Last Tuesday’s meeting of council was one of great significance for our little shire. The public learnt that the General Manager’s employment contract had been renewed, for a further 5 years, with effect from 1 July. The renewal was approved by a majority of councillors, with Councillor McGinlay being the only one to oppose it.
There had been leaks of this impending renewal to sections of the community in the week leading up to the meeting, which gave rise to much consternation and plain outrage. After all, it had been understood that the GM’s performance (as GM) was due for review but no one, including a number of councillors, expected that her contract, which was due to expire in April 2018, would also be put on the agenda.
Through the numerous leaks that have occurred over the past week it is now known that there was a secret meeting held between councillors over the weekend of 3 and 4 June, to review the General Manager’s performance. I say “secret” because knowledge of it was kept from the public. Why would that be?
The ground rules for the review, as formally resolved by council, required an independent facilitator – and one that the GM was agreeable to. It is understood that the facilitator was Rob Noble, CEO (General Manager) of the Central Coast Council. Some might recall that he stood in as an interim General Manager here, between Paul Anderson leaving and Catherine Dale taking up her position as GM. So, one can only wonder just how independent Mr Noble was or could be, given his association with our council. But that is a question that can only be addressed when all the facts are known. And although the process involved the ‘assistance’ of a facilitator, section 226 of the Local Government Act 1993 places full responsibility on the Mayor to “lead” the process:
The role of the mayor is as follows: ...
(n) in consultation with the councillors, to lead performance appraisals of the general manager ...
Hopefully, in order for the process to have been valid, that requirement was met.
The General Manager has already been in the position for 4 years and according to 8 of our councillors she has been doing a brilliant job; which begs questions, given that during last year’s election campaign we heard from most of them of the need for reform of our council – a council headed by the now-reinstated GM.
And of concerning significance, the process by which this decision took place has been kept secret. As well, in closing Tuesday’s meeting to vote on the ‘confidential items’, a breach of the Local Government Act 1993 occurred. The General Manager (or the Mayor?) breached the act by failing to comply with the requirements of Section 10D (2)(b), that the matter that is to be discussed during the closed part of the meeting be specified. The extent of the specification by the GM was that the matter to be discussed was a “personnel matter”. That description is clearly useless and is yet another example of an insult to one’s intelligence by council.
What she should have said was that the matter concerned the review of her performance as GM and the renewal of her employment contract. In my view, the Mayor, as chair, should have taken control of this part of the meeting. The GM, after all, was the subject of the matter to be discussed. Was there a conflict of interest on her part - being in a position to withhold information that concerns herself and which should have been given to the public - and then doing just that: withholding specification of the matter to be discussed, even though the LGA requires that it be specified?
How can knowledge of what is probably the most important process undertaken by councillors be regarded as anything other than in the public interest? Our councillors, bar one, either couldn’t care less that the community doesn’t know how it all happened or were simply confused by the information given by staff – or by the lack of it.
In answer to a question from Councillor Mayne, who wondered where councillors stood given the references to the requirements of section 10D(2)(b) – made by public presenters opposed to the closure of the meeting – the General Manager referred to and relied upon the Office of Local Government’s publication The Closure of Council Meetings to the Public April 2013. She referred to section 9 of the LGA, which relevantly reads as follows:
(2A) In the case of a meeting whose agenda includes the receipt of information or discussion of other matters that, in the opinion of the general manager, is likely to take place when the meeting is closed to the public:
(a) the agenda for the meeting must indicate that the relevant item of business is of such a nature (but must not give details of that item)
But she made no reference to section 10D(2)(b), which reads as follows:
10D Grounds for closing part of meeting to be specified
(1) The grounds on which part of a meeting is closed must be stated in the decision to close that part of the meeting and must be recorded in the minutes of the meeting.
(2) The grounds must specify the following:
(a) the relevant provision of section 10A (2),
(b) the matter that is to be discussed during the closed part of the meeting,
(c) the reasons why the part of the meeting is being closed, including (if the matter concerned is a matter other than a personnel matter concerning particular individuals, the personal hardship of a resident or ratepayer or a trade secret) an explanation of the way in which discussion of the matter in an open meeting would be, on balance, contrary to the public interest.
So, while the “details” must not be provided in the agenda, they must be provided at the time council is intending to close the meeting, in the context of specifying the grounds for closure.
Not only did she fail to inform councillors of the statutory requirement imposed by s10D(2)(b), she failed to complete her quote from the OLG publication on closure of meetings, where it states (at page 5):
It should be noted that the existence of any of these grounds does not place any obligation on a council to close its meeting to consider a matter or information, (though in many cases, it would be appropriate for it to do so). It simply permits a council to do so. As will be discussed below, in the case of most of these grounds, the council will also need to demonstrate why it is in the public interest to close the meeting to discuss the matter or information.
This is critically important information, which was not provided to councillors.
Section 335 of the LGA requires the General Manager to:
(f) to ensure that the mayor and other councillors are given timely information and advice and the administrative and professional support necessary to effectively discharge their functions.
This failure is most significant. It could easily be argued that it constitutes a further breach of the LGA. But who of our councillors, other than Councillor McGinlay, would have the wherewithal, or the will, to tackle this matter – and that of the GM’s failure to comply with section 10D(2)(b)?
And to finish off with the OLG publication that the GM relied upon, at page 8 of it we see that:
The Act requires councils to close their meeting for only so much of the discussion as is necessary to preserve the relevant confidentiality, privilege or security being protected
Example In the proposal to auction council-owned land, the relevant confidentiality in relation to the proposed sale is limited to the valuation and the reserve price information. As such, discussion of the reasons justifying the sale could occur while the meeting was open. However, when the discussion turned to the valuation and reserve price, the meeting may then be closed to the public.
Well, so much for the advancement of transparency and proper process in council by those who promised a new world order here in the Eurobodalla. It is clear that they are having enough trouble in keeping up with the material being pushed in front of them by staff, never minding actual reform; though not all have this trouble, I am sure.
Councillor Pollock, for example, who has been keeping his seat warm for a generation, clearly knows how to pace himself – and is more than happy to leave it to the staff whenever possible, as he told me – and the gallery - on one occasion in the chamber, a few years back. But yesterday he became quite animated on the subject of the failed dog recreation area for Batemans Bay, sparing no criticism of those who are seeking an off-leash park for dogs in the Bay.
He provided one of his rare involvements in proceedings, by enthusiastically sharing his ignorance with all, in ridiculing the wonderful provision of dog recreation parks in the Shoalhaven and, by confusing “recreation park” with “beach”, in baselessly boasting of our council’s provision of recreational areas for dogs and their owners in the Batemans Bay area. His ignorance and manner of delivery was such that it provoked an intemperate retort from the gallery, of “Bullshit!”. I must and do apologise for this loss of self-control.
The item concerning a dog recreation area for Batemans Bay was a complete fiasco. Council staff, together with a majority of councillors blindly following staff direction, produced a sham of a process and outcome.
The recommendation by staff to councillors, as published in the agenda, reads as follows:
1. Select a site for the location of an on-leash recreational dog park in the Batemans Bay area, from the three potential sites detailed in the confidential attachment, being: · Surf Beach Reserve · Corrigan’s Reserve · Mundarra Way, Surfside.
It is bad enough that the published recommendation refers to an on-leash park, rather than the understood-by-all and desperately sought-after off-leash park, but to top it off, when the matter came up for debate, what appeared on the overhead screen was an entirely different part one to the recommendation. The published version had been replaced with the recommendation that Mundarra Way be agreed to as the preferred site. THERE WAS NO DEBATE WHATEVER in arriving at this revamped recommendation. It simply appeared and the motion to accept it was put by Councillor Tait.
The behind-the-scenes, including pre-meeting discussions that are nothing less than quasi meetings, which the Office of Local Government directs are not permitted, happen all the time, with impunity. The only way this and other breaches of good conduct and proper practice can be dealt with is for at least 5 councillors to tune in and set things right. But, we now know there is but one councillor who has the wherewithal, will and courage to do the right thing and to seek genuine reform: Councillor Pat McGinlay.
And on what appears to be the biggest obstacle to an off-leash park in the Bay, namely the funding, why not give the GM’s mystery shopper program a miss for just six months (at $12,000 a quarter). I am quite sure that frontline staff now know how to say “Have a nice day” better than ever before - with that uplifted inflexion!
I know most of the councillors and senior staff to be good, well-intentioned people. So why do we have the situation we now have? As I have said before, that question is deserving of a thesis – and at that time I provided a sketch of the reasons I think explain this incongruity of good, well-intentioned people being responsible for processes that very deservedly draw criticism. I won’t bother repeating my views on that here but I will say that at the heart of the problems we experience is an attitude that is incompatible with the spirit of the Government Information (Public Access) Act 2009, as espoused in the NSW Parliament:
Mr NATHAN REES (Toongabbie—Premier, and Minister for the Arts) [4.42 p.m.]: I move: That these bills be now agreed to in principle.
It is my privilege to introduce the Government Information (Public Access) Bill, the Government Information (Information Commissioner) Bill and the Government Information (Public Access) (Consequential Amendments and Repeal) Bill, legislation that will vastly improve the transparency and integrity of Government in New South Wales. In October 2008, I addressed this House on the issue of the transparency and accountability of Government and made clear my view that the old culture of Government secrecy has to end and that the public's right to know should be respected. 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. And that means a total revamp of the system. I gave a commitment that I would introduce new legislation to reform freedom of information [FOI] in the first half of this year, once the outcomes of the Ombudsman's review of the Act were known. And today we are delivering on that commitment.
Our council is just that: our council. It must be answerable to the people it serves. It’s all about public service and accountability. But none of that can happen without genuine transparency.
So, where to from here?
Well, certainly, there is no point in continuing to try to point councillors in the right direction, through commentary and a plethora of hyperlinks that conveniently take them to source material, which has been intended to assist them in taking the reins. But, as we saw on Tuesday, even when they are presented with hard evidence of an impending breach of the LGA, they feel compelled to follow the advice of staff. Maybe, the contributor who suggested that the Stockholm Syndrome is at play here, is right.
I had high hopes of the new council and had hoped to be on it myself, but whatever the explanation for the situation we find ourselves in council-wise is, the futility of trying to get through to the majority of the councillors could not be more obvious.
Very likely, the only way to achieve the reform that we need is through the involvement of external, State bodies, which have the capacity to investigate and make recommendations that will, or might, lead to the changes many of us want to see happen.
From Council's Media Release ..... "Eurobodalla Shire Councillors gave Dr Catherine Dale a resounding endorsement.." Mayor Innes said: “Today’s decision leaves no doubt that this Council absolutely backs Dr Dale as the general manager we want to lead this organisation." For the record the VOTE was 8 against 1.