Councillor Performance

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April 21, 2012

Promises, Promises, Promises……

Posted by gleneira under Councillor Performance, GE Governance
[6] Comments 

HYAMS

“I will work for residents and serve the community. I will listen to and do my best to help with your concerns. I will work hard to end excessive rate rises, fight inappropriate development, improve consultation, end council infighting and support local business and community groups and clubs.” (26th ,February, 2003: Moorabbin Leader)

“Members have paid a two-week deposit. The yearly membership doesn’t start until it opens,” he said. “Overall I don’t see that it’s going to cost them any extra because their memberships will start later and run later.” (16th January, 2012: Caulfield Leader)

“”I thought, given all the circumstances, it was in the best interests of the community to reappoint the chief executive.” (18th April, 2005: Caulfield Leader)

LIPSHUTZ

On C60 – “The proposal is an arrogant and greedy attempt at grabbing land for its own use and not utilising it as originally intended under the crown grant,” Cr Lipshutz said. “They basically want to take a section of Caulfield and create a village. It will be an ugly conglomeration of medium-density development with no recreation areas.” (20th November, 2006: Caulfield Leader)

ESAKOFF

“GLEN Eira’s new mayor, Margaret Esakoff, has pledged to tackle councillor infighting during her 11-month term. …… When she was elected in 2003 she pledged to stop the “infighting” and “divisiveness” at city hall. She told the Leader she would try to be “fair and reasonable to all” and bring the councillors together more often to foster a better working relationship within the chamber”. (3rd January, 2005: Caulfield Leader)

 

April 19, 2012

Who Are The Real Bullies?

Posted by gleneira under Councillor Performance, GE Governance
[9] Comments 

20th September 2011

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.

 

April 18, 2012

How Can We Believe Them?

Posted by gleneira under Councillor Performance, GE Governance
[17] Comments 

Full and honest responses to public questions are difficult to find in Glen Eira. Spin, dissembling, and verbal gymnastics are the hallmark of what repeatedly occurs. Our comments in this post relate to one specific question:

“At the Council meeting of February 28th, both Crs Esakoff and Lipshutz moved motions asking for ‘Requests for Reports’ on the Lord Reserve/E.E. Gunn Pavilions and removal of the Caulfield Park depot respectively. Did both of these councillors provide written notice to other councillors prior to calling for these reports as mandated by the ‘no surprises’ clause within the code of conduct and the council resolution passed on the 22nd November 2011?” 

The Mayor read Council’s response. He said: “You have misrepresented both the Code of Conduct and the resolution of 22nd ovember 2011. While Clause 2.4.3 of the Code of Conduct requires Councillors to demonstrate ‘commitment to consult with other Councillors, within the decision making framework and with no surprises’, there is no requirement for prior written notice. As both Councillors, prior to making their requests for reports, verbally foreshadowed their intention to do so if another motion was successful, there was no breach of the Code of Conduct.

The resolution of 22nd November “strongly encourages all councillors to submit all motions to the Mayor and councillors in writing prior to a Council meeting, except where the motion arises during the course of the meeting or in extraordinary circumstances.” The motions were not submitted in writing, but clearly arose during the course of the meeting, as they were requested in response to the resolution passed at item 9.7, which introduced a matter to Council’s budgetary discussions.

Therefore, Councillors Esakoff and Lipshutz did not act in contravention of the resolution of November 22nd in making their requests for reports, as your question implies, and nor did the remainder of the Councillors in unanimously supporting those requests.”

We do not accept this response as an accurate reflection of what occurred on the 28th February. The requests for reports by both Lipshutz and Esakoff were NOT a ‘natural’ outcome of the discussion on the Victory Park pavilion and nor was there any mention of other motions. Simply stating that a request for a report is ‘foreshadowed’ does not adhere to sufficient notice. Here is what happened –

LIPSHUTZ: spoke about priorities and how this would mean ‘dropping things off the budget and putting other things on the budget. Called the motion ‘aspirational’ and that there were plenty of other ‘aspirational’ projects he’d like to see done such as the removal of the depot from Caulfield Park. Said that he would foreshadow seeking a report on this later. ’If I was cynical and I’m not, I would say that this is an election year ….councillors coming along with their own pet projects.….we need to look at this overall’ Echoed Tang and Esakoff about the necessity for ‘consultation’ with the clubs. Ended up by arguing that ‘what this motion does is places the issue of Victory Park on the table’ but he also stated ‘I don’t think it binds us….it is aspirational’. Ended up by again referring to an election year and that councillors will have to work out their priorities.

ESAKOFF:  Stated that this solved some things but she still had ‘concerns’. Worried that it was being ‘rushed through’ (She’d) ‘like something to come back to us in writing not necessarily to a council meeting’ about the E.E Gunn and Hex Pavilion. She said that ‘I would like something by way of a report’ on female facilities at these ovals. Worried that this motions would cause ‘a great deal of angst’ (from clubs)’ because they are waiting, not lobbying, because they ’know there’s a strategy in place’. Couldn’t therefore vote for the motion because it wasn’t ‘right’.

Please note that in neither of these statements is there any indication that ‘prior notice’ was given to other councillors which is in accord with the ‘no surprises’ policy. Secondly there is nothing in these statements which logically tie in with the eventually passed resolution on the Victory Park pavilion.

Perhaps the most damning indictment of this council’s attempt to fudge the facts and to excuse the clear breach of their own rules is this email written by Cr Neil Pilling to other councillors following the meeting of 28th February. We cite this in its entirety –

From: neil pilling
Sent: Wednesday, 29 February 2012 12:14:41 AM (UTC+10:00) Canberra, Melbourne, Sydney
To: Cr. Jamie Hyams; Cr. Jim Magee; Cr. Oscar Lobo; Cr. Margaret Esakoff; Cr. Steven Tang; Cr. Cheryl Forge; Cr. Frank Penhalluriack; Cr. Michael Lipshutz; Cr. Neil Pilling
Subject: reports requested tonite and the ‘no surprises’ agreed CR guidelines

Hi All,

Looking back on tonights proceedings and the reports requested in hindsight both the Depot and Lords/Ee gunn reports should have been at least discouraged and not sought.

They both controvene our agreed policy of giving due notice in writing as articulated in a motion passed late last year- This was voted for unanimously from memory so as to prevent ‘reports on the run’ and also i feel to  prevent ‘tactical manouvers’ in a council meeting to undermine motions put.

Whilst the subject matters of both reports is reasonable , this lack of notice is something feel we should guard against in future,

regards Neil”

We leave readers to draw their own conclusions as to the honesty and governance that occurs in Glen Eira, and in particular the role of the Mayor in permitting such tactics to go unchallenged.

 

April 16, 2012

Hyams: The Man For All Seasons?

Posted by gleneira under Councillor Performance
[20] Comments 

Reprobate’s comment regarding the mad rush to finalise the Community/Council Plan by June has given us some food for thought. This is 4 months BEFORE the next election when there is the potential for an entire new crop of councillors to come into office. Hence, they will be ‘bound’ by the decisions of an outgoing council – especially since the option of rescinding motions does not exist in the current Local Law Meeting Procedures!

It’s therefore pertinent to recall the comment of Hyams in 2008 (prior to his re-election as a councillor) on the then proposed Community/Council Plan. We quote the opening paragraph of his submission dated 14th May, 2008 –

“….I don’t believe this Council should be finalising a Community Plan for the medium term at this time, given it will be finalised only a few months before the end of this Council term. Thus the effect will be that this Council is attempting to bind the following Council to a Community Plan that this Council has not had a chance to implement, but in all probability some members of the next Council will not have had an input in drafting, beyond, possibly, this community consultation process. I see no problem with the current Council carrying out the community consultation process, but I believe the next Council should finalise the Community Plan.”

Will the Mayor hold to these views now? Will principles stand firm, or will weasel words again be used to justify what we anticipate will be the gigantic recant on this position?

We’ve uploaded Hyams’ entire submission which we urge residents to read very carefully. His criticisms of the 2008 community plan will no doubt be applicable to the current draft plan. What he says and how he votes will reveal much about the man and the games of politics, principles and consistency.

 

April 12, 2012

Double Standards

Posted by gleneira under Councillor Performance, GE Governance
[21] Comments 

At the Special Council Meeting of 3rd April, Lipshutz moved a motion which stated in part that officers provide:

‘all necessary and all relevant documents related to the mulch facility including, but not limited to, the report conducted by Noel Arnold and Associates’.  

Of course this represents an entire watering down of the original Forge motion which asked for ‘all test results’ and lapsed for want of a seconder. Lipshutz’s motion also included the wonderful weasel words ‘necessary’ and ‘relevant’. Who is to decide what is ‘necessary’ and/or ‘relevant’ remains a moot point. However, the word ALL would imply that at least ostensibly, Lipshutz is asking for documents that either (1) have not previously been made public, and (2) will clear up the question of the mulch facility and its ‘safety’. That should include ‘test results’.

If we are correct in our interpretation, then this same councillor’s statements at the last Council Meeting – only a week following the Special Council Meeting – are quite extraordinary. Lipshutz claimed that Penhalluriacks’ questions were ‘improper’, that he was seeking the same information that his FOI application was geared towards, and that the questions were critical of officers. Hyams joined in later by applying the word ‘bullying’.

Thus we have a council that has double standards and what’s good for the goose is obviously not that good for the gander. When Lipshutz can move a motion requesting ALL documents that are ‘necessary’ to clear up the mulch farce and then turn around and accuse Penhalluriack for basically asking the very same questions, then we’re in major trouble over governance.

It’s also interesting that Lipshutz makes the claim that Penhalluriack is after identical information to his FOI request. Given that the content of these documents were never made public, then how does Lipshutz know that what Penhalluriack was asking for is contained within those documents? Or could it possibly be that being one of the ‘chosen’, he has access to ‘confidential’ information that is not distributed equally to all councillors and thus represents another breach of the Local Law?

The continual abuse of meeting procedures, Local Laws and councillor conduct is mounting up. It is also time that councillors with a shred of decency put a stop to this continual abuse by speaking up in public. Silence is consent and when, as the saying goes, good men do nothing then this allows tyranny to flourish.

 

April 10, 2012

Councillor Questions

Posted by gleneira under Councillor Performance, GE Council Meeting(s), GE Governance
[12] Comments 

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’

 

April 7, 2012

The Truth Shall Set You Free!

Posted by gleneira under Councillor Performance, GE Council Meeting(s), GE Governance, GE Service Performance
[16] Comments 

Item 4.4 of the Special Council Meeting involved the ‘conflict of interest & Laneway’ issue. In the accompanying Officers’ report (which again has no name attached to it!) there is the statement –

“As the substance of this matter was handled under delegation and has not previously been considered at a Council Meeting, documents relevant to the Ombudsman’s Report are attached.

1. Recommendation That Council note that Council’s in-house lawyer (Corporate Counsel) rejected the proposal in relation to the laneway on 22 October 2009.”

We could again quibble and ask why only a selective version of correspondence is suddenly made public. What’s more important however is the statement as to whether the question of the laneway has ever come up in any shape or form at a council meeting. Clever wordplay such as ‘substance’ cannot disguise the fact that the laneway issue has featured prominently in previous formal council decisions. We refer readers to the minutes of 25th September, 2007 and the 16th October, 2007 where the question of the laneway and adverse possession were constantly referred to. We quote from the minutes of 25th September –

“Proposed construction of buildings and works over the right of way

The applicant does not own the right of way. It is a road within the meaning of the Road Management Act 2004, which is available for public use.

The applicant has rights to use it to access his property. The two adjoining residential properties facing Hawthorn Road also have access rights over the right of way from their properties.

The structure will physically block access to part of the right of way for the two Hawthorn Road residential properties, and prevent public access..

As an aside, the applicant has lodged an adverse possession claim for the right of way through the Land Titles Office. This process has not concluded. Notwithstanding this, it has no bearing on the town planning decision before Council”.

Also in these minutes there is an ‘addendum’ from planner Effie Tangalakis which ‘corrects’ the earlier officers’ report in its comments on the laneway. It reads in part:

“At its meeting of 4th September 2007, Council deferred consideration of Item 8.5 until the next Council meeting. The decision to defer the matter was subject to clarification on the ownership of the right of way affected by the proposal.

The right of way consists of two parts; a northern and southern portion. The southern portion is owned by Katrine Isobel Penhalluriack subject to an easement of carriageway in favour of the abutting properties in Hawthorn Road.

The Certificates of Title to numbers 339 and 341 Hawthorn Road show the combined northern and southern portions as being a “road”. The ownership of the right of way, as with the ownership of the subject site or adjoining properties, does not affect the town planning consideration or the planning merits of the case. What is significant though are the carriageway rights to the abutting properties over the land on which the planning permit is sought for a building.

As indicated in the Council report, this outcome does not constitute proper and orderly Planning”.

Council meeting of September 25th 2007 contains emails sent by Penhalluriack to councillors. The emails focus on the inaccuracies in the officer’s report especially in relation to the laneway issue. It’s also clear from these emails that Penhalluriack as a citizen, not a councillor, had meetings with councillors regarding the issue – as is the right of any ratepayer.

Penhalluriack’s application was eventually passed 6 to 3. Those voting in favour WHO ARE CURRENTLY SERVING COUNCILLORS WERE : Tang, Lipshutz and Esakoff. 

To therefore claim that the issue of the laneway has been exclusively handled under delegation and has never ‘in substance’ come up before council is both untrue and another example of selective corporate memory. Even the ombudsman reveals that current councillors had knowledge of such dealings when he states: “that the document that Cr Penhalluriack was seeking was created before Cr Penhalluriack became a Councillor and was created for the purposes of advising former Councillors of Mr Penhalluriack’s various disputes with the council.” 

All councillors therefore knew about the disputed laneway. Several of them had even voted on the application that contained the contested ‘roadway’. To now plead ‘ignorance’ and the furphy that it was all handled under delegation does not coincide with the facts of the matter. None of these councillors are poor, innocent bystanders, ignorant of what has gone on. This is simply another example of misrepresentation and deliberate distortion of the facts. More than anything, Lipshutz, Tang and Esakoff have played a major part in this whole fiasco.  

When Lipshutz, Tang and the others last Tuesday night voted to unanimously accept the recommendation they created a further black mark against themselves! Lobo’s pathetic attempt to disengage himself from the situation with his totally irrelevant argument is even more laughable, especially when he took the Ombudsman to task with the following comments: 

LOBO: read the title of the ombudsman’s report and stated that he had to ‘wrestle’ with this since the meaning of ‘governance’ embraces all councillors and staff in providing ‘transparent and accountable local governance’. Went on to say that he thought he and others had done ‘all we could do to help’ Penhalluriack and as a result he rejected the title of the ombudsman’s report saying that it should have instead been called bullying etc. ‘by a councillor of the city of Glen Eira’. Lobo then claimed that the ombudsman has ‘painted all of us’ into the ‘category of poor governance’. He concluded by saying that ‘we have done what we had to do’. 

PILLING: reiterated the blurb that this issue hadn’t been handled at a council meeting and that it was all done under delegation and he supported the recommendation. 

Our conclusion is that the ombudsman on this one point at least got it right. All councillors are tainted by their failure to provide good governance in continually accepting without question or comment the nonsense that is put before them by administrators.  

 

April 5, 2012

Mulch, Truth, & The 4 Ring Circus!

Posted by gleneira under Councillor Performance, GE Governance, GE Service Performance
[21] Comments 

ITEM 4.3: Reopening the mulch facility

Penhalluriack declared a conflict of interest as a result of the ombudsman’s report but maintained that he hasn’t a conflict of interest.

Lipshutz moved the motion to reopen and Magee seconded.

LIPSHUTZ: Said that when council first made its decision to close the facility that this was based on ‘mainly’ on Penhalluriack providing councillors ‘with some reports…..mainly Google (based) I understand….(and what council has got is a report made by a government department and professionals, so) ‘appropriate course would be…..reinstate the mulch shed’ (and put into place the recommendations from the consultant. Will provide) ‘safety and certainty for the community’.

MAGEE: Magee said that he’d asked many customers from the sawmill industry about how they ‘confine’ their green and dry waste. The answer that he was told to overcome all problems is a ‘mist spray’….’keeps the dust at bay’ (so stops the inhaling of dust). Was pleased to see that the consultants recommended this and admitted he didn’t notice this when he first read the report ‘so good to see that’s an industry standard’. Stated that the mulch would now be ‘confined within the confines’ of the shed and not allowed to spill out. Said that all the recommendations such as gloves, masks, spray etc. would be installed and that if in 6 months times ‘we’re still having issues’ and the mulch is seeping out, then the shed could be regularly emptied. ‘I’m more than happy with the conditions that are put on it’ and that now with the industry standards applied that ‘they are more than sufficient’.

FORGE: announced that she had an ‘alternative motion’ that stated the item is ‘outside the scope of the notice’ of the agenda and that all councillors be given before the May council meeting ‘all necessary documents relating to the mulch facility’ and that these consist of ‘all test reports conducted by Noel Arnold’ followed by a report from officers on relocating the facility.

PILLING: stated that in May last year there had been a request for a report on alternate sites ‘that hasn’t come to council….I have concerns about the site….next to a chiildren’s playground and a school….I support the request for a report…. I think it’s fair enough that the report comes to council before we vote on it’. Spoke about the arguments put up when there was discussion about Notice of Motion and that councillors should have information and that applies here – ie councillors get the information first and then vote…..’we should follow process’….”I’ll be voting against 4.3″.

TANG: Said it’s important to explain his position. On the original motion back last year he ‘was in opposition’ to the motion to close the facility. Said that he didn’t have concerns about the faility until Penhalluriack raised them. Said he thought that Penhalluriack’s position was ‘unreasonable’ in light of ‘the advice council had received’. These people had ‘put their professional qualifications on the line’ and he felt that with their recommendations the facility should have remained open. ‘My position in that regard hasn’t changed’….(and when councillors resolved to close it that’s why he moved the request for report on other suitable locations) ‘because I felt there was community support for the facility’….’the appropriate safeguards being those recommended to Council’. ‘We didn’t see the results of that report…..(because) of the various priorities Council has had…..I would want to see the outcome of that report…..(facility was good)’ but location was wrong….they should have the opportunity to see alternate sites….this facility can be provided from Glen Huntly Park with appropriate safeguards’. Happy to make a decision after seeing the Officers’ report.

MAGEE then asked Burke that since council has been looking for a site ‘for so long, has council found an alternative site?’

BURKE: ‘No we haven’t….original motion which was to close a free service not a service that was anything else’

MAGEE asked what difference this makes.

BURKE: ‘There is a good deal of confusion. Some people believe there were health issues. The motion was never about health issues. The motion was about closing a free facility’.

MOTION DEFEATED – voting for LIPSHUTZ, LOBO, MAGEE.

AGAINST: TANG, PILLING, FORGE, HYAMS

FORGE: repeated what she said earlier – item be adjourned; 2 weeks before 1st May meeting councillors receive ‘all necessary documents’ about test results and a report on feasability on relocating the facility ‘as previously requested by Council’. THERE WAS NO SECONDER!

LIPSHUTZ came up with another motion that councillors be ‘provided 14 days prior to the Council Meeting’ documents ‘including but not limited to all test results’ from consultants and a report from officers also be provided.

PILLING sought clarification on the reports. Burke answered that there is ‘only one report’ and that he is ‘not assuming that this is an attempt to gain access to documents that would be in confidence’.

LIPSHUTZ then rephrased  his motion AND  removed the word ALL from ‘test results’. Forge seconded.

LIPSHUTZ: Acknowledged that ‘process is important’. Forge’s original motion was ‘inappropriate because it is within the scope of this Council Meeting’

That’s why he couldn’t support the first part of Forge’s motion. Also said that for the Noel Arnold reports that ‘that’s not in the purview of Council and Council can’t ask for that….(they can look at the report and the) ‘process would be that council would consider the report’ (if there’s another place to relocate then) ‘council would consider that’.

TANG: Said that this is ‘difficult’ because not everyone agrees as to why they ‘knocked back the motion as printed’ (Didn’t support Forge’s motion because he didn’t think) ‘it was outside the scope….it does relate to the finding of the Ombudsman’. Went on to say that it ‘doesn’t matter’ if the driving force was Penhalluriack because ‘at the time we all had to make a decision based on the advice we received’. On test reports ‘I just don’t know what councillors are going to do with it….(councillors aren’t going to put an interpretation on them – that’s the job of Noel Arnold) ‘they need to interpret their test reports and come to a conclusion’….(Councillors can disagree with their report but not to) ‘rewrite the report based on the source material…..that’s outside the scope of the decision making process’. ‘I’m not in favour of reinterpreting the test results’. Said that councillors really want a report on ultimate sites. What’s wrong with Forge’s motion was ‘that there is no guarantee that that will go to the community’ so the resolution needs to ask that it goes to a council meeting. Suggested that this be added to the motion.

FORGE then asked Newton about the notice for the meeting that appeared in The Age. She read out the ‘purpose of the meeting’. ‘It seems to me we’re taking a lot of time to discuss the mulch’ and why this wasn’t included in the notice so that the gallery would know what they were going ‘to listen to’.

NEWTON: Said that the ‘meeting was called by the Mayor, not by me’ and that the ‘business of the meeting was specified by the Mayor’. The CEO ‘does not have the power to determine’ the agenda for Special Council Meetings.

FORGE then asked Hyams the question.

HYAMS: Read out the title of the Ombudsman’s report and said that the report ‘had a number of paragraphs….about the mulch facility. So in discussing this issue we are discussing that report’. Also stated that the agenda item was made available on the Friday so ‘the public would have seen’ what was to be discussed.

HYAMS: Agreed with Lipshutz and Tang that it’s important to get the officers’ report and ‘that’s the way we should be proceeding’. Said he would be voting against the motion because it doesn’t do ‘what councillors intend it to do’.

LIPSHUTZ: Said that the consultant’s report doesn’t mean that ‘councillors can start reinterpreting’. That before councillors make a decision it’s ‘appropriate’ that the officers’ report ‘is in front of us’. Supported Tang that the report comes back to an ordinary council meeting and would accept the amendment.

MOTION PUT – MOTION IS LOST

FAVOUR – FORGE, LIPSHUTZ, LOB0

AGAINST – HYAMS, MAGEE, TANG, PILLING

TANG then moved the motion that a report be provided to ordinary council meeting ‘detailing all findings to the…..feasibility….of alternate mulch facility….within the City of Glen Eira’ and that paragraphs 28-73 of the Ombudsman’s report as well. Lipshutz seconded.

MOTION PUT – carried unanimously.

 

April 3, 2012

Special Council Meeting

Posted by gleneira under Councillor Performance, GE Council Meeting(s), GE Governance
[27] Comments 

A few preliminary comments on tonight’s Special Council Meeting –

  • Doors were again locked
  • Residents attending the meeting in order to find out what was going on would have left none the wiser and certainly confused as to (a) why the urgency, and (b) what the outcomes were
  • History revisionists were out in full force

We report on Item 4.1 – noting and ‘adopting’ the Ombudsman’s report.

HYAMS: Asked if anyone had a conflict of interest to declare. No one did. Hyams moved the motion including that the Secretary of the Department implement recommendation 2 and 3 of the ombudsman’s report. Pilling seconded. Began by explaining why there wasn’t 7 days notice because needed a ruling from VCAT before the compulsory conference which is set down for next week. so there’s a ‘very tight time frame’…’I find the report to be a very accurate recounting of the facts…..behaviour of Cr Penhalluriack and the effects of the behaviour’. (Spoke about how on the night of the Mayoral election many councillors referred to the ‘difficult’ year that Esakoff had had as Mayor)….’now…the community understands why….significant report (because Ombudsman lists all of his previous reports and only 8 of them concern councils and only 2 are about individual councillors) ‘so clearly when the Ombudsman releases a report about a single councillor’ (not to be ignored).

Read out Paragraph 12 which talked about Penhalluriack ‘contesting the rules governing his behaviour in a forceful and aggressive way’…’that’s why we come to this situation….(referred to his tv interview and that they didn’t include the entire comment) ‘Cr Penhalluriack is a very successful businessman used to running his own show….having his own way….has trouble with the contraints imposed on councillors via the Local Government Act…(Mentioned that the report is) ‘largely uncritical of council and its efforts….critical on council being too lenient on Cr Penhalluriack….(3 aspects to the report – mulch facility). Municipal Inspector ‘has released a letter to us that said there is insufficient evidence to satisfy the evidentiary burden of proof required for criminal cases…..(therefore no action but Ombudsman looked at misconduct which)’would have a lesser evidentiary burden’…..so because something isn’t prosecutable as a crime doesn’t mean it isn’t misconduct’…..’so the Municipal Inspector and Ombudsman aren’t necessarily incompatible….(stated that he didn’t think that Penhalluriacks ‘motivations’ re the mulch were to profit his business)….’but motivation and even action you take doesn’t matter’…..what matters is that the interest exists….(Said that he had argued before that there wasn’t a conflict of interest and that he had moved the amendment to withdraw the mulch from the allegations to go to the councillor conduct panel)…’but having seen the Ombudsman’s report (he accepts that there could be a conflict of interest)….

‘Laneway matter seems to be pretty straight forward….(he wasn’t present at the meetings)…but that’s the ombudsman’s findings and we’re obliged (to accept them)….(as to the bullying)’I have to agree…..’given the repeated nature of these infringements….(then findings of misconduct and serious misconduct) ‘may not suffice’…..’under Section 81k of the Local Government Act (VCAT can find misconduct and serious misconduct but )‘the ongoing behaviour…justifies us asking the other parties to endorse the ombudsman’s recommendations as well’….’I would hope that the Secretary would send the right message about the importance’ (of the report). (As to recommendation 3 then the processes are ‘cumbersome’ and expensive for councils and when there is a councillor who is) ‘potentially far more disruptive than Cr. Penhalluriack could practically shut down the council ….make all discussions impossible’….

ASKED FOR TIME EXTENSION. Motion was carried. Penhalluriack asked for a division. ‘You really want a division on whether I should be allowed to talk any longer’. Penhalluriack answered ‘yes’. Tang raised a point of order that you can request a division on a motion

Against: Forge & Penhalluriack

Hyams: Perhaps Cr Forge (might like to see what Cr Penhalluriack) is doing before she puts her hand up next time.

PENHALLURIACK: Asked Hyams to withdraw the comment. Hyams asked ‘On what grounds” and Penhalluriack said that it was ‘rude’ and ‘not necessary’. Hyams responded that that wasn’t grounds for a point of order. But ‘I will withdraw’.

HYAMS: went on to reiterate that when a councillor is disruptive and could close down council that there are far ‘wider matters’ to be considered and that’s why there’s the recommendation to the Secretary.

PILLING: ‘I fully accept this Ombudsman’s report…seriousness of the report…many instances of councillor misconduct….

PENHALLURIACK: Started off by stating that people need to ‘look at background…arisen because Andrew Newton refuses to speak to me…..refuses mediation….(refuses to discuss) ‘the problem he obviously has with me….I feel that problem has existed ever since I was elected….made my life very difficult….bully in this area is not me…I am the victim of bullying….from all of the councillors ….ostracised me….forced me from my place of work…(Said that both the O’Neill report and Ombudsman’s report are based on) ‘opinion….who may be lying through their teeth….when you get in the witness box….you are named…subject to…cross examination….I have no idea who in this room has given evidence…ombudsman is a great institution….digs out corruption….I am not corrupt and I have never bullied anybody in this room. (Admitted to getting frustrated) ‘but I am not a bully’. (Went on to state that the ombudsman investigator (Mcullough) has) ‘quite a file’…..most unhelpful (in getting copy of meeting with him)….in my interview…..all I was asked about was the mulch shed….(not the other matters and he doesn’t know who raised them)….’I am the person who has been victimised in all this’ (didn’t have to go this far because council could have gone to mediation before O’Neill and Esakoff simply handed it over to council)…‘council resolution was to (go to mediation first and this didn’t happen)’.

LIPSHUTZ: didn’t want to comment on the report because ‘it speaks for itself…endorses (the recommendation because it is ‘general’….’where you have any councillor’ (causing problems and not like parliament)‘we’re a band of 9 councillors and we work together’….’when a councillor does not do so….intolerable situation...Local Government Act doesn’t do what should be done…’quick and easy solution’….allows the mess to…drag on….forever and ever…..(Commented on Penhalluriack’s claim that he was ostracised in that every councillor) ‘at one stage….tried to assit Cr Penhalluriack…..unfortunately (Penhalluriack says I’m right all the time and you people are wrong)…‘I reject absolutely that this is Mr Newton’s fault….’not about mediation’…’went as far as getting a report….unfortunate….let the law take its course….(we’ve got a system and have to abide by it right or wrong).

MAGEE: Stated that it’s been ‘going on for quite some time’. The recommendations will perhaps also go to VCAT after the Councillor Conduct Panel ‘that’s where we get the opportunity to question…(Penhalluriack has opportunity to)’present evidence himself’…’the evidence from both sides needs to be put together (and someone independent adjudicate). Stated that when all the evidence has been put forward that he’s looking forward to a decision, ‘a definitive answer’….’somewhere a defining line where we can accept the answers….at the moment I ….endorse the recommendations of the Ombudsman….(but also wanted the end of the process)

FORGE: Said last 17 months have been difficult and that she and Cr. Penhalluriack have ‘worked very closely’, and ‘every blow that he has been feeling I feel as well…(reiterated that at VCAT they can be cross examined and)’get an answer to these questions’….

MAGEE:Brought up point of order that he didn’t say anything about being cross examined but that Penhalluriack could ask questions.

TANG: Said that he thought councillors needed to explain in a council meeting ‘how they react and why…..ongoing process….tying to work with Penhalluriack’ (objected to the term ‘ostracise’ because he claimed that all councillors)’had tried in lengthy…conversations…..early…late….hardware store….tried to work with Cr Penhalluriack to achieve what he wants to do within the prism of the Local Government Act….to try and get the information that….(he wants and whether his motions are)’reasonable within the confines of theLocal Government Act’. Accepts the ombudsman’s findings because councillors have employed ‘abundant caution’…..trying to gather all the evidence before proceeding….(outside and putting all this to Penhalluriack)….’only after that process did council go outside….to resolve these issues…..flush out these issues….Cr Penhalluriack himself decided to go to VCAT….Ombudsman has obviously decided to independently investigate….(council didn’t think that Penhalluriack had a conflict of interest over mulch)…ombudsman is not in the position of a councillor….(time extension)….I accept the finding….notwithstanding that I may have taken a different position in the past….(Said that Penhalluriack’s claim that he wasn’t asked about all the recommendations/allegations that Penhalluriack would have got the ombudsman’s report in draft format to respond, same with internal investigation)…’was provided for….I agree with councillors who have said he has been disruptive….process needs to be resolved….agree with recommendations….it could have been resolved easier….given our obligations as councillors…..taken all reasonable steps we could….(now with the ombudsman’s report) ‘we can do nothing else’.

PENHALLURIACK: Asked that the Municipal Inspector’s report 15th March and 26th August 2010 ‘be incorporated into the minutes’. Pilling seconded. Tang asked why he wanted these documents and which versions since council got one version and Penhalluriack another one. Penhalluriack said that these documents ‘throw a different light….(on the obmudsman’s report reagarding the mulch and misuse of his position to enter the CEO’s office.)

HYAMS: Stated that there no compunction on anyone concerned about workplace safety ‘to undergo mediation’…(said he was aware of mediation in another council where the councillor ended up ramming an officer’s head into a wall)…”I don’t know that mediation is necessary…what is obligatory is for council to provide a safe workplace….(Penhalluriack claims that he’s been ostracised but it’s )unfortunate that (his behaviour has lead us to taking this aciton)…’the only criticism the obmudsman had of us is that we were too lenient on him….(reiterated how councillors had spent much time discussing these issues with Penhalluraick)….’we had an indepeendent expert come in….inappropriate behaviour…ombudsman (also found this)….”I hope that if VCAT comes to the same conclusion that we don’t hear they are also wrong….(voting isn’t about whether Penhalluriack is ‘liked’)….’very personable….’I’ve had a good relationship with him (most of the time)….our duty to look at this objectively….honour our obligations….

MOTION PUT: IN FAVOUR – Lipshutz, Lobo, Magee, Pilling, Tang, Hyams

Against: Forge & Penhalluriack.

 

April 1, 2012

Brothers In Arms!

Posted by gleneira under Councillor Performance, GE Service Performance
[4] Comments 
 

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