GE Governance


One of the items on the agenda for next Tuesday night’s hastily called Special Council Meeting contains the ‘recommendation’ that the Glen Huntly Rd mulch facility be re-opened AT GLEN HUNTLY.  Under the pretext that this meeting is called to deal with the Ombudsman’s ‘recommendations’ Newton and his supporters have snuck this item into the agenda. Readers need to be fully aware that:

  • The ombudsman never recommended the reopening of the facility
  • The ombudsman also never commented on the potential health risks

Nothing but nothing in the ombudsman’s report has anything to do with the Peter Jones’ (under orders?) recommendation.

Further, the consultant’s scientific report is currently the subject of an FOI application. Council has refused to release documents that could have a direct bearing on any decision regarding the facility. Yet, here is the officers’ recommendation urging a re-opening. What if the VCAT member determines that the documents be released and the information reveals undue interference by officers? What if the health risks have somehow been downgraded? We already know that not all of the recommendations made it into the final version of the report. So given all these ‘unknowns’ and their possible ramifications for any decision making, why is this item in the agenda?

Tuesday night will therefore be the ‘acid test’ for councillors. Will they cave in and reopen the facility in exactly the same place? Will we witness another example of hypocrisy and the further erosion of public trust in anything that some councillors state?

We should remember that:

  • In May 2011 Tang’s Request for a Report on alternate sites and relocation of the mulch facility was passed by Council. It has yet to make an appearance. This resolution still stands, yet there is no recommendation to ‘rescind’ such a motion and replace it with the current one.
  • When councillors voted on the above many of their arguments were that they felt that the current location was clearly inappropriate given its proximity to a playground and a school – not to mention a public park. In fact our notes and the post we made at the time report that Pilling stated that the placement is wrong ‘wedged between a playground and a secondary school….I think it should be moved’. Esakoff also said that ‘given its location near a playground caution is warranted’. Nothing has changed. The facility is still there – contrary to the initial motion that it be removed. So much for council’s resolution and the legal requirement for the CEO to action all resolutions in a ‘timely’ fashion!
  • Even the mover of the request (Tang) stated that if his motion for the report was defeated he ‘would let the issue lie’ – ie maintain the closure of the facility.

The acid test is definitely on councillors who voted for closure. They now have the opportunity to stand by their original words and decision. It is time that they put a stop to the continual manipulation that is endemic in Glen Eira and stood up for what is ethical, transparent, and represents good governance.

At the heart of this entire issue is the simple fact that the mulch facility should never have been placed at Glen Huntly. This decision was made by officers and we presume senior administrators. The campaign against Penhalluriack is, in our view, directly attributable to the fact that in response to resident concerns, he has dared to question and therefore highlight the potential failure of risk management at this council and faulty decision making. For this temerity he must be punished and tens of thousands of ratepayers’ funds expended on this inquisition.

This Special Council Meeting, called with such indecent haste, should be seen for what it is and questions asked as to why this particular recommendation is included since it has absolutely nothing to do with the Ombudsman’s Report. It’s definitely time that the games that Newton plays be exposed and challenged. That’s the acid test. Which of these councillors can pass the test?

Based on a careful reading of the report, the public should be concerned about the role of Ombudsman in investigating people as distinct from government organisations, practices, and legislation. I’d be furious if a report was written as maliciously about me. As for the timing, designed to prejudice a matter before VCAT, one good thing to emerge so far from VCAT is that it criticized the lack of specifics in Council’s case. The Ombudsman makes the same mistakes, and adds several of his own. The overall impression is that the Ombudsman is not a reasonable person, is incapable of critically analysing information, and is prepared to use his incredible coercive powers to assist (MODERATORS: phrase deleted) of a fellow bureaucrat.

Analyzing the report properly would take a similar amount of space to that of the Ombudsman’s, which would be about as tedious as his own report. For the moment I’ll just make the following general comments.

The report is not about conflict of interest, poor governance and bullying at the City of Glen Eira Council. The report makes that claim, but the contents reveal that the report is only concerned with Cr Penhalluriack. No investigation of poor governance or bullying by other members of council or council staff has been done.

Although Worksafe appears in a list of reports done by the Ombudsman, there is no appearance of Worksafe with respect to various accusations made about bullying, harrassment, humiliation. Its almost as if Council is aware that should Worksafe be involved, the behaviour of other individuals, include the Mayor and CEO, would be examined. Maybe they have received legal advice warning them not to involve Worksafe. I have previously pointed out some behaviours that constitute bullying according to examples provided by Worksafe. Incidentally, there is only one piece of evidence in the report concerning harrassment, and the victim was Cr Penhalluriack.

The expression “conflict of interest” is bandied about in the report carelessly. “Conflict of Interest” is defined in Local Government Act, which also places limitations on what is conflict of interest. Both Cr Penhalluriack and the Ombudsman are aware of LGA 77A(4). The Ombudsman sneeringly dismisses it (“irrelevant”), but doesn’t say why. Quite simply, the Ombudsman despite *all* the evidence available to him concerning the mulch heap, doesn’t see it as a health issue. Even the CEO did though, taking some actions to soften the criticism when it emerged that the facility was a health risk and was poorly operated. The CEO, as the driving force for the relocation, is embarrassed about his failure to do due diligence about the site and its operation.

The interpretation of 77A(4) is critical to much that is at stake here–whether a perceived conflict (as defined) can “reasonably be regarded as capable of influencing any actions or decisions of the relevant person in relation to the matter”. The Ombudsman has revealed elsewhere his belief that $20 is sufficient to be capable of influencing an officer. [Unless they’re Musical Viva tickets.] The trouble with being a martinet and expecting others to follow is that it leads to poor governance. Few of us were happy that a Gang of Four (GoF) were given delegated authority for matters as important as C60. It came about because of the interpretation some councillors placed on matters as trivial as having a drink with a member of MRC executive. (MODERATORS: Sentence deleted).

There is a particularly telling section in the report, #151, in which the Ombudsman quotes uncritically a Council resolution to make certain matters public. From the resolution: “and in accordance with the legislation that states that the applicant must be a Councillor or Councillors”. Of course, the legislation doesn’t state that. The legislation very clearly provides 81B(1)(a), meaning Council can apply. It is symptomatic of the carelessness plaguing both investigations and Council’s efforts, in which honesty and integrity have been sacrificed.

The Ombudsman claims repeatedly that council officers have been diverted by Cr Penhalluriack’s behaviour and not focusing on what they should be. He didn’t provide any evidence or justification for saying this, although the lack of structure plans, open space, openness in decision-making does support the view that council and officers haven’t been doing what they should.

The Ombudsman also makes the extraordinary claim, without evidence, that Cr Penhalluriack’s “services on the council have not been of assistance to the good government of the City of Glen Eira”. This is an unforgivable abuse of his powers. Cr Penhalluriack has been prepared to ask questions and to analyze critically Council reports, and at least made a token effort to resist the culture of secrecy that pervades our council. Accountability is so important, it appears multiple times in the Preamble, the very *first* section, of LGA. The Ombudsman has not been elected to his office and is not accountable to the people of Victoria. If he doesn’t like elected representatives then he should advocate shorter terms for Council like we once had.

In several places the Ombudsman refers to carefully selected past incidents in an attempt to use prejudice to strengthen the case against Cr Penhalluriack. The Ombudsman should have known, given his extraordinary coercive powers, of the long history of ill-feeling between the CEO and Cr Penhalluriack, (MODERATORS: phrase deleted). He should also have known of the matter between the CEO and Cr Grossbard previously, of the sacking of Council in 2005, the members of that council who are currently councillors, of the manner in which Andrew contributed to (some may say engineered) the downfall of a previous CEO, of the embarrassing “apology” issued by Cr Esakoff to the CEO concerning the seeking of the reasons why a long list of requested reports had not been published in Council Minutes, the hissy fit he threw in public when Cr Penhalluriack asked his reasonable question. This should have been either stated or acknowledged when attaching weight to the statements he accepted uncritically and the ones he rejected when statements conflicted.

And so it goes. Instead of improving governance in Glen Eira, such as by tackling the excessive use of secrecy, the Ombudsman has chosen to add to the problem. Only he knows why.

Special Council Meeting — Tuesday 3 April 2012  
In accordance with Section 84(1) and Section 89(4A) of the Local Government Act 1989, notice is given that a Special Council meeting will be held on Tuesday 3 April 2012 commencing at 7pm in the Council Chamber, corner Hawthorn and Glen Eira Roads, Caulfield.
The business to be transacted at this meeting will be to consider a report entitled: “Conflict of Interest, poor governance and bullying at the City of Glen Eira Council” that was tabled in the Victorian State Parliament on 28 March 2012 by the Victorian Ombudsman and to address the report’s Recommendations. The urgent and extraordinary circumstances that require this meeting to be held with less than seven day’s notice arise because Council needs to address the recommendations in the report as a matter of urgency given that a compulsory conference is due to be held at the Victorian Civil and Administrative Tribunal (VCAT) on 12 April 2012 in relation to Cr Penhalluriak and Councillor conduct matters.
Chief Executive Officer Andre Newton

From Council’s website:

Ombudsman’s Report: Conflict of interest, poor governance and bullying at the City of Glen Eira Council  
On 28 March 2012 the Ombudsman tabled a Report in the Victorian Parliament. The Report is titled ”Conflict of interest, poor governance and bullying at the City of Glen Eira”.
 [DOWNLOAD REPORT HERE]
Notwithstanding the difficulties disclosed in the Report over the last two years:
  • we were rated 1st in the State for “responsiveness in dealing with the public” (84%), May 2011
  • we won the Institute of Chartered Accountants / MAV award for Best Annual Report by a Victorian Council (June 2011)
  • we are the only organisation in the Victorian Public Sector to receive a favourable Performance Audit by the Victorian Auditor General during the current Term of Parliament. (Performance audit of investment planning and community engagement, September 2011)
  • we were rated 1st of 17 inner-metro councils by the Auditor General for Renewal of Community infrastructure (November 2011)
  • we eliminated waiting times for Kindergarten for our juniors and Home Care for our seniors (2012)
  • and we have built Melbourne’s best Aquatic and Recreation Centre (“GESAC”): under budget and about to open in April 2012.
Thank you to all those who, notwithstanding difficult circumstances, have performed strongly for our Community.

Andrew Newton Chief Executive Officer Glen Eira City Council

We’ve received the following email from a reader –

In planning permit GE/PP-24534/2012, the Elsternwick Club, already a privileged operator in a residential zone with a 24 hour liqour licence, machine gambling, food and its expensive and non-green bowling green (massive use of chemicals and insecticides at present well beyond that expected in a “garden” region) had applied to Glen Eira Council to have a licence to run a restaurant and cafe business for the financial benefit of its members (who will retain non-exclusive use of the bar and gambling areas as well as the green and surrounds).

The current use is already a burden to particular residents (including the correspondent) in terms of loss of amenity. The officers have advised Council that the matter be considered by the Delegated PLanning Committee tomorrow 28/3/2012, on the basis that the matter is either insufficiently significant of there have not been enough respondents.

Council sent information to the immediate neighbours including… (a) neighbour in hospital recovering from hip surgery, the corner owner spending a large amount on a major renewal without advance warning of the potential reduction of amenity, notices to new residents unaware of the potential impact a fully commercialised business might have in a previously exclusively residential area.

I doubt that anyone else except me saw the second and smaller notice of application to the Justice Dept for a second licence for alcohol provision in addition to the 24 hour existent licence for gamblers and club members (and their “guests”) in time to protest this as well.

My wife is caring for her recently widowed mother who is in hospital after fracturing her hip, I am (phrase deleted to maintain anonymity) and don’t have the time or a great deal of energy to go door to door to arouse local interest in this matter, sufficient to draw actual councillors’ attention to what appears to be an underhand way of achieving what is in reality, a highly significant and fundamental alteration to the character and amenity of our block of Elsternwick.

This area is already well served by the RSL and local pubs and restaurants. What next? Private hotels, bars, home based restaurants and shops, even brothels in our streets?

I doubt that the local business folk know that the club, which has the unique advantage of the attraction of a summer bowling attrraction and open access  machine gambling is intending to take customers from their doors. The only advantaged groups are the club and the council which may be able to charge better rates for a business than for a private club.

Is anybody out there aware of this or concerned about the subtle changes council officers are able to create without necessarily bringing matters to council attention?

After being sent packing by VCAT to redo their allegations against Cr Penhalluriack, Council’s lawyers (Maddocks) have come up with the following gem in their long list of complaints. We quote:

“it is alleged that the Respondent acted unreasonably towards the Applicant’s Director Assets and Facilities by criticising him at the Council meeting on 14 December 2010, by: referring to a project in respect of stormwater harvesting in Boyd Park, Murrumbeena as a ‘ridiculous project’ and a ‘waste of money”.

We’ve double checked what occurred at this meeting and in our post of the 15th December 2010 we reported:

Item 9.8 Boyd park water (Pilling).

Penhalluriack spoke against the motion stating residents believe ‘they (council) are hopeless, but I’ve been defending council. But this one is the most ridiculous waste of money I’ve ever come across…This is $1.1 million dollars. Yes the government is giving half. So what? It is still money that can be spent’ elsewhere than this ‘extravagant, extroadinary waste of money’. He estimated that the final cost of the water would be 15.17 cents per litre. ‘Why should we be spending 16 cents per litre on this water….? “This is a nonsense….this is one of the worst money wasting schemes I’ve ever come across..’ No-one in their right mind would want to install this tank underground and pay 16 cents per litre. Magee agreed with Penhalluriack – it was still spending $500,000 council dollars. That’s money ‘that we could spend in our municipality servicing our ratepayers…’

Tang then stated that Penhalluriack ‘has gone further than he needed to’; that he didn’t have to talk about ‘the quality of the proposal’ and include ‘gratuitous references’ about it!!! ‘I think it is a good proposal’.

Lobo also saw it as a ‘big waste of money’ and wanted a ‘cost benefit analysis before we consider it further’. Forge also called for a more ‘accurate cost benefit analysis’ and the need to defer decision until more analysis was completed”.

COMMENT

Councillors have a legal and fiduciary responsibility to ensure that public funds are spent in the most efficient and responsible manner. Councillors also have the right to demand complete and full information prior to their decision making. Debates are part of the political process. What occurred on December 14th 2010 is exactly what should happen – 4 councillors questioning the lack of detail in an officer’s report. Yet, only Penhalluriack is accused of ‘acting inappropriately’ and ‘criticising’ Peter Waite. If this is representative of the quality and substance of Council’s allegations then a full inquiry is necessary to determine how and why tens of thousands of dollars have been spent in an orchestrated witch hunt against Penhalluriack. As for Waite’s ‘embarrassment’ we leave this up to readers to determine.

Hardware rebel  faces anti-bully drill

Melissa Fyfe and Jason Dowling
March 26, 2012

THE rebel hardware seller who went to jail over Sunday trading laws in the  1980s has been ordered to undergo anti-bullying training after an independent  council report found he had bullied and harassed the Glen Eira City Council  chief executive.

Glen Eira councillor Frank Penhalluriack has denied the report’s findings,  claiming he is the victim of a “kangaroo court” and says chief executive Andrew  Newton is trying to get him kicked off council. “He doesn’t like me because I  ask too many questions,” he told The Age.

The bullying report — completed last June by workplace lawyer Tracey O’Neill — was kept secret from the community. The findings have emerged only now among  the documents filed in a misconduct case against Cr Penhalluriack, to be heard  in the Victorian Civil and Administrative Tribunal next month.

The council has already spent about $65,000 on legal costs for inquiries and  proceedings relating to Cr Penhalluriack.

Ms O’Neill, who investigated Mr Newton’s allegations against Cr Penhalluriack  on behalf of the council, found the hardware store owner in breach of the  councillors’ code of conduct, which states they must not “harass, bully, vilify  or discriminate against colleagues or members of the public”  and must “conduct  themselves constructively”.

The report found Cr Penhalluriack had humiliated the chief executive officer  by making derogatory public statements about him and placed unnecessary stress  and pressure on him to resolve a personal matter regarding his hardware  store.

Ms O’Neill found council officers felt “under attack” from Cr Penhalluriack  who, she said, had been behaving unreasonably towards them for  “a significant  period of time”.

Ms O’Neill also noted Cr Penhalluriack had challenged her (Ms O’Neill)  in a  “confrontational and aggressive manner”. She concluded that while she did not  consider Cr Penhalluriack malicious, “this does not alter that he has engaged in  repeated unreasonable behaviour that creates a risk to health and safety”.

Glen Eira Council has faced a string of controversies in recent years. In  2005 the then Bracks government sacked the council after a scathing report found  it had degenerated into a hotbed of  “personality clashes, politics and egos”.  More recently there have been controversies surrounding councillor actions on  planning issues and the council’s decision to close a mulch facility. The  Ombudsman’s office is also believed to be investigating some areas at the  council.

Cr Penhalluriack — who in the 1980s famously opened his Caulfield hardware  store outside the regulated times to highlight what he saw as outdated trading  hours — has now hired expensive lawyers to fight the misconduct case. He  said  it was unfortunate but he was “adamant” ratepayers would pick up the bill and  blamed the impasse on Mr Newton for not going to mediation.

The councillor has also filed a Workcover claim against the council, saying  the situation is making him sick with stress. He told The Age he blamed  his recent hospitalisation for a heart problem on his elevated stress  levels.

Cr Penhalluriack said he might regret some things said in anger, but denied  bullying or harassing anyone at the council. He acknowledged that before  becoming a councillor he had battled with the council.

Read more: http://www.theage.com.au/victoria/hardware-rebel-faces-antibully-drill-20120325-1vsit.html#ixzz1q8KJdeKh

The Mahvo Street development was the second application to be tossed out at Tuesday night’s Council Meeting. A terrific result and we once again applaud the efforts of residents. But, as with the previous Morrice St decision, consistency has never been a hallmark of this council. We note that telling a few porkies to the assembled throng in order to back up spurious arguments also doesn’t hurt.

What needs to be strongly emphasised is:

  • Mahvo Street is anything but INTACT – a word employed by several councillors. Of the 40 plus houses in the street proper, countless are recent developments and multiple single and double storey units are common. There are also old, run down weatherboards just waiting to be picked off by developers.
  • Council’s own Online Planning Register reveals that from March 2000 there were 20 applications for this street. 9 were for 2 lot subdivisions. Of these 20 applications only 2 were refused and 1 withdrawn. Far from an ‘intact’ area!
  • The claim that it is ‘predominantly single dwelling’ is thus also dubious. What WERE once single lots have now been subdivided and replaced by two and more dwellings Just under half of the street features these subdivisions and most are now double storey dwellings.

When councillors get up and propagate falsehoods in support of their arguments, then there is something drastically wrong with our council, our system, and the ability of these people to represent us! Either these councillors never visited the street and are relying on dubious reports, or they are deliberately misrepresenting the situation. Neither possibility is enough to excuse them.

We provide our ‘evidence’ below. These photos were all taken on the 22nd March, 2012. Two photos feature the view facing onto Centre Rd and are taken from Mahvo Street itself. There were many other residences which included long driveways with units nestled in the back which we didn’t bother to photograph and encroach on people’s private property.

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As for the ‘debate’, here’s what happened.

Lobo moved the motion to refuse on the grounds not compatible with urban and neighbourhood character, mass, bulk, streetscape, neighbourhood character, set back, parking, design, ‘detrimental impact’ on surrounding areas/neighbours. Magee seconded.

LOBO: ‘predominantly single dwelling’ (street and family oriented). Stated that the planning conference ‘clearly showed the troubled state of mind of the residents’. Claimed that this proposed development is ‘nothing but insane’ and a ‘monstrosity’. Height will cause lack of privacy and enjoyment of lifestyle. Also will be ‘traffic chaos’ because of proximity to Centre Rd, train station and bus stops. Ambulances therefore wouldn’t have a clear run with all this congestion and people parking on the street and nature strips. Flow on effect to other streets and would set a precedent ‘for other builders’. Impact will be on streetscape and the ‘investment’ of people. Size of objectors must be ‘acknowledged’. Government’s attempt to have 5 million people settled in Melbourne shows ‘who cares a rats for the value of the property’. Stated that the government needs to get its act together and that ‘before long’ film producers will be making the equivalent of Slum Dog Millionaire in Melbourne.

MAGEE: ‘Mahvo street at the moment is INTACT’ unlike Lillimur St. There’s an ‘opportunity’ to save ‘not just this street but’ (most of Bentleigh and East Bentleigh). Said that because these are in an ‘urban street’ he would ‘treat them as a Minimal Change Area’ (because) ‘there’s no difference from this house to my house up in East Bentleigh’…..’deliberate overdevelopment of this site’…’beginning of the end for this street’ (if we let developer go through with this). Claimed that this was the perfect example of ‘inappropriate development’ and that at last election councillors had vowed to fight this..’Let’s save this street, let’s save Bentleigh, let’s save East Bentleigh…’

LIPSHUTZ: Admitted to chairing the planning conference and hearing objections. Stated that as councillors they have to ‘approach this from the point of view of planning law’ (disagreed with Lobo’s claim about loss of value of property). Reminisced about when he was growing up there were many red clinker brick properties in the street and on a recent visit to that street they were now gone, and ‘street is ruined’. So with a street like Mahvo, which is ‘INTACT’, ‘I think that’s an issue that has to be considered’. Thought that 3 stories was too high although thought that the street would ultimately have development….’this development is not sympathetic’ to neighbouhood. Spoke about traffic and lack of trees that were ‘on paper’ in the plans but weren’t there in reality. In the end it’s an ‘inappropriate development’.

FORGE: It’s a Major Activity Centre and there’s a ‘problem with grade separation’ because of the station, leading to terrible traffic jams. 3 storeys would set a precedent. Knows the area very well and until there’s grade separation then there’s going to be ‘constant gridlock’. Safety is another concern.’ we have to take care of the local community….overdevelopment’.

HYAMS: Mahvo St is in an ‘urban village’, on regular sized lot, ‘there’s nothing like it in the street at the moment’. Stated that even ‘in an Urban Village we should still be respecting’ neighbourhood character. He and people are ‘looking for sympathetic development’. When he visited there were cars coming down both ends of street and they didn’t have ‘anywhere to go’ because the street is ‘narrow’ and ‘parked out’. Denied the rumour that council wanted to change the planning for that street and that policy has been in since 2004 and ‘only after….extensive consultation’ of 4 years.

TANG: ‘wrong development for the block’. Disagreed with some points such as property values and said that 3 storeys would increase value of properties because of development potential. Tribunal would reject this argument. Reminded councillors that ‘our policy promotes change in this area’….’Mavho st residents will have to accept more applications’…‘we can’t say ….that it’s not (entirely our) fault’ (since we’ve set the areas where there will be development). ‘There will be change’….(and that some will) ‘go into residential streets like Mahvo’.

LOBO: thanked Tang and Lipshutz. Said he understood the policy from 2004 but that some residents weren’t living here in 2004. Admitted that he himself ‘didn’t know what was happening in 2004’. This development will create traffic problems and should be considered.

CARRIED UNANIMOUSLY

COMMENT: When countless other applications have NOT BEEN REJECTED OUTRIGHT and mere cosmetic conditions put on (ie 8 storeys instead of 10; 8 units instead of 12, etc) and the consistent argument for such decisions is that VCAT will permit what the developer wants, if not more, then all we can conclude is that elections are indeed around the corner! If these councillors are going to reject applications outright, then at least be consistent in both words and actions for all unreasonable applications!

The last part of tonight’s council meeting plummeted to new depths that we thought impossible even for this council. But it seems that where good governance and fair play is concerned there is no limit to how low one can go! We are referring in particular to the Councillor Question items and the Requests for Reports.

Cr. Forge’s question (printed in the agenda) basically asked for the costs related to the Penhalluriack Councillor Code of Conduct, the O’Neill Report charges and a few other ‘incidentals’.

HYAMS; ‘approximately $65,000….to date….(can’t give full estimate because that’s dependent) ‘on Cr Penhalluriack’s conduct….(stated that it was) ‘relevant that all expenditure … due to Cr. Penhalluriack’s  behaviour (and all councillors including Forge) ‘resolved to refer Cr Penhalluriack to the Councillor Conduct Panel…..behaviour towards officers which was found to be inappropriate’ (by O’Neill)…included behaviour….(which) breached …conflict of interest provisions of Local Government Act….(Penhalluriack’s choice to refer this to VCAT also) ‘signifianctly increased the costs’.

Went on to state in answer to the second part of Forge’s question that he ‘was not responsible’ for giving advice to Council’s solicitors. …’it is up to …officers to give effect to …resolutions….(officers may consult with councillors but )’that is up to them’. Hyams concluded that he doesn’t ‘propose’ any mechanism to ensure that councillors are kept apprised of what’s going on.

No councillor commented on this response!

Penhalluriack then asked a question of his own relating to the Audit Committee Annual Report and where it was tabled at a council meeting. He went on to ask: how long Lipshutz, Gibbs and McLean had been on the Audit Committee and why the appointments for the latter were held in camera.

HYAMS: Responded that the audit committee’s report was included in Council’s 2010/11 Annual Report. He then read out the entire entry from the Annual Report. Went on to state that this had been ‘circulated to all councillors in August 2011′ (and adopted at Special Council Meeting in October 2011)…’all 9 councillors were present; the resolution was unanimous….(then stated that the audit committee itself had approved a report in 2011 and that Magee, Lipshutz, Esakoff, Forge and Penhalluriack were present)….’all 5 councillors received the report before the meeting’….’it will be included in the agenda for next ordinary Council Meeting in the same form that you have had for 4 months…..’

Went on to explain the composition of the Audit Committee and that these people are all appointed by council resolution. Lipshutz has been on the committee since 2006. Gibbs since 1998 and reappointed in February 2009; Mclean a member since 1999 and reappointed in February 2011.’ You voted in favour on all four occasions’….’Section 89 of the Local Government Act provides’ for matters regarding personnel to be ‘in camera’….the process …tonight is identical (to that done on) all previous occasions’.

ADVISORY COMMITTEES

Lipshutz was reappointed to the Audit Committee together with Lobo. Again no councillor uttered a word on this continued reappointment.

We will provide further details on what occurred in the coming days.

The lunacy continued at VCAT last week with a Council entourage of 7 individuals showing up to defend the Penhalluriack application for FOI release of documents pertaining to the mulch facility. Apart from the council barrister presenting council’s case, plus his instructing barrister or solicitor,  present were also Mr. Hayes (barrister) from Maddocks, Mr Peter Jones, Mr Mark Saunders,(as witnesses); Ms Rachel Kenyon and another council officer. In all, 7 very highly paid people, sitting around all day. How much this has cost ratepayers is anyone’s guess. Penhalluriack had his barrister presenting his case and the instructing barrister.

Council’s arguments focused on two facets of the Information Privacy Act – the 6 requested documents were ‘exempt’ since they constituted ‘working documents’, were ‘opinion’, ‘advice’ and that the public interest would not be served via their release. They were also labelled ‘personal affairs’ and if released would create public ‘speculation’. The following words arguing against the FOI application featured frequently in Council’s arguments – ‘misinformation’, ‘confusion’, ‘mischief’ etc. In other words, if the documents were to be released then the poor old public would be confused and ‘harmed’! Council’s barrister also highlighted that fact that it was only Penhalluriack who wasn’t ‘satisfied’ with the consultant’s ‘advice’. Case law supporting these contentions were  cited.

When discussion focused on the actual documents the room was cleared – since these were ‘confidential’ documents. However, the gallery did get the opportunity to witness the early part of Peter Jones in the witness stand. Asked by council’s barrister if he would like to change anything in his written statement, Jones asked for one sentence in a paragraph to be deleted. The barrister then had to remind him about several other paragraphs that contained identical sentences! Mr Jones also appeared very confused as to the YEAR of audit committee meetings, first stating 2010 and then (with prompting) from the barrister, changing this to 2011. Coaching of the witness was clearly evident, but it did not prevent Mr Jones from blushing bright red at his errors and apologising! When cross examination was about to begin, the gallery was cleared and during this time (over one hour) Mr Saunders was also cross examined.

Upon returning to the ‘chamber’ Penhalluriack was called to testify. Neither his, nor Council’s lawyer asked any questions!

Throughout this morning session it was made clear that the scientific consultant’s report had contained many more recommendations that did not make it into the public version of the report. The requested documents, we presume, pertain to these sections.

Following the lunch break, Penhalluriack’s lawyer presented the arguments for document release stating that this was a special case and earlier precedents of ‘working documents’ did not apply since (a) health and therefore the public interest was at stake and (b) since council had asked for ‘independent’ advice one should expect that consultants are in fact ‘independent’ and not regarded as council officers.

The decision will probably be handed down in a few weeks. A most expensive way to haggle over six pieces of paper!

IT SHOULD ALSO BE NOTED THAT THE MUNICIPAL INSPECTOR HAS DETERMINED THAT CR PENHALLURIACK HAS NO ‘CONFLICT OF INTEREST’ REGARDING THE CLOSURE OF THE GLEN HUNTLY MULCH FACILITY. The 64 dollar question is: Will the Leader publish this latest news?!!!!!

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