Presentation to Council : Jim Bright Sept 28th

ESC MEETING – 28 SEPTEMBER 2021

PUBLIC FORUM PRESENTATION

RE MAYORAL REPORT – MR21/005

My name is Jim Bright. I’m a resident of Narooma.

I’m here today to suggest that there is a considerably simpler and certainly a far more appropriate way to address the mayor’s proposal for the council to facilitate the continuation of the employment of the current General Manager, Dr Dale, for an additional period of three months beyond the expiry of her current contract on 30 June 2022 - that is, for an additional period from 1 July 2022 to 30 September 2022.

The Mayoral Report advises that Dr Dale has proposed that this outcome be achieved by now cancelling her existing employment contract and approving a new contract for a period of twelve months from 1 October 2021 (this Friday) to 30 September 2022. (Although it is not explained in the Mayoral Report, the reason why this somewhat convoluted process, of cancelling an existing contract and replacing it with a new contract, would need to be undertaken is because, under s.338 of the Local Government Act, GM contracts must be for a minimum of twelve months.)

However, as I have explained in the discussion paper that I have sent to you (below) in the last day or so, the Local Government Act does provide a way to achieve the same outcome without the need for the administrative complexities of the arrangement that is proposed in the Mayoral Report. That is, s.351 of that Act allows a council to temporarily appoint someone to a GM position for a period of up to 12 months. It is therefore completely feasible for the current contract to continue as scheduled until 30 June 2022 and for Dr Dale then to be temporarily appointed, under s.351, in order to continue in the GM position for the following three months up to 30 September 2022.

But far more importantly (as I explained in my discussion paper), this arrangement would also facilitate the honouring of the long-standing ‘caretaker’ convention that, wherever possible, employment decisions relating to General Managers should be taken by the councillors to whom a General Manager would be responsible during the period of employment in question. That is, any additional period of employment that will occur between July and September 2022 should, as far as possible, be approved by the councillors who are in place during that particular period – and as I have explained, in this particular case, it would be entirely possible for the councillors who will be elected on 4 December to take a decision during the first half of next year to offer Dr Dale an appointment under s.351 for the required period following the expiry of her current contract.

Therefore, all that actually needs to occur at today’s meeting, to enable this alternative process to be instigated at the appropriate time, is simply either

· for Dr Dale to withdraw her recent request for a new contract to be approved, or

· for the councillors to decide that there is, in fact, no compelling and justifiable need to replace the existing contract. In reality, the compelling case is for the current contract not to be replaced.

Thank you.

A Discussion Paper

An Alternative to the Mayor’s Proposal for the Renewal of the GM’s Contract

The contents of the Mayoral Report that is on the agenda for the 28/9/2021 ESC meeting, can be summarised as containing the following primary elements.

Element A - It is essential/highly desirable, in the Shire’s interest, for the General Manager to continue in her position for the three months following the expiry of her current employment contract on 30 June next year.

Element B - The manner in which that outcome would need to be achieved will involve (i) the immediate termination of her current contract and (ii) the approval by the councillors, at Tuesday’s meeting, of a replacement twelve month contract covering the period 1 October 2021 to 30 September 2022.

In my assessment, many (probably the overwhelming majority) of informed ‘council watchers’ would be unlikely to accept the premise that appears to underpin element A - that is, that it is highly important, in the public interest, to have Dr Dale, rather than someone else, drive certain decision-making processes during the July to September period next year. However, this paper does not attempt to address that particular issue and simply focusses on element B and its contention that the councillors must now approve the Mayor’s recommendations in order to achieve the objective of having Dr Dale employed in the GM position during the period from July to September 2022.

In relation to the contents of element B, I completely disagree with the implication in the Mayoral Report that that recommended set of actions is the only option available to the council to achieve the Innes/Dale proposal for an extension to the GM’s employment period. I firmly believe that there is a simpler and much more appropriate process.

‘Caretaker’ Conventions

However, before I go on to describe that alternative method for achieving any extension, it is highly important, in deciding between available options in relation to such matters, that we understand and recognise one of the long-standing and fundamental accepted conventions that exists within the NSW local government sector. That convention is that decisions on who will undertake a council’s General Manager role during any particular period should, wherever possible, be taken by the elected councillors who are, or will be, in situ at that particular time.

The importance of adherance to the accepted Australian ‘caretaker’ conventions within the NSW local government sector has been formally recognised over very many decades. In earlier times this was done by the State Government routinely reminding councils of these conventions in the lead up to each round of council elections and, since 2012, by actually introducing a statutory prohibition, during the month preceding the elections, on a small number of the more significant types of council decisions, including GM employment contract decisions.

Now, although the Innes/Dale recommendation can ‘legally’ be taken by the councillors at Tuesday’s meeting (since that would be a few weeks before the statutory prohibition period comes into play), it would never-the-less still be an affront to the accepted convention (and decency!) – particularly if it was not actually necessary for that decision to be taken before our next council is elected by the local community.

The Simpler and More Acceptable Alternative

The convoluted and relatively inflexible process proposed in the Mayoral Report for addressing the issue of the performance of the GM role during the three month period after 30 June 2022, is absolutely not the only option available to the councillors.

In fact, all that really needs to happen at this stage is to simply allow the GM’s existing employment contract to run its course and expire on 30 June 2022. In the lead up to that date, if the new mayor and councillors, in consultation with the GM (and possibly her senior staff), were to conclude that it would be in the best interest of our Shire’s community for Dr Dale to remain in the GM position for few months beyond 30 June, then a period of temporary employment, under section 351(1) of the Local Government Act, could be offered to her. (The same remuneration and other conditions, that apply under her existing contract, could be included in that employment offer.)

This arrangement would achieve exactly the outcome that is described as being sought through the adoption of the recommended processes contained in the Mayoral Report, yet, at the same time,

(a) would involve less administrative complexity;

(b) would enable any decision on this to be made at a time when it is likely to be clearer what will actually be necessary in the community’s best interest (including the duration of any ‘extension’ to the current employment arrangement); and

(c) most crucially, would appropriately enable the next group of councillors to take the decision.

All that actually needs to transpire at next Tuesday’s meeting, to enable the above process to happen, is either for the GM to withdraw her request for a new contract or for the councillors to decide that there is no need to replace the existing contract (for the reasons set out above).

Jim Bright

26 September 2021