombudsman’s report and ‘our duty to uphold the provisions’ of LGA and Code of conduct….’we should be doing what we can to stop breaches of those’.
PENHALLURIACK: Stated that he wasn’t contradicting the officers, ‘what I am concerned about is that there has been additional testing done’ and if this testing shows that the mulch is infected ‘any councillor in this room’ wouldn’t vote to reinstate the mulch facility. ‘That’s why I’m asking these questions’. Started quoting an email from Noel Arnold & Associates which said they’d got samples from Bunnings and there would be ‘analysis’ and that the cost for this is ‘additional’ to original statement.
HYAMS: interrupted at this point. Said that the ombudsman’s report stated that Penhalluriack had a conflict of interest in mulch.
PENHALLURIACK: corrected Hyams by saying that the ombudsman said that he ‘may’ have a conflict of interest. Stated that he had legal advice on these questions and that he doesn’t believe he has a conflict of interest and it’s ‘for me to judge’ about asking these questions.
HYAMS: Claimed that the point of order was that the questions were ‘improper’. ‘In my opinion’ (given the ombdusman’s report and that Penhalluriack declared a conflict of interest at the last meeting)
PENHALLURIACK: claimed that he had left the room but did not declare a conflict of interest
HYAMS: Again said the ombudsman stated he had a conflict of interest
PENHALLURIACK: again corrected Hyams by repeating the ombudsman saying he ‘may have a conflict of interest’. Referred to the Municipal Inspector’s report which said that he doesn’t have a conflict of interest. ‘This is a very difficult area and I don’t believe it’s right that you sit in judgement of me…..taking the responsibility for the health and safety’ of residents and workers.
HYAMS: said that he ‘understands’ Penhalluriack’s ‘motivation’ but ‘integrity agency’ asks ‘why did you allow these continuous breaches’. Said that Penhalluriack’s beliefs about conflict of interest are matters ‘for your conscience’ but Hyams conscience is ‘how I react to what I see as breaches of the law’
PENHALLURIACK: offered Hyams to report him to a Councillor Conduct Panel ‘if you like to’ but that isn’t the issue. Claimed that the issue was ‘health and safety of the public’….’there has been testing of the mulch within that mulch facility’. Stated that his mother caught pneumonia which can be ‘parallel’ to the symptoms of legionella and that he doesn’t want it on ‘my conscience’ that the report has ‘cleared the mulch’ without us knowing. Tried to finish his questions.
HYAMS: ‘I have ruled that your question is improper’ and asked him to stop.
PENHALLURIACK dissented from the ruling and said that he moves a motion and that he would like Hyams to ‘call a vote of councillors’
HYAMS: ‘could you point to me in the Local Law where it says you can dissent’?
PENHALLURIACK: ‘I ask that you put it to a democratic vote’
HYAMS: said he would if he could find that section which would allow him to do this.
PENHALLURIACK: said that it should be council and councillors that make decisions and not the mayor that the mayor is simply ‘first among equals’
HYAMS then read out the section from the Local Law which says that the chairperson is the ultimate arbiter on points of order.
PENHALLURIACK: stated that this isn’t a point of order. ‘I’m asking for dissent from the ruling’.
HYAMS: said that Lipshutz made a point of order and he’s ruled on that point of order.
PENHALLURIACK: Asked Hyams if he was ‘frightened’ of the report and voting on this
HYAMS: Said that Penhalluriack was now debating something else. ‘I’ve made a ruling on a point of order’.
TANG: “Point of clarification’ Said he was trying to figure out the point of order ‘what basis were you saying you were ruling the question out of order?’
HYAMS: ‘that it was improper…breach of Local Government Act (conflict of interest) …may be breach….misuse of position (trying to get information through his position as a councillor that he couldn’t get through VCAT)….and continuation of behaviour (that O’Neill and Ombudsman saw as) ‘bullying’. Said that if a councillors action breaches the Local Government act and Code of Conduct then it’s ‘improper’
Glen Eira Debates 
April 10, 2012 at 11:18 PM
Reading this I’m frankly stunned by the sheer hypocrisy of Hyams and his supporters, Lipshutz and Tang. If asking for information that has in all probability been with-held is to be deemed ‘improper’ then we are all in deep, deep trouble. Hyams’ response that there is nothing in the Local Law which provides avenues for dissenting from the chair is despicable, particularly when this Council has again and again used this very argument to justify their REFUSAL NOT TO DO CERTAIN THINGS. Every single “normal” council has by rights this fundamental element of democracy – but not Glen Eira. Penhalluriack was right. The issue was not about a lamentable point of order but about the right of a councillor to disagree with the chairman’s ruling and put this to the test.
I’d even go further and accuse Hyams of being judge and executioner. Penhalluriack should have insisted that Hyams cites the very phrases of his questions that he regards as “improper”. What I find “improper” is the silence of all other councillors who allow this to continue unabated. Their cowardice is unforgiveable and their silence merely allows the sad history of the council to continue. Until the likes of Hyams, Lipshutz and Tang are called to account then Glen Eira is doomed to epitomise governance at its absolute worst.
April 10, 2012 at 11:30 PM
Bring back Voltaire… he says “he woUld fight to the very death in defence of a persons right to say it”
This Glen Eira is like a torture chamber and most cizitens are systematically denied of any representation if this report ABOVE IS CORRECT. Mayors here ride rough shod over all if there is the slightest bit of opposition to the gang power.
THEY HAVEEVEN BEEN KNOWN TO DISCLOSE HOW THEY INTEND VOTING BEFORE THE VOTE IS TAKEN AND THEN LUCKILY ENOUGH CAN VOTE TWICE IT THE VOTE IS TIED.
April 11, 2012 at 8:08 AM
If I’m following the reasoning correctly we’ve finally arrived at the level of goverment which says ‘”if it isn’t written down we can’t do it”. This allows the reverse to happen as well – “if it’s not expressly forbidden we can do it”. It all depends on what the circumstances are. That determines how much proper and decent governance is sabotaged and undermined. Strange and wonderful events are then allowed to happen at Glen Eira and never mind the contradictions. I distinctly remember the suspension of standing orders. Even stranger is that this is not mentioned anywhere in the local law but that doesn’t stop Hyams and Lipshutz from clear abuse of power.
April 11, 2012 at 11:12 AM
You have no respect for the Law Glen Eira, just as the Councillor in question. This Matter is at the moment before VCAT and the Member will make a decision.Let the Councillor ask his questions at VCAT and allow Council to govern our City.
April 12, 2012 at 12:53 PM
In this instance I cannot see where GE Debates, if that is who you mean, has made comments or shown lack of respect – they are just reiterating exchanges that took place in a Council Meeting, which certainly make for interesting reading.
Its Council that is showing a lack of respect to the public in choosing not to release the full details of the Arnold Report(s). The Ombudsman released his findings to the public; VCAT will release their findings to the public; Why not the Arnold Report – what’s the problem?
April 11, 2012 at 3:31 PM
Asking questions isn’t (yet) a breach of Local Government Act. What should be at issue here is whether the questions should have been allowed to be asked, and whether the questions were “in accordance with the Councillor Questions Policy as adopted from time to time”. Anything else is irrelevant.
Probably if it was me I’d be asking something different, something on the lines of “Have council officers provided to Council all relevant information in their possession needed for Council to make informed decisions concerning the Mulch Heap?”. Maybe they’d just say yes…or no…I have no idea. Certainly the public has been denied information despite information concerning the mulch heap overwhelmingly being in the public interest. Cr Lipschutz strongly suggests that there is information being withheld from Council. Beats me how he could possibly know that withholding it is clearly demanded by the wider public interest. On the FOI front, I’d also like to read the Decision to discover why the Nabob believed release of the requested information is not in the public interest.
Really though, Council has lost its way. I don’t consider the questions to be improper, not in the same way that asking when somebody last bashed their wife is. Cr Lipschutz should at least have been asked to clarify which question(s) he considered to be improper and why. One might also ask what breach of Local Law or Policy was involved. The matter of the mulch heap is not improper, nor is accounting for expenditure. Since the word “accusation” has crept into the councillor lexicon, let’s at least consider whether somebody is being charged with fault or blame or crime.
April 11, 2012 at 4:34 PM
All this to and froing between certain councillors is getting very boring, are we paying these mugs to waste our money, time, and patience.
Good judgement by the councillors that don’t add anything to this mess, and want to do the job they were elected to do.
Voters look carefully at the protagonists and give them a wide berth at the coming election, they seem not to be interested in advancing our city one little bit.
If they can not agree to disagree among themselves and then get on with improving Glen Eira, do we really want them governing our city, I for one say no we don’t.
April 12, 2012 at 9:05 AM
Most voters do not read this blog. The high number of hits are from a room full of people obsessed with Council. In most cases their interest is heightend because they have had a run in with the town hall. From the 70,000 people that are expected to vote in October I doubt more than 500 would be blogging. Hardly enough to make a difference.
April 11, 2012 at 8:42 PM
Anon 6 – How about you standing for election? You could then do all the right things. Huh?
April 11, 2012 at 11:00 PM
In this little gLEN EIRA orbit where freedom of thought and speech are restricted if there is anyone possibly considering being an election candidat then one must be warned to keep their policies a secret as this can be a grounds fto prevent any new councillors from voting on these policies and in fact t hey are forbidden to be in the torture chamber at all if the topics similar to their policy come up!! The threatened ofence is “Winky Pop”
April 11, 2012 at 11:19 PM
Reprobete you don’t get it. The mulch issue is hardly relevant. The issue is quite simple. The Councillor involved should have declared a Conflict of Interest.
April 12, 2012 at 9:34 AM
It is the opinion of some people that Cr Penhalluriack should have declared a conflict of interest, and things have escalated from there. Me, I wouldn’t have moved the particular resolution that was voted on 7-2 back in April last year. There wouldn’t have been even a perceived conflict of interest if the resolution had been for closure pending relocation to a more suitable site once that site had been found and appropriate risk mitigation measures installed. Actually, that’s exactly what is happening, even though the CEO refuses to accept Council’s resolutions.
Questions of mulch are irrelevant to the behaviour of the other councillors with respect to their Code of Conduct and Local Law. We are discussing here the appropriateness of Cr Hyams using his extraordinary power as Mayor to prevent Cr Penhalluriack from asking any of his questions. Implicitly there is also criticism of Cr Lipschutz for his role in raising a Point of Order where none existed.
Governance isn’t about periodically crucifying somebody to show the community how tough the rich and powerful are. Its about ethical behaviour. Some people have decided that for them, the end justifies the means. If we truly are going to investigate people for alleged breaches of Councillor Code of Conduct, then lets do it with integrity. There are plenty of breaches, yet few are being investigated. This isn’t about one person, but an entire culture.