The legal eagles were out in force for the start of the Glen Eira vs Penhalluriack VCAT case. Council had 3 representatives and so did Penhalluriack. Also present were at least 4 other council officers plus the media. The case is set down for 7 days. How much will this cost we ask?

The opening hours were spent on legal arguments. What was astonishing was the ‘surprises’ that Council seemed to spring on the defendant at the 11th hour – the upgrading of several charges to ‘gross misconduct’ and the sudden appearance of audio tapes of council meetings. They attempted to make much of the fact that they had only received the defendant’s response to some of the charges on Friday and hence were not fully prepared to respond. Penhalluriack’s lawyers responded that Council lawyers were a week late in submitting their case and hence they had little notice of the changes and had not even had the opportunity to listen to the tapes. More ‘dirty tricks’ we ask?

Council’s lawyers sought permission to amend the charges which was opposed by Penhalluriack’s counsel. The arguments focused on the legal question of whether council’s request to amend the 4th allegation (misuse of position by Penhalluriack) should be allowed. It seems that the alleged ‘gross misconduct’ goes back years to the laneway dispute. Council however, after months and months of preparation and countless lawyers still couldn’t figure out that the Councillor Code of Conduct under which they allege misconduct is the November 2009 Code. The misconduct however happened in July and August of that year and hence is subject to the 2006 Councillor Code of Conduct and not the 2009 version which effectively rescinded the 2006 version. Looks like someone didn’t do their homework properly on this one and couldn’t even figure out that there are two separate and distinct codes – although Council’s lawyers did try to argue that the intent of the codes are identical. The members and both sides agreed to leave a decision on this until later given that the members hadn’t even had time to read the submissions from both sides and that important points of law were at stake and they didn’t want to make a ‘mistake’.

After all the hullabaloo of the O’Neill report and allegations of ‘bullying’, this has now disappeared into the dustbin of history. This alone supposedly cost just over $10,000! Instead, Penhalluriack is charged with ‘humiliating’ the CEO by stating in a private letter to Esakoff that he believes there was ‘behind our backs wheeling and dealing’ between Newton and the MRC and that he wrote that Peter Jones sat like a ‘dumb mute’ in a meeting and refused to respond to his questions. This allegedly breaches the Code of Conduct.

The second charge related to a ‘conflict of interest’ over the mulch facility and that Penhalluriack did not declare such an interest when he should have and it was all about personal financial gain. Again, this is in breach of the Local Government Act and the code of conduct.

This took just on 3 hours. After the luncheon break, Council outlined its case alleging that Penhalluriack had made statements to Mr Taylor (Planning compliance officer) that Penhalluriack had told him that his councillor ‘mates’ would back him. Council also wished to present audio tapes of meetings to counter Penhalluriack’s claims that he had been excluded from meetings and/or discussions.

Penhalluriack’s counsel was not backward in coming forward. He called the entire case ‘vindictive’, ‘trivial’, and that Newton has a history of attacking councillors who are doing their duty honestly in the best interests of the community. The most telling argument was that the Council witness (Mr Taylor) in his first email back to his superiors, did not make any mention whatsoever of the alleged statements by Penhalluriack. Yet, after meeting with John Bordignon who is in charge of Civic Compliance, there suddenly emerged another email 5 hours later which included these comments! The point was well made we feel. So we’re supposed to believe that if Penhalluriack made such seriously self-incriminating statements that it took 2 totally different emails and a meeting with Bordignon for these ‘facts’ to finally surface! Penhalluriack also claims that he has a witness to this alleged conversation between Taylor and himself and totally denies the statements in the Taylor witness affadavit.

Penhalluriack’s counsel also cited the Noel Arnold report which confirmed that there was a risk of ‘bacteria’ (including Legionella) and hence did represent a health risk. He emphasised that council had now implemented the recommendations contained in the report. Logically, if there was absolutely no danger, then there would not need to be any recommendations and any action taken. Penhalluriack was acting in the health interests of the community he stated and this is borne out by subsequent council actions in implementing the recommendations.

Council intends to call 8 witnesses – Newton, Burke, Jones among the top liners. No councillor will be called by council. Forge will testify on behalf of Penhalluriack.

 

PS – THE CAULFIELD LEADER

Glen Eira councillor defends misconduct allegations at VCAT

13 Aug 12 @  06:14pm by Andrea Kellett

GLEN Eira councillor Frank Penhalluriack has told VCAT he is the victim of a vendetta “manufactured” by the council’s chief executive, Andrew Newton.

Cr Penhalluriack is at the tribunal answering a series of allegations, including misconduct and harassing and humiliating Mr Newton.

Glen Eira Council told the tribunal Cr Penhalluriack had breached the council’s code of conduct multiple times since he was elected in 2008.

In April, Victorian Ombudsman George Brouwer recommended the council take Cr Penhalluriack to a councillor conduct panel as a result of five breaches of the Local Government Act.

Mr Brouwer investigated the claims of harassment against Mr Newton, which related to Cr Penhalluriack campaigning to close a free council-operated mulch service while his Caulfield hardware store sold mulch in bags.

Cr Penhalluriack rejected an in-house conduct panel hearing, preferring to have the allegations heard and defended at the public tribunal.

In his opening statement to VCAT today, Charles Gunst, QC, for Cr Penhalluriack, said Glen Eira Council staff treated his client with disdain.

“They ignore his questions, roll their eyes when he speaks at meetings and are resistant in providing him with information,” he said.

However, the council told the tribunal Cr Penhalluriack had had made “offensive” and “derogatory” comments about senior staff in writing, had misused his position and failed to declare a conflict of interest relating to his building supplies business.

Richard Attiwill, for the council, said he would produce confidential tape recordings and witnesses including the chief executive and senior staff to prove his case.

On the closure of the council mulch service, which recently reopened, Mr Gunst said Cr Penhalluriack was motivated by a “real concern” about public health and had no increase in business after the closure.

Mr Attiwill said council had “no doubt that there were conflicts” between Cr Penhalluriack’s mulch selling and his public duties.”

The hearing continues.