With most Eurobodalla Councillors now voting to move forward with the $70 million Mackay Park Pool and Hall project on the existing 50m pool and mini-golf site (both to be demolished) questions still remain about the Batemans Bay Bowling Club site that was specifically purchased in 2016 at a cost of $2.7 million to provide the community a location for community focused exhibition space, a heated therapy pool and a range of community focused opportunities that council had sought out via public submissions. Within just months of purchase the building was condemned and the councillors instructed that they MUST classify the land (recommended Operational so it could be on-sold or leased) rather than MAY that would have seen it classified Community by default. There is much secrecy around the purchase of the site that still remains. What we do know however is the following as recently advised: Clubs NSW initially advised all member clubs that the Batemans Bay Bowling Club (BBBC) was seeking an Amalgamation partner. The proposal was taken to the Board of the Catalina Country Club (CCC) to determine if they wished to express interest. After the BBBC accepted an Amalgamation the proposal was taken to the CCC members on behalf of the Board explaining that it was the CCC’s intention to broaden the appeal of the BBBC and to encourage an increase in social membership and daily/tourist visits. The CCC was clearly aware that the falling bowling member support alone could not sustain the heavy costs of maintaining the greens and the clubhouse asset. An independent business analysis at the time offered three scenarios, all of which confirmed a positive Amalgamation outcome. BBBC members were informed of the need to encourage social membership and casual visits. It is understood that they were not, at any stage, promised that greens would be built at Catalina should the Amalgamation fail. CCC members were informed that the Board had every confidence that the Amalgamation would be a success but that any risk would be offset by the capital value of buildings and land, and of the value of the 61 poker machines and their licences. On that basis members of both clubs formally agreed to proceed. New social membership proved difficult to secure as many BBBC members discouraged intrusion into their daily clubhouse activities. BBBC membership numbers continued to decline, made worse by falling in-club spending by existing members. Despite the CCC investment in poker machine upgrades, club refurbishment and press advertising, revenue began to fall to the point where the CCC was eventually financially supporting BBBC operations. It was then proposed by the CCC Board that the BBBC cease trading. The Board reluctantly, but unanimously, agreed.
The CCC’s motivation had been to refresh the BBBC and to partner the club in its successful revival. While the CCC eventually benefited from the exercise it is understood that it was not its motivation. The CCC’s Amalgamation financial input was to cover the $1.1million bank loan as well as a smaller trade debt and a private loan. A figure of under $1.5million. Renovation costs that followed was funded by BBBC trading revenue. Direct management costs were also funded by BBBC trading revenue. The CCC carried the cost of servicing the bank loan for the entire Amalgamation period and up to the point of sale. Following closure, all 61 pokie licenses were passed to the CCC contributing almost 40% of the current $5.5million annual pokie machine turnover – approximately $2million each and every year. There is much that still remains unknown up to the time of Council's purchase of the site It is widely believed that once the CCC decided to ‘close’ one of its non-performing profit centres they went looking to the market and were approached by a major Sydney based sporting club. To consider such an approach from a competitor could well introduce a risk to their own viability. It is understood however that this prospective buyer dropped off when the limitations and the restrictions that burden the Batemans Bay Bowling Club site became evident. Council had already indicated at an earlier time they would be approachable so when the time came the CCC approached Council to consider purchasing the Club land and buildings (not condemned at the time) for the community. They entered negotiations. At the time Councillors Pollock and Leslight believed the property was worth $1.2 to $1.5 (a NSW valuation later that year indicated UV of $1.5) The property was however purchased for $2.7m. Clr Pollock has made comment of the time saying "we had no choice" even though he did not vote to buy it (he was absent). The vote to buy the property was done in secret during a Council meeting on the 26th of April 2016. It is understood (though no minutes exist) that Clrs Brown, Innes, Swartz, Burnside voted for the purchase and voting against were Clrs Harding, Brice and Leslight. Mayor Brown used his casting vote. ******************************************************
In March 2018 a Code of Conduct was lodged with the Office of Local Government. The basis of the Code of Conduct was: - The General Manager and the then Mayor, Lindsay Brown, did knowingly on April 26th, 2016, set out to secretly deal with, in confidential, the purchase of the Batemans Bay Bowling Club under the guise of a “Mayoral Report” so that the Council’s determination could be formally minuted yet deny the public any opportunity to know that such a determination was to occur as it was not on the agenda, or had occurred as was the case in the minutes that followed.
- that the General Manager ignored Council’s own rules in regards to Order of Matters, as clearly stated by Council’s own Code of Meeting Practice, and that it neither advised the gallery or live-streaming viewers that there was a second Mayoral Report (following delivery of the first Mayoral Report MR16/002) that was going to be dealt with in Confidential contrary to Council’s own Code of Meeting Practice that Mayoral reports MUST take precedence over all other agenda items.
- that the General Manager, knowing full well that a “Mayoral Report” was going to be determined during the Confidential session failed to advise the gallery prior to going into the Confidential session, as required by the Local Government Act, so that a member of the public might speak to the confidentiality and object and to it being dealt with in Confidential as is required by the LG Act.
- that the General Manager and Mayor sought to introduce a document as a Mayoral Report (without using the MR prefix), thereby enabling a non-agenda item to be introduced to a Confidential session. Note that the item is referred to as CON16/009 and does not have a MR prefix as required for Mayoral Reports. As such it could be argued that it was not a FORMAL Mayoral report (preceded with the prefix MR to denote it as a Formal Mayoral Report) but a non-agenda confidential item.
Then following the Confidential session….
- that the General Manager failed to advise, on return to the chamber following the Confidential session, members of the gallery or those live streaming that a second matter had been dealt with in Confidential.
- that the General Manager perpetuated the secrecy of the matter by failing to advise in the minutes a description of the item referred to as CON16/009 (as required and as done so with previous item CON16/008) which is also contrary to the Local Government Act. The code of Conduct Complaint came about following a presentation to Councillors during Public Access on February 13th, 2018 by Lei Parker who requested an explanation from Council and Councillors of a very concerning anomaly that has been discovered in the Council meeting agenda and minutes of April 26th, 2016. Councillors were provided a copy of the presentation to ensure they saw exact extracts of the minutes and agenda as supporting evidence. It was described that the meeting of April 26th 2018 listed a confidential Property Matter CON16/008.
The description of CON16/008, in the agenda prepared by the General Manager, Catherine Dale, did not however “sufficiently identify the item in order to inform the public that that item will be dealt with at the meeting” (as per the OLG’s letter below)
As evidenced by the agenda of the day and by the Live Streaming archive the item CON16/008 was the last item on the agenda, where Council moved into Confidential to return soon after, announcing their determination and also revealing that it was a Property Matter relating to an easement on George Bass Drive. Being the last item on the agenda the live streaming archive, not surprisingly records the Council meeting was then closed. It was discovered however, that while the published minutes recorded CON16/008 another Confidential matter was dealt with during confidentials. The minutes record CON16/009. Also of concern was that CON16/008, as recorded in the minutes, was a property matter in regards to George Bass Drive. There was NO detail provided for CON16/009 in the minutes other than it was a Property Matter with a file number of E12.6442 as a reference.
A review of the agenda and live streaming of the meeting will confirm there was NO mention at all of Confidential Item CON16/009, including any reference of it being raised as Urgent Business. By Council’s own Code of Meeting Practice:
In a presentation to Council on February 13th, 2018 (nearly two years later) an explanation was sought from Council as to why the minutes of April 26th 2016 were NOT a full and accurate record of the proceedings of that day asking "By whose authority was item CON16/009 added to the minutes?" Of further concern was to discover that the file reference given for the CON16/009 Property Matter is E12.6442, the reference number Eurobodalla Council uses on matters relating to the Mackay Park precinct redevelopment.
Above: As you can see in the extract below of the 29th August 2017 agenda clearly associates the project and the file number. The date of the Council meeting of CON16/009 was April 26th 2016, three days before Council exchanged contracts on the sale of the Batemans Bay Bowling Club land, which is part of the Mackay Park precinct. By his own admission, in a Council Media Release dated April 29th, 2016 titled "Council buys Batemans Bay Bowling Club site" then mayor Brown stated:
It now appears that the "Confidential Meeting" referred to by then-mayor Lindsay Brown was the Council meeting where Property Matter CON16/009 was dealt with, in confidential, behind closed doors, as recorded in the minutes.
On February 13th, 2018 the Councillors were asked to offer the community an explanation as to how CON16/009 came to be minuted yet was NOT part of the Council meeting, as evidenced by the agenda and by the Live Streaming archive? ************************************************************* Of continuing concern was the fact that this was not the first time it had been discussed in regards to the way Eurobodalla Council deals with Confidential Matters On the 13th of July 2017 the Office of Local Government wrote to the General Manager following a complaint that the Agenda of June 13th, 2017 did not sufficiently identify two Confidential Matters pertaining to the General Managers contract; listing them only as Personal Matters.
In that letter Council were reminded of Section 9 (2A) of the Local Government Act 1993 of the importance of “sufficiently identify an item in order to inform the public that that item will be dealt with at the meeting”.
and given an official yet polite slap on the hand with the advice that:
In a follow up email on July 24th 2017 Council was once again clearly advised by the Office of Local Government of the requirements of the Act which was quite pointed that the purpose of Section 10A “does not allow councils to make secret decisions."
And of equal importance and specific guidance the OLG wrote " ... in the circumstances where the council has already adopted the minutes of the meeting of 13 June 2017, any amendments to the minutes will need to be made by way of a council resolution” That advice of "by way of a council resolution" from the Office of Local Government has still not been acted on even though the minutes in question have since been amended.
Of interest is the Mayoral Minute of 25/07/2017 (still NOT published on Council's website) where Liz Innes stated Mayoral Minute 25/07/2017:
Council’s practice, over many years, has been to prepare two separate set of minutes to reflect open session of Council and closed session of Council. The minutes of the closed session of Council have been drafted to include specific details, usually of a personal or commercial nature. The minutes of the open session of Council reflect the generic decision that has been made by the council during closed session.
Advice from the Office of Local Government (OLG), received Monday 24 July 2017, indicates that this long standing practice is incorrect and the full resolution adopted by the Council in the closed part of the Council's meeting must be recorded in the open minutes of that meeting. Notwithstanding it has been a practice in many local councils.
Further advice received indicates that the purpose of section 10A of the Local Government Act 1993 is to protect the confidentiality or privilege of the information upon which council relies. This intention is reflected in clause 253 of the Local Government (General) Regulation 2005 (the Regulation). This requires that where a council passes a resolution during a meeting or a part of a meeting that is closed to the public, the chairperson must make the resolution public as soon as practicable after the meeting or the relevant part of the meeting has ended.
As a result, I recommend that we make all confidential minutes from this council term public, noting that we redact the names and addresses from the minutes to protect confidentiality.
OLG has also advised that when framing a motion relating to a matter being considered in a closed part of a meeting, councils need to be careful to ensure that the wording of the motion does not disclose any confidential information.
Going forward, Council will ensure that all minutes moved in confidential are worded in a manner that confidentiality provisions of relevant legislations are not breached.
1. The resolutions made in the confidential sessions for this council term be included in the public minutes.
2. Names and addresses to be redacted from the resolutions prior to being made public.
Of Interest in the above is: “Council’s practice, over many years, has been to prepare two separate set of minutes to reflect open session of Council and closed session of Council.”
“Advice from the Office of Local Government (OLG), received Monday 24 July 2017, indicates that this long standing practice is incorrect and the full resolution adopted by the Council in the closed part of the Council's meeting must be recorded in the open minutes of that meeting. Notwithstanding it has been a practice in many local councils.”
“As a result, I recommend that we make all confidential minutes from this council term public, noting that we redact the names and addresses from the minutes to protect confidentiality.”
The Mayor was asked directly in Council Chambers on February 13th, 2018 how she might qualify her statement that breaches of statutory requirements "has been a practice in many local councils". She was also asked: " Please name these “many local councils” Madam Mayor that you appear to be aware of.
The Mayoral Minute also advised that Council had decided to draw a line in the sand and only correct any breaches of Confidential Matters from the start date of the current Council being September 2016
With the anomaly surrounding CON16/009 of April 2016, and the way it was dealt with and recorded, it is more than apparent that Council has been breaching Section 9 (2A) of the Local Government Act for some time.
As to the findings of the Code of Conduct against the General Manager and Mayor in the way they handled the CON16/009 matter around the purchase of the Bowling Club that was hidden from the agenda and from the public as evidenced by the live streaming : On the 6th March 2018 Eurobodalla General Manager Catherine Dale wrote:
The Code of Conduct reviewer concluded: