The OLG is encouraged to have another look at possible Council breaches

There has been a back and forth between the community, Council and the Office of Local Government in regards to the Eurobodalla Shire Council's (ESC) compliance with Code of Meeting Practice requirements at its 12 Dec 2017 Ordinary Meeting. Specifically in regards to Item PSR17/073: filling vacancy on Mackay Park Sunset Committee.

The community raised concerns about the way the Item was dealt with. The published agenda said one thing but by the time the item came to the Chamber it had been considerably changed. It now comes down to whether the process that saw a back-room decision, while unethical, is actually allowable. In the opinion of the Office of Local Government how it was dealt with was all above board as you can read in their reply:

"There is nothing to prevent a councillor from putting a motion that is different to the staff recommendation" Office of Local Government. This is correct however it all too readily dismisses the facts around the matter raised and the ongoing concerns that the community have regarding the legality and the ethics of the process that appears to be readily adopted by Council in regards to "back room" practices. If the practice they have adopted is found to be, by the Office of Local Government, to be "above board" then it exonerates Council allowing them to do most of their decision making behind closed doors while making a mockery of published, agendas, staff recommendations, public forums to speak on the matter and then conduct open and transparent Council Chamber discussions to vote, modify or defer on agenda Items. By Council's Code of Meeting Practice (8.1.8) Councillors are required, where they propose to move an Amendment to an employee recommendation, a committee recommendation, a Notice of Motion or any recommendation printed in the business paper, to provide copies of the proposed Amendment to the General Managerat, or prior to, the start of the meeting, for circulation to all councillors and relevant employees.

Following on from the above determination from the Office of Local Government there is now additional information pertaining to this matter gleaned from ESC’s recent Ordinary Meeting on 13 Feb 2018.

During agenda Item 4: Confirmation of Minutes of 12 Dec 2017 meeting, a discussion took place, as councillors were reluctant to vote in favour of confirmation.

This was due to community concern, publicised in the local media, that correct procedure was not being followed by council and that discussions/agreements/decisions were being made that the community were not privy to.

From councillor discussion, it can now be confirmed that the staff recommendation, to fill the vacancy on the Mackay Park Sunset Committee, was rejected at the pre meeting briefing on 12 Dec. due to the following comments from Councillors (webcast 13 Feb ‘18):

* Clr Constable:

“At the pre meeting briefing on the day of the meeting (12 Dec), it was aired that there was going to be a change to the suggested motion or recommendation that was put on the agenda.

* Clr McGinlay:

I want to “comment, not so much on the technical right or wrongs of the situation but the fact that these kind of issues reoccur. This morning, again we’ve had a recommended motion that has been changed during the briefing. ..........(We should) “alert the public who are watching and may have their agenda at home, (that the agenda item) is not what we’re taking about.”

* Chair, Mayor Liz Innes:

“I think the key word in all of this is they are recommendations for us to amend, to agree with or to reject as we so vote on in this chamber.”

Some might agree with the Mayor’s comment, except that the recommendation was NOT brought to the chamber to “amend, agree with or reject.”

It was rejected in the pre meeting briefing, which is in breach of council’s Code of Meeting Practice section

It is clear, that this particular agenda recommendation was included in the pre meeting briefing, that it was discussed and an agreement was reached to reject it and replace it with an ‘alternate’ (council’s description) recommendation/motion.

It is also evident, from Clr McGinlay’s comments, that it is common practice for published agenda recommendations to be changed or replaced during pre-meeting briefings. "This morning again we have had a recommended motion that has been changed during the briefing ..."

The implication of such a breach of the Code are:

* The viewing public may not be aware of what is being discussed at the council meeting

* Public forum presenters, who have spent time researching, preparing and speaking to a recommendation, have wasted their time and effort, as the recommendation has been either altered or replaced.

* It is contrary to the intent of the Model Code, which is to ensure that community perception is one of transparency of process and decision making.

* Loss of trust and confidence in council by the public.

* Concerned Councillors, game enough to speak up, are being ignored – no explanation is offered by management.

No Councillor commented on the fact that, the minutes of 12 Dec meeting, state that Councillor Brown put forward an amendment to the motion without actually saying a single word. When the Mayor raised the item she referred to the amendment indication, via the meeting secretary's keyboard actions, that the amendment had been written and handed. However the amendment was not read out. Why, because all of the Councillors had prior knowledge of it. Unfortunately members of the gallery, inclusive of those who attended to speak on the issue during Public Forum were not able to read the amendment and the amendment was not described at all to those watching via Live Streaming until Councillor Constable read the amendment 10 MINUTES INTO DISCUSSIONS. Correspondence from Eurobodalla Council in regards to the minutes and the alternate motion of Item PSR17/073: filling vacancy on Mackay Park Sunset Committee has resulted in the following response:

In regards to the answers above: 1. Yes, the recommendations were put to Councillors by the agenda. 2. Of importance is that Council FAILED TO ANSWER THE NEXT QUESTION. The question was "When did Councillors discuss and reject the staff recommendation?" It was revealed by both Clr Constable and McGinlay that the motion was discussed and rejected at the briefing that morning. "This morning, again we’ve had a recommended motion that has been changed during the briefing." That statement provides the evidence that the Code of Meeting Practice 2.5.7 was breached.

With these new observations the questions of protocols and compliance regarding this Item and how Council has dealt similarly with other items is once again being raised with the Office of Local Government. At its 13 Feb Ordinary Council meeting, ESC again breached the Model Code (draft) 19.6 and its own Code of Meeting Practice 16.2 regarding Confirmation of Minutes. This Code states that, “Any debate on the confirmation of the minutes is to be confined to whether the minutes are a full and accurate record of the meeting they relate to.” Failure to do so will be ruled out of order.In this instance, debate related to whether decisions were made in the pre meeting briefing, changes to recommendations in briefings and informing the public about altered recommendations in briefings. Clr Constable, Clr McGinlay, Clr Nathan and the Chair participated in these discussions. The Chair did not rule these discussions out of order, but actually participated. The General Manager failed to advise the Chair that the discussions were out of order.Eurobodalla Shire Council needs to be held accountable for their continual failure to comply with legislation and policy. In ending: a comment from Jim Bright In 2009, the then NSW Ombudsman made the following observations. "The latter part of the 20th century and the beginning of the 21st have been marked by an unprecedented intrusion of government into almost every aspect of the lives of individuals. Through this increased level of regulation, government has been given considerably greater ability to influence or control the conduct of individuals ..... In a constitutional democracy such as ours, a condition of the exercise of such powers is that the government agrees to be held accountable, and is in fact held accountable, for their exercise. In the State of NSW, accountability of State and local government is achieved through oversight and scrutiny by Parliament, various watchdog bodies that report to Parliament (such as the Ombudsman, Auditor General, ICAC, and the Police Integrity Commission), other watchdog bodies, the courts, the media and interest groups ... The NSW Parliament, the government of the day and the people of NSW are entitled to expect that all State and local government officials perform their duties to the highest standards." Unfortunately, in recent years, some of these key watchdog bodies mentioned above, such as the NSW Ombudsman and ICAC (that are essential to the maintenance of the integrity of our system of local government), have been subjected to significant reductions in resources and staff. This has significantly impacted on the capacity of these watchdog bodies to properly police the activities of local councils - leaving local communities such as ours vulnerable and exposed when our public officials choose not to operate under appropriate standards of ethics, integrity, transparency and accountability. Our community needs to be demanding that the State government properly equip this State's watchdog bodies with the resources and capacity needed to investigate, identify and stamp out maladministration and unethical behaviour wherever and whenever it occurs. The current situation simply cannot be allowed to continue.

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