It gives me much pleasure to welcome Mr Donald Macdonald to the Beagle Hall of Fame. Donald has been appointed to the Hall of Fame after being declared a persona non grata by Council for having the temerity to raise a Code of Conduct complaint against the Eurobodalla Shire Council's General Manager, Catherine Dale and then reveal the outcome. Donald's Code of Conduct complaint was very straightforward. It raised concern that the General Manager had failed, in his opinion, of her duties to ensure that councillors are provided with information and the advice they require in order to make informed decisions . Background: The public are allowed to raise Code of Conduct complaints against Council staff or Councillors if they consider that the accused have done something wrong and act outside of the Local Government Act, Council policies or procedures. Any formal complaint raised is then dealt with by an Independent reviewer, much like an umpire who knows and reviews the rules. That reviewer is paid by Council to review the complaint and to write a report that details any consequence if there has been wrong doing. Up until recently we, the public, were able to disclose the result of these complaints. But then they decided it best to keep such matters secret. So much so that the Office of Local Government said "If you disclose the outcome of a complaint then you will never be told of any future outcome to any complaint you might raise in the future". So, if a Councillor breaches the Model Code of Conduct, or if staff breach the Local Government Act policy or guideline we, the community, are not allowed to know the detail, the outcome or penalty. Fortunately for the Eurobodalla public Mr Donald Macdonald kept The Beagle advised of the progress of the Code of Conduct he raised against the General Manager. Because he did the whole community came to see the process for what it was. A sham. Donald's justifiable Code of Conduct complaint was raised against the General Manager when it was discovered that a key correspondence from the Office of Local Government was not passed on to Councillors prior to their voting to commit to a $70 million tender for the Mackay Park project. In the report (PSR20/015) that was provided to councillors at the ESC meeting of 28 July 2020 Mr Macdonald believed that the General Manager, Catherine Dale, had failed to advise our councillors and our community of some of the more important advice and comments that were contained in a letter from the Office of Local Government (OLG), dated 13 July 2020. Instead, as was revealed, only a single line was conveniently quoted from the correspondence in a report to councillors, omitting a key show of concern by the OLG that should have been conveyed prior to any vote. In the opinion of Mr Macdonald, the Eurobodalla Council General Manager had failed her duties under section 23A of the LG Act Some background to the rules: In July 2011, OLG issued Circular No. 11-14 under section 23A of the LG Act concerning a range of issues and requirements relating to the employment arrangements for council General Managers. Amongst other things, that circular spells out (in Part C.1) the ‘key duties of all general managers’. Those key duties include the specification that a general manager
“is responsible for ensuring that councillors are provided with information and the advice they require in order to make informed decisions” and
“should ensure that the council meeting business papers are sufficient to enable the council to make informed decisions”.
That part of the OLG circular also emphasises that councillors
“have a right to sufficient information to make informed decisions”.
In an Office of Local Government (OLG) letter that was emailed to the ESC’s General Manager on 13 July 2020 they said (in part):
Above: an extract of the letter that the General Manager did not show to councillors before they voted to commit $19 million of ratepayers money to the Mackay Park pool. Full letter here The General Manager, under a FOI request, confirmed that the Councillors did not see this letter. Unknowingly all they saw was an extract of the letter that appeared in a report on July 28th (15 days later) that quoted the first paragraph above, but not the more concerning second. Our councillors were about to vote to commit $19 million of ratepayers money but were unaware of the OLG concerns around Council's capacity to finance the ongoing operations of the facility that are shared by many in the community. A Code of Conduct complaint was raised by Mr Macdonald once the omission was discovered that the General Manager (or staff delegated under her authority) had determined that the councillors did not need to read the OLG letter as, in the opinion of the GM (or staff delegated), the councillors already had sufficient information to make informed decisions. The ethical and professional standards applicable to council general managers and other staff are provided in considerable detail in the NSW Ombudsman’s ‘Good Conduct and Administrative Practice – Guidelines for state and local government’. In it you will find the following: Advice given by public officials should be accurate, impartial, complete and timely.”
“Public officials should provide advice and reports to decision-makers …. that are materially accurate (and) cover all the issues relevant to the matter”.
“Written advice on proposals should cover such things as …
· reference to all the considerations which should reasonably be taken into account
· sufficient information to enable any decision-maker to understand the relevant issues”.
Note that these are guidelines and not rules.
Given that the General Manager “is responsible for ensuring that councillors are provided with information and the advice they require in order to make informed decisions” a Code of Conduct complaint was raised.
It will be of no surprise to Beagle readers to learn that the Independent reviewer handling this Code of Conduct complaint considered that the General Manager had done no wrong in not passing on the letter to councillors written on July 13th 2020 by the Office of Local Government that voiced their concerns to Councillors.
The Independent reviewer determined that: "If considered in isolation, we can see how the selection of element of the OLG letter, as compared to the provision of the whole letter, could be perceived as providing incomplete information to Councillors.
However, when viewed in the context of the publicly available information over the life of the project and noting the previous reports, briefings and information provided to Councillors and that many of these were detailed in the Agenda for the Ordinary council Meeting of 28 July 2020 to vote on the motion, the selection of information provided to Councillors is not considered to be an omission material to informed decision making.
"We assess that it is reasonable for reports and briefings provided to Councillors to be focussed on the decision being made, rather then re-providing voluminous amounts of information that Council has previously considered during the life of this project.
"We also consider it to be a prudent and professional approach for Council’s staff to select the salient information and provide summaries, rather than to simply pass on every piece of correspondence that Council receives."
Pursuant to Clause 6.13 of the Procedures, being satisfied that much of the information that is alleged to have been omitted from the information provided prior to Council voting on motion PSR20/015 for the approval of the construction tender is publicly available through Council’s website.
Above: a redacted copy of the independent review with Editor's notes in red.
When the Corporate Manager Governance and Administrative Services of Eurobodalla Council discovered that Mr Macdonald had revealed the outcome of the Code of Conduct complaint a letter was sent to Mr Macdonald asking for explanation and reasoning on why he should not be "banished".
Mr Macdonald did provide a response to council. And it was a response they would not have enjoyed reading.
In that response Mr Macdonald outlined, very clearly, that he had major reservations with a process that saw the General Manager and her delegated officer as judge and jury.
He wrote:
The veil of secrecy that now covers Code of Conduct complaints and their findings also covers any shortfalls in determinations by independent reviewers.
The Office of Local Government have now given approval to Eurobodalla Council that Mr Macdonald be "banished" and to never receive any future outcomes of any Code of Conduct he might raise.
Mr Donald Macdonald, in being welcomed to The Beagle Hall of Fame has not only shone a light on the fact that the General Manager knowingly withheld communication from Councillors, that may, or may not, have influenced their vote, but his spotlight has also shone a light on how the Code of Conduct processes, challenges or consequences to those who do not comply with confidentiality is dealt with.
There is hope of change though.
With the revelations of past Code of Conducts (there have been many over the past five years - Eurobodalla Council holds the State record at present) and the soon to be published revelations of another Code of Conduct a spotlight will reveal how Council cherry-picks its reviewers (that it pays) and how the independent reviewers fail in their due diligence and follow up to best represent the complainant rather than the complained.
So welcome Donald Macdonald to the Beagle Hall of Fame, established for those who dare to question Council and endeavor, in the words of Don Chipp, to "Keep the bastards Honest"
