The following comes from the in camera meeting minutes of 20th September 2011. We wish to draw readers’ attention to the following:
- The mover of each motion
- The seconder of each motion
We then ask readers to contemplate how it was possible for the Senior VCAT member not to declare himself ineligible much, much earlier, (in fact Day 1) given that Lipshutz’s name is undoubtedly scattered throughout countless documents involved in this VCAT hearing. And as some readers have already commented, since it was Council and not Newton, who laid the charges against Penhalluriack it beggars belief that the member would not know that his social acquaintance, Lipshutz, also just happened to be a councillor in the very municipality which laid the charges!
C. Crs Lipshutz/Hyams
In accordance with the O’Neill Recommendation (a) to further protect the Health and Safety of staff in City Management, Cr. Penhalluriack’s access to this work area be suspended and the Director of Community services be authorised to send the attachment letter to Cr Penhalluriack (Attachment B)
DIVISION
Cr Esakoff called for a Division on the voting of the Motion.
FOR AGAINST
Cr Esakoff Cr Penhalluriack
Cr Hyams Cr Forge
Cr Lipshutz Cr Magee
Cr Tang Cr Pilling
Cr Lobo
On the basis of the Division the Chairperson declared the Motion LOST
[PS: Lobo should be recorded as voting against in the above. For some reason WordPress will not allow this alignment]
D. Crs Lipshutz/Tang
That Cr Penhalluriack be referred to a Councillor Conduct Panel to review his behaviour towards the CEO (in accordance with the allegations made) and Officers, his conduct during the investigation with respect to confidentiality, his compliance with clauses 4.5, 5.2 and 5.11 of the Councillors’ Code of Conduct and his failure to declare a conflict of interest when such a conflict existed.
A Divison on the voting of the Motion was called.
FOR AGAINST
Cr Esakoff Cr Penhalluriack
Cr Lobo Cr Forge
Cr Lipshutz Cr Magee
Cr Tang
Cr Hyams
Cr Pilling
On the basis of the Division the Chairperson declared the Motion CARRIED
E. Crs Lipshutz/Hyams
“That Council now consider the creation of a Special Committee to deal with all matters involving the Chief Executive Officer’s Contract of Employment including but not limited to his performance review and exercise of Council’s option to renew his Contract of Employment……”
This motion then went on to list the membership (excluding Penhalluriack) and schedule. It lasted a bare 3 weeks until rescinded and replaced by a new Special Committee which now included OH & S within its terms of reference. The order of motions as presented above is exactly what is in the minutes. We believe this tells a tale in itself! Then there’s that old thorny question of record keeping itself and overall consistency. On one division Esakoff is named. On the very next division call, no-one is named. Such is the nature of record-keeping and minutes in this Council it would seem!
Glen Eira Debates 
August 23, 2012 at 12:01 PM
This council minute you would think definitely proves the Member did not do any preparation before the case started which seems really unbelievable when everyone wlse was running around briefing QC’s etc.
(MODERATORS: rest of comment has been deleted).
August 23, 2012 at 12:18 PM
This guy Penhalluriack has caused disruption since elected an independant Govt Report has found him guilty of gross mistrust issues and he persists. He is a painful and costly to the workings of local govt and should be barred from running in the next election
August 23, 2012 at 12:59 PM
I completely disagree with you. I think we should have fair and just consideration of the accusations against Cr Penhaluriack as there are just too many troubling issues around them and now around the process of justice
August 23, 2012 at 2:02 PM
Maybe if the council was run as it should be then we wouldn’t be in this expensive kettle of fish. When you let secrecy dominate everything and don’t provide information when asked then this is what you get – investigation after investigation after investigation and everything concentrated on shutting up one poor bloke whose trying to do what he was elected to do.
August 23, 2012 at 7:45 PM
The delay in the VCAT case will ensure that he will not be barred from running in October. He will win easily. The problem will come if he is declared not fit to be a Councillor then his second preference will take his place on a countback.
August 23, 2012 at 2:01 PM
Based on what appears in this weekd’s edition of the Leader, it appears the Member was initially told that Cr Lipshutz would not be a witness, but that changed on the second day due to Cr Penhalluriack changing his witness statement – presumably in a way that made it necessary for Cr Lipshutz to be called as a witness by the Council. Gleneira, given you obviously have access to the transcript of the hearing, why not post relevant passages from it so that readers can make up their own mind? However if it was the case that the Member was positively told that Cr Lipshutz was not going to be a witness, I think your criticisim of the Member goes too far. For all we know the Member raised it with the parties at the outset.
August 23, 2012 at 6:26 PM
Unfortunately, like all hearings the witness list presented by both parties prior to the hearing is always subject to change. This is in response to the testimonies presented – one person may not recall an event or may remember it with different emphasis, hence additional witnesses may be called to substantiate a point either party is making. Happens just about every case – it therefore is entirely reasonable for either Penhalluriack or, Council for that matter, to call additional witnesses that were not included in the original witness list.
The question is, therefore, could and should have VCAT Member Davis have “reasonably” foreseen the possibility that Cr. Lipshutz would be added to the witness list as the hearing progressed. I reckon, given that this case relies heavily on Council Meetings and Activities, that it is definitely “reasonably” foreseeable that all Councillors (not just Lipshutz) and senior administrators, could be added to the witness list as the hearing continued. VCAT Member Davis should have never accepted appointment to the panel.
August 23, 2012 at 7:42 PM
The fact that the Member knew anyone of the Councillors on a personal basis should be sufficient for him to withdraw at the start. Unless he can claim that he did not know that Michael Lipshutz was a Glen Eira councillor, which is possible. Did anyone ask him?
August 23, 2012 at 8:16 PM
Lipshutz, Lipshutz, Lipshutz? Oh was he the Chair of the racecourse committee that along with Pilling, Hyams and Esakoff signed a contract with the MRC to complete centre of the racecourse and fencing improvements by 27 April 2012 that the MRC have stated they will not undertake and yet he remains silent. Yeah I remember Lipshutz especially on election day.
August 24, 2012 at 7:27 AM
I think even if the centre of the racecource is done it is an absolutely tiny are when you take the fenced off area into account. I estimate it would be as big as glenhuntly oval.
August 23, 2012 at 8:38 PM
You seem to think everyone wants the racetrack as a park. Hardly anyone in the district gives a toss. We have gotten by for 100 years without using this land, why worry now. Except for the “politics of envy’. that a few people go on about. Lipshutz will be re-elected even without your vote.
August 23, 2012 at 10:14 PM
You are right anon, Lipshutz said there was an agreement just so he and Newton could get C60 to pass through. Otherwise Pilling would not have supported it. Unfortunately for Lipshutz, the racecourse borders three suburbs in Camden being Caulfield, Caulfield North and Caulfield East. Now he has also pissed off Elsternwick with the Rowan Street lies and Glenhuntly with the mulch pit. He may as well bulldoze Ripponlea and cheese off the voters around here and get a clean sweep of blanks.
August 23, 2012 at 10:16 PM
If I recall it was standing room only at the Caulfield Racecourse development meeting. Lipshutz would have been lucky to escape alive if he did not defer the decision.
August 23, 2012 at 9:52 PM
The chronology of these motions are intriguing. On my reading first get Penhalluriack sent to coventry or the councillor conduct panel and then once this has been ratified, set up the ceo special committee – minus Penhalluriack. It would not have worked the other way around. Even more intriguing is the rapid demise of this special committee and the inclusion of the OH&S blurb in version 2. I can think of no other reason that this appears in the current version of the committee except as another piece of ammunition against Penhalluriack. It’s really ludicrous that such a clause is even put down on paper. There are enough current statutes which govern all of this and it certainly does not belong in any ceo performance appraisal or contract negotiations. Why it’s suddenly inserted and the previous committee disbanded is open to conjecture. My guess is that Newton’s toadies again toed the line upon his insistence that this clause be included. It’s not very reassuring to know that councillors so meekly fall into line instead of asserting their rightful authority to determine policy.
August 24, 2012 at 1:13 AM
Yes Ben it seems the councillors on the special committee were all scared otf by the large number present in April 2011. Isn’t it interesting the further said meetings which were advertised for studying the division of the racecourse were called off, (once because no councillor was available to chair it), venues changed on at least least two occasions and doors locked (to prevent entry) so residents would loose interest and be prevented from attending because the door was locked “accidentally”..
Anyway, when the meeting was held about GESAC IN THE THEATRETTE and many attended councillors took absolutly no notice of the figures given to them re-parking requirements and now tell us that the architect made a mistake and we are gradually bituminising the whole of Bailey Park. CR Magee thought a good sugar coating the other night -to spend more money on a new skating rink for the callow youth) and plaqce it near the girl guides hall in another park. It would seem that the girls or their mothers would want to vacate the hall” From my life’s observation young girls and boys on skate boards in the same area would not be a good idea. So that would mean two recreational areas destroyed….but there would be parking for 16 or 17 cars.
August 24, 2012 at 10:47 AM
In the Ombudsman’s woefully misnamed report “Conflict of interest, poor governance and bullying at the City of Glen Eira Council”, he quotes Cr Lipschutz:
“We have a situation where this Council is becoming dysfunctional. … [I]nstead of doing things that we should be doing as Councillors we are fighting amongst ourselves and fighting with a Councillor with a conflict.”
Council has used the Ombudsman’s report to justify its actions, and it should hardly be surprising if Cr Lipshutz was called as a witness to explain his allegation.
In a rare display of honesty, both Cr Tang and Cr Lipshutz are quoted revealing the dysfunction of Council in the report. The previous sackings and investigations by the Local Government Inspectorate are not mentioned, no comment about O’Neill’s role as Council’s grand inquisitor, no comment about the harrasment, discrimination, bullying and intimidation that Council has now publicly revealed that they have subjected Cr Penhalluriack to.
Cr Lipshutz has been the subject of some criticism over his nastier and more aggressive responses to public questions, prompting Cr Penhalluriack to exercise his Right to make a Statement to say he was unhappy with the answers and that they were unnecessarily aggressive. In one case Cr Lipshutz did later apologise to the target of his comments.
Another connection of Cr Lipshutz to the proceeding is that he was, and still is, a member of the Audit Committee. That committee has in the past recommended to Council (they’re supposed to provide advice after all) that they refer Cr Penhalluriack to a Councillor Conduct Panel. The same Committee wanted to take no action about the safety of the Mulch heap and appears to resent its failure to provide advice on the matter being made public. Curiously his fellow committee member David Gibbs appears in the original Walsh report, so he’s been around Glen Eira Council roughly the same time Andrew Newton has.
I figure the Member just didn’t read the written material before the hearing commenced.
August 24, 2012 at 11:42 AM
The Member would not have read all the material because until tendered into evidence, it would not be appropriate to do so. The only material on the Tribunal file, which could have been read before the hearing, would have simply been points of claim and defence and the like, which would not have descended into the detail of the documents relied on in the hearing.
August 24, 2012 at 12:04 PM
Re (MODERATORS: phrase deleted) re Rowan Street Elsternwick, (4 Camden ward above), just for the record , thought it would useful to include here the original public question in its entirety- which in the Council 14 Aug 2012 meeting minutes were was selectively only partially included.
Question verbatim was as follows:
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Hello- Public Questions for Council Meeting 14 August 2012 are set out below.
It would be appreciated if you could please ensure that in the Minutes the Question is spaced out as you receive it, with Councillors response directly underneath with a space.
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Below are questions personally directed to Councillor Lipshutz
Following notification by Council’s traffic department to Rowan Street Elsternwick residents in April/May 2012, of Council’s intention to erect 2HR parking restrictions in Rowan Street (section between Shoobra St & Orrong Rd, a group of residents met with Councillor Lipshutz on Monday 4 June 2012 to voice their concerns regarding Council’s decision to proceed with the parking restrictions, based on a very small number of responses received to its Survey. Of the total 15 properties abutting Rowan Street, 8 responses were received, which according to Council traffic department 5 supported the restrictions & 3 did not.
At the 4 June 2012 meeting, Councillor Lipshutz agreed to request Council traffic department to hold off implementation until all 15 properties had been surveyed by the residents group. The residents group kept Councillor Lipshutz informed of progress via email on following dates 7/6/12, 8/6/12, 13/6/12, 20/6/12, 13/7/12). The last email to Councillor Lipshutz from the residents group dated 13/7/12 stated that as 2 properties were vacant (one being renovated & the other being rebuilt), efforts were being directed at locating the 2 owners and the email emphasised that it was expected as per our agreement, that in the meantime, the restrictions would not go ahead. The email also stated that of the responses received to the residents group survey, the majority were not in favour of the 2HR parking restrictions proposed by Council.
However, to the absolute amazement of the Rowan Street Elsternwick concerned residents group, despite the agreement reached with you Councillor Lipshutz, the Council traffic department disregarded this agreement you had with us & proceeded to implement the 2HR parking restrictions in late July 2012.
Councillor Lipshutz, our question to you is:
Did you in fact inform the traffic department of the agreement you had reached with the Rowan Street Elsternwick residents group to hold off implementation? If so when did you inform the traffic department?
How many survey returns did Council receive in order to proceed with this work?
What was the total cost of running the Council survey & implementing the 6 parking restrictions signs in this small section of Rowan Street?