A class Code of Conduct against Mayor Innes to be raised
Even before the Mayor tabled her Mayoral Minute at last Tuesday's Eurobodalla Council Ordinary meeting she knew it would put her in hot water with the community, however, following what many consider now to be very poor staff advice, she pressed on and delivered a Mayoral Report which she did not write nor read, prepared by staff, which by its content, complexity and intent, flies in the face of the guidelines of the Local Government Act and sets out to gag the community What exactly is a Mayoral Minute? The OLG Practice Notes make it quite clear, as follows:
The councillors did have forewarning, with a quick mention that morning before Council session, that an as yet to be finalised Mayoral Minute was going to be delivered during Tuesday’s Council meeting however were not privy to its as Council staff were still preparing the document and would be doing so whilst the Councillors were in session. The councillors only knew it was arriving sometime..... with the understanding that, as a Mayoral Minute, it would not introduce, without notice matters that were routine nor would it introduce, without notice non-urgent matters or any matters that might require research or a lot of consideration by councillors before coming to a decision. Little did they realise that they would be given a 15 page document with 6412 words and only 15 minutes to read it. When the Mayoral Report was introduced (Timestamp at 3:05:25 on Live streaming archive video http://webcast.esc.nsw.gov.au/archive/video18-0327.php ) Mayor Innes said to her fellow councillors “I hope you have all had an opportunity during our fifteen minute break to have a read and to have a consider of what was put forward in the Mayoral Notice of Motion” A comment from Councillor Anthony Mayne revealed the lack of time perfectly when he stated he had had no time to read the report at all. “I apologise… I did not get my fifteen minutes”… Fifteen minutes to read fifteen pages with 6412 words ???? (Note: The average adult reading speed is 300 words per minute - the reading speed of our Councillors is unknown but it is doubtful that any of them could have read it properly in less than 20 minutes) A class action Code of Conduct is now being drafted against the Mayor for her Mayoral Minute that did in fact introduce non-urgent items and also introduced, without notice, matters that might require research or a lot of consideration by councillors before coming to a decision. It is now widely considered that the URGENCY around the Mayoral Minute was entirely political. There was a political urgency to confirm: - there would be no 50m pool and - that the Otium Concept 1 with its 500 seat capacity auditorium be affirmed, thereby ending all future debate and closing down any future community dissent. So why the Urgency of the Mayoral Minute? One of our readers puts forward this theory.... The Eurobodalla Council staff and councillors were well aware that both the 50m pool issue and the justification for a larger more financially viable auditorium were gaining ground and it now appears that, as a matter of "urgency", the Mayoral Minute was brought forward in an attempt to close down any further discussion. It is also widely understood now that the recently announced state funding comes with an expectation that on-the-ground works will begin before March next year. This is regardless of the fact that the final funding for the $46.3 million project has not been secured and there is a shortfall of $20.3 million still to be found. The urgency around this move to act quickly is driven by the Member for Bega, Minister Andrew Constance MP, who has suggested that if Labor get in at the next election then "the project will be pulled". Minister Andrew Constance MP has been made fully aware that there had been only limited consultations with key community sporting organisations with regard to the aquatic development and that ESC had withheld from those organisations the fact that the 50-metre pool would be removed. He was also made aware that when the lack of inclusion of a 50m pool in the proposed development was revealed many, if not most organisations that had indicated support for the new facility, withdrew that support. Prior to the recent announcement of the release of State funds as a part contribution for the project he was also well aware that there was significant and growing community opposition to the removal of a 50-metre pool from the community. In terms of urgency many now believe it is his own political reputation for delivering the project that stands to be compromised if there are any further delays due to more community consultation with regard to the inclusion of a 50m pool. Prior to the Mayoral Minute announcing it would Not include a 50m pool in the proposed centre or retain the existing 50m pool the Member for Bega had stood before a full auditorium at the Batemans Bay Soldiers Club and publicly stated the same, pre-empting the exclusion of a 50m pool as reiterated in the Mayor's Minute. Minister Andrew Constance MP was well aware that there was a solid push by the community to have the NSW Govt funding withheld for the development until ESC had undertaken more comprehensive and inclusive community consultations and the request/requirement for Council to provide the detailed comparative costings for 25 and 50-metre indoor heated pools which he himself had previously requested Council provide to the community. The NSW Election clock is fast running down and the urgency of the project to the Local Member and to his government just 12 months out from an election is becoming more than apparent to those watching on. At a morning meeting with Minister Andrew Constance MP in Council offices on 16th March the Fight for Batemans Bay’s 50m Pool team (and other swimming representatives) were assured that he would convey their persistent concerns to the Council executive during a meeting scheduled for the same afternoon. He made it crystal clear to those at the morning meeting that the NSW government did not wish to see any of the requested funding delayed following the group suggestion of delay pending a re-examination of the community involvement in the process. He made it quite clear at that meeting that the NSW Government wanted the Mackay Park redevelopment well underway before the next state elections, fearing that the NSW Opposition would halt or reverse the project if it won government. It is evident that if there was any urgency to this Mayoral Minute it is purely political and to the benefit of the Mayor and the Member for Bega. There is no urgency to begin works by March 2019 as that is NOT a requirement of the grant and there is nothing in the Mayoral Minute that has any element of urgency for the community. The Mayoral Minute has only deepened the existing gulf of distrust and disrespect that now sits between Eurobodalla Council and the community that it was elected to represent and the failure of the councillors to call it out for what it was shows either indifference or collusion on their part. In the case of Councillors McGinlay and Mayne it is evident that they are a minority, showing exasperation and are aware of the suggested manipulations that are happening behind the scenes. For those unaware of the mechanics around Mayoral Minutes it might be a convenient opportunity to lay down The Rules are so that it is very clear to everyone, including the Office of Local Government who will be determining the Code of Conduct, if there has been a breach. Some key points and issues, in relation to the inappropriateness of the mayoral minute that was presented to councillors (and the public) at the 27/3/2018 meeting, are as follows.
(1) Part 2.7.1 of OLG's 'Meetings Practice Note - August 2009' says that mayoral minutes should not be used to introduce, without notice, matters that are:
“not urgent, or need research or a lot of consideration by the councillors before coming to a decision.” Comments:
There does not appear, in the opinion of those who have now had time to read it, that there is anything in the mayoral minute (available in full HERE) that was of such urgency that would not have reasonably allowed for the matters to have been deferred until the next (or even a later) council meeting. The Mayor does make an apology saying that it wasn’t in the agenda however “not withstanding the announcement that was made last night by the NSW Premier Gladys Berejiklian this IS AN OPPORTUNE TIME at this Council meeting to progress things and move things forward.” "Opportune time" does not equal URGENT. In summary those “urgent matters” in the Mayoral Minute that apparently couldn’t wait were to: - Thank the Premier - Continue to advocate to the NSW and Australian Governments for funding to complete the Regional Aquatic, Arts and Leisure Centre. - Confirm Option 1 as the plan (which they had already done previously) - Note that the ultimate design is dependent on the total amount of grant funding received. - Confirm that the design phase will consider potential to expand - Note that during the design phase costs will need to be reviewed - Note that further engagement will be undertaken with the community - Proceed with the issuing of Request for Expressions of Interest to redevelop the northern precinct of Mackay Park It is very clear from the above that these are NOT urgent matters and are in fact Routine.
There was also the matter in the Mayoral Minute that clearly deserved more than fifteen minutes notice for proper consideration by councillors and the probable impact to the community being: - Support the inclusion of a 25m by 10 lane lap pool Councillor McGinlay, with genuine concern during debate, bought question around this point and the inevitable cessation of any further discussion with community groups over the inclusion of a 50m pool. Councillor Mayne also reiterated his concerns of the Confirmation of the Otium Option 1 Concept plan as possibly thwarting further discussion regarding the capacity of performance space being set at 450 to 500. It was clear that to both of these councillors there was indeed an opportunity for a lot of consideration by the councillors before coming to a decision. There has been an ever growing and very-public campaign to retain a 50m pool. This is evidenced by the recent gathering of petitions and more letters of support across the community wishing to have a 50m pool incorporated into the design of the new complex. Many in the community now feel that the Mayoral Report was designed, and pushed through, to intentionally close down that section of dissenting to deny the community the opportunity for any further debate. The final, left of field, wildcard in the Mayoral Minute was the inclusion of “Investigate the potential for the provision of long distance swimming facilities in the ocean at an appropriate location in the Batemans Bay area.” This element is considered, by all who read it, as NOT Urgent and also, as it sets to allocate funds and resources to the investigation without any definition of limit, scope or even justification, it too flies in the face of what is acceptable in a Mayoral Minute. The sceptical amongst us would see this as a total “red herring” and obvious distraction.
(2) Part 2 of Module 8 of the Ombudsman's 'Good Conduct and Administrative Practice – Guidelines for state and local government' provides the following instructions to councils in relation to government guidelines such as the above-mentioned OLG practice note. (Those Ombudsman's instructions were developed in conjunction with the ICAC, the NSW Audit Office and OLG.)
“While there is usually no legally enforceable obligation to comply with government circulars, memoranda .…, decision makers should usually have regard for them and comply with their terms in the interest of fairness, equity and consistency.
Decisions not to comply with circulars, memoranda and other similar codes should be justifiable, and reasons for taking another course of action should usually be documented.”
“Any cavalier or unjustified disregard for such guidance would be a matter of serious concern to the Ombudsman.”
No justification was provided in the Mayoral Minute for why councillors were being required to determine the matters in a time-frame and circumstances contrary to OLG's guidelines.
(3) In December 2017, the Office of Local Government circulated its proposed new 'Model Code of Meeting Practice for Local Councils in NSW'. (OLG's Circular No 17-40/ 6 December 2017/ A573892 refers.)
In that document, OLG had clearly and publicly re-emphasised its attitude (to the above-mentioned limited circumstances in which council officials should properly use 'mayoral minutes') by flagging its preference to now make those particular limitations a mandatory feature of the new Model Code that is to be prescribed by regulation in the near future.
The recent identification and discussion of this type of issue, both in OLG's 'Circular to Councils' dated 6/12/2017 and in the Public Forum session that preceded the ESC meeting on 13/3/2018, clearly exacerbates the seriousness of the abject failure of the Mayor and the General Manager to have taken any steps to comply with OLG's views or to have justified their decision not to comply.
In Summary: It is very clear that the Mayor’s tabling of a Mayoral Minute on this matter, without notice, at last Tuesday’s council meeting was inappropriate and well outside the OLG guidelines. The matters raised were not urgent, nor were they wholly of an information-only nature. Moreover, the motion proposed was unclear in some important respects. The fifteen minutes (by reference of the Mayor and by admission of a councillor) given to councillors to read the minute was insufficient time for any of them to consider and take advice on the complex issues involved. As a consequence the public have now been denied an opportunity to express any view and to address Council, as they would have been entitled, had it been posted, with notice, as an agenda item. The ill-advised Mayoral Minute delivered last Tuesday was a very inept attempt by the Mayor and her executive advisors to ram though their intended course of action and to close down any further community discussion. Those actions should now be challenged and revealed as such. It is interesting to note that during Council’s Ordinary Meeting of March 13th 2018 the General Manager spoke on Mayoral Minutes. (Time stamp 42:00) assuring the Councillors and public that “This council has used mayoral minutes responsibly” adding “There is no evidence from our perspective that they have been misused in any way”. That statement might no longer wash in the opinion of those who witnessed last week’s delivery of the Mayoral Minute. The following is the Code of Conduct complaint to be delivered to the Office of Local Government CODE OF CONDUCT against Mayor Innes, Mayor of Eurobodalla Shire Council. We, the undersigned, wish to lodge a formal Code of Conduct complaint against Mayor Innes for putting forward Mayoral Minute MR18/001 REGIONAL AQUATIC, ARTS AND LEISURE CENTRE AT MACKAY PARK, BATEMANS BAY knowing that it introduced, without notice, matters that are routine, not urgent and also having elements that needed a lot of consideration by the councillors before coming to a decision and that such time as to absorb the contents of a 15 page, 6412 word document was not available prior to their being called on to vote. We, the undersigned request that, should an independent arbiter determine the Mayoral Minute to be in breach of Part 2.7.1 of OLG's 'Meetings Practice Note - August 2009' then the Mayoral Minute be withdrawn and the report as it stands be bought to a Council meeting as an agenda item.
IF YOU WISH TO BE A CO-SIGNATORY TO THE ABOVE CODE OF CONDUCT THEN please: email firstname.lastname@example.org and advise us that: I have read the article in the Beagle and agree that a code of conduct complaint should be raised on this issue. I have read the Code of Conduct complaint as it is written and wish to be a co-signatory to it, and also wish to be advised of any official determination made in relation to this Code of Conduct complaint. Then: Please provide your name, address, contact number and email address so that these can be added to the complaint when lodged with the OLG NOTE: Co Signatories to the above Code of Conduct MUST participate via an email providing the text and details above and not use the comment field below All information provided of co-signatories details will remain in STRICT confidence.