"That's BS" : response to Code of Conduct excuse against General Manager
A recent Code of Conduct complaint, lodged against the General Manager of Eurobodalla Council for her part in the denying of Councillors the opportunity to ask questions of specific members of the community, stating a "protocol" has been called out as "Utter Bull Sh*t". This Council has done its utmost to close down any public interface. Through a systematic process they have made a mockery of Public engagement by stripping away the mechanisms of Public Access and Public Forum whilst adding draconian and overbearing processes for participants. The most recent add on was the playing of an unknown "protocol" card that restricted Councillors from asking questions of speakers if they were speaking on behalf of a group or organisation. Offering her own clarification, General Manager Dr Catherine Dale said :
"Council’s protocol is to allow questions of presenters when they are able to demonstrate that they conclusively represent the organisation to which they refer in their submission to Council. This is demonstrated, for example, by the presenter being the convenor or co-convenor, president or member of the executive body. This provides both certainty for the Councillors and also does not place undue pressure on the speaker with the expectation that they would fully know and be able to articulate the views of the group they are speaking for.
For example, prior to this protocol being introduced, there was an incident where a presenter purported to be representing a group and spoke at Council on behalf of that organisation. Council was later informed by a member of the group’s executive that the presenter in question did not speak on behalf of that group and did not represent their views on the particular matter in question.
The protocol that has now in place for some years makes it clearer for all participants, including members of the public and Councillors." But Dr Dale has been found to be wanting on several occasions in her understanding of the NSW Local Government Act. And within that Act there is nothing that allows such "protocols" to be established. Adding to the General Manager's statement was the throw away line from Deputy Mayor Rob Pollock last week who said on the issue 'If you ask the Department of Local Government, they WILL tell you they are silent on the matter....'. So the "protocol" that around putting of questions to speakers at the Public Access and Public Forums referred to the Office of Local Government for clarification. This is their answer: The Office of Local Government (OLG) understands that as a matter of local practice, the Council only permits questions to be asked of speakers at public forums where they can demonstrate that they represent the organisation they purport to be speaking for. OLG understands that this practice was introduced after an incident in which someone who purported to speak for an organisation was subsequently found not to be connected with the organisation and had not accurately reflected its views.
OLG does not consider this requirement to be unreasonable given the circumstances that have prompted the Council to apply the practice. While the practice may not be formally documented, this does not mean that it cannot be applied by the Council as an agreed and accepted practice at its meetings.
The Council is required to review its code of meeting practice within 12 months of the next election in consultation with the community and it will be open to the Council then to update the rules governing public forums to reflect this practice should it choose to do so. Let's dissect this: "While the practice may not be formally documented, this does not mean that it cannot be applied by the Council as an agreed and accepted practice at its meetings." Exactly when did an unspoken protocol become an agreed and accepted practice? Exactly who agreed, and exactly what practice did they agree to? "OLG understands that this practice was introduced after an incident in which someone who purported to speak for an organisation .." When exactly did this incident take place? Who from Council advised the OLG that an incident took place in order that they might "understand". "the Council only permits questions to be asked of speakers at public forums where they can demonstrate that they represent the organisation they purport to be speaking for" Why then did Council allow Bernie O'Neil, a convener of ABE, to be questioned one week yet said Brett Stevenson , a convener of ABE, could not? Why did Council deny questions to be asked of Simon Cox, who clearly stated he was a spokesperson for a group? The Office of Local Government, by their understanding that the protocol is a matter of local practice that is not be formally documented basically endorses every other unwritten protocol that Council have determined is an "agreed and accepted practice". As these "agreed and accepted practice" 's are neither agreed to, nor accepted in Council Chamber under public scrutiny, and placed on public record, one can only assume they are agreed and accepted behind closed doors. And if they are in fact an agreed and accepted practice then why is it that our Councillors are not aware of the practice and ask for clarification around who they can, and can not ask questions of. It repeats the question "Who agreed and accepted the practice and exactly what did they agree to?" Yet the OLG sees nothing wrong with this, saying that because a protocol is neither written or recorded "this does not mean that it cannot be applied by the Council as an agreed and accepted practice at its meetings." The OLG has been a "good friend" of Eurobodalla Council on many occasions but their favouritism to Council has often appeared to cross the line as smacking of partiality. To seek further clarification of the so called "protocol" an official Code of Conduct complaint was lodged against the General Manager so that an independent reviewer might apply due scrutiny. It turns out however that the independent and neutral reviewer may have made things even worse for Council when they stated there wasn't anything they could find wrong: "In making a determination of your complaint I have obtained evidence that the Council had adopted a procedure where it did not allow questions to be asked of persons who were representing or presenting on behalf of organisations and groups and this procedure had been in place for some time.
Evidence !!! Provided by Council to the independent reviewer !!! Note that if a procedure is ‘formally’ adopted, it must be referred to somewhere (a policy, code, procedure etc) in order to be referred to as evidence. On learning that the reviewer had obtained evidence that Council had adopted a procedure a request for that evidence was made by The Beagle. In a scamper Council advised that the reviewer had incorrectly used the word 'adopted' . What we now know is that no such protocol was adopted. What we know is that the carefully crafted "protocol" provided by the Council to the independent reviewer did not exist in writing up to that point and was unknown to councillors. What it means to the public is that if you make a Code of Conduct complaint around a procedure, advice or direction given by the General Manager that is unwritten, council can just say to the conduct reviewer that such conduct is permitted as "we have an’ informal unwritten’ protocol that no one knows about, even though it may impact the public". The independent reviewer was very clear (until Council leapt to make a correction) "I have obtained evidence that the Council had adopted a procedure " The reviewer cocked up using the word "adopted" and then cocked up again using the word "procedure". The reviewer also said "It has been determined that the action of Ms Dale was consistent with the definition of a decision made by the Council or a Council official or the exercise
of a discretion by the Council or a Council official and that the advice provided by Ms Dale related to a procedure of the Council and was made in good faith." When councillors were asked today "Did you agree to the protocol?" it was revealed that no-one had actually agreed to anything as it was not presented for discussion or agreement. This is in itself telling as the reviewer clearly states "a decision made by the Council or a Council official or the exercise of a discretion by the Council or a Council official " From this it appears that Councillors need not be present to agree to verbal protocols and allow the Council Official's to create them at will to roll out when questioned and justify themselves by saying: "The protocol that has now in place for some years makes it clearer for all participants, including members of the public and Councillors." Any ‘procedure’ that applies to and/or affects the public must be made publicly available (GIPA Act s.23 and 24 – see below). 23 What constitutes an agency’s policy documents An agency’s policy documents are such of the following documents as are used by the agency in connection with the exercise of those functions of the agency that affect or are likely to affect rights, privileges or other benefits, or obligations, penalties or other detriments, to which members of the public are or may become entitled, eligible, liable or subject (but does not include a legislative instrument)— (a) a document containing interpretations, rules, guidelines, statements of policy, practices or precedents, (b) a document containing particulars of any administrative scheme, (c) a document containing a statement of the manner, or intended manner, of administration of any legislative instrument or administrative scheme, (d) a document describing the procedures to be followed in investigating any contravention or possible contravention of any legislative instrument or administrative scheme, (e) any other document of a similar kind.
24 Effect of policy documents not being publicly available (1) A person is not to be subjected to any prejudice because of the application of the provisions of an agency’s policy document to any act or omission of the person if, at the time of the act or omission— (a) the policy document was not publicly available as required by this Act, and (b) the person was not aware of those provisions, and (c) the person could lawfully have avoided the prejudice had the person been aware of those provisions.
Councillor Anthony Mayne told The Beagle that one of his intentions, should he and members of his Mayne Team be re-elected in the December 4th, 2021 Council elections will be to revisit Council's public engagement processes around Public Access, Public Forum, the removal of Live streaming and recording of Public Forum and also the processes that include unwritten, unadopted protocols.
Above: a stack of unwritten protocols, made under the discretion of councillors or a Council official ready to be rolled out to make "it clearer for all participants, including members of the public and Councillors."