Extraordinary Council Meeting
Monday, 21 June 2021
Dragon Room (Level 1, Georges River Civic Centre, Hurstville)
Skype Online Meeting
OATH OF OFFICE OR AFFIRMATION OF OFFICE
All Georges River Councillors are reminded of their Oath of Office or Affirmation of Office made at the time of their swearing into the role of Councillor.
All Councillors are to undertake the duties of the office of Councillor in the best interests of the people of the Georges River Council area and are to act faithfully and impartially carry out the functions, powers, authorities and discretions vested in them under the Local Government Act 1993 or any other Act to the best of their ability and judgement.
DISCLOSURES OF INTEREST
All Georges River Councillors are reminded of their obligation to declare any conflict of interest (perceived or otherwise) in a matter being considered by Council or at any meeting of Council.
Council acknowledges the traditional custodians of the land on which this meeting is being held as the Biddegal people of the Eora Nation.
3. APOLOGIES / LEAVE OF ABSENCE
4. NOTICE OF WEBCASTING
7. FINANCE AND GOVERNANCE
CCL035-21 Notice of Intention to Issue a Performance Improvement Order - Georges River Council
(Report by General Manager)........................... 3
FINANCE AND GOVERNANCE
Author: General Manager
Directorate: Office of the General Manager
Matter Type: Finance and Governance
(a) The correspondence to Council from the Minister for Local Government, the Hon Shelley Hancock MP, at Attachment 1, be tabled.
(b) The Council consider the correspondence and its response.
1. On 10 June 2021 the Minister for Local Government, the Hon. Shelley Hancock MP (the Minister), wrote to Georges River Council’s (Council) Mayor and General Manager, giving notice pursuant to s438C of the Local Government Act 1993 (NSW) (Act) that she intends to issue Council with a Performance Improvement Order (proposed PIO) pursuant to s438A of the Act (Notice). The correspondence, including the Notice is attached at Attachment 1.
2. For the purposes of the Act, this correspondence was served on Council on 11 June 2021.
3. On 15 June 2021, at approximately 5:05pm, the Mayor and General Manager were granted permission by the Office of Local Government (OLG) to provide the correspondence to all Councillors.
4. The Minister has invited Council to make submissions with respect to the proposed PIO. Any submissions must be provided by 25 June 2021. The correspondence provides a suggestion that Council tables the Notice and resolves an approach to the proposed Notice.
5. The proposed PIO is addressed to the Council (as the governing body) and requires all Councillors to sign an undertaking to take certain actions or to refrain from taking certain actions (Schedule 3 of the PIO).
6. Schedule 2 of the proposed PIO contains three actions required by all Councillors to improve the performance of the Council. An additional two actions relate specifically to individual Councillors (Councillors Badalati and Hindi) to improve the performance of the Council.
7. Under the Act, a PIO must be addressed to the Council (that is, all Councillors). The terms of the PIO may stipulate actions required by individual councillors or the Council as a whole.
8. Council has the following options available to it with respect to the proposed PIO:
a. Accept the proposed PIO in its current form and write to the Minister (by 25 June 2021) advising this position;
b. Make submissions seeking variations to the proposed PIO by 25 June 2021;
c. Do nothing.
9. Following consideration of any submissions, the Minister may decide to:
a. Issue the proposed PIO in its current form; or
b. Not issue the proposed PIO; or
c. Issue the proposed PIO with variations.
10. The responsibility for full complying with a PIO is the responsibility of the Council (all Councillors).
11. This report provides a confidential legal advice as Attachment 2 which sets out the relevant provisions of the Act with respect to the Notice, PIOs and the actions available to the Minister under the Act for failing to comply with a PIO.
12. The failure by an individual Councillor to comply with a PIO is, under the Act a failure by the Council as whole.
13. In the event of any non-compliance with a PIO, the Minister may:
a. Issue a further PIO; and/or
b. Issue compliance orders on individual Councillors;
c. Suspend the Council (all Councillors) for a period of up to 6 months.
14. On 10 June 2021 the Minister wrote to Council’s Mayor and General Manager giving notice that she intends to issue Council with a PIO pursuant to s438A of the Act. The Notice was served on Council on 11 June 2021 and is attached at Attachment 1. The Notice invites submissions from Council by 25 June 2021 on the proposed PIO. The purpose of this report is to advise Council as to the legal standing of the Notice, the Minister’s obligations and discretion under the Act, together with risks to the Council as well as individual Councillors for failing to comply with any IPO.
15. The Minister has power pursuant to s438A(1) of the Act to issue a PIO to Council if the Minister reasonably considers that action must be taken to improve the performance of Council.
16. The Minister must provide Council with Notice of her Intention to Issue a PIO pursuant to s438C of the Act and has done so by way of her Notice of 11 June 2021.
17. A PIO must be issued to the Council as the governing body. It cannot be issued to individual Councillors.
18. PIOs must specify the reasons why the Minister has decided to issue the PIO (s438A(3)(a) of the Act). The Minister must, before issuing a PIO, consider the criteria set out in clause 413D of the Local Government (General) Regulation 2005 (NSW) (the Regulation).
19. Having regard to the criteria set out in clause 413D, the Minister has included reasons for her decision to issue a PIO, set out in the proposed PIO at Schedule 1 under the heading ‘Reasons for Order – section 438A(3)(a)’.
20. The proposed PIO is addressed to Council and all Councillors and requires a written undertaking from each Councillor within seven days agreeing to:
1. Refrain from making allegations of wrongdoing, or implying wrongdoing, by any other Council official at Council, committee or other meetings, whether open to the public or not, or in any other forum, whether public or not in a way that is contrary to the requirements of the Code of Conduct;
2. Refrain from moving motions concerning the referral of matters concerning the alleged conduct of Council officials to external agencies except where the matter arises from the reporting of the findings of an investigation undertaken pursuant to Council’s adopted Procedures for the Administration of its Code of Conduct, or is necessary for the proper authorisation and oversight of expenditure.
3. Use the current prescribed processes for making of allegations of wrongdoing against any other Council official.
4. Refrain from asking any questions at Council meetings, or otherwise, concerning an ICAC investigation into my conduct, where I am aware such an investigation is being undertaken.
5. Not be present at any Council forum at any time during which any matter concerning an ICAC investigation into my conduct is being considered, where I am aware such an investigation is being undertaken.
21. The proposed PIO also requires that both Council and Councillors take certain actions, as follows:
1. Councillors immediately refrain from:
a. Acting contrary to the requirements of the Code of Conduct by making allegations of wrongdoing, or implying wrongdoing, by any other Council official at Council, committee or other meetings, whether open to the public or not, or in any other forum, whether public or not;
b. Moving motions concerning the referral of matters concerning the alleged conduct of Council officials to external agencies except where the matter arises from the reporting of the findings of an investigation undertaken pursuant to Council’s adopted Procedures for the Administration of its Code of Conduct, or is necessary for the proper authorisation and oversight of expenditure.
2. Clr Vince Badaliti [sic] and Clr Con Hindi immediately refrain from asking any questions concerning an ICAC investigation into their conduct at Council, committee or other meetings, or as otherwise allowed by Council’s policies and/or procedures.
3. Clr Vince Badaliti [sic] and Clr Con Hindi not be present at any Council forum at any time during which any matter concerning an ICAC investigation into their conduct is being considered.
4. Each councillor enters into the written undertaking attached and forming part of this order within 7 days of the date of this order.
a. within 3 months of the date of this order, complete an assessment of the adequacy of its systems and protocols for maintaining the confidentiality of information, including, but not limited to a review of the findings of all investigations undertaken or otherwise commissioned by it in relation to the disclosure of confidential Council information;
b. within 6 months of the date of this order, address any inadequacies in its systems and protocols for maintaining the confidentiality of information.
22. The Minister has invited Council to make submissions with respect to the proposed PIO (ss438C(3) and (4) of the Act) before she determines whether to issue a PIO, no later than 14 days from the date upon which the Notice was served, being 25 June 2021.
23. The Notice suggests that Council tables the Notice at an open Council meeting and provides its submissions by way of resolution of Council.
24. Council has the following options available with respect to the proposed PIO:
a. Accept the proposed PIO in its current form and write to the Minister by 25 June 2021 advising of this position;
b. Make submissions seeking variations to the proposed PIO by 25 June 2021;
c. Do nothing.
25. The legal advice attached at Attachment 2 sets out the relevant legislation and risks to Council associated with the Notice and PIO. The Notice is a mandatory requirement that must be provided before a PIO can be issued.
26. The governing body of the Council is responsible for compliance with the PIO.
27. The PIO is considered to have been complied with when the Minister is satisfied that its terms have been met. This includes the Council submitting reports to the Minister detailing how it has complied with the PIO.
28. The Minister has the discretion, in the event that a PIO is not complied with to:
a. Issue a further PIO;
b. Issue individual Councillors with compliance orders (if she forms the view, based on a report from the OLG) that the actions contained within the PIO have not been carried out by specific Councillors;
c. Temporarily suspend the Council for a period of up to 6 months and appoint an interim administrator.
29. There are no financial implications arising from this report.
30. There are no policy implications arising from this report.
31. Non-compliance with a PIO by an individual councillor(s) or the Council may result in the entire Council being suspended.
Notice of Intention to Issue a Performance Improvement Order (The Hon. Shelley Hancock MP, 10 June 2021)
Confidential Legal Advice dated 17 June 2021 (Confidential)