The following is set down for Monday 13th August at VCAT

Room 1.4 – Senior Member R. Davis, Member E. Bensz

10:00 AM B54/2012 Glen Eira CC v Frank Penhalluriack

10:00 AM B114/2012 Glen Eira CC v Frank Penhalluriack

In the interests of presenting the truth, we will conclude with the following slideshow. Please note:

• the weeds
• the mould/fungii
• and the water logged and dead trees. We have plenty of photos of more dead trees. We estimate that each tree would have cost at least $50 given their size. More money literally down the drain!
• We have to ask: do these people really know what they are doing?

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We’ve titled this post “Newton v’s Penhalluriack’ since this is the crux of what we believe to be at the heart of the entire matter. Whatever the personalities of these two individuals, whatever their differences of opinion, we do not consider the expenditure of $271,000 (and rising) on “legal advice” by this Council is justified under any circumstances. The amount that has been spent by council is nothing short of scandalous.

The running costs were revealed as a result of a public question, which we will present once the minutes come out – together with Council’s response and Penhalluriack’s ‘Right of Reply’. First however, the following facts need to be made clear:

• When a councillor is sent to a Councillor Conduct Panel (CCP) the legislation states that there is to be no legal representation. It is intended to be ‘secret’ and ‘informal’. The findings of such a Panel are then to be included in Council Minutes. Ostensibly this sounds reasonable, except that in Glen Eira’s case ‘legal advice’ had already reached thousands and thousands of dollars (ie O’Neill Report and countless lawyers on forwarding the documentation to the CCP) prior to any actual hearing. The same privilege is not afforded to the defendant (respondent)
• The members of such Panels are assigned from a list compiled by the Municipal Association of Victoria (MAV). Many of these members, if not all, are former local government bureaucrats, including former CEOs. Hence it is plausible to suspect that the culture, mentality and ‘old boys system’ may be well entrenched. In a recent case at Hobson’s Bay that ended up at VCAT for example, the MAV selected member was challenged and had to remove himself from the case since it turns out he was the previous CEO of Hobson’s Bay!
• When a CCP is held, the 2 MAV members are paid for by council. Their fees for a single day (in 2008) totalled over $1500. Again, such hearings may go for many days.
• The CCP may do one of two things – order the case to VCAT for consideration of ‘serious misconduct’, or make its own findings. The defendant may request that the case goes immediately to VCAT. Legal representation is permitted at VCAT.
• Under all jurisdictions, the principle of ‘innocent until proven guilty’ and ‘natural justice’ must apply. The current system has many flaws we believe, as outlined above – in particular the ability of council to enlist legal advice prior to any formal allegations yet not have the accused afforded the same resources. This goes against the fundamentals of our justice system. It should, if justice is to be seen as truly ‘even handed’.
• Finally it’s worth questioning whether Council (and hence ratepayers) have actually received ‘value for money’ from all this legal advice? Allegation after allegation has been whittled down to just four. The main substance of the O’Neill report has bitten the dust big time and at the first VCAT hearing Council was ordered to go away and reduce its mess of allegations into something that was succinct, logical, and presentable. We assume that the lawyers were paid regardless of these deficiencies! Now we face the situation of more lawyers and the potential for a 7 day hearing at VCAT. How much will this cost? And for what?
• Should any blame be assigned to councillors for their role in all this? Charged with dealing ‘prudently’ and ‘responsibly’ over council finances how on earth can they ever justify this kind of expenditure on a case that really boils down to Newton vs Penhalluriack?

The fun and games began with several of the first items on last night’s agenda – a petition, committee minutes, records of assembly minutes, and the motions to accept them. This is what happened.

The petition was from a group of traders who queried why unnecessary footpath works were taking place outside their shops. They highlighted the impact this had on their businesses in these hard financial times as well as the fact that there had been no warning, no consultation, and no justification for the necessity of these works. We conclude: another perfect example of this council’s failure to consider, much less consult with residents prior to spending their money on arguable needless works! We also note that the names of the traders weren’t mentioned!

Pilling moved that the minutes of the Community Consultation committee and the Arts & Culture committee be adopted but that the minutes of the Environment Committee  be ‘deferred until next Council Meeting’. Esakoff seconded. Pilling’s argument for deferring one set of minutes was that the last Environment Committee meeting was ‘long’ and ‘a lot of issues’ were discussed. He stated that draft minutes had been circulated but 2 members were overseas and there was some ‘conjecture’ and that it was important to get ‘some different views’ on ‘what was recorded’. He therefore wanted to defer until everyone was back. Esakoff then reported on the other two committees. Motion was passed unanimously.

Next item was the Records of Assembly. Penhalluriack requested that one record be ‘treated separately’. The motion was then put by Magee that this occur. Penhalluriack then spoke about the minutes of 19^th June and the references to himself in these minutes. He moved that the records be accepted except for the part which stated: “Cr Penhalluriack – raised a matter of rumours being circulated saying that he is costing the Council a lot of money by fighting the Ombudsman and Council. In relation to the recent media coverage aboutjk an illegal rooming house operating from a property he owns, Cr Penhalluriack said that backpackers were using the property and that he did not know who they were.” Penhalluriack wanted to amend this so that it read that he did raised the issue of rumours. He had ‘received an email from journalists’ and that he had said that ‘these rumours are malicious’…..’one councillor in particular had affected his reputation’….’backpackers had left a mess’….’he was not costing Council anything….as Council was taking action against him’…’it is tough being Cr Penhalluriack in this council’…..’Mayor reminded council’ that there’s independent ‘legal advice’. Forge seconded.

Penhalluriack then went on to speak to the amendment. He said that the original draft minutes had been ‘discussed around the table’ at the Assembly and the ‘majority said that should remain as is’….’for some reason….the minutes were changed’ and that’s why he was moving this motion.

PILLING then spoke against and said that he’s got a ‘bit of an issue’ with what Penhalluriack wants to put in the minutes.  He said that council wants ‘clarity’ in minutes and what Penhalluriack wants to put in represents a ‘discussion’ and not just ‘items’. It’s important to be ‘consistent’ …’irrespective of personalities’…’and conjecture’….(Penhalluriack is) ‘setting a precedent here and treating this issue in a different way to other issues’ so he’s voting against it.

MAGEE:  stated that he couldn’t see anything wrong with ‘having more detail’…..’takes anything away from the report’….’makes it clearer for people to understand’. Conceded that there is a ‘system where we’re consistent’….’but when a councillor decides that he wants more information’….’I would certainly find it difficult to vote against that’ since it’s really about the ‘transparency of the minutes’. More detail helps people who are reading it. ‘I do understand that over the years we do have a protocol…..is important to be consistent…..(overall being individuals that Council) ‘has to accommodate those issues’.

HYAMS: agreed with Pilling that ‘if we start putting in verbatim speeches by councillors’ that means that any councillor who thinks he’s got ‘anything good or popular to say’ that the argument would then be that this should go into the minutes. Referred to the Act that only demanded topics and conflict of interest disclosures so ‘we already go far above what’s required’ and therefore should ‘keep it to our usual practice’.

PENHALLURIACK: said that he supports ‘minimalistic reporting’….’but unfortunately the author of these minutes does not’. Said that the records of assemblies for ‘week after week after week’ there is ‘Cr Penhalluriack verbatim’. Magee then raised a point of order that since Burke was absent it wasn’t fair what Penhalluriack was saying because the individual wasn’t present to defend himself. Hyams than warned Penhalluriack to ‘try and not say anything that might need to be defended’. Penhalluriack said he handed named anyone and that ‘the minutes as written’ have been ‘inconsistent’. He then referred to the immediate item above the one he read out which simply said ‘Cr Lipshutz –….. Statue’….’that means almost nothing to anybody’ (referred to a statue by Boyd that was in the front garden of council has now been removed and put outside GESAC) ‘Unless you have that information….that means nothing’…’what I’ve quoted to the meeting was in the original set of minutes….and let’s not forget he who writes the minutes writes history’…..’Ive been asking for a long time…whether we follow the Local Government Department’s recommendations (on minutes) or go along the path we’ve been going along for quite some time’.

Hyams put the motion to the vote. For – Penhalluriack, Magee, Forge. Against Hyams, Lipshutz, Esakoff, Pilling, Lobo. Motion defeated.

COMMENTS: Pilling’s inconsistency, if not straight out hypocrisy is quite unbelievable here. His argument for deferring the Environment Committee Meeting minutes was that it was a long meeting, many issues discussed and that people were overseas – so presumeably everyone should have a right to voice their opinion on the final set of minutes. According to Penhalluriack, the majority of councillors agreed to the draft version of the minutes, yet these were changed presumeably by Burke. How then can Pilling argue on the one hand that there should be consensus about minutes and then within a few nano-seconds basically disown this very same argument when it comes to Penhalluriack?

Interestingly, we have commented previously on how many of these Records Assembly feature (in far greater detail than for anyone else) every single utterance by Penhalluriack. We also commented at the time that we find it impossible to believe that Lipshutz sits there quietly without ever opening his mouth – judging by the number of times he is named in these minutes.

In the end, this entire episode is distasteful and further proof of the manipulations and how desperately there must be a complete overhaul of the way that minutes are drafted, presented, and doctored by this council. There simply is no consistency across any committee meetings or assemblies. Truth, transparency and governance are the inevitable victims in such shameful practices.