The Council chambers were hushed and the gallery was more than surprised when Councillor McGinlay introduced his Notice of Motion to modify a Code of Practice and couldn’t get a seconder. His motion to delete, in its entirety the existing section 2.4 sub- heading being ‘Selective Tendering’ from Council’s Code of Practice, Licensing of Council-controlled public reserves and associated buildings certainly made sense to the two Public Forum presenters who very clearly and capably set to inform the Councillors and senior Council staff that their adopted method was both flawed and in all probability illegal. Fortunately for Councillor McGinlay he did find a seconder in Councillor Mayne who, while not supporting the Motion seconded it to allow discussion. Councillor McGinlay opened by advising his fellow councillors that in terms of the proposal he wanted to make it about the future and not about the past, referring to the widely believed Huntfest application that many still believe was a flawed process. “Council has an entrenched practice that is flawed”. “It is not transparent”. “Where ever I see decisions being made by Council staff I will question them”. “I encourage Councillors to come up with a fair, transparent ad competitive process”. Councillor McGinlay said Councillor Mayne offered “What has been raised is significant”, “Yes, transparency is essential”. “There are better ways to approach this matter but going into confidential is untenable”. “As to how might we defer so that councillors might discuss further mechanisms” The Mayor, Liz Innes suggested “A review is the best way to achieve what Councillor McGinlay wants to achieve”. The General Manager assured the Councillors that “Independent members of the Audit committee advised that this was the best way to do it” with Councillor Tait adding his wisdom that “If the wheel isn’t broken there is no need to fix it” to which Councillor McGinlay responded “The wheels are well and truly broken”. “Even if the process isn’t illegal – it is wrong”. Councillor Thomson commented “This is about one event (referring to Huntfest) and I’m not interested in changing”. There had been an example raised during Public Forum (See Public Forum submissions on the Motion below) of two sporting bodies being in contest with each other over the use of an oval and having to go through the tender process to arrive at the “winner”. Councillor Pollock offered his comment of “we are talking about licenses over a period of time and not hockey”. He then offered the example of the Moruya Markets as a success story of the process. Councillor Nathan said she had a phrasing problem in that the motion wished to “get rid of something” and not have “something in place as a replacement” “This is not appropriate and is the reason I will vote against it” Once discussion was over Councillor McGinlay said “let things play as they play”. The Mayor closed the discussion with “ Obviously we need a process” She stated that she shared the same ideals as Councillor McGinlay to challenge Council with a view to deliver better outcomes and was always interested in reviews that achieved better outcomes. Put to the vote it was lost 8-1 against. Councilor Mayne had however foreshadowed a second motion that requested a briefing with councillors be conducted in light of what had been heard and offered in order to conduct a review. This was carried.
SUBMISSION IN SUPPORT OF MOTION - JIM BRIGHT
Item NOM17/004 LICENCE APPLICATIONS AND SELECTIVE TENDERING PROCESS
My name is Jim Bright and I am a resident of Narooma.
I'm here today to speak in support of Clr McGinlay's motion that proposes certain changes to the Council's current Code of Practice for the hire of council venues.
Specifically, Clr McGinlay's motion focuses on the particular arrangements in the Code that are activated when there is more than one applicant seeking to hire the same venue on the same date.
Now, before going into some of the details and issues around the current scheme, it's important that we all appreciate some of the fundamental public sector principles that are relevant to how a council in NSW is supposed to go about its decision-making processes in this day and age - these principles relate to issues around transparency and public accountability.
There is an abundance of such references to what is expected and required of elected councillors and council staff, but I'll just briefly refer to a few quotes from some of these.
1. The Office of Local Government's 'Meetings Practice Note', clause 2.3 -
“Open decision-making is an important part of local government and should be the rule rather than the exception. The ability of the public to attend and watch council meetings – seeing the deliberations and decisions of elected representatives – is essential for councillor accountability. This is recognised by the legislation, which encourages open decision-making at council meetings.”
“Council decisions should be based on fairness, impartiality, objectivity and consideration of all the issues. Open decision-making helps achieve this, as well as preventing misunderstanding and unfounded criticisms from the public.”
2. The 'second reading' speech by the NSW Premier in connection with the Government Information (Public Access) Bill 2009 -
“Members of the public should be able to have access to the widest possible range of information to give them confidence in Government decision making.”
“These bills constitute a fundamental freedom of information revolution.”
“The public's right to know must come first.”
“Our public sector must embrace openness and transparency and governments must forever relinquish their habitual instinct to control information.”
2. Local Government Act 1993, section 8A – Guiding principles for councils -
“Council decision-making should be transparent and decision-makers are to be accountable for decisions and omissions.”
So what this effectively means is that, in the State of NSW, wherever it is possible to do so, decisions and decision-making processes by government bodies are expected and required to be fully transparent.
Obviously, from time to time in council decision-making, there will be situations which will unavoidably and appropriately require some degree of confidentiality. The Local Government Act recognises this and provides a mechanism in Chapter 4 of the Act for this to happen on a case-by-case basis.
Now, against that background of the necessity for transparency, let's go back to the second half of 2015 when the council's staff produced the code in question.
For some inexplicable and unexplained reason, late in 2015, council staff decided that, from the range of options available to them, to introduce into their new venue hiring process, the arrangements that are attached to the NSW local government tendering scheme.
As many of you would know, this tendering scheme is a detailed, highly prescriptive and confidential process for the management of situations involving entities bidding for contracts to supply goods and services to councils or for the purchase of council property and assets.
The types of situations that are intended to be covered by this tendering scheme are spelt out in the legislation and in the Office of Local Government's detailed tendering guidelines. And those situations are - unsurprisingly - not situations such as sporting clubs, community groups and various not-for-profit groups seeking to hire council's facilities for the purpose of conducting their sporting activities or their particular annual events, etc.
So why did the staff decide to choose the tendering option? I don't know.
An examination of the relevant discussion papers that went to the Council's Executive Leadership Team in October and November of that year and an examination of the overheads from the staff's presentation to councillors on 15 November 2015 provide no explanation whatever for the staff's decision to utilise the tendering scheme. Those same documents also provide no explanation or justification for the particular set of selection criteria and percentage weightings that were adopted.
The other important issue that I will briefly comment on today is the assertion contained in the relevant Staff Report to the Council's December 2015 meeting that claimed (and I quote)
“Crown Lands confirmed in July 2015 that Council's proposed process as outlined in this report is acceptable to them.”
Well - subsequent 'freedom of information' processes have irrefutably established that the details of the staff's “proposed process” had never been provided to, or seen by, Crown Lands officials. All that Crown Lands officials had ever indicated to the Council was that they expected that any process that was adopted by this Council would be “open, competitive and transparent”. Crown Lands never indicated that they required or preferred a confidential tender arrangement to be used.
To briefly sum up – in a public sector policy environment in which council staff are expected to adopt decision-making processes involving the greatest possible degree of transparency, they have instead chosen to adopt an option involving almost total secrecy.
This situation needs to be fixed. Thank you.
28 March 2017 PUBLIC FORUM 28 MARCH 2017 – Peter Cormick: On this matter, given the seconds remaining, I ask that you please take on board what Jim bright has had to say. Cutting to the chase, the fact is that on 8 December 2015, when this Code of Practice had its highly contentious beginning, council simply “received and noted” it – because that is how it was presented to councillors: to be “received and noted”. It was not approved. Staff incorrectly, in my view, insisted that it was an operational matter and not one of policy. It could hardly be more a matter of policy – and one that required councillors’ approval. Where the label “operational” is used, councillors will be denied involvement beyond “receiving and noting”. Take note.The word “transparent” was used throughout the 8 December 2015 report which presented the code. But a tendering process is confidential; so what sense can possibly be made of the claim of transparency? The current Code of Practice for the Licensing of Public Reserves is at best deeply flawed and must be replaced.