Glenorchy City Council Board of Inquiry Report November 20 7 Glenorchy City Council Board of Inquiry Draft Report Author Glenorchy City Council Board of Inquiry Contact details Glenorchy City Council Board of Inquiry GPO Box 123 HOBART TAS 7001 Publisher Glenorchy City Council Board of Inquiry ISBN 978 0 7246 5734 7 Date November 2017 © Crown in Right of the State of Tasmania November 2017 GLENORCHY CITY COUNCIL BOARD OF INQUIRY Executive Building, 15 Murray Street, HOBART TAS 7000 Australia GPO Box 123, HOBART TAS 7001 Australia Ph: 6232 7022 Fax: (03) 6233 5685 Email: gccboardinquiry@dpac.tas.gov.au Minister for Planning and Local Government The Hon Peter Gutwein MP House of Assembly Parliament House HOBART 7000 Dear Minister Gutwein, GLENORCHY CITY COUNCIL BOARD OF INQUIRY REPORT TO THE MINISTER FOR PLANNING AND LOCAL GOVERNMENT Pursuant to section 224(1) of the Local Government Act 1993 (the Act), the Glenorchy City Council Board of Inquiry is pleased to submit to you a report of its findings and recommendations. The findings and recommendations have been made in regard to the terms of reference that you determined on 14 October 2015. The findings and recommendations within the report have not been arrived at lightly. They are the result of due investigation and consideration of the issues and consequences of those findings. As Minister, you may (under section 224(2) of the Act) direct the Board of Inquiry to reconsider its report if, in your opinion, the report’s findings or recommendations: (a) were made as a result of an inquiry conducted contrary to law; or (b) are unjust, oppressive, discriminator or unreasonable; or (c) are based, wholly or partly, on a mistake of fact. Yours sincerely Ms. Lynn Mason Glenorchy City Council Board of Inquiry 15 November 2017 Mr. Barry Easther Contents Executive Summary ........................................................................................................................................ 9 Key Findings ................................................................................................................................................... 12 Governance ................................................................................................................................................................................................................. 12 Management and Operations ............................................................................................................................................................................ 13 Recommendations ................................................................................................................................................................................................... 15 Section One: Introduction ........................................................................................................................... 16 Context for the Board of Inquiry .................................................................................................................................. 16 Board of Inquiry Terms of Reference ......................................................................................................................... 17 Conduct and Methodology of the Inquiry ............................................................................................................... 18 Section Two: Timeline of Events .............................................................................................................. 23 Section Three: Findings and Recommendations .................................................................................... 43 The Board’s Recommendations..................................................................................................................................... 43 Report Structure .................................................................................................................................................................... 43 Part A: Governance .............................................................................................................................................................. 45 Council Governance: overview ......................................................................................................................................................................... 45 Principles of Good Governance .................................................................................................................... 45 Findings ......................................................................................................................................................... 46 Supporting Evidence and Information ........................................................................................................... 46 A.1. Relationships between the Mayor and the Aldermen ........................................................................ 49 Findings ........................................................................................................................................................................................................................... 49 Supporting evidence and information ........................................................................................................................................................... 49 A.1.1 November 2014: Election of aldermen to the General Manager Performance Review Committee (GMPRC) 51 A.1.2 October 2015: Election to GMC .................................................................................................... 52 A.1.3 October 2016: Annual Report 2015-16 ......................................................................................... 55 A.1.4 Media statements and letters ........................................................................................................... 56 A.1.5 March 2015: Worksafe investigation ................................................................................................ 57 A.1.6 Right to Information request ............................................................................................................ 58 A.1.7 Challenges to the mayor’s presiding at meetings ......................................................................... 59 A.2. Assessment of the general manager’s performance by the General Manager Performance Review Committee............................................................................................................................................................... 61 A.2.1 Appointment of the committee .................................................................................................. 65 A.2.2 Meetings of the committee ......................................................................................................... 65 A.2.2.1 Attendance at meetings .......................................................................................................................... 65 A.2.2.2 Committee meeting minutes ................................................................................................................. 68 A.2.2.3 Regularity of meetings ........................................................................................................................... 70 A.2.2.4 Review of the committee’s CDS (Terms of Reference) ......................................................................... 70 A.2.3 The general manager’s Contract of Employment (contract) ............................................................ 71 A.2.4 The general manager’s Key Performance Indicators ......................................................................... 73 A.2.4.1 3 January 2015 – 31 December 2015 assessment period ...................................................................... 73 A.2.4.2 3 January 2016 – 2 January 2017 assessment period .............................................................................. 74 A.2.5 A.3. A.2.5.1 Review of the period 3 January 2015 – 2 January 2016 ......................................................................... 75 A.2.5.2 Changes to assessment methodology .................................................................................................... 76 A.2.5.3 Review of the period 3 January 2016 – 2 January 2017 ......................................................................... 78 A.2.6 Deed of Confidentiality ................................................................................................................... 79 A.2.7 The committee chairman................................................................................................................. 80 Relationship between the mayor and the general manager ............................................................ 82 A.3.1 Failure to work cooperatively through regular and constructive meetings ........................................ 84 A.3.2 Failure to liaise on council meeting agendas ..................................................................................... 85 A.3.3 Failure to liaise on council meeting minutes ..................................................................................... 87 A.3.4 Failure to respond to requests for information ................................................................................ 87 A.3.4.1 Risk Reports .......................................................................................................................................... 88 A.3.4.2 Failure to answer a QoN....................................................................................................................... 88 A.3.4.3 ‘Operational matters’ .............................................................................................................................. 89 A.3.5 A.4. General Manager’s performance assessment ................................................................................... 75 Circulation of emails to other parties ............................................................................................... 90 A.3.5.1 February 2015 ....................................................................................................................................... 90 A.3.5.2 August 2015 .......................................................................................................................................... 90 A.3.5.3 October 2016 ....................................................................................................................................... 91 A.3.6 Use of inappropriate and intemperate language in communications ................................................ 91 A.3.7 Failure to provide adequate support for the mayor and the office of the mayor ......................... 92 A.3.7.1 Advice on GMPRC membership ........................................................................................................... 92 A.3.7.2 Advice on GMC nomination process ...................................................................................................... 93 A.3.7.3 Southern Councils Feasibility Study meeting ........................................................................................... 94 A.3.7.4 Media support ........................................................................................................................................ 94 A.3.7.5 Daily office access ................................................................................................................................... 94 A.3.7.6 Weekend office access ........................................................................................................................... 94 A.3.7.7 Public comments .................................................................................................................................... 95 The Code of Conduct .......................................................................................................................................... 96 A.4.1 Improper use of information ............................................................................................................ 96 A.4.2 Conflict of interest ........................................................................................................................... 97 A.4.3 Objective decision making ............................................................................................................... 97 A.4.4 Proper use of office ......................................................................................................................... 98 A.4.5 Relationships with the community, aldermen and council staff ......................................................... 99 A.5. Management restructure, February 2015 .................................................................................................100 A.6. Council policies and By-laws ...........................................................................................................................105 A.6.1 Compliance with Code for Tenders and Contracts ....................................................................... 106 A.6.2 policy A.6.2.1 Conduct of ballots immediately after the October 2014 elections ....................................................... 111 A.6.2.2 Appointment of representatives to the STCA working group ............................................................. 112 A.6.2.3 Appointment of aldermen to the Audit Panel (November 2016) ........................................................ 112 A.6.2.4 Committee reports to council ............................................................................................................. 112 A.6.3 A.7. Compliance with the Nomination and Appointment of Aldermen to Committees and Other Bodies 110 Grievance Policy ............................................................................................................................ 114 Council meetings and workshops .................................................................................................................116 A.7.1 Compliance with the Meeting Regulations ..................................................................................... 117 A.7.1.1 Quorum .............................................................................................................................................. 118 A.7.1.2 Adjournment of a council meeting........................................................................................................ 118 A.7.1.3 Procedural motions (Reg. 20) ............................................................................................................... 119 A.7.1.4 Abstentions ......................................................................................................................................... 119 A.7.1.5 Minutes of closed meetings .................................................................................................................. 119 A.7.1.6 Circulation and inspection of minutes of open meeting ........................................................................ 119 A.7.2 Closed council ............................................................................................................................... 120 A.7.2.1 Meeting 19 January 2015 ...................................................................................................................... 121 A.7.2.2 Meeting 14 December 2015 ................................................................................................................ 121 A.7.2.3 Meeting 25 January 2016 ...................................................................................................................... 121 A.7.2.4 Meeting 15 March 2016 (1) .................................................................................................................. 121 A.7.2.5 Meeting 15 March 2016 (2) .................................................................................................................. 122 A.7.2.6 Meeting 15 March 2016 (3) .................................................................................................................. 122 A.7.2.7 Meeting 9 May 2016............................................................................................................................. 122 A.7.3 Meeting procedures and accuracy of minutes............................................................................ 123 A.7.3.1 Failure to record the resolution ............................................................................................................ 124 A.7.3.2 Failure to record a QoN or QwN....................................................................................................... 124 A.7.3.3 Confused recording of items on the agenda ........................................................................................ 125 A.7.3.4 Failure to understand correct use of motions and amendments ........................................................... 125 A.7.3.5 Failure to understand corrections to unconfirmed minutes ................................................................... 125 A.7.3.6 Inclusion of emotive language and irrelevant interventions .................................................................... 126 A.7.4 Public Question Time .................................................................................................................... 127 A.7.4.1 Second PQT ....................................................................................................................................... 128 A.7.4.2 Restriction on PQT ............................................................................................................................. 128 A.7.5 Questions on Notice and Questions without Notice .................................................................... 129 A.7.5.1 Meeting 13 April 2016......................................................................................................................... 129 A.7.5.2 Meeting 9 May 2016............................................................................................................................ 130 A.7.5.3 Review of policies ................................................................................................................................ 130 A.7.5.4 Meeting 9 June 2015 ........................................................................................................................... 130 A.7.5.5 Meeting 6 June 2016 ........................................................................................................................... 131 A.7.6 Overt public praise for the general manager by aldermen ............................................................. 131 A.7.7 Staff attendance ............................................................................................................................. 132 A.7.8 A.8. Council workshops ........................................................................................................................ 134 The general manager’s personal leave and return to work, January 2017 .............................136 A.8.1 The appointment of an acting general manager ......................................................................... 137 A.8.2 Response to the appointment of Mr. Reale as acting general manager ...................................... 137 A.8.2.1 Response of the general manager ......................................................................................................... 137 A.8.2.2 Response of the DCG&GC ................................................................................................................. 138 A.8.2.3 Response of the aldermen ................................................................................................................... 140 A.8.3 General manager’s return to work ............................................................................................ 140 Part B: Management and Operations .......................................................................................................................143 The general manager ............................................................................................................................................................................................143 The general manager and good governance ...........................................................................................................................................143 Findings .........................................................................................................................................................................................................................145 B.1. Compliance with council policies ..................................................................................................................146 B.2. Implementation of council plans....................................................................................................................148 B.2.1 B.3. B.4. Berriedale Peninsula Master Plan, including the Berriedale Caravan Park ................................... 149 B.2.1.1 The Berriedale Peninsula Master Plan ................................................................................................... 149 B.2.1.2 The Berriedale Caravan Park Development ......................................................................................... 149 B.2.2 Implementation of the Glenorchy CBD Strategic Framework ........................................................ 151 B.2.3 Implementation of the Wilkinsons Point & Elwick Bay Precinct Master Plan .................................. 151 B.2.4 Council website ....................................................................................................................... 152 Implementation of the decisions of council.............................................................................................153 B.3.1 Audio recording of council meetings ......................................................................................... 153 B.3.2 2015 council restructure ........................................................................................................... 154 Management of the operations of council ...............................................................................................155 B.4.1 CCTV system ............................................................................................................................ 155 B.4.2 Derwent Entertainment Centre (DEC) ..................................................................................... 156 B.4.3 Emergency management ........................................................................................................... 156 B.4.4 Provision of information to the Board of Inquiry ....................................................................... 156 B.4.4.1 February – March 2016 ....................................................................................................................... 157 B.4.4.2 Provision of agenda, April 2016 ........................................................................................................... 158 B.4.4.3 Provision of the minutes of 26 September 2016 meeting .................................................................... 158 B.4.4.4 Provision of employment contracts and legal advice ............................................................................ 158 B.4.4.5 Provision of tender documents ............................................................................................................ 159 B.4.5 B.5. The KGV sports and community facility..................................................................................... 160 B.4.5.1 Construction of the redevelopment .................................................................................................... 160 B.4.5.2 The hydrotherapy pool ....................................................................................................................... 162 B.4.5.3 Project management............................................................................................................................ 164 B.4.5.4 Proposed opening ceremony............................................................................................................... 165 Management of employees, including appointment, direction, and dismissal .......................167 B.5.1 Dismissal of a newly appointed director .................................................................................... 167 B.5.2 March 2015 – the termination of an employee ......................................................................... 169 B.5.3 Managing the performance of the DCG&GC and/or failure of the DCG&GC to undertake her roles in accordance with the Act and the Regulations................................................................................. 170 B.6. B.5.3.1 Council meeting 15 March 2016 ......................................................................................................... 172 B.5.3.2 Issue of summons to the Proper Officer to produce documents ......................................................... 173 B.5.3.3 Advice regarding draft minutes ............................................................................................................ 174 B.5.3.4 Advice regarding confirmation of minutes............................................................................................ 175 B.5.3.5 Request for a special meeting of council .............................................................................................. 175 Provision of timely and accurate advice ....................................................................................................177 B.6.1 Annual Leave ............................................................................................................................ 177 B.6.2 Unjustified criticism of an alderman ........................................................................................... 178 B.6.3 Amendment of the Financial Report 2014-15 ........................................................................... 179 B.6.4 Advice regarding 2.5% salary increase........................................................................................ 179 B.6.5 Payment to an ex-employee ..................................................................................................... 180 B.6.6 Advice regarding adjournment of the council meeting (5 February 2015) ................................. 180 B.6.7 Inaccurate advice on meeting procedure (1) ............................................................................. 181 B.6.8 Inappropriate and inaccurate advice on meeting procedure (2) ................................................ 181 B.6.9 Inappropriate and inaccurate advice recorded in council minutes .............................................. 182 B.6.10 The GMPRC Deed of Confidentiality ........................................................................................ 183 B.7. Provision of timely, relevant, and high quality reports to council ................................................184 B.8. Timely assistance to council in the development of its Annual Report (including the Budget), Annual Plan, and assessment of its performance against these plans ..................................186 B.8.1 Budget 2016-17 ........................................................................................................................ 186 B.8.2 Monitoring of productivity dividends ......................................................................................... 189 B.8.3 Reports of performance against the Annual Plan ....................................................................... 190 B.9. Management of council resources and assets ........................................................................................191 B.9.1 Use of credit cards .................................................................................................................... 191 B.9.2 Legal expenses .......................................................................................................................... 193 B.10. Provision of advice and responses during meetings ...........................................................................195 B.11. Maintenance of a co-operative relationship with GCC, based on an ethical foundation of mutual respect and trust ..................................................................................................................................................197 B.11.1 Proposed revision of the general manager’s contract ................................................................ 197 B.11.2 Memorandum of Advice regarding CTMG contracts and tender compliance ............................ 201 Section Four: Summary of Findings and Recommendations ............................................................... 204 4.1 Findings........................................................................................................................................................................204 A. Governance Findings .......................................................................................................................... 204 Relationships between the Mayor and the Aldermen (3.A.1) ................................................................................... 204 Assessment of the general manager’s performance by the General Manager Performance Review Committee (3.A.2) ................................................................................................................................................................................ 205 Relationship between the mayor and the general manager (3.A.3) .......................................................................... 207 The Code of Conduct (3.A.4) ................................................................................................................................. 207 Management restructure, February 2015 (3.A.5) ...................................................................................................... 207 Council policies and By-laws (3.A.6)......................................................................................................................... 208 Compliance with Code for Tenders and Contracts (3.A.6.1) ................................................................................... 208 Compliance with the Nomination and Appointment of Aldermen to Committees and Other Bodies policy (3.A.6.2) ................................................................................................................................................................................ 208 Grievance Policy (3.A.6.3) ........................................................................................................................................ 209 Meeting procedures and accuracy of minutes (3.A.7.3) ............................................................................................ 210 Public Question Time (3.A.7.4) ................................................................................................................................ 211 Questions on Notice and Questions without Notice (3.A.7.5) ................................................................................ 211 Overt public praise for the general manager by aldermen (3.A.7.6) ......................................................................... 211 Staff attendance (3.A.7.7) ......................................................................................................................................... 211 Council Workshops (3.A.7.8)................................................................................................................................... 212 The general manager’s personal leave and return to work, January 2017 (3.A.8)...................................................... 212 B. Management and Operations Findings ............................................................................................... 213 Compliance with council policies (3.B.1) .................................................................................................................. 213 Implementation of council plans (3.B.2).................................................................................................................... 213 Implementation of the decisions of council (3.B.3) ................................................................................................... 213 Management of the operations of council (3.B.4) ..................................................................................................... 213 Provision of information to the Board of Inquiry (3.B.4.4) ........................................................................................ 214 The KGV sports and community facility (3.B.4.5) ..................................................................................................... 214 Dismissal of a newly appointed director (3.B.5.1) ..................................................................................................... 214 March 2015 – the termination of an employee (3.B.5.2) .......................................................................................... 214 Managing the performance of the DCG&GC and/or failure of the DCG&GC to undertake her roles in accordance with the Act and the Regulations (3.B.5.3) ............................................................................................................... 214 Provision of timely and accurate advice (3.B.6) ........................................................................................................ 215 Provision of timely, relevant, and high quality reports to council (3.B.7) ................................................................... 215 Timely assistance to council in the development of its Annual Report (including the Budget), Annual Plan, and assessment of its performance against these plans (3.B.8) ........................................................................................ 215 Monitoring of productivity dividends (3.B.8.2) .......................................................................................................... 215 Management of council resources and assets (3.B.9) ................................................................................................ 216 Provision of advice and responses during meetings (3.B.10) ..................................................................................... 216 Proposed revision of the general manager’s contract (3.B.11.1) ............................................................................... 216 Memorandum of Advice regarding CTMG contracts and tender compliance (3.B.11.2) ........................................... 216 4.2 Recommendations ................................................................................................................................................218 A. Governance Recommendations ......................................................................................................... 218 Relationships between the Mayor and the Alderman (3.A.1) ................................................................................... 218 November 2014: Election of aldermen to the General Manager Performance Review Committee (GMPRC) (3.A.1.1) ................................................................................................................................................................................ 219 October 2015: Election to GMC (3.A.1.2) .............................................................................................................. 219 Media statements and letters (3.A.1.4) ..................................................................................................................... 219 The general manager’s Contract of Employment (contract) (3.A.2.3)....................................................................... 219 3 January 2016 – 2 January 2017 assessment period (3.A.2.4.2) ............................................................................... 219 Review of the period 3 January 2016 – 2 January 2017 (3.A.2.5.3)........................................................................... 220 Failure to liaise on council meeting agendas (3.A.3.2) ............................................................................................... 220 Failure to provide adequate support for the mayor and the office of the mayor (3.A.3.7)........................................ 220 Relationships with the community, aldermen and council staff (3.A.4.5) ................................................................... 220 Compliance with code for tenders and contracts (3.A.6.1) ...................................................................................... 220 Compliance with the nomination and appointment of alderman to committees and other bodies policy (3.A.6.2) .. 221 Grievance policy (3.A.6.3) ........................................................................................................................................ 221 Meeting procedures and accuracy of minutes (3.A.7.3) ............................................................................................ 221 Staff attendance (3.A.7.7) ......................................................................................................................................... 222 Council workshops (3.A.7.8) .................................................................................................................................... 222 General Managers personal leave and return to work, January 2017 (3.A.8) ............................................................ 222 B. Management and Operations Recommendations .............................................................................. 223 Budget 2016-17 (3.B.8.1) ......................................................................................................................................... 223 Use of credit cards (3.B.9.1) ..................................................................................................................................... 223 Legal expenses (3.B.9.2) ........................................................................................................................................... 223 Proposed revision of the general manager’s contract (3.B.11.1) ............................................................................... 223 Section Five: Conclusion ............................................................................................................................ 224 Appendices .................................................................................................................................................. 225 A. Matters to be included in compulsory training for newly elected aldermen ........................225 B. Inclusions in the Mayor and Aldermen Statement of Expectations ...........................................226 C. Inclusions in the Mayor and General Manager Statement of Expectations ...........................227 D. Board’s consideration of responses to the Draft Report.................................................................228 D.1 Board consideration of Mayor Johnston’s response to the Draft Report ........................................ 228 D.2 Board consideration of Deputy Mayor Quick’s response to the Draft Report ............................... 231 D.3 Board consideration of Ald. Branch-Allen’s response to the Draft Report ..................................... 233 D.4 Board consideration of Ald. Dunsby’s response to the Draft Report ............................................. 240 D.5 Board consideration of Ald. King’s response to the Draft Report .................................................. 242 D.6 Board consideration of Ald. Lucas’s response to the Draft Report ................................................ 243 D.7 Board consideration of Ald. Nielsen’s response to the Draft Report ............................................. 252 D.8 Board consideration of Ald. Pearce’s response to the Draft Report............................................... 253 D.9 Board consideration of Ald. Slade’s response to the Draft Report ................................................. 255 D.10 Board consideration of Ald. Stevenson’s response to the Draft Report ......................................... 258 D.11 Board consideration of Mr. Tony McMullen’s response to the Draft Report .................................. 262 D.12 Board consideration of Mr. Peter Brooks’s response to the Draft Report ...................................... 265 D.13 Board consideration of Ms. Seva Iskandarli’s response to the Draft Report.................................... 294 E. General Manager’s KPIs for the period ending 2 January 2017 ....................................................298 F. Relevant Excerpts of the Local Government Act 1993 .......................................................................300 G. Glossary ......................................................................................................................................................................304 H. Glenorchy City Community and Council Profile..................................................................................306 Executive Summary The Board of Inquiry was established by the Minister for Planning and Local Government on 14 October 2015, pursuant to s 215 of the Local Government Act 1993. Its Terms of Reference were to make findings and recommendations with regard to the governance arrangements and practices of the Glenorchy City Council since the October 2014 local government elections, in relation to:     Section 28 of the Act - compliance by elected members of Council with their functions under the Act; Section 27 of the Act – compliance by the Mayor with her functions under the Act; Sections 62 and 63 of the Act – compliance by the General Manager with his functions and powers under the Act; and Compliance with any other sections of the Act relevant to governance arrangements and practices within the Council. The Board of Inquiry was to further examine the governance structures and processes adopted by the council during that period, and also to inquire into any claims of non-compliance or breaches of the Act and associated regulations, or any other legislation, since October 2014, brought to its attention during its deliberations and relevant to the Terms of Reference. The Board was to allow for public submissions to be made to the Inquiry, and to provide a report with findings and recommendations, including governance protocols, which the Board may advise to be instigated by the council, to the Minister for Planning and Local Government. The Board conducted its investigations from October 2015 to October 2017. The Board noted at the outset that the majority of aldermen did not reconcile themselves to the outcome of the council elections in October 2014, particularly the popular election of Ald. Johnston as mayor. These aldermen henceforth failed to support the mayor as the leader of the community, and failed to show the respect due to her office. The resultant discord was exacerbated by partisanship displayed by the general manager towards the faction opposed to the mayor, and by the persistent provision of poor and/or inaccurate advice on governance and operational matters, particularly that provided by the Director of Corporate Governance and General Counsel (DCG&GC).1 This situation worsened as aldermen aligned themselves more strongly against the mayor and her supporters, both within council and in the community. A most damaging outcome of this factionalisation of the council was that the majority of aldermen opposed regular and consistent monitoring of the organisation’s functions. Through its investigations the Board found that a majority of aldermen agreed to a range of recommendations with the potential for significant redundancies at the most senior levels of management, without knowing that this would occur; ignored or dismiss failures to comply with council policies and state legislation; adopted the 2016-17 Budget without knowing the results Since her appointment as council lawyer in January 2013, Ms. Iskandarli has held various positions, including Manager Legal and Governance, Internal Restructure Coordinator, Director of Corporate Governance, and Director of Corporate Governance and General Counsel (DCG&GC). She has also been appointed as acting general manager from time to time. For convenience the term DCG&GC has generally been used in this Report. 1 9 of the last two months of the previous financial year, and without having had a report of progress against the 2015-16 Annual Plan since December 2015; refused to require reports on the KGV redevelopment project, for which council had accepted a Commonwealth grant of $8.7 million; and refused to require regular reports from the general manager on the attainment of $2.32 million in ‘productivity dividends’ which were essential for council to meet its budgeted surplus of $186,000 in the 2016-17 financial year. Committees external to the council where aldermen represented the council did not report regularly to the council, and there appears to have been no formal mechanism for interaction between those committees and the council. The governance practices of one of council’s most important committees, the General Manager Performance Review Committee (GMPRC), were ad hoc, and the committee, or its chairman acting unilaterally, assumed responsibility for tasks beyond its terms of reference and beyond its capabilities. This went unchecked by the full council. In December 2016 the GMPRC, acting complicitly with the general manager and the DCG&GC, brought to council proposed changes to the general manager’s contract of employment which far exceeded council’s resolution to consider changes to only one clause of his contract; changes which, had they been approved by council, would potentially have resulted in significant monetary and personal benefit to the general manager. Those aldermen opposed to the mayor failed to put the interests of the community ahead of their apparent intention to destabilize the office of the mayor, and denigrate the mayor herself. Community dissatisfaction with the conduct of council manifested through hostile attendance at council meetings, and rejection of the council’s annual report at the 2016 Annual General Meeting. At the start of its inquiry, the Board hoped to see during the course of the Inquiry an improvement in conduct and governance at the council, with resultant improvements in staff morale and community confidence in council. This did not occur. Council did not address the dysfunctionality in its relationships, most particularly within the elected body, and between the mayor, the aldermen, the general manager, and the DCG&GC. The majority of aldermen persisted in behaviours which were detrimental to council and the community. Those aldermen who questioned the general manager faced derision or antagonism from those who supported him. The general manager was not challenged by this group, despite his apparent inability to provide answers to fundamental questions regarding the operations of the council, and despite his apparent inability to bring overdue tasks to a satisfactory conclusion. Advice on governance and legal issues was provided by the DCG&GC in her various roles. Despite her advice being found to be incorrect on occasion, the majority faction of council continued to accept her advice without question. The DCG&GC exhibited barely restrained antagonism to the mayor in council meetings, and failed to accept direction from the mayor when called upon to desist. During attendance at council meetings the Board did not see any occasion when the general manager intervened to support the mayor as chairperson of the meeting. Council’s lack of appropriate oversight of its operations contributed to the loss of experienced and valuable senior managers through termination, redundancy, and resignation. Additionally, this lack of oversight contributed to council’s failure to finish the KGV redevelopment, despite having an original finishing date of December 2014; council’s failure to address key development issues on the Berriedale Peninsula; council’s failure to progress the development of Wilkinson’s Point; and council’s failure to progress the CBD revitalisation project. Council 10 was unable to reach amicable agreements with the three major tenants of the redeveloped KGV site. Council failed to monitor the general manager’s application of the approved procedures for the use of credit cards. Similarly, council did not adequately monitor or question the general manager about the high levels of engagement of external law firms and the costs associated with these engagements. In summary, council failed to perform many of its functions, which seriously affected the operation of the council. The irregularity of the conduct of the council seriously affected the council’s operations. Council failed to provide leadership and good governance to the city, and is in need of major reforms in governance and management. The Board is strongly of the view that this cannot be achieved by the council elected in October 2014, and a management structure which includes the current general manager and the current DCG&GC. 11 Key Findings Governance 1. As a result of their ignorance of the principles and practice of good governance, poor knowledge and understanding of the Local Government Act 1993, and ignorance of proper meeting procedure, a number of aldermen failed to monitor effectively council’s performance, council’s assets, and the performance of the general manager. 2. The animosity, defiance, distrust, and lack of willingness to work together for the good of the council and the community, demonstrated in the events surrounding the general manager’s extended personal leave in January 2017, are evidence that the council did not address the dysfunctionality in its relationships, most particularly within the elected body, and between the mayor, the council, the general manager, and the DCG&GC. In the 16 months from the commencement of the Inquiry to the suspension of the aldermen, key people in GCC failed to modify their behaviour, to the extent that the council’s governance framework upon which council and the community depends, appears to be beyond repair. 3. The mayor’s authority to act as chairperson of the council was challenged consistently throughout the term of this council. Challenges included interference with her capacity to facilitate communication by the council with the community; interference with her obligation to monitor the performance of the general manager; and overt challenges to her authority to act as the chairperson of the council in council meetings. 4. The aldermen who represented council on the GMPRC collectively failed to undertake their duties and responsibilities as authorised by the council and prescribed in the Local Government Act 1993, s 28(1)(e) and s 28(2)(d). 5. The relationship between the mayor and the general manager degenerated from the time of the local government elections in 2014, and became dysfunctional, in that the usual and necessary functions of a council leader (mayor) working with the chief employee (general manager) could not be performed. 6. The general manager failed to provide support for the mayor, and support for the office of the mayor, in ways which reduced her capacity to undertake the duties of office. These failures included public and internal demonstration of his opposition to her as mayor, unreasonable refusals to provide information which she required in order to carry out her role as an alderman and as mayor, and reduction in the mayor’s direct access to the organizational arm of council, including council’s media office. 12 7. The number and consistency of potential breaches of the Code of Conduct by the aldermen of GCC indicate that the council was failing in its duty to comply with both the Act and the Meeting Regulations and was not delivering good government to the people of Glenorchy. 8. Council failed to fulfil its function to determine and monitor the application of policies, plans and programs for the efficient and effective management of council’s assets, and the fair and equitable treatment of employees of the council. 9. The regularity and frequency of breaches of the Meeting Regulations by the aldermen of GCC indicate a lack of understanding of the principles of good governance and aldermanic legislative responsibilities and an unwillingness to change behaviours which did not serve the best interests of the community of Glenorchy. Management and Operations 1. The general manager failed to comply with a number of functions under the Act and Regulations and frequently failed to comply with principles of good governance and effective leadership. 2. The general manager failed in his duty under the Act to ensure that council complied with GCC policy, in particular, its policy Nomination and Appointment of Aldermen to Committees and Other Bodies, its policy Code for Tenders and Contracts, and its Purchasing Card Procedures. 3. The general manager failed to monitor a number of significant council operations and projects and thereby failed to effectively manage the resources and assets of the council. 4. The general manager failed to manage the professional performance of the DCG&GC to the detriment of the council and the community. 5. The DCG&GC’s behaviour damaged the relationship between GCC and its community, and actively undermined the authority of the mayor. 6. The actions of the DCG&GC in challenges to the mayor’s authority and failure to correct or retract inaccurate advice, and interference in the relationships within the aldermanic body, contributed significantly to the dysfunctionality of the council. 7. The Board found numerous examples where the general manager or his direct report, the DCG&GC, provided inaccurate or confused advice to council, and the acceptance of this advice by the majority of aldermen contributed significantly to the disharmony and dysfunctionality within council. 13 8. The general manager failed to ensure that aldermen received certain critical reports that they should have had in order to fulfil their functions. The most notable of these failures was the general manager’s withholding of the CT Management Group (CTMG) Report, with its recommendations for sweeping changes to the management structure that had significant financial repercussions for the organisation through redundancies. 9. Because of the delays in providing reports on performance against the Annual Plan, and forecasts of the end-of-year performance against Budget, council was unable to monitor its progress through the financial year, and unable to assess the possible need for adaptation in its programs, plans, and budgets. 10. Some aldermen raised legitimate, pertinent questions about the productivity dividend assumptions in the 2016-17 Budget, and the general manager failed to provide timely and accurate answers; this did not allow aldermen to monitor the efficient and effective provision of services, facilities, and assets, and the fair and equitable treatment of the employees of the council. 11. The general manager acted unethically and unprofessionally, and in breach of his functions under the Act, in instructing his personal lawyer to undertake a full review of his contract of employment, in direct conflict with the instruction of council that any review be confined to clause 5 of his contract. 12. The general manager acted unethically and unprofessionally, and in breach of his functions under the Act, in providing for council’s consideration a revised contract of employment which, if accepted, would potentially have provided substantial personal and monetary benefits to the general manager, as well as severely limiting the mayor’s ability to oversee and assess his performance. 13. The general manager, on behalf of GCC, incurred significant expense in accessing retrospective legal advice regarding his actions in dealing with the CTMG contracts and services, first from one firm of lawyers, and then from a Senior Counsel. The general manager needed this retrospective advice because he was unable to explain to the satisfaction of some aldermen his failure to call tenders for projects which in total cost council over $500,000 since October 2014, and his failure to include CTMG projects in the Annual Report, as required under s 29(3) of the General Regulations 14 Recommendations The Board therefore recommends that the Minister recommend that the Governor by order dismiss the aldermen, in accordance with s 226 of the Local Government Act 1993; that a Commissioner be appointed in accordance with s 231 of the Act; and that the Commissioner immediately implement an extensive review of management practices at Glenorchy City Council, with reference to its responsibilities for good governance, organisational health, and effective, efficient, and compliant operational management.2 The Board recommends that the Glenorchy City Council Board of Inquiry Report be released in accordance with s 227 of the Act, to inform the Tasmanian community and particularly the residents and ratepayers of Glenorchy of the findings and recommendations of the Board, and to facilitate greater community involvement in the election and monitoring of the next Glenorchy City Council. In its Draft Report, released in April 2017, the Board recommended that the council be dismissed and that a Commissioner be appointed under s 231 of the Act for a period of 12 months. The Board notes that the aldermen of the council were suspended by the Minister on 8 February 2017. In light of the length of time that the city has already been without elected representatives, and taking into consideration the responses of some aldermen to the Draft Report (requesting elections immediately after the Report is given to the Minister), the Board’s recommendation recognises that almost 12 months will have passed without an elected council before a new council can be elected to office. 2 15 Section One: Introduction Context for the Board of Inquiry On 14 October 2015, the Minister for Planning and Local Government, Peter Gutwein MP, announced the establishment of a Board of Inquiry under powers conferred by s 215(1) of the Local Government Act 1993, to investigate the Glenorchy City Council. The function of a Board of Inquiry is to conduct an inquiry into any matter referred to it by the Minister responsible for local government and make recommendations to the Minister as a result of its inquiry. A Board of Inquiry is to conduct an inquiry with as little formality and technicality as a proper consideration of the matter before it permits, and must observe the rules of natural justice. The Minister established the Board of Inquiry because he was satisfied that: (a) following considerable and ongoing public concern and investigations by the Director of Local Government, significant divisions continued to exist within the Glenorchy City Council as well as between elected members and senior staff; (b) such divisions and poor relationships were adversely affecting governance arrangements and were not conducive to good decision-making; and (c) all efforts to overcome the divisions within the Council had failed. The Minister appointed Mr. Barry Easther OAM and Ms. Lynn Mason as Board of Inquiry members under s 215(3) of the Act. Both Mr. Easther and Ms. Mason have extensive experience in local government, operational, policy and regulatory settings. Mr. Barry Easther is a former Mayor of the West Tamar Council and a former President of the Local Government Association of Tasmania (LGAT). Ms. Lynn Mason is a former President of LGAT, former Mayor of the Flinders Council, former Trustee Director of Quadrant Superannuation, former Chairman of Metro Tasmania, former Chairman of the Tasmanian Community Fund, former member of the Local Government Board and former Chairman of the Local Government Association of Tasmania Standards Panel. 16 Board of Inquiry Terms of Reference The Board is to inquire into and make findings and recommendations with regard to: The governance arrangements and practices of the Glenorchy City Council since the October 2014 local government elections, in relation to:     Section 28 of the Act - compliance by elected members of Council with their functions under the Act; Section 27 of the Act – compliance by the Mayor with her functions under the Act; Sections 62 and 63 of the Act – compliance by the General Manager with his functions and powers under the Act; and Compliance with any other sections of the Act relevant to governance arrangements and practices within the Council. The Board of Inquiry is to further examine the governance structures and processes adopted by the Council during that period. The Board is also to inquire into any claims of non-compliance or breaches of the Local Government Act 1993 and associated regulations, or any other legislation, since October 2014, brought to its attention during its deliberations and relevant to the Terms of Reference. The Board is to allow for public submissions to be made to the Inquiry. The Board is to provide a report with findings and recommendations, including governance protocols, which the Board may advise to be instigated by the Council to the Minister for Planning and Local Government. 17 Conduct and Methodology of the Inquiry When the Board of Inquiry was established, the initial reporting date was 15 February 2016. Due to the complexity of the issues which the Board encountered during its early investigations, the Minister approved an extension to 18 April 2016. A public notice calling for submissions was advertised in The Mercury on 17 October 2015 and the November 2015 edition of the Glenorchy Gazette, with a closing date of 13 November 2015.3 The Board members attended a closed session of council on 19 October 2015, when they provided an outline of the process for the Inquiry and responded to questions put by aldermen and staff. On 21 October 2015, the Board wrote to a range of stakeholders, including all aldermen and senior staff of the council, inviting them to make a written submission to the Board. The Board advised that where any specific allegations were made against individuals in the submissions, it would notify relevant persons of this and they would have an opportunity to respond to the Board in writing. The Board received 49 submissions from staff, aldermen, and interested parties. Between 11 and 18 December 2015, the Board conducted interviews with current and former staff and key community members and precinct leaders. On 16 December 2015, the Board wrote to all persons who had previously made submissions, inviting them to supply any supplementary materials by 4 January 2016. The Board received seven responses from various stakeholders. Between 14 and 20 January 2016, the Board of Inquiry summoned all aldermen and senior managers to appear before the Board to give evidence. The majority of appearances were conducted at the Glenorchy City Council Chambers. These appearances were not audio recorded but detailed notes were taken. The mayor, the general manager and the Director Corporate Governance and General Counsel (DCG&GC) appeared before the Board at the offices of the Department of Premier and Cabinet at 15 Murray Street Hobart. These appearances were audio recorded. Following this, schedules of allegations made against persons (individual and collective), through submissions and in appearances before the Board, were compiled. The schedules included extracts of written evidence received. These schedules were provided to seven aldermen on 5 February 2016 and they were requested to provide any written responses by a particular date. A number of aldermen asked for extensions to the time for responding. The Board considered each request and the grounds for such and granted most requests. Ald. Branch-Allen requested an extension on compassionate grounds to which the Board agreed. 3 The Mercury is a daily newspaper based in Hobart. 18 On 22 February 2016, prior to her reporting date, Ald. Branch-Allen lodged an application in the Supreme Court. As a result the Board was restrained from delivering a report to the Minister and from disclosing to any other person, including the Minister, any evidence or other materials received or obtained by the Board. On 18 April 2016, the Minister agreed to extend the Inquiry to a date to be determined once the Supreme Court matter had been finalised. Before the matter was heard, a number of other parties, specifically, Ald. King, Lucas, Slade and Pearce joined Ald. Branch-Allen as parties in her action against the Board of Inquiry. The general manager, Mr. Peter Brooks, and the DCG&GC, Ms. Seva Iskandarli, also provided affidavits that were filed on behalf of Ald. Branch-Allen. The matter was heard over two days with closing submissions being made on 25 March 2016. Prior to the Chief Justice providing his findings, the Board exercised its power under Part 13 of the Act to attend a council meeting on 13 April 2016. As a result of behaviour which Ald. Branch-Allen alleged had occurred at the meeting, Ald. Branch-Allen sought to reopen the case. The matter was heard for a further three days in May 2016. His Honour delivered his judgement on 10 June 2016 (Branch-Allen v Easther [2016] TASSC 29), wherein he found (at [132]) that the Board’s conduct of the inquiry (to date) had been unsatisfactory in some respects. His Honour ordered that the Board be restrained from submitting a report of its findings and recommendations as a Board of Inquiry to the Minister for Planning and Local Government until: (a) they have notified the applicant of every contemplated finding or recommendation which, if made, would be likely to prejudicially affect her status as an alderman and/or her reputation, and of the information or evidence considered by them to support such a finding or recommendation; (b) they have allowed the applicant a reasonable time to make submissions to them in writing, personally or by a solicitor or agent, as to such matters; and (c) they have considered any such submissions. The Chief Justice concluded that there was no reason to think that a fair-minded lay observer might reasonably apprehend that either of the Board members might not bring an impartial mind to the task the Board is required to perform (at [101]). Upon the Chief Justice’s judgement being handed down on 10 June 2016, the Board sought a further extension from the Minister to complete the report. The Minister directed that the Board complete its draft report by 30 November 2016. Following the judgement, the Board issued schedules of allegations to the mayor, the general manager and the DCG&GC, reissued the schedule to Ald. Branch-Allen, and invited responses. The Board continued its investigations. 19 Upon receiving responses to the schedules of allegations, the Board facilitated a second round of appearances before the Board for specific council staff, aldermen and external stakeholders. The Board also wrote to those aldermen not called to reappear, offering them the opportunity to petition to appear before the Board. Ald. King and Lucas petitioned to appear and the Board agreed to this. The second round of appearances was held in August and September 2016, when a number of staff, aldermen and other parties appeared and gave evidence before the Board. These appearances were audio visually recorded, except for three appearances which were audio recorded only due to a technical equipment fault. The Board began finalising the investigation stage of its inquiry in late 2016. A substantial amount of evidence had been collected by various means, including attendance at council meetings, from hearings and submissions, and from documents sought from Council under s 222 of the Act. In addition, several aldermen voluntarily provided information to the Board throughout the Inquiry; this was accepted and considered by the Board when received. On 27 January 2017, the Minister notified aldermen that he was considering suspending them for six months and appointing a commissioner. He gave them seven days to respond. On 8 February 2017 the Minister announced their suspension and the appointment of Ms. Sue Smith as Commissioner. The Board provided its draft findings and recommendations and substantive evidence to relevant parties on 15 February 2017, and invited any submissions by 17 March 2017. On 6 March 2017 Ald. Branch-Allen lodged an application in the Supreme Court to prevent the Board from submitting its report to the Minister until any persons whose interests might be adversely affected by the report were provided with all the evidence and information that the Board had relied upon in preparing its Draft Report. The Board decided to produce a second version of its Draft Report with some formatting changes and additional references, as well as an accompanying volume containing all the material that the Board considered relevant to its draft findings and recommendations. The Board wrote to potentially affected persons on 8 March 2017, notifying them of its intentions and advising that it would not invite submissions until potentially affected parties had received the revised draft and accompanying material; at which time the Board agreed to allow a further 28 days for receipt of any submissions. The Board provided the second version of its Draft Report by email to all aldermen and potentially affected persons on 12 April 2017. On the following day a hard copy of the Draft Report was mailed to them, together with all the evidence and information that the Board considered relevant to its draft findings and recommendations contained on a USB. Some people opted to collect all materials in person on 12 April. Each party was invited to respond by 11 May 2017 in writing, in person or by his or her nominated solicitor or agent. 20 On 27 April 2017 Ald. Branch-Allen’s lawyers wrote to the Board requesting an extension of time to respond to the draft report until 30 June 2017. The Board considered the request and agreed to allow some additional time. On 28 April 2017 the Board wrote to all potentially affected parties advising that it had extended the timeframe for receiving any submissions until 1 June 2017. On 30 May 2017 Ald. Branch-Allen lodged an application in the Supreme Court to restrain the Board from providing its report to the Minister to a time to be determined by the Court. On 31 May 2017 the application was withdrawn. On 1 June 2017 Ald. Branch-Allen’s lawyers wrote to the Board enclosing interim submissions from Ald. Branch-Allen, King, Lucas, Pearce, and Slade, indicating that final submissions would be provided by 21 June 2017 and demanding an undertaking from the Board that it would consider these final submissions before submitting its final report to the Minister for Planning and Local Government. The Board advised Ald. Branch-Allen’s lawyers on 5 June 2017 that should further submissions be received on or before 21 June 2017, it would consider these before finalising its report and submitting it to the Minister. In the interests of fairness all other persons who had received a copy of the Draft Report were provided with similar advice. Responses were ultimately received from the mayor, and Ald. Stevenson, Quick and Dunsby, and Mr. Tony McMullen as the acting general manager prior to 1 June 2017. Further responses were received from Ald. Lucas, Pearce, King, Branch-Allen, Slade and Nielsen on 21 June 2017, and these were accepted and considered by the Board. Alderman Branch-Allen commenced proceedings against the Board of Inquiry members on 29 June 2017 by filing an originating application in the Supreme Court. The matter was set down for hearing on Wednesday 9 August 2017. On 2 August 2017 Alderman Branch-Allen agreed that her application would be dismissed and no order would be made as to costs. The general manager, Mr. Peter Brooks, commenced proceedings against the Board of Inquiry on 6 July 2017, by lodging an originating application in the Supreme Court. This matter was set down and heard on 13 July 2017, when an application for non-publication was sought but denied by His Honour, the Associate Justice. Mr. Brooks’s counsel advised the Court that a Notice of Appeal was to be filed concerning the Court’s decision regarding the non-publication order. The appeal was heard on 8 August 2017 and His Honour the Chief Justice granted the nonpublication order of Mr. Brooks’s affidavit. Mr. Brooks sought to further challenge the Board’s process and sought relief in the form of the full prohibition of the Board. That matter was heard on 21 August 2017 before the Chief Justice and his judgement was handed down on 11 September 2017. The Chief Justice dismissed Mr. Brooks’s application in its 21 entirety. His Honour did not find any evidence of bias or wrong doing by the Board and did not find a basis for prohibition nor any other form of relief. The general manager provided a response to the Draft Report on 13 September 2017 and advised that he would provide additional documents to support his responses. The Board advised Mr. Brooks that any materials would be accepted on or before 25 September 2017. On 21 June 2017 a response to the Board’s invitation to respond to the Draft Report was received from the DCG&GC through her legal representative, in which the DCG&GC requested a 21 day extension to provide a response. This request was considered and the Board granted an extension until 12 July 2017. No submission was received up to this date and the Board heard nothing more from her lawyer until 18 September 2017, when the Board was advised that the DCG&GC wished to respond to the Board’s Draft Report. The Board replied that any response would be considered if received by 10am on 25 September 2017. On 25 September 2017 a submission in response to the Draft Report was received from Ms. Iskandarli’s lawyer (made on her behalf),. The Board also received the general manager’s documentary attachments to his response to the Draft Report on 25 September 2017. The Board has considered the submissions and materials delivered to it up to and including 25 September. However, the Board has not considered materials delivered after this date. The Board is of the view that a reasonable opportunity to make submissions had been given to all parties through extensions granted since release of the Draft Report on 12 April 2017, to the initial response date of 11 May 2017, and subsequently out to 25 September 2017. A number of the affected parties to whom the Draft Report was sent provided information, commentary and suggestions concerning facts and events. These were duly considered by the Board. A number of suggestions or corrections contained within the submissions, where relevant, were adopted by the Board. On 26 September 2017 the general manager filed a Notice of Appeal of the Chief Justice’s dismissal of his application. The Full Court’s judgement was handed down on 15 November 2017. The Court dismissed the Appeal. On 15 November 2017 the Board of Inquiry submitted its Report to the Minister. 22 Section Two: Timeline of Events 19 June 2012 Funding of $8.7 million was approved under the Commonwealth Government’s Regional Development Australia Fund to redevelop the KGV site. Works to be undertaken included a multi-purpose sports and community hub facility, a Transport Museum Display shed, a multipurpose pitch/oval, and new pedestrian access and landscaping. 2 June 2014 The general manager signed a new five year contract to commence on 3 January 2015. 13 October 2014 Council passed a resolution that a Key Performance Indicator for the general manager was to demonstrate a break even financial position by 2016-17, i.e., to reverse the current deficit of $5.1m. October 2014 Local government elections for all Tasmanian councils were held. 29 October 2014 Declaration of the poll for GCC. Ms. Kristie Johnston was elected as an alderman with over four quotas and received 58% of the popular vote for the role of mayor, and Ald. Quick was elected deputy mayor. Ald. Slade, King, and Branch-Allen were defeated in the mayoral poll, and Ald. Lucas, Nielsen, Pearce and Stevenson were defeated in the poll for deputy mayor. 24 November 2014 At the first council meeting following the elections, a resolution was passed (6/4) that the automatic election of the mayor to committees be limited to LGAT, the Southern Tasmanian Councils Association (STCA), TasWater and the Glenorchy Planning Authority (GPA). December 2014 Work commenced on the KGV redevelopment project. 1 December 2014 A special council meeting was held to elect members to 37 committees. The mayor was not elected to the General Manager Performance Review Committee (GMPRC). Former mayor, Ald. Slade, was elected as Chair of that committee and Ald. Branch-Allen, Lucas and Dunsby were elected as members. 5 December 2014 Proposed completion date for the KGV redevelopment project, as stated in the deed between the Commonwealth and GCC. This was later revised to the first quarter of 2016. 3 January 2015 The general manager commenced his new five year contract. 2 February 2015 The general manager issued the agenda for a special council meeting to be held on 5 February 2015. The main item was Item 4: GMs KPI 4 – to demonstrate how council will break even by 2016-17. No attachments were provided with the agenda. 23 3 February 2015 The mayor requested the general manager to provide reports for the special meeting to aldermen. The general manager did not do so. The mayor sought advice from the Director of Local Government (DLG) who advised verbally that in accordance with the Act and Regulations the mayor and aldermen were entitled to the relevant report (the report from CT Management Group (CTMG)). 4 February 2015 The Mayor wrote to the general manager requesting a copy of the CTMG report; her request was denied. The mayor also wrote to the DLG seeking advice in relation to the provision of the report. The DLG provided the mayor with written advice stating that in accordance with Regulation 8 of the Local Government (Meeting Procedures) Regulations 2015 (the Meeting Regulations) and s 28D and s 62 of the Local Government Act 1993, it was appropriate for council to be provided with a copy of the report. That afternoon the general manager circulated to all aldermen, via email, a copy of a power point presentation which provided a high level summary of the report. 5 February 2015 The special council meeting was attended by all aldermen, the council solicitor, the general manager, representatives from CTMG, and an external Industrial Relations lawyer engaged by council. The general manager and CTMG representatives provided a power point presentation which lasted 1 hour 15 minutes. Ald. Dunsby left for a medical appointment at 2.15 pm and the presentation concluded at approximately 2.30 pm. Shortly afterwards the mayor adjourned the meeting until the next ordinary council meeting on 16 February in order to allow aldermen the opportunity to receive and consider the CTMG report before making a decision on its recommendations. She then left the meeting. At 3.13 pm the mayor emailed all aldermen confirming her actions and circulating the DLG’s advice about provision of the report. The meeting continued with Deputy Mayor Quick in the chair. This ‘meeting’ resolved that:     Council accepts the presentation of the Strategic and Operational Review from CTM Council approves the recommendations made by CTM and the general manager in the presentation Council requests the GM to implement the recommendations In relation to the CTM report and during the implementation of the findings and recommendations of the Report given to the Aldermen, the GM will be the contact person not the spokesperson for the Council. At 4.56 pm the mayor telephoned and emailed the DLG seeking advice on the adjournment. The DLG advised that an adjournment by the mayor ends the meeting and business cannot be conducted after the adjournment. The mayor asked the DLG to provide formal advice on this, which he did. 24 6 February 2015 All aldermen except the mayor and Ald. Stevenson met at the council chambers. The mayor was not invited to the meeting, and Ald. Stevenson declined to attend. After the meeting (between 6 February and 10 February) six aldermen sent emails to the general manager and/or the mayor indicating that they considered the amount of information provided to them at the 5 February meeting was sufficient for them to make a decision (to agree to a major restructure of the organisation) and expressly saying they did not want a copy of the CTMG report. After the meeting the general manager convened a meeting with senior staff to advise the council’s decision to implement recommendations of the CTMG Report. This involved a restructure of management positions, including some redundancies, to reduce the management team from five executive managers and sixteen managers to three directors (immediately below the general manager) and ten managers. The senior management restructure process started from this date. 6 February 2015 The general manager met the DLG to seek his advice regarding the mayor’s adjournment of the council meeting of 5 February 2015. 7 February 2015 Mr. Leigh Sealy SC, former Solicitor General, provided written advice to the mayor inter alia that in his opinion aldermen were entitled to receive a copy of the CTMG report two days prior to the special meeting of 5 February; that the mayor’s adjournment was valid; and as a consequence of the meeting continuing, nothing that was decided after the adjournment was legally valid. The general manager appointed the council lawyer, Ms. Iskandarli, as Restructure Coordinator. 11 February 2015 At Ald. Branch-Allen’s invitation, Ald. Branch-Allen, King, Lucas, Nielsen, Pearce, Quick and Slade held a ‘meeting’ at the council chambers to discuss what Ald. Branch-Allen called ‘the reputational risk to Glenorchy City Council, its staff and aldermen’. The mayor was not invited to the meeting. After the meeting, with the support of the majority of aldermen, Ald. King emailed the general manager, expressing the aldermen’s belief in the rightness of the general manager’s actions in commencing implementation of the recommendations of the CTMG Report, and their assurance that they needed no further information in order to make their decision regarding implementation of its recommendations. Ald. King asked the general manager to ‘share the email with other staff at his discretion’. 16 February 2015 At the council meeting a motion to confirm the minutes from 5 February 2015 meeting was passed (7/2). The minutes included matters which were discussed after the meeting was adjourned by the mayor. The mayor and Ald. Dunsby voted against and Ald. Stevenson abstained. Council also approved spending up to $381,000 to construct a hydrotherapy pool in the KGV redevelopment. 25 18 February 2015 The general manager emailed managers and staff attaching position descriptions for the new manager and director positions with closing dates of 27 February 2015 for manager positions and 20 February 2015 for director positions. He indicated all staff would be able to apply for any of these positions. 27 February 2015 The mayor received an email from Worksafe Tasmania 2015 requiring the urgent provision of two reports which council had not provided, relating to an investigation of a complaint against the general manager made by a staff member. 3 March 2015 The mayor emailed aldermen, the general manager, and Ms. Iskandarli regarding the Worksafe matter. She indicated that Worksafe had advised that if council did not provide a response within the required timeframe, GCC would be issued with a s 155 notice (Improvement Notice) and that not complying with this requirement could lead to the imposition of a fine on council. A number of aldermen responded to the mayor, telling her she should not involve herself in this issue because it was operational. 4 March 2015 Ms. Iskandarli reprimanded the mayor (by email) for involving herself in the Worksafe matter. The mayor informed the general manager that she had that day received a s 155 notice, Notice to Give Information to a Regulator. 10 March 2015 The DLG released the findings of his investigation into the 5 February 2015 meeting adjournment. The DLG found the adjournment to be valid and that decisions made subsequent to the adjournment were invalid. The DLG found that council needed to recommence the decision making process. The DLG stated that aldermen were entitled to receive a copy of the CTMG Report but expressed reservations about the provision of Annexure C to the mayor and aldermen. He said that the annexure should be removed before the report was provided. 11 March 2015 The mayor released a media statement regarding the findings of the DLG in the matter of her adjournment of the meeting of 5 February 2015. 13 March 2015 Aldermen were provided with a copy of the redacted CTMG Report (excluding Annexure C). 14 March 2015 An article in The Mercury quoted a notice of motion which was to be moved by Ald. Pearce at the meeting of 16 March 2015, praising the general manager. The article quoted the mayor as saying that she had no confidence in the general manager and she would vote against Ald. Pearce’s motion. 26 16 March 2015 At its ordinary meeting council accepted the presentation and review made by CTMG on 5 February 2015 and approved the recommendations made by CTMG and the general manager in the presentation of 5 February 2015. When standing orders resumed the original motion was put and carried (9/1). The mayor voted against the motion. Ald. Pearce’s confidence motion (for the general manager) was carried (7/3). The mayor and Ald. Stevenson and Dunsby voted against. At 6.21 pm while the closed meeting was still in progress, a media release was issued on council letterhead stating that the council fully supported the general manager and his management of the long-term strategy to achieve financial sustainability for the council. The statement criticised the mayor for (allegedly) inaccurately representing council’s position and decisions following the 5 February meeting adjournment. The meeting ended at 6.50 pm. 17 March 2015 The media release of 16 March was re-released on plain paper and signed by Ald. Branch-Allen, King, Lucas, Nielsen, Pearce, and Slade. 2 April 2015 The general manager announced (by email) to aldermen and all staff the appointment of Ms. Iskandarli as Director of Corporate Governance, to take effect from 8 April 2015. This position was advertised internally only and had responsibility for Legal and Property, Governance and Risk, and People and Safety. (The other two director and five manager positions were publicly advertised with closing dates of 20 April and 27 April 2015 respectively.) 8 April 2015 The general manager appointed Ms. Iskandarli Director of Corporate Governance and General Counsel. 13 April 2015 At the council meeting, Ald. Stevenson asked the general manager (Item 15.1) to provide information regarding the cost of CTMG consultancies over the past three financial years, and the current year. The general manager said he would provide an answer in the closed session of the July 2015 meeting. 28 April 2015 The GMPRC held a meeting which was attended by Mr. Ian Nelson, a consultant advising the committee on a review of the general manager’s KPIs. The DCG&GC also attended the meeting. 4 May 2015 The Minister for Planning and Local Government noted a report prepared by the DLG into the council’s governance issues, suggesting a range of measures to improve the relationship between the mayor and the general manager. The Director indicated in his report that the focus of his investigation was on personality issues within the council (aldermen and the general manager) and not on compliance with the Act and Regulations. The initial aim was to rebuild the negative relationship between the mayor and general manager by identifying 27 problems in the relationship and providing each alderman with an opportunity to outline his or her concerns and possible solutions. The report identified strategies for improving the situation, largely based on the mayor’s undertaking leadership programs and other forms of training, and implementing a conciliation process between the mayor and general manager and a similar process for the aldermen. It also recommended that the Minister meet with the mayor and general manager to outline his expectations and requirements for the council. 11, 12 May 2015 Interviews were conducted for the remaining two director positions. Ms. Iskandarli sat on the interview panel. 15 May 2015 At the ordinary council meeting, council approved a resolution to allow Public Question Time (PQT) to no longer be limited to discussion only of items on the agenda (carried unanimously). 26 May 2015 The general manager started annual leave (until 29 June 2015); the DCG&GC became acting general manager. 9 June 2015 Before the council meeting held on 9 June 2015, Ald. Branch-Allen was interviewed on ABC radio. She strongly criticised the mayor’s representation of GCC. During the council meeting that afternoon, council passed a resolution that, in the interest of courtesy and collegiality, the mayor should send any statements issued to the media to all aldermen prior to their release. This was carried (7/3). The mayor and Ald. Stevenson and Dunsby voted against. 17 June 2015 The mayor emailed the acting general manager (the DCG&GC) seeking information about her action in terminating an employee (reportedly with mental health issues) who had posted on Facebook his intention to protest outside the council chambers. 18 June 2015 The acting general manager emailed the mayor, dismissing her concerns about the mental health of the employee. She disputed the employee’s state of mental health, despite his stated intentions, and stated that council had no evidence that the man was suffering from mental health issues. The acting general manager confirmed that she had given the employee an ultimatum, viz., that if he went ahead with his protest, his employment would be terminated. The complainant conducted his protest. 29 June 2015 The newly appointed Director, Community, Economic Development and Business (DCEDB) commenced employment with GCC. 28 30 June 2015 The general manager returned from annual leave. The mayor asked to meet him at 12.30 pm to update him on key issues and discuss budget matters, noting he had been on leave for five weeks including during the budget process. The general manager replied that he was unavailable, but proposed a meeting for the following morning at 0830 to discuss the agenda for the forthcoming council meeting and business arising during his absence. 1 August 2015 An international netball game intended to be played at the Derwent Entertainment Centre (DEC) was cancelled at the last minute because the floor was found to be unsuitable. 20 August 2015 The DCEDB’s employment with GCC was terminated during her probation period, without notice, by the general manager. 26 August 2015 The GMPRC met to discuss the general manager’s performance appraisal for the period 3 January 2015 – 30 July 2015. The meeting was adjourned before the appraisal was finished. 27 August 2015 The ex-DCEDB made a general protections application to the Fair Work Commission under the Fair Work Act 2009, seeking relief. Council lodged a response on 4 September 2015. 11 September 2015 The Chief Executive Officer (CEO) of LGAT notified the mayor that a casual vacancy had occurred on the LGAT General Management Committee (GMC) for a representative of the Southern Electoral District (pop. 20,000 or more). Shortly afterwards the mayors of the other two eligible councils emailed Mayor Johnston to state that they would support her nomination for the position. 15 September 2015 The ex-DCEDB and council reached a mediated settlement whereby the ex-DCEDB agreed to resign and the council paid her a $50,000 termination payment. 21 September 2015 The GMPRC met to continue the general manager’s performance appraisal for the period 3 January 2015 – 30 July 2015; this process started at the committee’s meeting on 26 August 2015. 1 October 2015 The mayor submitted her nomination for the vacancy on GMC. The mayor signed the nomination form as the candidate and as the person authorised to lodge the nomination on behalf of the council. 6 October 2015 The Returning Officer of the Tasmanian Electoral Commission (TEC) notified all mayors and general managers that he had received only one nomination for the vacancy on GMC, that being Mayor Johnston, and that therefore no ballot would be required. 14 October 2015 The Board of Inquiry (BoI) was established by the Minister for Planning and Local Government. 29 17 October 2015 The Board issued a public notice calling for submissions to the inquiry. 19 October 2015 The Board attended a special council meeting to inform aldermen about the Inquiry process, and to clarify the terms of reference and answer questions. After the Board left the meeting, council resolved (9/1) that it would not make any comment regarding the BoI to the media while the inquiry was conducted. The mayor voted against the motion. 26 October 2015 Council passed a resolution (6/4) which again limited questions during PQT to items on the agenda of the meeting; this overturned the decision of May 2015. The mayor, the deputy mayor, and Ald. Stevenson and Dunsby voted against the motion. Council also adopted its revised Grievance Policy (9/1), with the mayor voting against the motion to approve it. 27 October 2015 Ald. Slade wrote to the CEO, LGAT, asking whether the mayor was a proper person to authorise her own nomination to GMC, and pointed out that the matter of the mayor’s nomination to GMC had never been discussed by council. This letter was inaccurately dated 27 November 2015. 30 October 2015 The Glenorchy District Football Club (GDFC) signed an agreement to lease with GCC for its facilities at KGV. 11, 15, and 18 December 2015 The Board conducted its first round of hearings with specific stakeholders including existing and former senior staff and key community members who had made submissions. 14 December 2015 A special council meeting was held to consider the mayor’s nomination to the GMC of LGAT. Council resolved (in part) to instruct the general manager to write to LGAT and the TEC, requesting that they conduct investigations into the circumstances surrounding the mayor’s becoming a member of GMC, and requesting the council be advised the outcome of the investigations. Council also requested the mayor to explain her conduct in writing by 23 December 2015. If no response had been received by that date, council resolved to ask LGAT to remove the mayor from her position on GMC. The motion was carried (7/2), with Ald. Stevenson and Dunsby voting against, and the mayor being out of the meeting after having declared an interest in the item. 23 December 2015 The mayor provided an explanation of her nomination to GMC to the general manager. The general manager sent the mayor’s explanation to all aldermen by email. However, the minutes of the council meeting of 25 January 2016 do not record that the general manager tabled this document for discussion by council. 14, 18 and 19 January 2016 The Board conducted hearings with all aldermen except the mayor. The hearings were held at the council chambers and were not audio recorded. 30 25 January 2016 The Board attended the ordinary council meeting. During the meeting the Chair of the GCC Audit Panel drew council’s attention to a problem with the June 2015 declarations of revenue, which had failed to include a $1.167m federal government grant received in the 2014-2015 period. Management had subsequently amended the report to include this ‘significant revenue item’. The DCG&GC debated with the chairman of the Audit Panel regarding the need to alter the declarations of revenue as originally stated. 2 February 2016 Ald. Branch-Allen, Lucas, King, Nielsen, Pearce and Slade wrote to the CEO of LGAT, stating that the mayor’s election to GMC was invalid. 3, 4, and 9 February 2016 The Board conducted hearings with the mayor, the general manager, and the DCG&GC. These hearings were held at the Executive Building, 15 Murray Street, and were audio recorded. 5 February 2016 The Board wrote to Deputy Mayor Quick and Ald. King, Branch-Allen, Slade, Pearce, Nielsen, and Lucas, advising them about the process with regard to direct allegations made against them in their roles as aldermen through the public submissions process, and requiring them to respond by 22 February. The letter was accompanied by a schedule of allegations that the Secretariat extracted from various submissions, together with relevant supporting evidence. Schedules of allegations made against the mayor, the general manager and the DCG&GC were not provided at this stage as they had not been finalised due to the complex nature of the various allegations. There were no specific allegations against Ald. Stevenson and Ald. Dunsby. 15 February 2016 The Board attended the ordinary council meeting. Council was told that a further $211,586 would be required to remedy defects in the construction of the hydrotherapy pool at KGV. 16 February 2016 The GMPRC met to consider a draft Deed of Confidentiality, its draft work plan for 2016, and to review the general manager’s KPIs for the period 3 January 2016 – 2 January 2017. The committee did not discuss the draft Deed of Confidentiality as it had not been provided to the committee by the DCG&GC. The general manager’s annual performance review for the period ending 2 January 2016 was not included on the agenda and was not discussed at the meeting. 23 February 2016 Ald. Branch-Allen lodged an application in the Supreme Court, seeking an order in the nature of a writ of prohibition, prohibiting the Board from continuing its investigations, and also from submitting a report on its findings and recommendations to the Minister for Planning and Local Government. 24 February 2016 An injunction was granted by the Court which effectively stayed most of the Board of Inquiry’s proceedings. 31 26 February 2016 GMPRC met to consider the general manager’s annual performance review against his KPIs for the period ending 2 January 2016, and to consider the draft KPIs for the period January 3 2016 – 2 January 2017. The KPIs were to be tabled at the next council meeting for adoption. The committee did not meet again until July 2016, and the KPIs did not go to council for approval until 29 August 2016. The annual performance review was not concluded; the committee was to reopen this discussion at its next meeting. 15 March 2016 The Board attended the ordinary council meeting. The DCG&GC told the mayor that the Board should not be allowed to remain for the closed session of the meeting. The mayor overruled the DCG&GC. Ald. Slade attempted to bring forward a motion to remove Ald. Dunsby from the GMPRC for providing what he termed ‘confidential information’ to the Board and the mayor. This was rejected by the mayor; the mayor subsequently referred the matter of the proposal to remove Ald. Dunsby from the committee to the Director of Public Prosecutions and Tasmania Police as a possible contravention of s 100 of the Criminal Code 1924. Ald. Branch-Allen moved, in part, that council should formally advise LGAT that for a number of specified reasons, the mayor could not represent GCC on GMC; and that if LGAT refused to declare Mayor Johnston’s election to GMC void, then GCC would take ‘formal external action’. 23 March 2016 The hearing of the matter of Branch-Allen v Easther and Ors commenced before Chief Justice Blow in the Supreme Court of Tasmania. Ald. Branch-Allen was joined by Ald. Pearce, Slade, King and Lucas, and the general manager and the DCG&GC attended. 31 March 2016 The revised completion date for the KGV project was not achieved. 11 April 2016 Closing arguments were presented in the matter of Branch-Allen v Easther and Ors. The Chief Justice reserved his judgement in this matter. 12 April 2016 The Board issued a Requirement to Produce Documents under s 222 to obtain copies of the agenda for the council meeting to be held on 13 April 2016. The documents were not provided by close of business as verbally requested by the Board. 13 April 2016 When the general manager did not provide the agenda for the full council meeting in the timeframe requested, the Board asked the mayor to provide it, which she did. The Board attended the ordinary council meeting. The general manager challenged the Board’s right to attend the closed session of the meeting, and Ald. Pearce opined that the Board could not attend until the conclusion of the Supreme Court matter. The Board remained in the meeting. 32 Council approved its revised Code for Tenders and Contracts; this had been due for review by 28 March 2015. During a short break between the open and closed sessions of the meeting, there was an incident outside the meeting room involving a member of the public and Ald. Lucas. The mayor adjourned the meeting for ten minutes. The police were called and attended but there was no further police action. In closed session the chairman of the GMPRC, Ald. Slade, stated that the general manager’s performance review for the period ending 2 January 2016 would not be concluded until the mayor answered his questions about her rejection of his motion to remove Ald. Dunsby from the GMPRC at the meeting of 15 March 2016. The general manager initiated an email exchange with the Deputy Director of Local Government (DDLG) regarding provision of the agenda to the Board of Inquiry for the closed session of the council meeting. The DDLG said that the Board could attend the closed session; the general manager disagreed. 17 April 2016 The general manager emailed the DDLG with copies to the DLG, the Minister for Planning and Local Government, the Premier of Tasmania, all aldermen, and the DCG&GC. The general manager described the Board’s getting the meeting agenda from the mayor as behaving in a misleading and duplicitous manner, and further suggested that the DDLG may have been in contempt of court because of the Supreme Court matter being considered at the time. The general manager alleged that discussions and actions which he described as questionable had taken place between the Department of Premier and Cabinet (DPaC), the Board, and the mayor. 19 April 2016 Ald. Branch-Allen sought leave to reopen the matter of Branch-Allen v Easther and Ors and adduce fresh evidence. Her lawyers filed an application on 28 April 2016, which was heard on 6 May 2016. Ald. Branch-Allen alleged that after the conclusion of the 13 April 2016 council meeting and immediately outside the council meeting room, Ms. Lynn Mason (Board member) had hugged the mayor, and Mr. Barry Easther (Board member) had made a complimentary remark to the mayor. The general manager, DCG&GC and Ald. Pearce swore affidavits that were filed in support of Ald. Branch-Allen’s application. 6 May 2016 The Chief Justice made another order permitting the applicant (Ald. Branch-Allen) to rely on three more contentions which arose from the Board’s attendance at the council meeting on 13 April 2016 (as above). 33 6 May 2016 The general manager informed aldermen that he was taking annual leave from 9 May 2016 to 14 May 2016. Ald. Stevenson asked the general manager to explain the procedure for taking leave, and the mayor noted that the general manager’s contract of employment required him to take leave at times agreed between the parties, viz., council and the general manager. The mayor said that she had not known previously of his intention to take leave at that time. 8 May 2016 The general manager told all aldermen and the DCG&GC by email that his contract was between himself and GCC, and that the aldermen were not the council; therefore he did not need to reach agreement with aldermen regarding his taking of leave. 9 May 2016 The Board did not attend the ordinary council meeting. Council resolved not to nominate any alderman for the vacant position on GMC. 24, 25 May 2016 Board members Mr. Barry Easther and Ms. Lynn Mason appeared before the Supreme Court in the matter of matter of Branch-Allen v Easther and Ors. Both Board members denied the allegations made by Ald. BranchAllen. 6 June 2016 Ald. Dunsby moved that as council’s insurance company had recently indicated that Directors and Officers liability insurance did not cover legal costs incurred by aldermen in the matter of Branch-Allen v Easther, the council confirm that it had not and would not use ratepayers’ money to cover those costs. Ald. Stevenson, Dunsby, and the mayor voted in favour of the motion, but it was defeated (3/7). No alderman declared a pecuniary interest in the matter. During debate the mayor warned Ald. Branch-Allen for interjecting. The mayor asked Ald. Branch-Allen to leave; she refused and the mayor requested the general manager to call the police. The mayor adjourned the meeting for ten minutes. The police were not called. The meeting was recalled after the adjournment but as a number of aldermen did not return, the meeting lacked a quorum and was adjourned again, to be resumed on 4 July 2016. 10 June 2016 Chief Justice Blow delivered his decision in which he discharged the previously imposed injunction and ordered that the Board not deliver its report to the Minister until it complied with specified natural justice requirements. The Chief Justice noted (at [97]) that on the balance of probabilities he was not satisfied that either Mr. Easther or Ms. Mason had behaved as alleged after the 13 April council meeting. The Board resumed its investigations from this time. 20 June 2016 The Board did not attend the special council meeting. Council resolved to adopt the Annual Plan 2016-17 to 2019-20, and the 2016-17 budget estimates, and the 2016-17 rolling ten year long term financial plan. All resolutions were passed (6/3), with the mayor and Ald. Stevenson and Ald. Dunsby voting against. The approved budget included a provision 34 that in order to meet the targeted surplus of $186,000, council would need to find $2.32 million in unspecified ‘productivity dividends’. The most recent report which had been provided to aldermen of council’s financial performance against its budget for the period ending 30 June 2016 was for the period ending 30 April 2016, and the most recent report of progress against council’s Annual Plan was for the period ending 31 December 2015. 29 June 2016 The Board re-sent the allegations which had been made against Ald. Branch-Allen, inviting her to respond if she wished to do so. 4 July 2016 The Board did not attend the ordinary council meeting. Council audio recorded its meeting for the first time. Ald. Stevenson moved a resolution to require the Audit Panel to review, monitor, and report to council regularly on the attainment of the $2.32 million ‘productivity dividend’. The motion was lost (3/5), with Ald. Pearce, Branch-Allen, Lucas, King, and Deputy Mayor Quick voting against. 4 July 2016 The Board sent notification of allegations made during submissions and hearings to the general manager and to the mayor, inviting them to respond if they wished to do so. 7 July 2016 The Board sent notification of allegations made during submissions and hearings to the DCG&GC, inviting her to respond if she wished to do so. 12 July 2016 The Board met key representatives of the three tenants of the redeveloped KGV: the GDFC, Revive Physiotherapy, and the Migrant Resource Centre (MRC). The Board inspected parts of the area assigned to Revive Physiotherapy, including the uncompleted hydrotherapy pool, and the interior areas assigned to the GDFC. 29 July 2016 The GMPRC resumed its adjourned meeting of 26 February 2016, to deal with the general manager’s performance appraisal for the six months ending 2 January 2016; to consider the general manager’s KPIs for the period 3 January 2016 – 2 January 2017; to confirm timing of the general manager’s annual performance review for the period ended 2 January 2016; and to consider the terms of reference of the committee and the proposed Deed of Confidentiality. The committee agreed to meet on 16 September 2016 to conduct the annual performance review for the period ending 2 January 2016. Ald. Slade as chairman of the committee provided precise verbal advice to the general manager at this July meeting regarding the outcome of this assessment which, according to the minutes, was to occur in September. The DCG&GC told the committee that the advice on its revised terms of reference would be placed on the agenda for the committee meeting on 16 September. (The advice had been provided to the DCG&GC on 19 February 2016 but had not been given to the committee or to council.) On the matter of the Deed of Confidentiality, Ald. Dunsby 35 advised that she would not sign it as she was already bound by the confidentiality provisions of the Act, but Ald. Slade, Lucas, and BranchAllen agreed to do so when a revised version was provided to them. 1 August 2016 The Board attended the ordinary council meeting. Council resolved to end its formal relationship with the community precinct consultation system and redirect money used to support precincts to provide small one-off grants to facilitate community based initiatives on merit. (Carried 6/4). The mayor, the deputy mayor, and Ald. Dunsby and Stevenson voted against the motion. 2 August 2016 The mayor attended her second hearing with the Board. This was audiovisually recorded. 29 August 2016 The Board attended the ordinary council meeting. Council adopted the KPIs proposed by GMPRC for the general manager for the period 3 January 2016 to 2 January 2017 (4/3). The mayor and Ald. Dunsby and Stevenson voted against. 5 September 2016 Ald. Slade, Dunsby, and Stevenson each attended their second hearings with the Board. 6 September 2016 The general manager attended his second hearing with the Board, accompanied by his legal counsel. 7 September 2016 The DCG&GC attended her second hearing with the Board, accompanied by her legal counsel. 9 September 2016 Ald. Branch-Allen attended her second hearing with the Board, accompanied by her legal counsel. In response to petitions to the Board, Ald. King and Ald. Lucas also appeared before the Board on this day. 16 September 2016 GMPRC met and resolved that it did not need a Deed of Confidentiality. The committee finished the general manager’s annual performance review for the period 3 January 2015 – 2 January 2016, and agreed that a report would be given to council at its meeting on 26 September 2016. 26 September 2016 The Board attended the ordinary council meeting. A motion to approve payment of an additional $18,000 to the general manager as a result of GMPRC’s appraisal of his performance for the period 3 January 2015 – 2 January 2016 was passed (5/4). The mayor, the deputy mayor, and Ald. Dunsby and Stevenson voted against. The DCG&GC recommended changes to council’s meeting policy which if approved would place additional restrictions on the capacity of aldermen to ask questions both before and during meetings. The mayor considered that the recommendation was contrary to the Act and the Regulations and she did not seek a mover and seconder to the recommendation. The DCG&GC argued against the mayor’s ruling, and 36 Ald. Slade and Ald. Pearce attempted to move the recommendation despite the ruling. No vote was allowed. Council adopted its revised policy Nominations and Appointments to Committees and Other Bodies. Ald. Stevenson asked the general manager why payments in excess of $445,000 to CTMG were exempt from the tender process. Council resolved to seek legal advice regarding possible changes to clause 5 of the general manager’s Contract of Employment (CoE). The general manager was advised to seek independent legal advice on the matter. 24 October 2016 The Board attended the ordinary council meeting. Council was asked to approve the same recommendation to amend the meeting policy as was presented at the 26 September meeting when the mayor disallowed a vote on the grounds that the motion was unlawful. The mayor and DCG&GC circulated copies of respective and contradictory legal advice. The mayor informed council that her legal advice was that it was unlawful to accept the motion, so she did not accept a mover or seconder and no vote was allowed. Council resolved to adopt the Annual Report 2015-16 without the mayor’s message as written, with the mayor, the deputy mayor, and Ald. Dunsby and Ald. Stevenson voting against. However a subsequent motion in the same item, also requiring adoption of the Report, was lost, with the mayor, the deputy mayor, Ald. Dunsby, Ald. Stevenson, Ald. Slade, and Ald. King voting against. The DCG&GC advised council that it was legally obliged to have an annual report. Council decided to hold a special meeting on 7 November 2016 to reconsider the Report. Ald. Stevenson asked the general manager which specific tender exemption existed for the CTMG expenditure; how was it approved under that exemption; and whether it would be recorded within the Annual Report as required under reg. 29 of the Local Government (General) Regulations 2015 (the General Regulations). The general manager said that he would answer the question at the council meeting on 21 November 2016. 7 November 2016 Council resolved at a special meeting to adopt the GCC Annual Report 2015-16 in the form of Attachment 1 to the agenda and received the 2016 General Purpose Financial Report (included in the Annual Report). This was carried (7/3) and overturned the resolution from the 24 October 2016 meeting. The mayor, Ald. Dunsby and Ald. Stevenson voted against. 37 14 November 2016 Aldermen toured the KGV redevelopment and discussed issues raised at a workshop. The general manager informed council that the redevelopment opening ceremony would be held on 5 December 2016 and that prominent guests and the tenants had been notified. The opening was later deferred indefinitely. 21 November 2016 Council approved the election of Ald. Branch-Allen and Lucas to the Audit Panel. The process for the election of the aldermen did not comply with council’s policy Nominations and Appointments to Committees and Other Bodies. Council was again asked to approve the same recommendation to amend the meeting policy as was presented at the 26 September and 26 October 2016 meetings, when on both occasions the mayor disallowed a vote on the grounds that the motion was unlawful. The mayor again declined to accept the recommendation on the grounds that it was unlawful. No alternative resolution was moved and no vote was taken. Ald. Stevenson repeated his question regarding the general manager’s exemption of projects awarded to CTMG from the tender process. The general manager said that this question had been referred to external lawyers for advice and the lawyers had requested an extension of time. 5 December 2016 Council held a special meeting to consider proposed changes to the general manager’s contract of employment (CoE). Two draft contracts were provided to aldermen less than 48 hours before the meeting. Both drafts suggested extensive changes to multiple clauses of the contract, and provided significantly enhanced monetary benefit to the general manager. The mayor adjourned the meeting until 20 March 2017 to allow aldermen time to consider the drafts provided. 12 December 2016 At council’s Annual General Meeting (AGM), the minutes of the previous AGM were not passed, and the meeting declined to accept the Annual Report 2015-2016. The meeting passed several resolutions, including a requirement that the general manager answer questions on notice in council meetings. 17 December 2016 The general manager commenced annual leave and appointed acting general managers for the period 17 December 2016 to 8 January 2017. 19 December 2016 At council’s meeting Ald. Stevenson repeated his question regarding the general manager’s exemption of projects awarded to CTMG from the tender process. He was told that the external lawyers engaged to advise the general manager had referred the matter to a senior counsel for advice, which was not yet available. 9 January 2017 The general manager emailed aldermen to inform them that he was taking personal leave until 13 January 2017 and that he appointed the DCG&GC as acting general manager for that period. 38 16 January 2017 The DCG&GC told the mayor that the general manager was taking further personal leave until 3 February 2017, and the general manager emailed the mayor that afternoon to confirm this and to state that he appointed the DCG&GC as acting general manager for the period of his leave. Later the same day the mayor appointed the Director, City Services and Infrastructure (DCSI) as the acting general manager for the period 16 January 2017 to 23 January 2017, the date of the next council meeting. The DCSI accepted the appointment. 17 January 2017 The general manager emailed the DCSI, copied to all directors and managers, stating that the mayor had acted illegally in appointing him as acting general manager. The DCG&GC met the DCSI and the mayor and told the DCSI that his appointment was invalid. 23 January 2017 The general manager returned to work. The Board attended the ordinary council meeting. A motion stating that council did not accept the general manager’s medical certificate of 20 January 2017, and requiring him to attend a fit for work assessment, was lost. The mayor and Ald. Stevenson and Dunsby voted in favour of the motion. Ald. Stevenson moved a resolution to provide for a full external project investigation and probity audit of the KGV project, which was lost. Ald. Slade, Lucas, Branch-Allen, Quick, Pearce, and King voted against. Ald. Stevenson moved a resolution requiring the general manager to provide aldermen with a financial report on the KGV project, including budget variations and budget against actuals; this also was lost, with Ald. Slade, Lucas, Branch-Allen, Quick, Pearce, and King voting against. A similar motion, also from Ald. Stevenson, regarding the Derwent Park Stormwater Project was lost on the same lines. The DCG&GC reported that the hydrotherapy pool at KGV met all relevant standards and that all works were installed to specifications provided. Ald. Stevenson repeated his question regarding the general manager’s exemption of projects awarded to CTMG from the tender process. Advice from a Senior Counsel was tabled by the general manager at the meeting. 27 January 2017 The Minister for Planning and Local Government wrote to the aldermen, giving them until 3 February 2017 to respond to his declared intention to suspend the aldermen for a period of six months. 31 January 2017 At a special council meeting to determine council’s response to the Minister’s letter, Ald. Stevenson moved to acknowledge the letter and the concerns it raised about the governance arrangements and conduct of the council, to support the appointment of a commissioner, and to write to the Minister supporting the suspension of aldermen until the conclusion of the BoI. The motion also acknowledged the extended period of time taken by the BoI to conduct its investigation. The motion 39 was lost (3/7). The mayor, and Ald. Dunsby and Stevenson voted in favour. Another resolution proposed acknowledging the Minister’s letter, and refuting the concerns expressed in the letter about the governance arrangements and conduct of the council. The resolution provided seven reasons for refuting the Minister’s stated reasons for suspension, acknowledged the extended time taken by the BoI, and requested that suspension of aldermen be postponed until the BoI was concluded. The motion passed (7/3). The mayor, and Ald. Dunsby and Stevenson voted against. 8 February 2017 The Minister for Planning and Local Government suspended the council and appointed a commissioner for a period of six months. 15 February 2017 The Board provided its draft findings and recommendations and substantive evidence to relevant parties and invited any submissions by 17 March 2017. 6 March 2017 Ald. Branch-Allen lodged an application in the Supreme Court to prevent the Board from submitting its report to the Minister until any persons whose interests might be adversely affected by the report were provided with all the evidence and information that the Board had relied upon in preparing its Draft Report. 8 March 2017 The Board wrote to all potentially affected persons to advise that it would delay calling for submissions on the Draft Report until a revised version and its accompanying material were provided. 20 March 2017 An independent consultant’s report on the hydrotherapy pool at KGV stated that the pool was not compliant with relevant standards and was not fit for purpose. 12 April 2017 The second version of the Draft Report was sent electronically to all potentially affected persons. 13 April 2017 A hard copy of the Draft Report was sent to all potentially affected persons, together with all the evidence and information that the Board considered relevant to its draft findings and recommendations contained on a USB. Each party was invited to respond by 11 May 2017 in writing, in person or through his or her nominated solicitor. 27 April 2017 Ald. Branch-Allen’s lawyers wrote to the Board requesting an extension of time to 30 June 2017 to respond to the Draft Report. 28 April 2017 The Board wrote to all potentially affected parties advising that it had extended the timeframe for receiving any submissions until 1 June 2017. 40 30 May 2017 Ald. Branch-Allen lodged an application in the Supreme Court to restrain the Board from providing its report to the Minister to a time to be determined by the Court. 31 May 2017 Ald. Branch-Allen’s application was withdrawn. 1 June 2017 Ald. Branch-Allen’s lawyers wrote to the Board enclosing interim submissions from Ald. Branch-Allen, King, Lucas, Pearce, and Slade, indicating that final submissions would be provided by 21 June 2017 and demanding an undertaking from the Board that it would consider these final submissions before submitting its final report to the Minister for Planning and Local Government. 5 June 2017 The Board advised Ald. Branch-Allen’s lawyers and all other parties who had received a copy of the Draft Report that should further submissions be received on or before 21 June 2017, the Board would consider these before finalising its report and submitting it to the Minister. 21 June 2017 A response to the Board’s invitation to respond to the Draft Report was received from the DCG&GC through her legal representative, in which the DCG&GC requested a 21 day extension to provide a response. This request was considered and the Board granted an extension until 12 July 2017. 29 June 2017 Ald. Branch-Allen commenced legal proceedings against the Board of Inquiry members by filing an originating application in the Supreme Court. The matter was set down for hearing on Wednesday 9 August 2017. 6 July 2017 The general manager, Mr. Peter Brooks, commenced proceedings against the Board of Inquiry by filing an originating application. 13 July 2017 Mr. Brooks’s application for non-publication was heard but denied by His Honour, the Associate Justice. 2 August 2017 Alderman Branch-Allen agreed that her application would be dismissed and no order would be made as to costs. 8 August 2017 The decision made by the Associate Justice was set aside by His Honour the Chief Justice, who granted the non-publication order of Mr. Brooks’s affidavit. Mr. Brooks sought to further challenge the Board’s process and sought relief in the form of the full prohibition of the Board. 8 August 2017 The Minister for Planning and Local Government resuspended the council and reappointed the commissioner for a period of six months. 21 August 2017 Mr. Brooks’s application was heard before the Chief Justice. 11 September 2017 The Chief Justice dismissed Mr. Brooks’s application. 41 13 September 2017 The general manager provided a response to the Draft Report and advised that he would provide additional documents to support his responses. The Board advised Mr. Brooks that any materials would be accepted on or before 25 September 2017. 18 September 2017 The Board was advised by Ms. Iskandarli’s legal representative that the DCG&GC wished to respond to the Board’s Draft Report. The Board advised that any response would be considered if received by 10 am on 25 September 2017. 25 September 2017 A response to the Draft Report was received from Ms. Iskandarli through her legal representative. The Board also received hard copies of attachments to the response to the Draft Report submitted by the general manager on 13 September 2017. 26 September 2017 The general manager filed a Notice of Appeal of the Chief Justice’s dismissal of his application. 17 October 2017 Report of the Auditor-General No.1 2017-18 presented to Parliament. 18 October 2017 First reading of the Glenorchy City Council (Dismissal of Councillors) Bill 2017. 25 October 2017 Hearing of the appeal of the general manager before the Full Court of Tasmania. 15 November 2017 The Full Court dismissed Mr. Brooks’s appeal. 15 November 2017 The Board provided its Report to the Minister. 42 Section Three: Findings and Recommendations The Board’s Recommendations     That the Minister recommend that the Governor by order dismiss the councillors, in accordance with s 226 of the Local Government Act 1993; That a Commissioner be appointed in accordance with s 231 of the Act; That the Commissioner immediately implement an extensive review of management practices at Glenorchy City Council, with reference to its responsibilities for good governance, organisational health, and effective, efficient, and compliant operational management; That the Glenorchy City Council Board of Inquiry Report be released in accordance with s 227 of the Act, to inform the Tasmanian community and particularly the residents and ratepayers of Glenorchy of the findings and recommendations of the Board, and to facilitate greater community involvement in the election and monitoring of the next Glenorchy City Council. The basis for these recommendations is that the Board finds that: (a) the failure of the council to perform many of its functions seriously affected the operation of the council; and (b) the irregularity of the conduct of the council seriously affected the operation of the council. Further, the Board finds that the council failed to provide leadership and good governance to the city and is in need of major reforms in governance and management. The Board is strongly of the view that this cannot be achieved by the council elected in October 2014, and a management structure which includes the current general manager and the current DCG&GC. The Board’s detailed findings and supporting evidence follow. Report Structure Throughout its investigations the Board received a vast amount of material. The Board has given due consideration to all the material it received. The material referenced in this Report is the material the Board considers relevant to its findings and recommendations. The material relied upon by the Board and referred to in footnotes is contained on an accompanying USB. The material has been collated into packages of documents according to theme or topic (e.g. council meeting minutes, council audio recordings, council plans, email 43 correspondence, and so on). All the documents are recorded in the accompanying index. Each package has a reference (A, B, C and so on) and each document has been assigned a reference number. For example, the minutes of the 13 October 2014 has an index reference of A.1. The index number of all referenced documents appears at the end of footnotes. Section Three of the report, Findings and Recommendations, is structured in two parts: Part A Governance and Part B – Management and Operations. Each part has numbered sections from 1 onwards. The Board’s consideration of the responses it received to the Draft Report is in Appendix D. 44 Part A: Governance Council Governance: overview Principles of Good Governance Governance comprises the processes, practices and culture that guide the activities of an organisation beyond its basic legal obligations. Good governance at the local level requires clear vision, effective strategic planning, transparent and accountable decision-making that is timely and lawful, and a commitment to act with the highest ethical standards, exercise sound judgement, and foster trusting and respectful relationships. Good governance is important because it supports councils to make sound decisions and to act in the best interests of the communities they serve. The Good Governance Guide for Local Government in Tasmania states: Mayor as spokesperson: As spokesperson of the council, the mayor must fairly represent the views and decisions of a council, even if the mayor does not agree with the view or decision. ….If the final decision of the council conflicts with the private view of the mayor, the mayor should refrain from expressing a view that is contrary to the formal position of the council. A mayor expressing a view that opposes the agreed position of the council can lead to confusion and can lead the community to believe that the council is divided.4 The Council: A council must function as a team in order to effectively govern. Where there is a breakdown in the team dynamic among elected members, there will be a loss of focus on acting in the interests of the community. A breakdown in the team dynamic can also lead to confusion and loss of direction among the administration, and affect the reputation of the council in the eyes of the community.5 The Aldermen: Having good relationships ….means that there is mutual trust and respect among colleagues. Trust and respect among elected members ensures that everybody is heard, that there is robust discussion as part of the decision making process, and that conflict is resolved swiftly and fairly.6 4 Local Government Division, Department of Premier and Cabinet, Good Governance Guide for Local Government in Tasmania, p.28. 5 Ibid p.27 6 Ibid p.41 45 Findings The Board finds that as a result of their ignorance of the principles and practice of good governance, poor knowledge and understanding of the Local Government Act 1993 , and ignorance of proper meeting procedure, a number of aldermen failed to monitor effectively council’s performance, council’s assets, and the performance of the general manager. The Board finds that the animosity, defiance, distrust, and lack of willingness to work together for the good of the council and the community, demonstrated in the events surrounding the general manager’s extended personal leave in January 2017, are evidence that the council did not address the dysfunctionality in its relationships, most particularly within the elected body, and between the mayor, the council, the general manager, and the Director of Corporate Governance and General Counsel (DCG&GC). In the 16 months from the commencement of the Inquiry to the suspension of the aldermen, key people in GCC failed to modify their behaviour, to the extent that the council’s governance framework upon which council and the community depends, appears to be beyond repair. Supporting Evidence and Information The Board notes that aldermen, the general manager, and the DCG&GC, frequently used the term ‘good governance’. The Board saw and heard convincing evidence that most aldermen had poor understanding of the principles of good governance, and inadequate understanding and knowledge of the Act and the Regulations. The Board considers that this was exacerbated by inaccurate advice provided by the DCG&GC on governance and legislative interpretation, uncorrected by the general manager. In submissions to the Board and in hearings, some aldermen quoted statistics regarding the number of resolutions which were passed unanimously by council, referring to this as evidence that council worked as a team, or that good governance was being adhered to.7 In hearings a number of aldermen refuted allegations of dysfunctionality in council by citing their belief that there was efficient service delivery within the municipal areas. The Board considers that, while basic services may have been maintained, and a number of resolutions passed unanimously, these factors of themselves do not support the view that the elected body was functioning properly and in the best interests of the community. On the contrary, as evidenced through the minutes of council meetings held since October 2014, a number of resolutions which went to the heart of GCC’s functionality were not passed unanimously. These included acceptance of the recommendations of the CTMG Report (council meeting 16 March 2015, Item 23); the decision not to request the Audit Panel to review, monitor and report to council regularly on the productivity dividend provisions in the 2016-17 Budget (council meeting 4 July 2016, Item 19.2); the payment of the general manager’s performance bonus of $18,000 (council meeting 26 September 2016, Item 26); the resolution to approve the 2016-17 Budget, the 2016-17 10 Year Long Term Financial Plan, and the 2016-17 Schedule of Fees and Charges (council Hearings Ald. Slade (19 January 2016), Index Ref. D.17; Ald. Pearce (19 January 2016), Ref. D.10; Deputy Mayor Quick (Win News, 31 March 2017). Ref. I.10 7 46 meeting 20 June 2016, Item 9); and the resolution to adopt the Annual Plan 2016-17 to 201920 (council meeting 20 June 2016, Item 3).8 In addition, a minority of aldermen persistently questioned the general manager on matters pertinent to the proper functioning of the council, and the repetition of their questions concerning certain contentious issues indicates that these aldermen were not satisfied with the answers and information they received: information which they deemed to be essential to the effective performance of their duties as aldermen, as prescribed in the Act. From council meeting minutes the Board identified a number of examples of resolutions passed where it was apparent that some aldermen had little or no understanding of the potential outcome of their decisions. These included council decisions taken to accept the recommendations of the CT Management Group (CTMG) report;9 the decision taken by council (on 11 May 2015, Item 17.1) to permit members of the public to ask questions on any council-related matter; and council’s rejection of the Annual Report 2015-16 at its meeting of 24 October 2016 (Item 16).10 Council took no action to oppose Ald. Slade’s decision (at 13 April 2016 meeting, Item 21.3) that the General Manager Performance Review Committee (GMPRC) would not meet until he had answers to unrelated questions he had asked of the mayor, despite the fact that this effectively deferred completion of the general manager’s review for the period ended 31 December 2015, and the setting of his Key Performance Indicators (KPIs) for the period commencing 3 January 2016. The majority of aldermen appear to have supported Ald. Slade without considering the consequences of his actions.11 The Board considers that these examples illustrate excessive reliance upon advice, sometimes inaccurate, proffered by the general manager and/or the DCG&GC, and failure by the majority of aldermen to properly understand their roles as aldermen and their responsibility for oversight, review, and monitoring. The Board received some submissions which alleged that the overt and public support for the general manager through resolutions passed in open council led to a perceived loss of objectivity and independence in the assessment of the general manager’s performance against his KPIs. Adding credibility to this assertion, the Board heard evidence that the GMPRC adjusted the general manager’s assessment methodology for his 2015-16 performance appraisal at the committee’s meeting on 29 July 2016, to ensure that he qualified for at least part of the performance bonus, as defined in his contract of employment.12 The Board considers that making public statements praising the general manager’s performance without any assessment against performance indicators could have created difficulties should a wider and more critical performance review be less fulsome in its appraisal. A full set of the council meeting minutes from October 2014 to March 2017 is contained in the Index Package A. Audio recordings of meetings are contained in Index Package B. Where specific items in the minutes are noted in the report the item number is referenced. 9 Refer Governance: The Management Restructure, February 2015, 3.A.5, and documents referenced in that section. 10 Refer Governance: Council Meetings and Workshops, 3.A.7.4, and documents referenced in that section. 11 Refer Governance: Relationships between the Mayor and the Aldermen, 3.A.1.7, and documents referenced in that section. 12 Refer Governance: Assessment of the General Manager’s Performance by the General Manager Performance Review Committee, 3.A.2.5.2, and documents referenced in that section. 8 47 The Board makes a number of adverse findings in relation to council’s governance processes and practices and related behaviour. The findings specifically relate to: 1. Relationships between the mayor and the aldermen; 2. Assessment of the general manager’s performance by the General Manager Performance Review Committee; 3. Relationship between the mayor and the general manager; 4. The Code of Conduct; 5. The management restructure, February 2015; 6. Policies and by-laws; 7. Council meetings and workshops; and 8. The general manager’s personal leave and return to work, January 2017. In the following text, the Board’s references to council’s actions, or lack of action, should not be assumed to have been a unanimous decision of the council. Additionally, in the absence of any evidence of individual opposition to a council decision or council action (or lack of action or decision), the Board uses the term ‘council’ in its collective sense. Similarly, the term ‘full council’ denotes the entire body of aldermen, as opposed to a council committee comprising some but not all the aldermen. The use of the term ‘full council’ does not mean that the aldermen were necessarily unanimous in reaching a decision. 48 A.1. Relationships between the Mayor and the Aldermen The relationship between the mayor and the majority of aldermen was marked by displays of animosity and hostility. Poor behaviour and conduct manifested in an evident lack of trust, refusal to allow the mayor representation on various bodies which could benefit the city, partisanship and criticism, lack of collegiality, inappropriate statements made to the media by both the mayor and aldermen, refusal to recognise the importance of the office of the mayor, and the repeated exhibition of behaviours which indicated animosity and lack of respect for the office of mayor, and the holder of that office.13 Findings The Board finds that in the accumulation of examples of negative and/or poor behaviour and conduct on the part of aldermen, in particular the relationships between the mayor and aldermen, there is convincing and plentiful evidence that the council was failing to provide for the good government of the municipal area. The Board finds that the mayor’s authority to act as chairperson of the council was challenged consistently throughout the term of this council. Challenges included interference with her capacity to facilitate communication by the council with the community; interference with her obligation to monitor the performance of the general manager; and overt challenges to her authority to act as the chairperson of the council in council meetings. The Board finds that a majority of aldermen denied the mayor fair and equitable treatment, and breached Parts 1 and 7 of the Code of Conduct 2012,14 when the council resolved to call for two external authorities to investigate her nomination to the Local Government Association of Tasmania (LGAT) General Management Committee (GMC), before receiving the mayor’s explanation of her conduct. The Board finds that Ald. Branch-Allen, Lucas, King, Nielsen, Pearce and Slade acted outside their authority in advising LGAT of their view of the mayor’s election to GMC, without any delegation from council to do so. Supporting evidence and information The 2014 election campaign run by Ald. Johnston was described in submissions and hearings as well-structured and well conducted. Her campaign slogan of Clean Up Glenorchy and Clean Out the Council was seen as a strong challenge to sitting aldermen and to the operational arm of the council.15 Aldermen from the previous council were familiar with Ald. Johnston’s questioning Ald. Stevenson submitted in his response to the Draft Report that council’s inability to address its dysfunction was in the face of the development and adoption of its Governance Framework. This lack of self-reflection while at the same time suggesting that the council was improving its standard is significant and telling. Ref. Appendix D.10.10 14 This relates to the Code adopted 30 July 2012 Ref. F1. The current code was adopted by council on 4 July 2016 Ref. F.2 15 Refer to the speech by Mr. Andrew Wilkie MP to the House of Representatives (11 February 2015), included in his submission Ref. H.1; Mr. Luke Martin’s submission (p 3) Ref. H.2; Mr. Phil Butler’s submission (p23) Ref. H.3; Mr. 13 49 and challenging in meetings, and many were uncomfortable with her approach. The Board was told by some aldermen that she was not a ‘team player’. The Board received evidence that Ald. Johnston’s election campaign created division between some other aldermen and the Glenorchy Precinct Committees, but the Board has no evidence that this was an intentional election strategy.16 The Board considers that support for Ald. Johnston extended far beyond the relatively small reach of the precinct committee members. Seven of the ten aldermen elected in October 2014 were unsuccessful in their campaigns to become mayor or deputy mayor. It is apparent from the submissions and evidence received by the Board that some of these aldermen and their supporters were extremely disappointed by the election outcome and found it difficult to come to terms with the results.17 Submissions to the Board indicated that the decisive nature of the mayor’s victories in both aldermanic and mayoral elections exacerbated the situation.18 From the commencement of this council term, there were attempts by some aldermen to undermine the office of the mayor. These included removal of the traditional and appropriate right of the mayor to preside over the GMPRC (see 3.A.1.1 below); refusal to support her nomination for a position on GMC, and acting to ensure that her election to GMC was declared invalid (see 3.A.1.2 below); initial refusal to accept her message for the Annual Report 2015-16 (see 3.A.1.3 below); criticism of her questioning of the general manager and the DCG&GC (see 3.A.1.5 and 3.A.1.6 below); and persistent challenging of her rulings when she was acting as chairperson in council meetings (see 3.A.1.7 below). A number of aldermen stated unequivocally that any problems within council could be overcome by removal of the mayor from council.19 This is not possible under the legislation and the Board considers that in any case, it would be unlikely to resolve council’s problems. A number of aldermen repeatedly criticised the mayor’s media statements, many alleging that these did not comply with her responsibility as spokesperson for the council, and the requirement for her to represent accurately the policies and decisions of the council when performing her functions as mayor.20 The Board considers that a mayor has a right to make personal statements, but must always be absolutely clear that the statement is a personal one and does not represent a council decision or policy. In addition, such statements should take into account what is in the best interests of the community. The Board has seen evidence that at least one statement from the mayor reported in the media may be considered to have contravened the Act and the Code of Conduct.21 The Board received evidence that several Barry Smith’s submission (Ref. H.4) and his statement to council read at the meeting of 21 November 2014; Deputy Mayor Quick’s hearing (14 January 2016) Ref. D.14 16 Ald. Pearce’s submission p 4, Ref. H.5; Ald. Branch-Allen’s first hearing (18 January 2016) box 2, Ref. D.13; Ald. Lucas’s first hearing (19 January 2016), Ref. D.9 and her submission second, third, and fifth pages, Ref. H.6; Ald. King’s first hearing (18 January 2016), Ref. D.15; Ald. Nielsen’s first hearing (19 January 2016). Ref. D.11 17 Letter signed by Mr. Gerry Watts printed in The Mercury (February 2017). Ref. I.9 18 Ald. Lucas’s submission under the heading ‘Popularity of mayor’, Ref. H.6; Ald. Slade’s submission under the heading ‘Popularity of the mayor’ (p 11-12). Ref. H.7 19 Letter from Ald. Lucas to the Minister for Planning and Local Government (28 June 2016), Ref. Q.1; Ald. BranchAllen’s submission, Ref. H.8; Ald. Pearce’s email to Ald. Branch-Allen and others (30 August 2015). Ref. Q.9 20 Ald. Nielsen’s submission under ‘Introduction’, Ref. H.9; Ald. Slade’s second hearing (5 September 2016) ‘Responses to allegations’, Ref. D.36 and D.37; Ald. Lucas’s submission summary. Ref. H.6 21 The Mercury (14 March 2015), Ref. I.1; attachment 26 to the general manager’s submission. Ref. H.10 50 aldermen also made statements to the media which may be considered to have contravened both the Act and the Code of Conduct.22 Recommendation: that within three months of a council term, the mayor and aldermen approve a Statement of Expectations to establish agreed protocols for fulfilment of their mutual and respective obligations under the Act and the Regulations, and to provide for the good governance of the council. Recommendation: that the Director of Local Government issue a model Statement of Expectations for Mayors and Aldermen, and that adoption of a Statement of Expectations be recommended to all councils. Recommendation: that the Act be amended to make training in local government procedures mandatory for all aldermen, and that the provision include a commitment by candidates for election to undertake such training within six months of the declaration of the poll. Recommendation: that council review and formalise its induction procedures for new mayors and new aldermen, including the roles to be undertaken by the mayor and the general manager in the induction procedures. Recommendation: that council undertake an annual review of its own performance, including but not limited to its compliance with the Act and associated Regulations, compliance with the Code of Conduct, compliance with its Statement of Expectations, compliance with its policies and procedures, its conduct of meetings and workshops, and its oversight and review of the general manager. Recommendation: that council determine its aldermanic professional development program based on the outcomes of its annual review. Recommendation: that the Act and the Regulations be amended to provide additional powers for the popularly elected mayor. These powers should include, but not necessarily be limited to, the mayor’s automatic representation of council on all external bodies (with the power to delegate such representation); the mayor’s power to approve the agenda prior to its release by the general manager; the mayor’s power to approve the release of the draft minutes to other aldermen; the mayor’s power to approve the general manager’s leave; the mayor’s power to appoint an acting general manager. A.1.1 November 2014: Election of aldermen to the General Manager Performance Review Committee (GMPRC) At council’s first meeting (24 November 2014) following the council election, aldermen decided by a vote of 6/4 (Item 22.1) to remove the automatic election of the mayor to all council committees with the exception of LGAT, STCA, TasWater, and the GPA. The elections for committees took place on 1 December 2014 (Item 4). The decision from the 24 Ald. Branch-Allen’s radio interview (9 June 2015), Ref. I.2; GCC media release (16 March 2015), Ref. I.3; Deputy Mayor Quick (The Mercury, 8 February 2017), Ref. I.4 22 51 November 2014 meeting made it possible to remove the mayor from the GMPRC, even though the Committee Detail Sheet (the terms of reference for the committee)23 states that the committee will comprise the mayor and three aldermen, and that the mayor will chair the committee.24 The general manager, in his response to the Draft Report, stated that a decision of council amends the terms of reference for committees.25 Whether or not the council’s general decision of 24 November legitimately altered the specific terms of reference (‘Committee Detail Sheet’) of the GMPRC is arguable, particularly in the absence of any advice provided to the aldermen as required under s 62 of the Act. The Board considers it improper for such a general resolution to have that effect without the council turning its mind to the formal terms of reference and the proper functions of the GMPRC. The Board is of the opinion that any change to the terms of reference of a council committee or a special committee of council should be specifically brought to a council meeting for decision, with appropriate advice from the general manager. On 1 December 2014, the aldermen council elected to the GMPRC did not include the mayor. This decision served to reduce the mayor’s capacity to assess the general manager’s performance. It is the mayor who works most closely with a general manager, and thus is best placed to observe the operational and governance aspects of the general manager’s conduct. Council’s ability to assess the performance of the general manager was limited by the mayor’s deliberate exclusion from the GMPRC. Recommendation: that the mayor be ex-officio a member of any committee established to make recommendations regarding the general manager’s KPIs, and/or make recommendations regarding changes to his remuneration; and that the mayor be ex-officio the chairperson of any committee established to assess the performance of the general manager and/or to consider changes to the general manager’s contract of employment. A.1.2 October 2015: Election to GMC26 On 11 September 2015 the Chief Executive Officer (CEO) of LGAT notified the mayor that a casual vacancy had occurred on GMC for a representative of the Southern Electoral District (pop. 20,000 or more). The notification indicated that the usual practice for this representation of three urban southern councils was for the position to rotate amongst the councils and that, according to this system, it would be GCC’s turn to fill the position.27 Subsequently the mayors of both other councils notified the CEO, LGAT, and the mayor of GCC, that they were happy for the mayor of GCC to fill the position. On 15 September 2015 LGAT officially notified all mayors and all general managers that the vacancy had occurred. Ref. C.13 The Board notes with concern that the minutes of the meeting of 24 November 2014 (Ref. A.2) record that Item 22.1, the Notice of Motion proposing the abolition of the automatic election of the mayor to various committees, was dealt with prior to the declarations of election, and prior to the items dealing with election of aldermen to committees and other bodies and authorities. No explanation was provided for this change in the order of the agenda, and the minutes do not record that an absolute majority of council agreed to this change, as is required under reg. 8(4) of the Local Government (Meeting Procedures) Regulations 2015. 25 Ref. Appendix D.12.18 26 Documentation concerning the mayor’s nomination to GMC. Ref. R.1.20 27 The three urban southern councils are Clarence City Council, Kingborough Council, and Glenorchy City Council. 23 24 52 In the general manager’s response to the Draft Report, he stated that on two occasions he asked the mayor about the process of her nomination to GMC, and whether she required any action from him, and on both occasions she said that it was in order.28 The Board is of the opinion that this response from the mayor did not abrogate the general manager’s obligation under council’s Nomination and Appointment of Aldermen to Committees policy to place the matter on a council agenda for council decision. The Board also considers that the mayor should have been informed by the general manager that this procedure had to be followed as part of the nomination process. On 6 October 2015 the Returning Officer of the Tasmanian Electoral Commission (TEC) notified all mayors and general managers that he had received only one nomination for the vacancy, that being Mayor Johnston, and that therefore no ballot would be required. In a letter dated 27 November 2015, Ald. Slade wrote to the CEO, LGAT, asking whether the mayor was a proper person to authorise her own nomination to GMC, and pointing out that the matter of the mayor’s nomination to GMC had never been discussed by council.29 At the request of a majority of aldermen, a Special Meeting of council was held on 14 December 2015. At that meeting a motion was passed (Item 2) which alleged that the mayor had failed to comply with council’s policy Nomination and Appointment of Aldermen to Committees, and required the mayor to explain in writing by 23 December 2015 her reasons for failure to comply with that policy. Should the mayor not do so, council determined that it would write to LGAT and request that the mayor’s membership of GMC be terminated. The motion also required the general manager to write to LGAT, to inform it of the reasons for GCC holding a special meeting on 14 December 2015; and to write to LGAT and the TEC to request investigations into the circumstances surrounding the mayor’s becoming a member of GMC. The motion also required the general manager to provide the outcomes of these investigations to council. The mayor declared an interest in the item and was not in the chamber for the debate or the vote; Ald. Stevenson and Dunsby voted against the motion. The Board is concerned that the council resolution requesting an investigation of the mayor’s becoming a member of GMC passed on 14 December 2015, which was nine days before the deadline council had stipulated for the mayor’s response explaining her conduct. The Board is strongly of the view that council should have afforded the mayor the right of reply before it requested investigation of her conduct by two external bodies. The mayor’s response was not considered at the council meeting of 25 January 2016; no item to discuss her response was included on the agenda set by the general manager, and the minutes of the meeting do not record any discussion of her response, nor any decision of council on further action to be taken on the matter. On 2 February 2016 Ald. Branch-Allen, Lucas, King, Nielsen, Pearce and Slade wrote to GMC stating that the election of the mayor to GMC was invalid. This communication stated that the general manager had received the required response from the mayor, and that the DCG&GC had met with the CEO of LGAT. The letter stated that these six aldermen Ref. Appendix D.12.21 It is apparent from dated emails following on from this letter that the letter was mistakenly dated 27 November and should have been dated 27 October. 28 29 53 strongly confirm that the response provided by the mayor in her letter of 23 December is not satisfactory; and We, the undersigned aldermen, advise LGAT that the mayor has failed to comply with council policy in the request for nomination to such an important committee as the GMC, and bypassed the council’s policy. Therefore, there is no council decision about nominating Mayor Johnston to the GMC. We also noted that Mayor Johnston signed the nomination form without the authority of the council. Accordingly, Mayor Alderman Johnston’s election to the GMC is invalid… The Board is of the opinion that these aldermen acted outside their authority in advising an external body of their view of the mayor’s election to GMC, without any delegation from council to do so. The mayor’s response had not been considered by council. The investigation into the mayor’s appointment to GMC had not been concluded, and no draft or final report had been provided to council, formally or informally. On 3 March 2016 the CEO of LGAT asked the general manager to provide her with a copy of any advice provided to Aldermen as part of that expression of interest process as related to the LGAT voting delegate. However, the general manager did not provide an answer to the CEO’s specific request. The general manager’s response was sent on 17 March 2016 and the attachment to his email provided only the motion passed by council at its meeting of 15 March 2016 (Item 20), including the vote taken. The Board concludes that the general manager did not provide any advice about the extent of authority granted to the mayor as GCC’s representative on LGAT. The Board also notes that the Nomination and Appointment of Aldermen to Committees policy did not refer to the amount of authority any alderman had to represent the council. The Board considers that in the absence of any formal documentation within council, it is the responsibility of the general manager to provide advice to council on the agreed practice of the council in such matters. It is apparent to the Board that the responsibility and authority granted to the mayor as GCC’s representative on LGAT was not made clear at the outset of the nomination and appointment process. The Board is concerned that this was usual practice for GCC, and that consequently aldermen representing GCC on both internal and external organisations may have been unclear on their responsibilities and capacity to make statements on behalf of council. The mayor’s election to GMC was declared invalid by LGAT and the mayor was notified of this decision in a letter from the CEO, LGAT, on 24 March 2016. The CEO advised that the mayor could contest the subsequent election for the position. Although holding a position on GMC is regarded as prestigious for the incumbent’s council, GCC did not nominate the mayor for the vacant position, despite her eligibility to fill the role. The Board considers that by this failure, aldermen demonstrated their unwillingness and inability to put the interests of the council and the community ahead of their personal antipathy towards the mayor. By the invalidation of the mayor’s election, and the subsequent failure to nominate her following the second declaration of the vacancy on GMC, aldermen highlighted the lack of trust and collegiality in council. Recommendation: that the mayor ex-officio be appointed as council’s representative on all external bodies, with the power to delegate that appointment to another alderman should the mayor wish to do so. The process of such delegation should be part of the Statement of Expectations of the mayor and aldermen. 54 A.1.3 October 2016: Annual Report 2015-16 Council considered adopting the Annual Report 2015-16 at the council meeting of 24 October 2016 (Item 16). Prior to this the general manager circulated to all aldermen an email severely criticising the message the mayor had drafted for the Annual Report.30 At the suggestion of the general manager the mayor’s original message was redrafted by the council’s public relations consultant and subsequently the mayor rewrote her message, incorporating some of the consultant’s suggestions. The Board observed at the council meeting that some aldermen appeared to be unaware that the mayor had redrafted her original message. The general manager included on the agenda a recommendation (Item 16) that council adopt the Glenorchy City Council Annual Report 2015-16. The minutes record (Item 16) that before the recommendation was moved and seconded, a change to the recommendation was moved and seconded, altering the first clause of the recommendation and thereby proposing adoption of the Annual Report without the mayor’s message. In debate on this ‘amendment’, as it is termed in the minutes of the meeting, some aldermen stated that the mayor’s message contained insufficient positive news about council’s achievements during the year. Some considered that the mayor should not mention the Board of Inquiry, although the mayor contended that the Inquiry was the most significant event of council’s year.31 The ‘amendment’ was carried 6/4. Subsequently, the substantive resolution was moved, to adopt the report without the mayor’s message, and to receive the General Purpose Financial Report, and authorise the general manager to do all things necessary to fulfil council’s obligations with publication of the Report.32 This motion was lost. At this point, having declined to adopt the report, council determined to hold a special council meeting on 7 November 2016 to reconsider the Annual Report. The Board considers that this series of events is evidence of marked divisions within council, demonstrated by the apparent inability of council to work out a way of compromising on the mayor’s message without failing to adopt the Annual Report because of its contents. It is also an example of an occasion when council did not seem to recognise the outcome of the resolutions it was considering: first an amendment to adopt the report without the mayor’s message was passed, and then, in the same item, a motion to adopt the report without the mayor’s message was lost. No explanation for this was provided at the meeting. The Annual General Meeting (AGM) of the council was held on 12 December 2016. The Board notes with concern that the meeting failed to confirm the minutes of the previous AGM because the minutes as presented were considered to be inaccurate and incomplete. The Board further notes with concern that the AGM failed to accept the Annual Report 2015-16.33 The Board considers that these two votes indicate the community’s marked dissatisfaction with its council and the conduct of its affairs.34 General manager’s email to aldermen criticising mayor’s annual report message (11 October 2016), contained in an email from Ald. Branch-Allen to the Board (11 October 2016). Ref. Q.3 31 Email from the mayor to the Board (16 October 2016). Ref. Q.4 32 The minutes of the meeting record the amendment to clause (a) as an amendment. No motion was moved before this ‘amendment’ was moved and seconded and debated. The second resolution was minuted as an amended motion. Ref. A.32 33 Refer agenda for the council meeting 19 December 2016 (Item 14). Ref. A.39 34 Section 72B(4) of the Act states that only electors in the municipal area are entitled to vote at an Annual General Meeting. These votes are therefore not votes by the aldermen, but rather, by the citizens of Glenorchy in attendance at the AGM. 30 55 A.1.4 Media statements and letters The Code of Conduct (the Code) adopted by GCC on 4 July 2016 and the previous Code adopted by council on 30 July 2012 require aldermen to act in the best interests of the community.35 This requirement is also contained in the Act (s 28 (1)(b)). The current Code requires an alderman to conduct herself or himself in a way that maintains the community’s trust in the alderman and the council as a whole. While this was not specified in the previous version of the Code, the Board considers that this requirement reflects the spirit of both the Code and the behaviours prescribed in the Act, and is therefore relevant to the entire period from October 2014 to the present. In a radio interview on the ABC on 9 June 2015,36 Ald. Branch-Allen strongly criticised the mayor’s representation of council, and agreed with the presenter that seemingly to me it is possible that the mayor was trying to destroy Glenorchy City Council. This statement was unlikely to promote trust in the council and was not in the best interests of the community. On 16 March 2015 Ald. Branch-Allen, Lucas, King, Nielsen, Pearce and Slade put out a media release which included a number of disparaging comments about the mayor, including that rather than providing leadership and cooperation, the mayor appeared intent on a vendetta to destabilise the council and its administration and frustrate the restructure program.37 The Board has seen a copy of a letter (2 September 2015)38 to the Minister for Planning and Local Government, signed by Ald. Branch-Allen, Lucas, King, Nielsen, Pearce, Quick and Slade, supporting the general manager and casting aspersions on the mayor. The letter stated, in part, that the seven aldermen wished to state our firm support for the professional, efficient and effective performance of his duties by the current general manager, Mr. Peter Brooks. … It is unfortunate that the ultimate reason for this continuing situation appears to be that the current mayor either does not understand her role under the Local Government Act, or does not agree with the definition of that role as defined, and acts accordingly, often leading to her breaching the Act in council meetings, in attempting to direct the daily activities of council under the Act. The Board has seen a copy of a letter written by Ald. Lucas to the Minister for Planning and Local Government, dated 28 June 2016,39 which contained derogatory comments about the mayor and the Board of Inquiry. The letter included the statement that there is only one thing wrong with the Glenorchy City Council, and that is the mayor…She has shown careless disregard for the careers and reputations of the people around her, her allegations are nothing more than nit-picking, she is not the victim she portrays – she is the perpetrator. The Code of Conduct adopted 30 July 2012 and the Code of Conduct adopted by council on 4 July 2016. Ref. F.1 and F.2 36 Alderman Branch-Allen’s interview with Leon Compton (9 June 2015) (Media file). Ref. I.2 37 Ald. Pearce’s hearing (19 January 2016), Ref. D.10; Ald. King’s hearing (18 January 2016), Ref. D.15; Ald. Slade’s first hearing (19 January 2016), Ref. D.17; Ald. Stevenson’s first hearing (14 January 2016). Ref. D.16 38 Letter from seven aldermen to the Minister (2 September 2015). Ref. Q.2 39 Letter from Ald. Lucas to the Minister (28 June 2016). Ref. Q.1 35 56 Recommendation: that protocols regarding media statements be included in the Mayor and Aldermen’s Statement of Expectations. A.1.5 March 2015: Worksafe investigation40 On 3 March 2015, the mayor notified aldermen about a complaint made by a staff member (in relation to the general manager) which was being investigated by Worksafe Tasmania. The mayor had learned (by a letter sent directly to her by Worksafe Tasmania) that, while Worksafe required council to provide two reports pertinent to its investigation, the then Manager, Legal and Governance (now DCG&GC) had refused to provide one of the reports on the grounds that it contained confidential information, stating that Council needs to consider whether the second report can be provided to you and what are the legal implication (sic) of such disclosure of confidential information before making any comment to Worksafe. Once council has considered the legal issue I will respond to you. The mayor stated that she disagreed with the action being taken by the Manager, Legal and Governance. The mayor noted that Worksafe’s email to her had indicated that council could be issued with a s 155 notice if it failed to comply, and this could result in a significant monetary penalty.41 In response the mayor received emails from at least five aldermen criticising her notification to the elected members. One alderman stated that the matter was operational and therefore it was inappropriate for the mayor to inform aldermen of the issue. Another alderman stated that this was an administrative matter, that the mayor was acting outside her role, that perhaps she required further training, and that, for this alderman, the general manager and council lawyer (now the DCG&GC) continue to have my full trust and confidence. Another alderman stated that the mayor should await a report on the matter from the general manager in whom I have full faith.42 Following the manager’s failure to provide the requested information, on 4 March 2015 council was served with a notice to comply under s 155(2), Notice to give information to the Regulator; the notice was sent directly to the mayor. The Board notes with concern that the minutes of the council meeting of 13 April 2015 (Item 18) record briefly that council agreed that the Chair of the General Managers (sic) Performance Documentation concerning the Worksafe investigation. Ref. N The mayor’s email to aldermen, copied to the general manager (3 March 2015). Ref. N.3 The Work Health and Safety Act 2011, s 155, states that the regulator may obtain information as follows: (2) The regulator may, by written notice served on the person, require the person to do one or more of the following: (a) to give the regulator, in writing signed by the person (or in the case of a body corporate, by a competent officer of the body corporate) and within the time and in the manner specified in the notice, that information of which the person has knowledge, (b) to produce to the regulator, in accordance with the notice, those documents, (c) to appear before a person appointed by the regulator on a day, and at a time and place, specified in the notice (being a day, time and place that are reasonable in the circumstances) and give either orally or in writing that evidence and produce those documents…. (4) The regulator must not make a requirement under subsection (2) (c) unless the regulator has taken all reasonable steps to obtain the information under subsections (2) (a) and (b) and has been unable to do so. (5) A person must not, without reasonable excuse, refuse or fail to comply with a requirement under this section. Maximum penalty: (a) in the case of an individual-$10,000, or (b) in the case of a body corporate-$50,000. (6) Subsection (5) places an evidential burden on the accused to show a reasonable excuse. 42 Emails to the mayor from Ald. Branch-Allen and Ald. Slade (3 March 2015); from Ald. King (4 March 2015); emails to the mayor from Ald. Pearce and Ald. Lucas (4 March 2015). Ref. N.3 40 41 57 Review committee and Council’s Director of Corporate Governance should deal with the issue on behalf of council. There is no formal resolution in the minutes, and the minutes do not provide any reason for this task being given to the chairman of the GMPRC. There is no part of the terms of reference for that committee which indicates that this is an appropriate delegation.43 The Board’s view that this was inappropriate is strengthened by noting the statements made by the chairman of the GMPRC in his email to the mayor on 3 March 2015, which indicated his unwillingness for any alderman to be involved in the matter.44 A.1.6 Right to Information request On 15 July 2015, The Mercury submitted a Right to Information (RTI) request to GCC. Council provided some of the information requested (regarding expenses paid to aldermen) and some information regarding the general manager’s salary; but refused to provide information regarding the general manager’s performance bonus or the methodology for determining that bonus. At the 3 August 2015 council meeting (Item 15.4) council resolved on a vote of 7/3 that it supported management’s decision not to provide the requested information. Ald. BranchAllen, King, Lucas, Nielsen, Pearce, Quick, and Slade voted for the motion. On 24 August 2015, The Mercury published an article entitled Council’s State of Denial.45 On 26 August, the general manager wrote to all aldermen and the DCG&GC and informed them (amongst other things) that it is unfortunate that I have no right to respond to these types of damaging articles against GCC and against myself as I am not, under the Act, the spokesperson for the council.46 The Board does not consider that The Mercury article contained information damaging to the general manager personally.47 However, the general manager then said in his email that he had asked the DCG&GC to seek/provide me with a legal interpretation of the Act in relation to the spokesperson issue from the perspectives of council decisions and day to day operational matters. The mayor responded to the general manager on 27 August 2015 and disagreed strongly with him on the issue of the spokesperson for council, and questioned the value in taking advice on the issue from the DCG&GC. The general manager emailed back to the mayor on 29 August, copying in all aldermen and the DCG&GC and including the mayor’s email to him. In it he stated that he would no longer meet with the mayor face to face until she had apologised to himself and the DCG&GC.48 In his response to the Draft Report, the general manager stated that the task was delegated to the chairman of the GMPRC because the original matter related to a complaint by an employee against the general manager. Ref. Appendix D.12.26 44 Ald. Slade’s email to the mayor (3 March 2015) Ref. N.3, in which he asked why the mayor was involving herself in what is clearly a confidential operational matter; and I have full confidence in the GM and Council’s Lawyer (now the DCG&GC) to deal with the matter. Note that the matters incorrectly delegated to, or annexed by, the GMPRC, are dealt with in Governance: Assessment of the General Manager’s Performance by the General Manager Performance Review Committee, 3.A.2, and documents are referenced in that section. 45 The Mercury (24 August 2015). Ref. I.5. This article was later published under the headline Glenorchy City Council again rejects GM Pay Information Request, Citing Act Exemption. 46 Email from the general manager to aldermen (26 August 2015) regarding ‘spokesperson’ issue. Ref. Q.8 47 The Mercury stated: GLENORCHY City Council has again rejected a Right to Information request from The Mercury that sought basic details on the general manager’s pay and expenses; and The same details for the Clarence and Kingborough councils have already been revealed, with Brighton Council’s set to be released soon. 48 Email exchange between the mayor and general manager dated 27-29 August 2015 concerning ‘spokesperson’ issue. Ref. Q.6 and Q.7 43 58 This email provoked a number of responses from aldermen to the general manager criticising the mayor and providing overt and occasionally fulsome support for the general manager. I support your decision until you receive an apology, enough is enough…… she is actively working against it (the City of Glenorchy); and I am saddened that we have to continually confirm our support for yourself and our wonderful staff. You have my full support and confidence over the professional and highly competent way you have moved our council forward….In my professional life I have witnessed few peers with your business acumen and team building ability…; and As we are all aware under the Act the mayor is the current spokesperson, however it has become obvious and abundantly clear that she has chosen to be selective in the way she uses that authority, THE CITY DESERVES BETTER….As an individual alderman I express my sincere regret in the way the current mayor is acting towards you and your staff. It is clear that her inability to act in a professional manner is having severe and ongoing impacts.49 A.1.7 Challenges to the mayor’s presiding at meetings Under reg. 40 of the Local Government (Meeting Procedures) Regulations 2015, (the Meeting Regulations) the mayor as chairperson of the meeting may suspend an alderman from all or part of a meeting. The minutes of council meetings record at least two occasions when aldermen have been suspended by the mayor and have refused to leave the meeting.50 At the council meeting on 15 March 2016 Ald. Slade moved a foreshadowed motion (Item 20.1) which was initially accepted by the mayor and debate commenced. Shortly afterwards the mayor halted debate and disallowed the motion on the grounds that under Regulation 16(9) … the motion is unlawful; and that there may be a breach of the Criminal Code as the motion moved and seconded …is intimidating the witness to the BoI (Board of Inquiry) matter; and that the mayor will refer this matter to the Director of Public Prosecutions.51 The Board heard Ald. Slade demand to know the section of the Criminal Code which the mayor considered might have been breached. Ald. Branch-Allen moved a motion of no confidence in the mayor.52 After repeated interventions into the proceedings by the DCG&GC arguing against the mayor’s ruling, Ald. Slade then warned the mayor that tomorrow things would happen as a result of her ruling.53 The Board considers that this remark could be seen as an attempt to intimidate the chairperson of the meeting. Emails from aldermen criticising the mayor: Ald. King (31 August 2015) Ref. Q.10; Ald. Pearce (30 August 2015) Ref. Q.9; Ald. Branch-Allen (29 August 2015). Ref. Q.5 50 6 June 2016 (during Item 23.1), Ref. A.26, and 31 August 2015 (during Item 2 when debated in closed session). Ref. A.14a 51 The Board heard Ald. Slade state that there had been a staggering breach of confidentiality (by a member of the GMPRC who provided information to the Board of Inquiry) and that the committee member alleged to be responsible should be suspended from the committee. 52 This was later withdrawn by the mover. 53 The meeting minutes record that The Director Corporate Governance & General Counsel asked the Mayor: 1 under which section of the Criminal Code was it alleged that there may be a breach of the Criminal Code provisions – the answer was not provided; 2 the use of Regulation 16(9) in this case is incorrect and the Mayor cannot reject the motion under Regulation 16(9) once it has been moved and seconded and accepted by the Mayor as the lawful motion; 3 the Mayor must give the reasoning for her statement that the motion is unlawful- this legal reasoning was not given by the Mayor. 49 59 At the next council meeting on 13 April 2016 (Item 21.3), Ald. Stevenson asked Ald. Slade, as chairman of the GMPRC, how the general manager’s performance review had progressed since the meeting of 15 March 2016. Ald. Slade responded that the committee could not move forward until several questions were answered by the mayor, viz.:  What sections of the Criminal Code was the Mayor referring to at the 15 March 2016 Council Meeting?  Why did the Mayor state that a witness in the BoI matter was being intimidated?  Did the Mayor refer her comments to the Director of Public Prosecutions?  In what capacity did the Mayor act when she spoke with external parties?  If the Mayor referred her statements to the DPP what advice did she receive?  If the Mayor received advice from the DPP why didn’t the Mayor inform the Council? The Board considers that these questions were not an answer to a reasonable enquiry by an alderman on progress of the performance review of the general manager. Instead they constituted an unreasonable and unfounded challenge to the mayor’s authority to rule on meeting procedure in accordance with the Meeting Regulations, and unreasonably avoided providing information about the proceedings of a committee of which Ald. Slade was the chairman. The Director Corporate Governance & General Counsel strongly disagreed with the Mayor’s comments and ruling to Council in rejecting the motion from Ald. Slade. Ref. A.23 60 A.2. Assessment of the general manager’s performance by the General Manager Performance Review Committee The Department of Premier and Cabinet (Local Government Division) provides some information to councils regarding the monitoring and review of the general manager (Information sheet General Manager Appointments and Contracts September 2014). This deals briefly with the need for an annual review, the possible use of an independent body to facilitate the review, and the need for council to play an integral part in the review.54 Given the singular importance of the appointment and review of the general manager, and the duty of all elected members to provide consistent and fair treatment of their employee, the Board considers that all Tasmanian councils should adopt comprehensive guidelines for these tasks. The following is an example of guidelines used by councils in New South Wales: The position of general manager is pivotal in a council. Council’s governing body (the council) is required to monitor and review the performance of the general manager. However a council’s governing body should delegate to the mayor the role of day-to-day oversight of and liaison with the general manager. Performance review panels should comprise the mayor, deputy mayor, another councillor nominated by council and a councillor nominated by the general manager. As one of the general manager’s key responsibilities is to oversee the implementation of council’s strategic direction, it is important to align the general manager’s performance criteria to the goals contained in council’s Community Strategic Plan, Resourcing Strategy, Delivery Program and Operational Plan. A performance agreement is recommended and should contain but not be limited to the key indicators that measure how well the general manager has met the council’s expectations. 55 ******* Role of the General Manager Performance Review Committee (GMPRC) The GCC GMPRC is designated a special committee of council under s 24 of the Act. The Committee Detail Sheet (CDS)56 for the GMPRC specifies that:  the committee will comprise the mayor and three aldermen, with the mayor as chairman;  it has no delegated authority; The Information Sheet states that any panel set up to review the general manager’s performance should include the mayor and deputy mayor. 55 Extract from NSW Guidelines for the Appointment and Oversight of General Managers (Division of Local Government, Department of Premier and Cabinet, 2011), p 13. 56 When the Board issued a s 222 Requirement to Produce Documents (requesting the ToR for the GMPRC), the Board was provided with the CDS, which the Board assumes served as the only terms of reference for the committee. The GMPRC refers to this document as its Terms of Reference. For consistency in this Report, the abbreviation CDS is used throughout this Report. 54 61    its responsibility is to review the performance of the general manager on an annual basis and make recommendations to council; the mayor is required to take the committee’s recommendations to council; and the term for each member of the committee is two years. The CDS states that secretarial support for the committee may be contracted by the chairman of the committee, but only if it is not provided by an alderman or an employee of council. The council’s solicitor may be present if the chairman considers that legal advice may be needed during the meeting. In accordance with the CDS and council’s policy Nomination and Appointment of Aldermen to Committees and Other Bodies, elections for membership of the GMPRC should have been conducted before 1 December 2016. This did not occur, and was not brought to the attention of council by the chairman of the committee or the general manager. 62 Findings The Board finds that the aldermen who represented council on the GMPRC collectively failed to undertake their duties and responsibilities as authorised by the council and prescribed in the Local Government Act 1993, s 28(1)(e) and s 28(2)(d). The Board finds that the GMPRC wrongfully undertook tasks which were the responsibility of the whole council, including setting performance indicators and reviewing the contract of employment of the general manager. The Board finds that council wrongfully allowed the GMPRC to assume responsibility for tasks which were the responsibility of the full council, including setting the general manager’s performance indicators, managing a review of the general manager’s contract, and the determination of complaints made against the general manager. The Board finds that council wrongfully allowed the DCG&GC and the chairman of the GMPRC to assume responsibility for dealing with a significant and contentious Worksafe issue on behalf of council.57 The Board finds that the aldermen who comprised the GMPRC had a duty to undertake their responsibilities honestly and fairly, with a view to providing council with sound and unbiased recommendations based on agreed KPIs and a transparent and council-agreed assessment process. The Board does not consider that the committee fulfilled these obligations since the council election of October 2014 and the subsequent committee elections in December 2014. The Board finds that the GMPRC should not have been established as a special committee of council because it had a statutory function to monitor the performance of the general manager (s 28(2)(d) of the Act).58 A committee with that function must be established under s 23 of the Act (Council committees).59 The effect of this is important, as a committee established under s 23 must be conducted in accordance with prescribed procedures (s 23(3)), such as the Meeting Regulations, whereas a special committee’s procedures are determined by the council (s 24(3)).60 The Board finds that the council, the GMPRC, and the general manager must take responsibility for failing to recognise that this committee was improperly constituted to undertake the general manager’s performance review. This matter is dealt with in Governance: Relationships between the Mayor and the Aldermen, 3.A.1.5, and documents referenced in that section. 58 Advice provided to the general manager by Abetz Curtis Lawyers (18 January 2016) referred to the GMPRC as if it were a council committee; the advice does not recognise that in fact the committee was established as a special committee of council. Ref. O.1 59 Section 23(1) of the Act states that a council may establish, on such terms as it thinks fit, council committees to assist it in carrying out its functions under this or any other Act; and (3) a meeting of a council committee is to be conducted in accordance with prescribed procedures. Section 24 of the Act states that (1) a council may establish, on such terms and for such purposes as it thinks fit, special committees; (2) a special committee consists of such persons appointed by the council as the council thinks appropriate; (3) the council is to determine the procedures relating to meetings of a special committee. 60 Special committees are not compelled to comply with the Act and the Regulations unless the council so determines. Without such a determination, the committee is not bound to keep proper records and is not bound by the confidentiality provisions of reg. 15(9) of the Meeting Regulations. 57 63 The Board finds that council, through the GMPRC, failed to comply with the spirit and the letter of almost every term of the committee’s CDS. The Board finds that the practices and leadership of the GMPRC reflected poor standards of governance in maintaining proper records, adhering to meeting regulations, reporting to council, fulfilling assigned responsibilities within reasonable timeframes, accountability, and compliance with the requirements of the Act and the Regulations. The Board finds that Ald. Slade did not adequately fulfil his role as chairman of the GMPRC and failed to demonstrate the leadership, impartiality, accountability and responsibility which the role demanded. The Board finds that the chairman of GMPRC improperly advised the general manager of the outcome of his (the general manager’s) performance appraisal before council had been informed, and before council had the opportunity to amend or refuse the committee’s recommendation for payment of a performance bonus.61 The Board finds that the GMPRC failed in its critical duty to distinguish between appraisal of the general manager in upholding the normal functions of his office, and achievement of excellence or outstanding results. This in turn led the committee to focus on achievement of the general manager’s performance bonus (a benefit only to the general manager), rather than on continuous improvement of his performance for the benefit of the organisation and the community. The Board finds that the GMPRC changed the methodology approved by council for assessment of the general manager’s performance in the year ended 2 January 2016 to ensure that the general manager would receive at least part of his performance bonus. On the committee’s initial assessment, the general manager would not have been entitled to any part of this bonus. The Board finds that in changing the methodology for assessment of the general manager’s performance without the approval of council, the GMPRC acted improperly, unethically and outside its terms of reference.62 The Board finds that the acceptance by council of key performance indicators (KPIs) for the assessment of the general manager’s performance almost nine months into the year under review was unsatisfactory for the organisation and unfair to the general manager. The Board finds that the chairman of the GMPRC and the DCG&GC contradicted each other’s evidence in their respective hearings before the Board, regarding whether or not changes were made to the methodology for assessing the general manager’s performance for the period ending 2 January 2016. The Board regards this contradiction in evidence as a serious matter, given that the outcome of the change to the methodology resulted in a significant financial gain for the general manager. Refer Governance: Assessment of the General Manager’s Performance by the General Manager Performance Review Committee, 3.A.2.7, and documents referenced in that section. 62 The Board notes that this change to the methodology was not only done without council approval; it also related to potential (and realised) monetary gain for the general manager. 61 64 Supporting evidence and information A.2.1 Appointment of the committee At the council meeting on 24 November 2014 (Item 22.1) council passed a resolution (6/4) that those committees automatically using the word ‘mayor’ when electing positions on council committees or representation should be changed and be open to all Aldermen except in the case of LGAT, STCA, TasWater and GPA. At the council meeting on 1 December 2014, when aldermanic membership of committees was decided (Item 4), the mayor was not elected to the GMPRC. Ald. Slade was elected as chairman with Ald. Lucas, Branch-Allen and Dunsby elected as members. The decisions made at the 24 November 2014 and 1 December 2014 council meetings conflict with the CDS for the GMPRC, which clearly states that the committee membership will be the mayor as chairperson and three aldermen. The Board has noted elsewhere in this Report that in the agenda for the special council meeting of 1 December 2014, the general manager determined and council tacitly approved a process for the appointment or election of aldermen to committees which did not comply with council’s policy for this procedure.63 The general manager did not advise council that the mayor should have been an automatic appointment to the GMPRC, despite the fact that he told the Board at hearing that he was of the view that the mayor should be on the committee.64 A.2.2 Meetings of the committee A.2.2.1 Attendance at meetings Ms. Iskandarli, as council lawyer, then Manager, Legal and Governance, and later DCG&GC, attended every meeting of the GMPRC since October 2014.65 The DCG&GC advised members at each meeting since 26 August 2015 that she attended the GMPRC meetings: 1. under the delegation from the General Manager to prepare the Agenda for the Committee Meetings and ensure that the minutes of the Committee have been taken, the discussion and decisions of the Committee have been recorded; and 2. at the request of the Chair to provide advice or information about the process or any questions that might be asked about the terms and conditions of the CoE (the general manager’s contract of employment) between the General Manager and Council, on behalf of the Council;66 and Refer Governance: Compliance with Policies and By-laws, 3.B.6.2.1, and documents referenced in that section. General manager’s first hearing (3 February 2016, Question 51). Ref. D.20 and D.21 65 The minutes of all the GMPRC meetings held since October 2014 are included in Index Package C. 66 The committee had no authority to consider the terms and conditions of the general manager’s contract of employment. If an issue about the general manager’s contract arose in committee, it should have been referred immediately to the full council. 63 64 65 3. does not participate in, nor comment on, the deliberations and determination of the performance of the General Manager. In a Question on Notice (QoN) at the council meeting of 15 March 2016 (Item 16.6), the general manager was asked about his delegation to the DCG&GC to prepare agendas and attend meetings of the GMPRC.67 The general manager cited provisions of the Act and the Meeting Regulations to support his contention that delegation of administrative and advisory duties to the DCG&GC was appropriate, despite the fact that he had been given advice by council’s external lawyers that In our opinion, it would be highly unusual to have any person who reports directly to a GM either observe or participate in a committee’s deliberations over the GM’s performance. In fact we have not found an example of such a situation.68 The Board agrees that, despite the lack of approved procedures for this committee, the general manager should ensure that agendas are prepared and that accurate minutes are taken and confirmed. The general manager should also ensure that qualified advice is given when necessary. However, the Board is of the opinion that delegation of these functions to the DCG&GC was inappropriate and unnecessary. It is apparent from questions asked in council and from evidence provided in hearings that several aldermen who were not members of the committee considered that the DCG&GC should not have been doing these tasks; and a member of the committee also expressed concern regarding the attendance of the DCG&GC at all meetings.69 The Board considers that using a director’s time to prepare a committee agenda and take minutes was a waste of resources, and that the task could have been perceived as creating a conflict for the director, given that she reports directly to the general manager. The general manager could have provided a basic agenda to the committee on the advice of its chairman (Ald. Slade), with the chairman taking responsibility for providing associated reports.70 In his response to the QoN referred to above (15 March 2016), the general manager cited reg. 32 (of the Meeting Regulations) as requiring him to ensure that the minutes of a meeting are accurately recorded. However, reg. 32 is subject to reg. 34(1) (Minutes of closed meeting), which states that if the general manager is excluded from a closed meeting, the chairperson of the meeting The QoN asked: (a) How can the Director of Corporate Governance and General Counsel provide secretarial support to the GMPRC when the Terms of Reference explicitly prohibit it? (b) How can the Director of Corporate Governance and General Counsel provide legal advice to the GMPRC when she has a clear conflict of interest? 68 Advice provided by Abetz Curtis Lawyers (18 January 2016) also stated, in part, that 4.13 We have considered the Audit Panel Guide and the Good Governance Guide, both referred to in the introduction to this advice. Both of these documents stress a number of major and common themes. These include independence, clarity of roles, transparency, accountability to stakeholders and responsibility. 4.14 The review of the GM’s performance raises issues of accountability and requires that the GM personally remain independent of the process. Other good governance requirements may be undermined if the Deputy GM is privy to any information or discussions to which the GM himself should not be. (Refer also footnote 65.) 69 Ald. Dunsby at hearing (14 January 2016), Ref. D.12; the mayor in an email to all aldermen copied to the general manager and the DCG&GC (18 February 2015), Ref. Q.11; the mayor QoN (15 March 2016) (Item 16.6), Ref. A.23; Ald. Dunsby during debate on Item 14.3 (23 January 2017). Ref. A.36 70 At the council meeting on 23 January 2017, council unanimously passed a motion that this council does not allow any council employee to provide any advice, secretarial or administrative support to General Manager’s Performance Review Committee (Item 14.3). During debate on the item, Ald. Slade revealed that he had requested LGAT to provide secretarial services to the committee henceforth. Ref. A.36 67 66 is to direct a person to record the minutes of the meeting. Naturally, all the meetings of the GMPRC have been closed meetings, and thus it was in fact the chairman of the GMPRC who was responsible for directing someone to take the minutes. This could have been done by a member of the committee, which would have ensured that the committee complied with matters prescribed in the Act, the Meeting Regulations, and the CDS. If the committee needed legal or other qualified advice, council could have obtained that from external consultants as required, upon written request and instructions.71 The advice provided to the general manager by Abetz Curtis Lawyers (18 January 2016), concluded as follows:72 5.2 The Deputy GM may have an administrative role by delegation from the GM (general manager) or an advisory role by invitation of the chairperson. But that role should be limited as follows: 5.2.1 there should be no participation in any deliberations over the GM’s performance or qualification for bonus entitlements; 5.2.2 attendance should be on an ad hoc basis to provide legal advice as required; 5.2.3 the Deputy GM may act as minute secretary, but should be excused from meetings on all occasions when substantial deliberations commence; and 5.2.4 have access to only the minutes of outcomes from deliberations, which would normally be prepared in final form by the chairperson and given to the Deputy GM as minute secretary.73 That advice also referred to the potential conflict of interest the DCG&GC might have had in her role with the GMPRC, an issue which the Board heard some aldermen raise repeatedly with the general manager. The advice stated that …the participation of the Deputy GM raises potential conflict of interest issues. That conflict raises concerns about independence, clarity and transparency which should be addressed by Council in the terms under which the Performance Review Committee is established. In that way appropriate measures can be put in place to cater for secretarial support (if needed) and the provision of advice in such a way that confidentiality, transparency and accountability are maintained. Although the general manager received this advice in January 2016, the minutes of council and GMPRC meetings indicate that as at 2 February 2017 it had not been provided to either body for consideration and decision. It was alleged in hearings of the Board that the DCG&GC actively participated in the meetings and provided her opinions to committee members.74 The minutes of the committee meeting of 26 February 2016 (Item 5) provide evidence that the director’s comments were not restricted to the provision of legal advice, and on that occasion might have influenced the committee into changing the approved methodology for assessment of the general manager’s performance for Providing instructions and seeking advice in writing promote clarity and accountability in the questions and answers. 72 Letter from Abetz Curtis Lawyers to the general manager (18 January 2016). Ref. O.1 73 The description of the DCG&GC as the Deputy General Manager may have arisen from the brief given to the external legal firm. The Board has not seen this term used in any council minutes nor in any other material the Board has received from the general manager or aldermen. 74 .Mayor’s first hearing (9 February 2016), Q.43. Ref.D.18 71 67 the period ended 2 January 2016.75 The minutes of the meeting of 16 September 2016 (Item 5) record that the committee asked the DCG&GC to review and amend the Work Plan (of the committee) and send it for the committee’s consideration. The Board does not consider that this task constitutes provision of legal advice. The minutes record the general manager’s attendance for at least part of all but one committee meeting since October 2014. The general manager did not attend the meeting on 16 September 2016, when he is listed inaccurately as an apology.76 The Board considers that the general manager’s routine attendance at meetings was inappropriate and unnecessary. Good practice and proper governance dictate that the general manager should only attend the committee meetings when invited for a specific purpose. While some minutes record these details, the listing of the general manager as ‘present’ at the meetings without qualification is inaccurate and confusing. These records should have been managed by the chairman, Ald. Slade, in accordance with proper procedure. A.2.2.2 Committee meeting minutes The Board has noted that council improperly established the GMPRC as a special committee of council, not a council committee. As a special committee, its meeting procedures should be determined by the council. The Board saw no evidence that council did this. The Board notes from the committee minutes that the committee appeared to loosely follow normal meeting procedure. Given the importance of the task assigned to the committee, the Board considers that, despite its designation as a special committee, the committee should have complied with the prescribed procedures, including the Meeting Regulations. However, in reviewing the minutes of the meetings of the GMPRC, the Board found it difficult to follow the work done by the committee. The minutes for the ten meetings held between 15 December 2014 and 16 September 2016 do not record any resolutions the committee passed during that period, and there is no clear record of the outcomes of meetings. The minutes of the 16 September 2016 meeting include actions taken after the conclusion of the meeting. Despite this, these minutes were accepted without correction at the next committee meeting (21 November 2016).77 The Board considers this to be evidence of poor governance and poor procedure, failures which are attributable to the chairman, aldermen who were members of the committee, and the DCG&GC as the general manager’s delegate. The Board considers that the chairman of the committee, Ald. Slade, had particular responsibility for upholding proper procedure, and failed in his duty. A meeting of the GMPRC was convened for 5 February 2015, but could not take place as there was no quorum. Council records indicate that the attendees at that meeting did not The minutes state: The Director stated that according to the General Manager’s KPIs, the General Manager will be delivering the actionable items by the target dates specified in the KPIs, after which the committee will consider his performance against the actions; for example if a KPI 1 the output (sic) is that the General Manager provides a completed strategic plan for approval by 31 December. Whether the council will adopt the strategic plan in January or February and so on, does not mean that the General Manager did not meet that specific KPI. That KPI will be met by the General Manager. Ref. C.9 76 Only members of the committee should be listed as apologies if they are absent. The general manager is not a member of the committee. 77 The minutes of the GMPRC meeting of 21 November 2016 are unconfirmed, owing to the suspension of the aldermen of the council on 8 February 2017. 75 68 observe the absence of a quorum. Council records indicate that there are minutes for the committee for this date, despite a note at the committee meeting of 4 March 2016 that no meeting took place and that the record of the meeting should be termed ‘notes’ rather than minutes. In contrast, the Board is aware that a meeting of the committee took place on 28 April 2015.78 In a Requirement to Produce Documents (1 December 2016) the Board required council to provide the minutes of all GMPRC meetings held since October 2014. No minutes of a meeting on 28 April 2015 were provided. In her response to the Draft Report, Ald. Dunsby referred to a committee meeting on this date.79 The Board sent a Requirement to Produce Documents to the acting general manager (30 May 2017), and received a series of emails between the DCG&GC, Mr. Ian Nelson (a consultant engaged by the committee), Ald. Slade and other members of the GMPRC, and the general manager. The emails refer to a meeting which took place on 28 April 2015 for which there are no minutes, although the email of 29 April 2015 from the DCG&GC to the members of the committee stated a commitment by the DCG&GC to circulate the minutes of the 28 April 2015 GMPRC meeting to you very shortly.80 The Board concludes that this meeting was also the meeting referred to by the DCG&GC in her second hearing as an informal meeting with Ian Nelson, all committee members, the DCG&GC were present and the general manager was present for parts of the informal meeting. This meeting occurred at the request of the GMPRC chair.81 The Meeting Regulations state clearly that the minutes of a closed meeting should be confirmed at the next meeting of the committee.82 The minutes of the committee meeting of 26 February 2016 were confirmed at the meeting of 16 September 2016, after being sent electronically to committee members on 15 September 2016. There is no record that the committee has ever seen or approved minutes of meetings which took place on 8 October 2014 and 15 December 2014.83 The minutes of the 4 March 2015 (Item 2) meeting state that the minutes of the 10 February 2015 meeting were to be circulated by the council lawyer (Ms. Iskandarli) to the committee members ‘as soon as possible’ and were to be discussed at the committee’s next meeting, which took place on 26 August 2015. The minutes of the meeting of 16 September 2016 (Item 2) record that the minutes of the meeting of 29 July 2016 were provided to committee members at the meeting on 16 September. The Board considers that the time lag between the meeting and the circulation of minutes is unacceptable and indicative of poor governance practice. The committee at this meeting also requested that the draft minutes of committee meetings be circulated to the committee either straight after the committee meetings, or seven days before the committee meetings. The Board considers that this resolution may not achieve any improvement in the committee’s poor practices regarding minutes. This meeting is discussed further in 3.A.2.4.1 below. Refer Ald. Dunsby’s response to the Draft Report. Ref. Appendix D.4.3 80 Refer to the email sent by the DCG&GC to the GMPRC (29 April 2015). Ref. C.2 81 DCG&GC’s second hearing (7 September 2016, Question 12). Ref. D. 28 and D.29 82 Reg. 34(6): At the next closed meeting, the minutes of a closed meeting, after any necessary correction, are to be confirmed as the true record by the council or council committee and signed by the chairperson of the closed meeting. 83 GMPRC minutes. Ref. C 78 79 69 The Board is of the opinion that the committee needs to address its recording and content of minutes, the timely circulation of minutes, and the proper practice of confirming the minutes of its most recent meeting before it proceeds to the business of the current meeting. A.2.2.3 Regularity of meetings The minutes of the committee record frequent changes of meeting dates. There was only one occasion since October 2014 when a meeting date was set for the next meeting and the meeting was held on that date. Some of the dates were extended by a month or more, despite the urgency of the tasks which the committee needed to address. After its meeting on 26 February 2016 the committee did not meet again until 29 July 2016, despite its obligation to complete the general manager’s performance assessment for the period ending 2 January 2016, and its obligation to ensure that council had set KPIs for the general manager for the period ending 2 January 2017. The Board notes that the council appeared to be unaware that the committee had no authority to set the general manager’s annual KPIs and that this was the responsibility of council, which did not initiate this process, apparently leaving the matter to the committee. In this report’s section 3.A.1.7 Governance: Relationships between the Mayor and the Aldermen, the Board has provided details of the matters which the chairman of the GMPRC considered constituted cause for him to defer meetings of the committee. The Board reiterates that it considers this action by Ald. Slade to have been unreasonable, unfair to the general manager, and in breach of his responsibilities under the Act.84 A.2.2.4 Review of the committee’s CDS (Terms of Reference) Ald. Dunsby asked about the ‘current situation of the review’ of the ToRs (CDS) at the committee meeting on 21 September 2015 (under Other Business). The committee requested that the review of the terms of reference be finalised as soon as possible. The minutes of the committee meeting of 29 July 2016 (ten months later) record (Item 5) that the DCG&GC provided a report to the committee advising that she had referred the committee’s terms of reference (CDS) to an external lawyer for review; and that advice had been received from the external law firm.85 The minutes do not record that this advice was tabled, nor that the committee considered the advice or any revision of the CDS. In answer to a QoN at the council meeting of 15 February 2016 (Item 16.13), the general manager stated that it is the role of the chairs (of committees) to review the ToRs (Terms of Reference) or request the review of ToRs of their respective committees. There is no record in the committee minutes that Ald. Slade requested a review or that such a review should be sent to external lawyers for advice. The Act s 28(2)(iii) Under s 222, the Board sent a Requirement to Produce Documents to council (31 January 2017) requiring provision of this advice. The Board did not receive the required advice; the Board did receive a draft revision of the CDS provided by Abetz Curtis Lawyers Ref. C.14, General Manager Performance Review Committee Terms of Reference (19 February 2016). 84 85 70 The Board considers that this indicates that the committee in six months failed to begin any consideration of its CDS despite advice that it had been reviewed by an external lawyer. Ald. Slade told the Board at hearing (5 September 2016) that the CDS had not been updated at that point in time. Four months after the committee’s July meeting (21 November 2016), the unconfirmed committee minutes record as an ‘action item’ that the DCG&GC was to circulate the terms of reference to the committee. The Board has seen the draft revision of the CDS the external law firm provided to the general manager, dated 19 February 2016.86 As at 2 February 2017, this had not been provided to either the GMPRC or to council, according to minutes of meetings held since February 2016. The Board considers this to be evidence of extremely poor governance. A.2.3 The general manager’s Contract of Employment (contract) The minutes of the committee meeting of 29 July 2016 (Item 1) record that the construction of Clause 5 (Performance) of the CoE (contract) is confused and the committee would like this to be reviewed and the chair will discuss this matter with the director who acts on behalf of council. 87 The chair recommends to the general manager that he discusses this matter with his personal lawyer. At the council meeting of 26 September 2016 (Item 26) it was noted that the timeframe of the annual performance review under the CoE is creating issues in relation to the General Manager’s KPIs timeframe as clause 5 refers to the financial year, but the KPIs to the calendar year, and this misalignment of the 2 key instruments must be resolved by either amending clause 5 or clarifying clause 5 in the CoE. Council resolved, in part, that Council and the General Manager seek their own legal advice in the clarification and amendment, if necessary, of clause 5 of the Contract of Employment between Glenorchy City Council and the General Manager with the agreement of both parties. At the GMPRC committee meeting on 21 November 2016 (Item 5) the DCG&GC advised that the general manager was taking legal advice on his current contract, and that she would send the draft revised contract to an independent lawyer for review when she received it from the general manager. The Board considers that this advice should have been given to full council, not a council committee with no authority to consider the matter. The committee agreed to ask for a special council meeting to consider proposed changes to the general manager’s contract. Revised CDS provided by Abetz Curtis Lawyers. Ref. C.14 Clause 5 (Performance) of the contract states, in part, that the general manager’s performance under this contract must be reviewed every 6 months from the commencement date (“KPI review date”) for performance against the KPIs (“KPI review”) and (b) in respect of reviews for a performance bonus or annual review of remuneration under Clause 6 (“annual review”)” (i) once every 12 months the first such being on the initial review date; or (ii) within two (2) months of receiving the audited financial statements, whichever is the later (“annual review date”). 86 87 71 The agenda for the special meeting of council on 5 December 2016 included General Manager’s 6 monthly KPI review (Item 3). Part of the reporting brief to the item stated that its purpose was to brief Council on the review of the Contract of Employment between Glenorchy City Council and Mr. Peter Brooks, conducted in accordance with Council’s resolution of 26 September 2016 (Item 26, paragraph (d)), and to seek Council’s approval to make amendments to the General Manager’s Contract of Employment. The changes in the draft revised contract attached to the council agenda, provided by the general manager’s external lawyer, included significant changes to Cl. 4 (General manager’s duties); Cl. 5 (Performance); Cl. 8 (Leave); Cl. 11 (Termination); Schedule 1 (Term, position and duties); Schedule 2 (Remuneration); and Schedule 3 (Position description).88 The Board considers that the chairman of the GMPRC acted well outside the committee’s terms of reference and had no authority from council to involve himself or the GMPRC in the review of the general manager’s contract.89 The council resolution of 26 September 2016 (Item 26) did not delegate the review of the general manager’s contract to the committee. Ald. Slade was named in the agenda of the council meeting of 5 December 2016 (Item 3) as the qualified person bringing the report to council, and later also accepted responsibility for having written the report.90 The recommendation in the agenda proposed that council ACCEPT and APPROVE the amendments to the contract of employment between Glenorchy City Council and general manager, Mr. Peter Brooks. The terms proposed in the draft contract clearly favoured the general manager and if accepted could have materially affected resource allocation within council. The Board considers this to be a very serious breach of s 28 of the Act by the committee chairman, Ald. Slade. Recommendation: that should council establish a committee to consider matters pertaining to the general manager’s contract of employment, the committee should be authorised only to make recommendations to full council for decision. Recommendation: that council remove any provision for payment of a performance bonus from the general manager’s contract of employment. Recommendation: that council adopts the Remuneration clauses of the General Manager Template Contract of Employment of LGAT for the general manager’s CoE, with particular reference to relevant factors to be considered in reviewing the general manager’s remuneration package. Contract A provided by the general manager’s lawyer. Ref. C.16 Further information about Ald. Slade’s involvement in the revision of the general manager’s contract is provided in Management and Operations, 3.B.11.1, together with referenced documents. 90 In an email from Ald. Slade to Ald. Stevenson (5 December 2016), Ald. Slade says that the report was in fact prepared by himself, and that the name of the DCG&GC appearing as the author of the report was ‘an administrative error’. Ref. Q.11 88 89 72 A.2.4 The general manager’s Key Performance Indicators The CDS requires the committee to review the performance of the general manager on an annual basis and make recommendations to Council. The general manager’s contract provides for sixmonthly reviews of his performance and an annual review to determine the quantum of a performance bonus calculated from his achievements against a suite of established KPIs.91 The Board has noted above that the GMPRC had no authority to consider the KPIs or the assessment methodology, but did so with the tacit agreement of the full council. A.2.4.1 3 January 2015 – 31 December 2015 assessment period Discussion on the KPIs for the period 3 January 2015 to 31 December 2015 commenced at a meeting of the GMPRC on 15 December 2014 (Item 2). The minutes of that meeting record that the general manager provided to the committee a Performance Appraisal Process and KPIs. The committee agreed to send the KPIs to an external consultant for review, to receive the consultant’s report by mid-January, and to recommend the final KPIs to council at its meeting on 16 February 2015. The ‘notes’ of the informal committee meeting of 5 February 2015 acknowledge again (Item 2) receipt of the general manager’s draft Performance Appraisal Process and KPIs for the period 3 January 2015 to 31 December 2015. Despite the decision taken at the meeting of 15 December 2014, these KPIs were considered again at a committee meeting on 4 March 2015 (Item 3), and again the minutes record that the KPIs would be referred to an external consultancy for independent advice. The minutes do not record any reason for the delay in acting on the decision of 15 December 2014 or why the GMPRC made essentially the same decisions again. The minutes of the committee meeting of 4 March 2015 (Item 3) record that the general manager developed his draft KPIs and also proposed changes to the weightings in the appraisal process, and brought these draft changes to the committee. The general manager’s contract of employment provides for him to develop the first draft of fresh KPIs, but the Board considers that it would be preferable, and in keeping with the committee’s CDS, for the draft KPIs and weightings to have been developed in consultation with the mayor, representing the full council, and then submitted to full council for approval. Correct procedure would then allow council to provide the approved KPIs to the committee to allow it to undertake the performance assessment. The committee minutes of 4 March 2015 (Item 3) record proposed amendments to the KPIs but do not record any detail of the proposed change to the weightings of each KPI. From emails sent by the DCG&GC to the committee and to the consultant, Ian Nelson, and Mr. Nelson’s response, it is apparent that the committee met on 28 April 2015 to discuss the draft KPIs. No minutes were kept for this meeting. The consultant’s revised draft was sent to the DCG&GC, to be discussed by the consultant and the DCG&GC, and then the KPIs were to be recommended to council for its next meeting on 11 May 2015. The GMPRC did not meet again before 11 May 2015 to consider the consultant’s revision. The Board considers that it was inappropriate to allow the DCG&GC to determine the recommendation of the KPIs to council, without approval from the committee. 91 Refer the general manager’s current contract, dated 2 June 2014. Ref. C.15 73 Council approved the final KPIs for the period 3 January 2015 to 2 January 2016 on 11 May 2015 (Item 21), almost five months into the assessment period. Thus the general manager was working to unknown KPIs during that time, which was unfair to him and undesirable for the council. Further, that situation must have adversely affected the general manager’s ability to set KPIs for his directors, and so on down through the organisation. The Board has seen evidence that GCC made no distinction between the KPIs set for assessment of the general manager’s right to part or all of his performance bonus, and assessment of performance of his regulated functions.92 The Board considers that this confused the appraisal process and detracted from the clarity of reports from the committee to council. The Board notes with concern that the objective KPIs, which formed 80% of the general manager’s assessment for his performance bonus, essentially required the general manager to provide plans (by a particular date) that are either legislated or considered by the Board to be normal practice, such as production of a Strategic Plan, an Annual Plan, and a Long Term Financial Plan. The Board is of the view that more aspirational and challenging KPIs should be set for an appraisal of the general manager’s performance in relation to his performance bonus. The Board considers that the Critical Leadership Behaviours (or Subjective) KPIs, which formed 20% of the general manager’s performance assessment, did not in the main constitute achievements which lie outside normal expectations of performance, and were therefore not appropriate for consideration in determining a performance bonus. Examples from the KPIs set included reaches decisions in a timely manner; seeks internal/external advice when required; develops and maintains strong networks with other local government organisations and major businesses; implements council decisions by delegating effectively to the Executive Team. A.2.4.2 3 January 2016 – 2 January 2017 assessment period The general manager provided draft KPIs for the period 3 January 2016 to 2 January 2017 to the GMPRC at its meeting on 16 February 2016 (Item 5), and his proposed amendments from the previous year were highlighted to the committee. Although the minutes do not record a decision by the committee, they show that the chairman advised the general manager, at that meeting, that the committee was ‘happy’ with the KPIs and the committee would refer them to an external consultant for specialist advice. At the 26 February 2016 meeting (Item 4) the committee reviewed the suggested amendments to the KPIs and the minutes record that the general manager and the committee were satisfied with the amendments, and the chairman advised, without a resolution of the committee, that the KPIs would be tabled at the next council meeting. The report from the GMPRC was not tabled at the next council meeting on 15 March 2016. The Board has seen no explanation for this deferral. The same KPIs were considered again by the committee at its next meeting, on 29 July 2016 (Item 2), five months after the committee had decided they be placed on a council agenda for council’s consideration. The chairman again briefed the committee on the changes recommended by the external consultant, but no General manager’s KPIs for periods 3 January 2015 – 31 December 2015 and 3 January 2016 to 2 January 2017. Ref. C.18 and C.19 92 74 decision was recorded in the minutes of that meeting that the KPIs be placed on a council agenda for council’s consideration. Council adopted the KPIs for the period 3 January 2016 to 2 January 2017 at its meeting on 29 August 2016 (Item 22).93 This was nine months into the year under review. The Board considers that this was unsatisfactory for the organisation and unfair to the general manager. The Board again considers that these KPIs adopted by council provided few challenges for the general manager in a review and assessment of his performance. Schedule 3, Position Description, in the general manager’s contract provides a more detailed and comprehensive list of matters that, in the opinion of the Board, should be taken into consideration when setting KPIs for the general manager and in reviewing and assessing his performance.94 The Board is not aware of any detailed guidelines that have been established for Tasmanian councils giving them a recommended process to follow for the appointment and review of a general manager’s performance. The Board considers that the NSW Guidelines for the appointment and oversight of General Managers produced by the Division of Local Government, Department of Premier and Cabinet, July 2011 should be referred to the Director of Local Government as a document that could be modified for use by Tasmanian councils. Recommendation: that the general manager’s Key Performance Indicators (or similar assessment tools) be considered by full council. Should council establish a committee to provide recommendations to council regarding the general manager’s KPIs, its terms of reference should ensure that all aldermen are given ample opportunity to have input into setting the general manager’s KPIs. A.2.5 General Manager’s performance assessment A.2.5.1 Review of the period 3 January 2015 – 2 January 2016 The Board notes that the committee’s review of the general manager’s performance for the period 3 January 2015 to 2 January 2016 commenced at its meeting on 26 February 2016, when the general manager provided the committee with the Annual Performance Review Report he had prepared against his KPIs, together with supporting documentation (Item 5). The review concluded at the committee meeting of 16 September 2016, almost nine months later (Item 3). The GMPRC records do not indicate that any aldermen, other than the mayor, were consulted prior to completion of the general manager’s performance assessment. If the records are accurate in that regard, then obviously that is not good practice. If there was a failure to consult outside the committee with other aldermen or members of staff or stakeholders, then this limited the committee’s assessment to the views of the committee members and the mayor, and thereby reduced its value. The minutes of the meeting of 26 February 2016 (Item 5) record that the chairman of the committee 93 94 Refer Appendix E Refer the general manager’s current contract, dated 2 June 2014. Ref. C.15 75 briefed members about his meeting with the mayor on 25 February 2016 about getting the mayor’s comments/feedback about her liaison meetings and dealings with the general manager which will assist the committee in the review of the general manager’s annual performance. The chair advised that he had briefed the general manager about the outcome of his meeting with the mayor. The minutes do not record that the mayor received or provided a written report, nor any detail of the chairman’s meeting with the mayor. The committee appears to have relied solely on a verbal report from the chairman rather than a written report from the mayor.95 A.2.5.2 Changes to assessment methodology The minutes of the meeting of 26 February 2016 record (Item 5) that the committee experienced difficulties in assessing the general manager’s performance, especially around the target dates set in the KPIs. The chairman of the GMPRC, Ald. Slade, raised his concerns about the performance review process outlined in the general manager’s contract and stated that the performance review process is very confusing and difficult to follow. The chairman asked the DCG&GC to arrange a date for a further meeting for the committee to complete the general manager’s performance review. There is no record of a resolution by the committee to adjourn debate on the item until further clarity around process and target dates was provided. The committee did not reconvene again until 29 July 2016, when the meeting of 26 February 2016 was resumed. The general manager’s performance review for the period ending 2 January 2016 was again considered (Item 1). The Board considers that the confused minutes of the meeting make it extremely difficult to assess the meeting outcomes. However, the minutes record that the committee members continued, at that meeting, to express concern around the target dates to be met by the general manager in order to meet his KPIs. Item 2 on the agenda of the committee meeting of 29 July 2016 was finalisation of the general manager’s draft KPIs for the 12 months (sic) period 3 January 2016 to 2 January 2017. The minutes record that the committee acknowledges that they cannot change the current approved KPIs for the period 3 January 2015 to 2 January 2016, and that the committee has finalised its assessment of the general manager’s performance for that period. However, the committee wants to address this issue and Ald. Branch-Allen suggested that she will make some amendments to the draft KPIs for the period 3 January 2016 to 2 January 2017 and circulate them to the committee for feedback; 96 and that …the chair stated that the draft proposed KPIs for the period 3 January 2016 to 2 January 2017 will be tabled at the council meeting on 29 August 2016 for council’s consideration. The Board concludes from this record that the committee had completed its assessment of performance in the previous year (ending 2 January 2016), but was not content with the KPIs used for that period, and was therefore contemplating changing the KPIs for the period ending The mayor told the Board at hearing (2 August 2016, Question 5) that Ald. Slade had only asked her about her meetings with the general manager and no other aspect of his performance. Ref. D.24 and D.25 96 The minutes state, in reference to the issue, that the current KPIs only allow the committee to make comments ‘yes’ or ‘no’; the committee believes that this assessment is not objective as there were or might be reasonable reasons that might prevent or delay the general manager in actioning some KPIs which are beyond the general manager’s or council’s control, or in some instances there might be partial completion of the projects. Ref. C.10 95 76 2 January 2017. It is unclear from the minutes whether the committee intended to change the draft KPIs, as the minute records, or the assessment process. The Board considers that it was poor procedure and potentially unfair to the general manager to contemplate changing either the KPIs, or the appraisal process, seven months into the appraisal period. The Board considers that the committee needed to provide greater clarity in terminology: there was confusion between developing KPIs and the process of assessment, which obscures understanding of the outcomes of the meeting. Despite the records in the minutes of the meeting of 29 July 2016 (Item 2), and evidence provided by the DCG&GC, the Board heard and saw evidence97 that the methodology used for the assessment of the general manager’s performance for the period ending 2 January 2016 was changed to allow for partial attainment of KPIs, and thus partial attainment of the general manager’s performance bonus.98 The Board received evidence that in assessing the performance of the general manager for the period 3 January 2015 to 2 January 2016 the general manager had rated poorly in both the objective and subjective criteria, and that subsequently the methodology was changed for the assessment of the objective criteria for this period.99 At hearing on 5 September 2016, the chairman of the GMPRC, Ald. Slade, told the Board that the general manager would not receive his entire performance bonus. Ald. Slade admitted that if the committee had not changed the KPI assessment methodology, then there was ‘a fair chance’ that the general manager would not achieve any part of his performance bonus. This admission that the methodology was changed is contradictory to the statement made in hearing by the DCG&GC (7 September 2016), viz., that the methodology for the assessment period ending 2 January 2016 had not been changed. Both Ald. Slade and the DCG&GC provided their evidence on affirmation at hearings before the Board.100 Ald. Slade told the Board (5 September 2016) that the changes had been ‘run by’ the consultant, who had approved them. The Board has seen the report from Ian Nelson Consulting, headed General Manager KPIs for the 12 months to 2 January 2016 (29 April 2015).101 The changes suggested by the consultant did not include any proposal for changes to the assessment methodology. The committee minutes do not include the tabling of any written advice by the external consultant. The committee had no authority from council to instigate this change in the agreed methodology.102 The report from the GMPRC to council for the council meeting on 26 September 2016 (Item 26) stated that Ald. Slade’s second hearing (5 September 2016) about changes to assessment methodology (Question 1), Ref. D.36 and D.37; the mayor referred to it at hearing (2 August 2016), Ref. D. 24 and D. 25 and there is written evidence in the report of the outcome of the general manager’s annual performance review for period ending 2 January 2016 (refer minutes of the GMPRC meeting 29 July 2016 Feedback 2, p6). Ref. C.10 98 At hearing on 7 September 2016, the Board asked the DCG&GC (Question 7) about the changes to the assessment process (for the general manager’s performance review). The DCG&GC advised that the process had been amended for the 2016-17 assessment and beyond, but stated that it did not apply to the assessment for the period ending 2 January 2016. Ref. D. 28 and D. 29. The report presented to council at its meeting on 26 September 2016 indicates that this is not correct. Ref. A.42 99 Ald. Dunsby’s second hearing (5 September 2016, Question 1) re the general manager’s performance rating. Ref. D. 34 and D.35 100 Ald. Slade’s second hearing (5 September 2016, Question 9), Ref. D.36 and D.37 and the DCG&GC’s second hearing (7 September 2016, Question 7). Ref. D. 28 and D.29 101 Report from Ian Nelson Consulting (29 April 2015). Ref. C.21 102 Ald. Slade told the Board at hearing (5 September 2016, Question 9)that he thought that the proposed changes to methodology for assessment had been taken to full council for approval, but was unable at the time to 97 77 some of the outputs in the KPIs did not meet the target dates and the GMPRC acknowledged that those projects have been partially completed because of the matters that the general manager was dealing with and heavily involved in which prevented him or delayed him from completing them 100% which were beyond the general manager’s control, such as the Board of Inquiry related matters. The GMPRC agreed that it would be unfair and unreasonable for them not to take into account these external factors and penalise the general manager in the review of his performance. The report to council for 26 September 2016 also stated, under the general manager’s comments: Some of the KPIs timelines were difficult to meet due to the difficult circumstances leading up to and during the current Board of Inquiry. However, in consultation with the GMPRC, we agreed on a process in relation to my performance. The changed methodology resulted in the general manager qualifying for part of his performance bonus.103 At the council meeting on 26 September 2016 (Item 26) council considered the report on the general manager’s performance for the period ended 2 January 2016, with the recommendation that he be paid 60% of the maximum performance bonus payable. The motion passed 5/4. The bonus paid was calculated at $18,000. A.2.5.3 Review of the period 3 January 2016 – 2 January 2017 There is no evidence in the minutes of the meeting of the GMPRC meeting held on 21 November 2016 that the committee had begun planning for the annual review of the general manager’s performance for the period ended 2 January 2018. The committee minutes do not show that the committee commenced a review of the KPIs for the period commencing 3 January 2017.104 Given the tardiness of both processes in 2016, the Board considers that the committee neglected its duties by not having planned and commenced procedures relevant to carrying out its functions (real or assumed) for 2017. Recommendation: that all aldermen be involved in appraising the general manager’s performance, and that the matter not be delegated to a council committee. Should council establish a committee to provide recommendations to council regarding the general manager’s performance, its terms of reference should ensure that all aldermen are given ample opportunity to have input into the final assessment and any outcomes of that assessment. provide evidence to support this. Ref. D. 36 and D. 37. Ald. Slade has subsequently not provided any advice to the Board on this matter. 103 Ald. Lucas told the Board in her response to the Draft Report that we were always taking it (the changes to the assessment methodology) back to Council for discussion. Ref. Appendix D.6.21. The agenda for the meeting of 26 September 2016, and the minutes of the meeting, do not confirm this statement. 104 Owing to the suspension of the aldermen on 8 February 2017, these minutes are unconfirmed. 78 Recommendation: that aldermen who are not members of a council committee considering the general manager’s contract of employment, or a committee established to provide recommendations regarding the general manager’s KPIs, or a committee established to provide an initial appraisal of the general manager’s performance, be permitted to attend all committee meetings as observers. A.2.6 Deed of Confidentiality The agenda for the committee meeting on 16 February 2016 included signing the Deed of Confidentiality by the committee members, the general manager and the DCG&GC (Item 1).105 At the meeting the DCG&GC advised the committee that she had been unable to send a copy of the proposed Deed of Confidentiality (the Deed) to committee members for their consideration before signing, but it would be circulated to members well before the next meeting. This was the first time a Deed of Confidentiality was recorded in the GMPRC minutes, with no recorded request or reason for such a document. At a hearing of the Board on 5 September 2016, the chairman, Ald. Slade, was asked who requested the Deed, what advice was provided, and why it was necessary. The chairman responded that it was the DCG&GC’s idea to put the Deed in place; she explained it was another layer of confidentiality for a committee that deals with confidential information. He said that he had accepted that explanation.106 At a hearing of the Board on 7 September 2016, the DCG&GC was also asked who initiated the Deed and she responded the committee members initiated the Deed. The Board asked which members and the response was I thought it was all members. The Board then asked if there had been a resolution from the committee meeting requesting such a deed or even a reference in the minutes and the DCG&GC responded that the request was not made at a formal committee meeting but it was an informal meeting with Ian Nelson, all committee members, the DCG&GC were present and the general manager was present for parts of the informal meeting. This meeting occurred at the request of the GMPRC chair. When asked by the Board why there was an informal meeting and not a proper meeting, the DCG&GC responded that it was to brainstorm around the KPIs. As a result of the meeting committee members talked about the need to have some sort of document to ensure confidentiality because the committee was dealing with so much important information. This document would protect the confidentiality of the information they were hearing and make sure it was kept confidential within the committee. The DCG&GC confirmed that she had taken advice from the committee about drafting a deed at the informal meeting, which she thought had been held in April 2015.107 The GMPRC draft Deed of Confidentiality. Ref. C.22 Ald. Slade’s second hearing (5 September 2016, Question 17). Ref. D.36 and D.37 107 DCG&GC’s second hearing (7 September 2016, Question 12). Ref. D. 28 and D.29 105 106 79 The minutes of the meeting of the GMPRC on 29 July 2016 record (Item 5.2) that the DCG&GC advised that she had made some amendments to the draft Deed after the 26 February 2016 meeting as requested by the committee, and that the members briefly reviewed the draft amended Deed at the meeting.108 The minutes of 26 February 2016 state (Item 1) that the Deed was not considered by the committee at that meeting. The Board concludes that there must have been decisions made about the content of the Deed outside a committee meeting. The Board considers that these examples of decision making outside formal meetings indicate poor governance, lack of accountability, and ignorance of the requirements of the Act and the Meeting Regulations. Ald. Dunsby advised at the committee meeting on 29 July 2016 (Item 5) that she would not sign the Deed because as an alderman she is already bound to keep the matters confidential under the requirements of the Act. The remaining committee members advised that they would sign the amended Deed as individual aldermen. At hearings on 5 September and 9 September 2016, the Board closely questioned all four members of the GMPRC about the Deed and their perception of the need for a Deed.109 At the meeting of the committee on 16 September 2016, the minutes record that the chairman of the committee advised the DCG&GC that the committee decided that the proposed Deed of Confidentiality is now null and void; and the chair of the committee advised on behalf of the committee that there is already confidentiality provision in the Local Government Act 1993 (Tas) and accordingly the committee does no longer require (sic) the Deed. However, there is no record in the minutes of the committee actually making this decision. A.2.7 The committee chairman From evidence received, as detailed above, the Board concludes that Ald. Slade did not adequately fulfil his role as chairman of the GMPRC, despite his having held the position since November 2011. He was not diligent in ensuring timely meetings of the GMPRC were held, nor did he ensure the accurate recording of minutes. The timing and process of setting KPIs and assessing the performance of the general manager against credible and measurable targets was protracted and inconsistent. Council was not adequately informed of the committee’s activities. Decisions were made outside committee meetings. The chairman demonstrated his misunderstanding of the role and authority of the committee when his resolution at the closed session of the council meeting on 15 March 2016 (Item 20.1) included the words GMPRC has full delegation and is the delegated representative to undertake any matter about the General Manager’s performance and Contract of Employment. Amended draft Deed of Confidentiality. Ref. C.23 Ald. Branch-Allen’s second hearing (9 September 2016, Question 10), Ref. D.30 and D.31; Ald. Lucas’s petitioned appearance (9 September 2016, Question 2), Ref. D.38 and D.39; Ald. Slade’s second hearing (5 September 2016, Question 17), Ref. D.36 and D.37; Ald. Dunsby’s second appearance (5 September 2016 Question 1). Ref. D.34 and D.35 108 109 80 The committee’s terms of reference clearly state that the committee had no delegated authority. The Board received evidence that the chairman advised the general manager of the result of his performance review for the period 3 January 2015–2 January 2016 before the recommendation was taken to and approved by council. Indeed, the minutes of the committee meeting of 29 July 2016 (Item 4) record that the chairman had informed the general manager of the outcome of his review before the committee meeting.110 The Board considers that the chairman’s advice to the general manager regarding the outcome of his performance appraisal before council had been informed and had the opportunity to amend or refuse the recommendation of the committee was improper and totally inappropriate. The Board heard evidence from the DCG&GC that early in 2015 (possibly April) the committee chairman called for an ‘informal meeting’ to discuss with an external consultant the recommendations the consultant had made on the general manager’s KPIs.111 The Board considers that the chairman should have known that this would not comply with the requirements of the Meeting Regulations. Aside from that, it was proper and appropriate for such matters to occur formally, not informally, to enable proper record keeping and reporting to council. The Board considers it unacceptable for the chairman to have refused to hold a meeting of the GMPRC for a period of five months because of an unrelated disagreement he had with a decision of the mayor. The Board is of the view that this dispute had no bearing on the tasks on hand for the GMPRC at the time. The Board heard the chairman of the GMPRC tell council at its meeting of 23 January 2017 (Item 14.3) that he would not call a meeting of the committee until after the resumption of the council meeting of 5 December 2016, scheduled for 20 March 2017. Again, the Board considers that given the committee’s responsibility for the annual performance assessment of the general manager for the period ending 2 January 2017, Ald. Slade’s refusal to call a meeting was unfounded and unfair to the general manager. 110 111 Minutes of the GMPRC meeting held on 29 July 2016 (Item 4). Ref. C.10 DCG&GC’s second hearing (7 September 2016, Question 12.). Ref. D.28 and D.29 81 A.3. Relationship between the mayor and the general manager A strong and respectful relationship between a mayor and general manager is essential for a properly functioning council. This is not only common sense, but is reflected in the Good Governance Guide for Local Government in Tasmania, the Local Government Act 1993, and the contract of employment between the Glenorchy City Council and its general manager. The Good Governance Guide for Local Government in Tasmania states: The relationship between the mayor and the general manager is crucial to a well-functioning council. A dysfunctional relationship between a mayor and a general manager can have a significant and long-lasting negative impact on the performance of a council. As with good governance in general, a good relationship between the mayor and general manager relies partly on following the law, guidelines and protocols, and partly on the good judgement and common sense of the individuals. Where general managers and mayors can build a relationship based on trust, respect and acknowledgement of the need for collaborative engagement, they will have a solid foundation to lead an effective council focussed on the best interest of the community.112 Legislation The Local Government Act 1993 obliges the mayor and the general manager to liaise with each other. Given the ordinary meaning of ‘liaise’ and the purposes of the Act, it is clearly intended that the mayor and general manager will share information, behave cooperatively, and work together to ensure council fulfils its functions for the benefit of the community. The functions and powers of a general manager are set out in s 62(1) of the Act. The functions of mayor and deputy mayor are set out in s 27 and the functions and powers of a council are set out in s 20.113 The General Manager’s Contract of Employment states: cl. 2.1(b) The general manager will report directly to the position described in item 3 of schedule 1, viz., the mayor, for the conduct of day to day business of GCC. cl. 4.2(b) The general manager’s contract obliges him to use all reasonable efforts to promote the interests of GCC. cl. 4.2 (f) The general manager’s contract obliges him to provide GCC with information and reports: (i) As to the affairs of GCC as GCC may request from time to time; and (ii) Generally, so as to keep GCC fully informed of all material developments in or relevant to the GCC’s affairs within the scope of the Duties. Good Governance Guide for Local Government in Tasmania, p43 Refer Appendix F 112 113 82 Findings The Board finds that the relationship between the mayor and the general manager degenerated from the time of the local government elections in 2014, and became dysfunctional, in that the usual and necessary functions of a council leader (mayor) working with the chief employee (general manager) could not be performed. This was despite several attempts by the Minister for Planning and Local Government and the Director of Local Government to improve the relationship. The Board finds no evidence to support the view that the mayor must bear full responsibility for the disharmony at Glenorchy City Council (GCC); nor does the Board find evidence to support the view that the general manager’s performance has been exemplary, and that he bore no responsibility for the breakdown in relationships between himself and the mayor, and the mayor and some aldermen. The Board finds that both the mayor and the general manager must bear some responsibility for the breakdown in their relationship. In addition, responsibility for the poor relationship and the worsening of that relationship lies with several long-standing aldermen, and with the DCG&GC.114 The Board finds that the general manager failed to provide support for the mayor, and support for the office of the mayor, in ways which reduced her capacity to undertake the duties of office. These failures included public and internal demonstration of his opposition to her as mayor, unreasonable refusals to provide information which she required in order to carry out her role as an alderman and as mayor, and reduction in the mayor’s direct access to the organizational arm of council, including council’s media office. The Board finds that the general manager failed to provide appropriate information to council which could have enabled aldermen to take a more balanced and objective view of the role of the mayor. These are addressed in Governance: Relationship between the Mayor and the Aldermen, 3.A.1, and Management and Operations: Management of Employees, including Appointment, Direction, and Dismissal, 3.B.5.3.2, and documents referenced in those sections. 114 83 Supporting evidence and information The Board made an observation to the general manager at his second hearing on 6 September 2016 that it appeared the Mayor has no greater privilege than any other alderman. Mr. Brooks said this was correct.115 This statement indicated the extent of the dysfunctionality of the mayoral/general manager relationship, given the office of mayor obviously has a more privileged status by virtue of the legislated role as a leader of the community and by popular election to the position. The Board received evidence of and observed practices and occurrences within council which the Board considers caused and exacerbated the situation between the mayor and the general manager. These include:        Failure of the general manager and mayor to work cooperatively through regular and constructive meetings; Failure of the general manager to liaise with the mayor on council meeting agendas; Failure of the general manager to liaise with the mayor on council meeting minutes; Failure of the general manager to respond to the mayor’s requests for information; Failure of the general manager to respect the principles of discretion by circulating potentially contentious emails from the mayor to other parties; The use by both parties of inappropriate and intemperate language in written communication; and Failure of the general manager to provide adequate support for the office of mayor. Further details in relation to each matter are provided below. A.3.1 Failure to work cooperatively through regular and constructive meetings There does not appear to have been any period of time when the mayor and the general manager were comfortable in allowing for informal, casual exchanges of information. It is usual in most councils for the mayor and the general manager to meet regularly at least once a week. In a council which functions well, such meetings give both parties an update on recent events and matters arising within their individual jurisdictions; as well as providing for discussion on the minutes of the most recent meeting, actions arising from that meeting, other outstanding items, and a preview of upcoming workshop and council meeting agendas. The Board heard evidence that such meetings between the mayor and the general manager were rare at GCC; although meetings were held, they were often a source of frustration and annoyance rather than a collaborative exchange of information.116 The general manager frequently stated to the Board that he had an open door policy, but the mayor rarely came to his office uninvited.117 The Board considers that this exemplifies the poor relationship between mayor and general manager. The general manager’s second hearing (6 September 2016, Question 15). Ref. D.26 and D.27 Mayor’s first hearing (9 February 2016, Questions 11 and 18), Ref. D.18 and D.19, and in her first submission p 40-41. Ref. H.17 117 General manager’s first hearing (3 February 2016, Question1), Ref. D.20 and D.21, and second hearing (6 September 2016, Questions 14 and 15), Ref. D.26 and D.27. The mayor said at her first hearing (9 February 2016, Question 11) she was ‘not allowed to interrupt him in his office’. Ref. D.18 and D.19 115 116 84 The mayor alleged in her first hearing on 9 February 2016 that the weekly meeting between herself and the general manager usually lasted only ten minutes, occasionally 30 minutes, and sometimes the general manager did not attend.118 When the Board raised this with the general manager he agreed that sometimes meetings were cancelled. 119 In her second hearing on 2 August 2016 the mayor stated that the situation had not improved and that her meetings with the general manager usually lasted between six and nine minutes, with occasional exceptions.120 On his return from leave on 30 June 2015, the general manager was unavailable to meet with the mayor at her request on his first day back at work. This was dealt with through a series of increasingly testy emails between the parties, rather than by consultation and compromise.121 The mayor and the general manager held their first meeting after his return from leave on 2 July 2015. After an altercation by email on 27 and 29 August 2015 regarding the professional capacity of the DCG&GC, the general manager demanded that the mayor apologise to the DCG&GC and to himself, and stated that he would liaise with the mayor only by email, without face to face meetings, until such an apology was provided.122 He reinstated meetings after intervention by the Minister for Planning and Local Government, and told the Board in his first hearing on 3 February 2016 that (although he had not received an apology) he had ‘moved on’ from his original position and restarted meetings with the mayor.123 Following the special council meeting on 5 December 2016, the mayor advised the Board in writing that the general manager refused to meet with her to discuss the agenda for the 19 December 2016 council meeting.124 A.3.2 Failure to liaise on council meeting agendas Since April 2016 the mayor had no access to the agenda for upcoming council meetings until it was provided to all aldermen four days before the day of the meeting. The general manager told the Board at his second hearing (6 September 2016) that there is no requirement under the Act for him to meet with the mayor about the agenda and he had only done so as a ‘courtesy’, one which he had withdrawn.125 The Board considers this to be inappropriate and contrary to the spirit of the Act and common practice, given the mayor’s mandated role to chair council meetings. The general manager stated that he took this step because he considered that the mayor had breached confidentiality by providing the draft minutes of a closed session of council to the Board (when the Board had in fact requested the mayor to Mayor’s first hearing (9 February 2016, Question 18). Ref. D.18 and D.19 General manager’s first hearing (3 February 2016, Question 42). Ref. D.20 and D.21 120 Mayor’s second hearing (2 August 2016, Question 3). Ref. D.24 and D.25 121 Emails between the mayor and the general manager 30 June 2015. Ref. Q.18 122 This matter is also dealt with in Governance: Relationships between the Mayor and the Aldermen, 3.A.1.6, and relevant documents are referenced in that section. 123 General manager’s first hearing (3 February 2016, Question 39). Ref. D.20 and D.21 124 Mayor’s email to the Board concerning the general manager’s refusal to meet with her following the 5 December 2016 meeting adjournment (6 December 2016). Ref. Q.12 125 General manager’s second hearing (6 September 2016, Question 15). Ref. D.26 and D.27 118 119 85 provide the minutes). In the circumstances this was an inappropriate reason to cease any consultation on the agenda for the next meeting or any meeting thereafter.126 The Good Governance Guide for Local Government in Tasmania states that a good relationship between the mayor and general manager relies partly on following the law, guidelines and protocols, and partly on the good judgement and common sense of the individuals.127 The Board notes with concern one particular example of failure to liaise on meeting agendas, a failure which led to acrimonious debate in council meetings, and expenditure on legal advice which may have been unnecessary. The general manager included the same recommendation in three consecutive meeting agendas: September 2016 (Item 17), October 2016 (Item 11), and November 2016 (Item 16). The general manager recommended that council approve an additional procedure to those prescribed in the Meeting Regulations in relation to questions on notice from aldermen. At every meeting the mayor refused to accept the recommended motion on the ground that she believed it to be unlawful.128 This led to heated debate at every meeting amongst aldermen, the mayor, and the DCG&GC. At the council meeting on 24 October 2016 (Item 11) the mayor and the DCG&GC tabled opposing legal advice on the matter from external law firms.129 There does not appear to have been any attempt by either the mayor or general manager to discuss the issue and reach agreement on dealing with the opposing legal opinions. The Board considers that had there been an appropriate system in place for the mayor and the general manager to consider the agenda together before the meeting, the unseemly arguments which took place in the council meetings could have been avoided, and council may have avoided unnecessary legal expense.130 Recommendation: that the Meeting Regulations be amended so that while the agenda is drafted by the general manager, it must be approved by the mayor prior to release to the aldermen. The circumstances were referred to by Blow CJ in Branch-Allen v Easther [2016] TASSC 29, at [68]: On 11 March 2016 Mr. Tilley phoned the mayor and requested a copy of the agenda for the closed session of the meeting to be held on 15 March. One would normally expect a person in his position to have contacted the general manager, not the mayor. However, there was a history of delay and obfuscation on the part of the general manager. And at [99]: Under ordinary circumstances one would not expect Mr. Tilley and the mayor to have communicated as they did in relation to the meetings of 15 March and 13 April. However, it is clear that the Board and its staff were not getting appropriate cooperation from the general manager in relation to the provision of documents. His obfuscation in relation to the confidential agendas and the documents relating to Ms. Iskandarli’s appointment appear to be symptomatic of a much larger problem. 127 Good Governance Guide, p45 128 The mayor stated that the recommended action contravened the Meeting Regulations. 129 The DCG&GC tabled advice from Simmons Wolfhagen Lawyers (24 October 2016), Ref. O.2; the mayor tabled advice from Ogilvie Jennings Lawyers (3 October 2016). Ref. O.3 130 The minutes indicate that the mayor stated that she had paid for her own legal advice. Ref. A.32 126 86 A.3.3 Failure to liaise on council meeting minutes It is normal practice for a mayor and a general manager to review and agree on the minutes of any meeting before releasing them to other parties, including other aldermen. Reg. 35(1)(b) of the Meeting Regulations states: (1) The minutes of a meeting, other than a closed meeting (b) at the next ordinary council meeting or next committee meeting, after any necessary correction, are to be confirmed as the true record by the council or the council committee and signed by the chairperson of the meeting. However, there was no system at GCC which allowed the mayor to scrutinise the minutes of the last council meeting prior to their circulation to all aldermen. Although the mayor is obliged to sign the confirmed minutes under reg. 35(1)(b), she refused to sign some minutes at the subsequent meeting because of her conviction that they were not an accurate account of the events and decisions of the meeting.131 Prior to her access being restricted, the mayor was given the minutes to provide comments to the general manager, and frequently when she proposed amendments, the general manager or the DCG&GC did not accept them. This led to further division and distrust. The council implemented audio recordings of meetings in July 2016, but the general manager initially refused to provide copies of the audio recordings of the closed sessions of the council meeting to the mayor when she requested them so she could check the accuracy of the minutes.132 There are numerous errors of procedure and recording to be found in the minutes over many months, supporting the mayor’s contention that as chairman of the meeting she should have had access to the minutes in a timely fashion, to ensure so far as possible that the minutes as presented to council were agreed by the mayor and the general manager.133 Despite the long-running nature of the problem, it remained the case that there was a failure to liaise between the mayor and general manager in relation to agendas and minutes, and the topic remained a source of conflict and dispute between them. A.3.4 Failure to respond to requests for information The Board saw evidence (detailed below) confirming the mayor’s complaint that on a number of occasions when she requested information it was not provided to her in a reasonable timeframe or was denied her on ‘operational’ grounds. The Board considers that aldermen have the right and the responsibility to request information about the operations of council, and that denial of information on these grounds is unreasonable and unwarranted, and does not allow aldermen to fulfil their obligations under the Act. Council meeting 13 April 2016 (Item 17). Ref. A.24 Emails from the mayor to the general manager (19 September 2016, 22 September 2016); emails from the general manager to the mayor (18 September 2016, 26 September 2016). Ref. Q.13 133 Refer Governance: Council Meetings and Workshops, 3.A.7.3, and documents referenced in that section. 131 132 87 A.3.4.1 Risk Reports On 12 October 2015 the mayor sent an email to the general manager requesting a series of existing reports produced by Deloitte that she believed were relevant to the development of council’s risk register and risk management framework. She requested the information be provided to her so that she could prepare for an upcoming council workshop and provide feedback on draft reports/registers. Not having received the information, the mayor sent further emails on 29 October, 12 November, 13 November, 16 November and 19 November. It was only on 20 November 2015 that she received part of the information, after the deadline for feedback had passed.134 The Board considers that having to wait more than 35 days to be provided with electronic copies of existing reports on risk management is excessive. The Board heard evidence that the mayor’s request for the council’s risk register was initially denied on the grounds that it was ‘operational’.135 The Board considers that the mayor’s request was reasonable given council’s responsibility to provide for the health, safety and welfare of the community. A.3.4.2 Failure to answer a QoN At the council meeting (13 April 2016, Item 17.3), Ald. Stevenson asked a QoN, viz., In separate emails from the Director Corporate Governance & General Counsel and the General Manager (29 March 2016) to the Mayor, both the DCG&GC and the GM suggested that the Mayor had unlawfully disclosed confidential documents to the Board of Inquiry. Specifically, in the GM’s email, he stated that he was "extremely concerned with evidence presented by Barristers in the Supreme Court about your action in sending Council's confidential Agenda and draft confidential minutes of the 15th March 2016 Council Meeting to DPAC staff without Council's advice, decision or knowledge, not with my knowledge". Could the General Manager please detail what he is alleging the Mayor has done? The general manager answered: The Mayor, without Council’s authority or the authority of the General Manager, who is responsible for the Agenda, sent the following documents to DPAC staff member David Tilley:  the Agenda including the confidential sections of the agenda;  the attachments to the agenda including the confidential attachments to the Agenda;  the draft confidential Minutes of 15 March 2016 without other Aldermen seeing or formally considering them. The Mayor in her email to Mr. Tilley asked him to pass those documents to the BOI. It must be noted that Mr. Tilley is not a member of the BOI and he is not bound by the confidentiality principles. Allowing Mr. Tilley to be privy to Council’s confidential Agenda, Reports and attached documents before the Council Meeting of 15 March 2016, and to be privy to the Mayor’s emails to the general manager concerning provision of Deloitte Risk Reports (12 October 2015, 29 October 2015, 5 November 2015). Ref. Q.14 135 Mayor’s first submission (p 28). Ref. H.17. This was put to Mr. Brooks as an allegation which he denied. 134 88 draft confidential Minutes of 15 March 2016 before the Council seeing and considering them, is inappropriate and unacceptable actions by the Mayor. In a QoN at the council meeting on 1 August 2016 (Item 13.8), the mayor asked the general manager whether in the light of the decision in the matter of Branch-Allen vs Mason and Easther, he or the DCG&GC wished to review their response to a question asked on 13 April 2016 (Item 17.3).136 The general manager answered that:   The answer to this question has already been provided at the Council Meeting on 13 April 2016 in full detail; The QoN does not fall under the provisions of section 27 function of mayors and deputy mayors and section 28 functions of councilors of the Local Government Act and is of a personal nature. It is not the role of the Management to advise Council on personal nature questions. The Board considers that the QoN asked if the general manager was prepared to amend the response he gave on 13 April 2016, given that the decision of the Court indicated that it was appropriate for Mr. Tilley to attend the closed session of council on 15 March 2016, and that it was appropriate, in the circumstances, for the mayor to provide the Board with copies of the agenda for the meeting on 13 April 2016. The Board does not consider that the general manager’s answer constituted an answer to the question, nor that the matters raised therein constituted a personal matter. The Board considers that both QoNs referred to the powers and duties of the mayor and the general manager and were therefore not personal. A.3.4.3 ‘Operational matters’ Tension between the mayor and the general manager on the scope of their roles recurred frequently. The Board received evidence that on a number of occasions the general manager avoided providing, or refused to provide, information to the mayor on the grounds that it was ‘operational’.137 The Board considers that this approach by the general manager was unlikely to promote a relationship based on trust and respect, and did not acknowledge the need for collaborative engagement. The mayor told the Board at her first hearing on 9 February 2016 that during the facilitated mediation conducted between herself and the general manager, the mediator had asked the general manager if he understood that the Mayor is the kind of person that likes to get information and be across the detail.138 It appears that the general manager did not adapt to the need to collaborate with a mayor whose legitimate understanding of her role differed from that of previous mayors. The Board considers information required by the mayor was relevant to her role as an alderman. For example, the general manager regarded the CTMG Report as ‘operational’, and therefore considered that there was no requirement to provide it to the mayor when she asked for it prior to the council meeting on 5 February 2015. This view was held by a number of aldermen who told the Board in hearings that they did not consider it necessary to have seen the report 136 Refer Blow CJ in Branch-Allen v Easther [2016] TASSC 29, at [78-82], [64], [66]. 137 Mayor’s first submission (p 28), Ref. H.17; the mayor’s first hearing (9 February 2016, Question 5). Ref. D.18 and D.19 138 Mayor’s first hearing (9 February 2016, Question 18). Ref. D.18 and D.19 89 because it was purely an operational matter.139 The general manager said that the reason he did not provide the report was because it contained confidential information. Ultimately, the Director of Local Government found that the report should be provided, bar Annexure C, which contained confidential employee information.140 The Board considers that the general manager should have provided this redacted version of the Report without prevarication, despite the mayor’s insistence that the entire report be provided. Provision of the redacted report would have allowed the mayor to satisfy herself that she fully understood its recommendations; and it is the Board’s view that such information could also have improved the understanding of the other alderman, that the implementation of the report’s recommendations would have significant financial and operational consequences for council for years to come.141 A.3.5 Circulation of emails to other parties The mayor and general manager relied extensively on email to communicate with each other. The general manager created divisions and tensions within council by his circulation of potentially contentious emails from the mayor to the general manager to all aldermen. In addition, the Board considers that the statement made by the general manager to the Board at his first hearing, that he would not circulate emails marked ‘confidential’, but that other emails could be circulated ‘in the interests of good communications’ did not recognise acceptable ethical standards, and failed to distinguish between appropriate communication and proper discretion.142 A.3.5.1 February 2015 On 3 February 2015 the general manager received an email from the mayor, sent only to him, requiring him to provide the CTMG Report to all aldermen before the Special Meeting on 5 February 2015.143 The general manager included all aldermen in his response, in which he strongly rebuked the mayor on several fronts. The Board acknowledges that the general manager may have felt justified in withholding the Report from the aldermen and wished to substantiate this stance to the mayor. The Board considers it was unnecessary and mischievous to send his email to all aldermen and indicates unwillingness to establish and maintain professional courtesy, respect and confidence early in the council’s term. A.3.5.2 August 2015 An email of 27 August 2015 from the mayor to the general manager highlighted ongoing friction regarding media releases and release of council information, and advised against using the DCG&GC to provide media and public relations advice to the general manager for the council. The mayor sent the email only to the general manager. On 29 August 2015 the general Mayor’s first hearing (9 February 2016, Question 5), Ref. D.18 and D.19; Ald. King hearing (18 January 2016), Ref. D.15; Ald. Branch-Allen’s first hearing (18 January 2016). Ref. D.13 140 Ref. M.1 141 In his response to the Draft Report, the general manager stated that he withheld the Report because of the confidential nature of some of its contents, and not because he regarded it as an operational document. Ref. Appendix D.12.54 142 General manager’s first hearing (3 February 2016, Question 40). Ref. D.20 and D.21 143 Email from the mayor to the general manager regarding provision of CTMG Report (3 February 2015). Ref. Q.15 139 90 manager replied to the mayor’s email and copied in all aldermen and the DCG&GC, whose performance in some areas was criticised by the mayor in her email. This action served to isolate the mayor and fuel further division between aldermen and the mayor, and the mayor and the DCG&GC.144 A.3.5.3 October 2016 In an email circulated to all aldermen and the DCG&GC, the general manager severely criticised the mayor’s first version of her annual message for council’s Annual Report 2015-16 (11 October 2016).145 The Board believes that sending this exchange of emails to all aldermen served to exacerbate divisions within the council and encouraged some aldermen to actively oppose approval of the Annual Report at the subsequent council meeting. A.3.6 Use of inappropriate and intemperate language in communications The Board considers that the tone of many emails illustrated the depth of ill feeling between the mayor and general manager, and was likely to have contributed towards the dysfunction of the relationship.146 The Board acknowledges the strength of feeling aroused by some events, but considers that the wording and phrasing used was inappropriate and likely to be deleterious to a positive relationship between the mayor and general manager. There was no discernible improvement in this situation over the course of the Inquiry. Governance: Relationship between the Mayor and the Aldermen, 3.A.1.6. Refer to 27 August 2015 email from mayor to general manager and his response, which was copied to all aldermen and the DCG&GC. Ref. Q.7 145 Email from the general manager to the mayor (11 October 2016), included in an email to the Board from Ald. Branch-Allen (11 October 2016). Ref. Q.3 146 Mayor to general manager: 30 July 2015: I am the spokesperson for council under the Act – no exceptions. I have not authorised the response you have sent to The Mercury. This appears to be another breach of the Act – the second in as many weeks. Secondly, I disagree with the accuracy of your response. Ref. Q.17 30 June 2015: Peter, this is not good enough….I need to meet with you to urgently discuss a number of issues. As mayor, I would expect that I would be given priority. General manager to mayor: Ref. Q.18 29 August 2015: I repeat I do not appreciate the tone of your email and the statements in your email and you need to understand and respect the role I have as the general manager of GCC. Ref. Q.19 20 November 2015: I understand that the tone and attitude and the language in your emails may be a result of you being inexperienced and having a lack of knowledge about your role. I am happy to provide you with any guidance, assistance and mentoring you may wish including the manner in how you work with senior staff. I have worked with 13 other mayors during my 20 years as a CEO and GM and I appreciate that I am the first general manager you have been required to work with in your career. Let me know, I am very happy to guide, assist or mentor you. Ref. Q.20 26 September 2016: In the future do not dictate to me a deadline in your emails for your unwarranted requests. 144 91 A.3.7 Failure to provide adequate support for the mayor and the office of the mayor The Board received evidence of occasions when the office of the mayor, or the mayor herself, was not afforded the support to which the office is entitled. The Board was told in hearing on 14 January 2016 that GCC’s induction processes for new aldermen were inadequate, and that the mayor provided more assistance in induction than the general manager.147 The Board considers that there should be a defined process involving both the mayor and the general manager to induct new aldermen into the council, and an agreed process to ensure that an incoming mayor reaches an understanding with the general manager on how the business of the council is to be conducted. The council as a whole does not have an agreed process for setting its procedures and goals for a new term. While this is not mandated, the Board considers that such an agreed process could assist council to overcome the difficulties experienced following an unexpected and largely unwelcome election result. The Board is of the opinion that the role of general manager demands a consistently impartial approach to the aldermen of the council, and that the general manager failed to demonstrate such impartiality at a number of critical junctures during the term of this council. The Board considers that had the general manager made it clear to all aldermen from the time of the election that he would not take sides in any dispute between aldermen, then the elected aldermen may have had a better chance of reconciling themselves to the results of the election and their own roles in the new council.148 The Board heard evidence that support for the office of mayor was whittled down in a number of ways.149 In comparison with previous holders of the office of mayor, Ald. Johnston had less internal media support, had less access to the council offices during working hours and out of hours, and was not provided with information which as mayor she considered she needed in order to be able to represent council effectively. On at least two significant occasions, the general manager failed to provide advice to council in support of the mayor. Both instances concerned her possible election to committees: the first of these being the GMPRC, and the second being her nomination for membership of GMC. A.3.7.1 Advice on GMPRC membership The Board considers that at the council meeting on 24 November 2014 (Item 22.1), the general manager breached his duty to provide advice to the council by failing to advise aldermen that removing the ex-officio role of the mayor as chairperson of the GMPRC would Ald. Dunsby’s first hearing (14 January 2016). Ref. D.12 Examples of behaviour where the general manager could be thought to be siding with aldermen opposed to the mayor include his refusal to accept the mayor’s adjournment of the meeting of 5 February 2015; his despatch of the letter written by Ald. King, which included clear denigration of the mayor (11 February 2015); his refusal to meet with the mayor on agendas and minutes (refer Governance 3.A.3.2 and 3.A.3.3); his refusal to meet with the mayor after her criticism of the DCG&GC (refer Governance 3.A.3.5.2); changes to the access allowed to the mayor in contrast to that given to the previous mayor (refer Governance 3.A.3.7.5); his release of information from the closed session of council on 16 March 2015 (first submission Mr. P. Brooks, attachment 35), Ref. H.10; his approval of minutes containing irrelevant, emotive language potentially damaging to one or more aldermen (refer Governance 3.A.7.3.6) and documents referenced in that section. 149 Mayor’s first hearing (9 February 2016, Question 24), Ref. D.18 and D.19; Ms. Buckland’s hearing (15 December 2015), ref. D.7; Ms. Calphy’s hearing (15 December 2015). Ref. D.5 147 148 92 be contrary to the terms of reference for membership of the GMPRC, and would be against normal practice and good governance.150 A.3.7.2 Advice on GMC nomination process Detail regarding the role of aldermen in the invalidation of the mayor’s election to GMC is provided in Governance: Relationships between the Mayor and the Aldermen.151 LGAT advised the mayor and the general manager on 15 September 2015 that a casual vacancy had occurred for a position on the GMC. The mayor decided to stand for the vacant position, and was encouraged to do so through emails from the mayors of Clarence City Council and Kingborough Council. The Board considers that the associated events highlighted the lack of communication between the mayor and the general manager, and the lack of trust between them.152 In an email to the CEO of LGAT on 13 January 2016, the general manager wrongfully said that he was copied into the email notifying councils of the vacancy on GMC; the general manager received notification separately from the mayor. He stated that the mayor did not follow procedure and did not notify council that the nomination form had been received. The Board considers that the general manager misrepresented the general manager’s duty to inform council of receipt of important documents such as the nomination form and notice of election for appointment to GMC. As a result aldermen were unaware of the vacancy and unaware that a GCC alderman could nominate for the role. In the general manager’s email to the CEO, LGAT, on 13 January 2016, he stated that a report had to be prepared for council to deal with representational matters. The Board considers that in keeping with his obligation to provide reports to council on the exercise of its powers, the general manager should have placed an item regarding election to GMC on council’s agenda for discussion, but failed to do so. The Board considers that the general manager was negligent in not advising the mayor that her nomination to GMC had to be decided by council in line with its policy on Nomination and Appointment of Aldermen to Committees. In addition, the general manager did not advise council that the position on GMC was not as a representative of GCC, but rather, as the representative of Kingborough, Clarence, and Glenorchy City Councils. As a result of this omission or neglect by the general manager, the motion passed by council at its meeting of 15 March 2016 (Item 20) wrongfully alluded to the mayor’s representation of GCC on GMC, thereby sustaining aldermen in their erroneous belief that the position was as their representative. Refer Governance: Relationships between the Mayor and the Aldermen, 3.A.1.1, and Governance: Assessment of the General Manager’s Performance by the General Manager Performance Review Committee, 3.A.2.1, and documents referenced in those sections. Refer also to the minutes of the council meeting 24 November 2014 (Item 22.1). Ref. A.2 151 Refer Governance: Relationships between the Mayor and the Aldermen, 3.A.1.2, and documents referenced in that section. 152 Correspondence relating to the invalidation of the mayor’s nomination to GMC is in Index Package R 1-20. 150 93 A.3.7.3 Southern Councils Feasibility Study meeting At her second hearing (2 August 2016) the mayor provided evidence that she had attended a Southern Councils Feasibility Study meeting in July 2016 to discuss a draft report.153 She told the Board that she had asked for the report on the Study so she could consider it before the meeting. Although the relevant report was released on 20 July, the mayor told the Board that she was not given it until 11.20 am on 25 July, for a meeting to be held at 12 noon. The mayor told the Board that she had to print it herself and drive herself to the meeting, even though the general manager was attending the same meeting. When she arrived at the meeting she found that the other mayors had reports and notes prepared by their general managers. The Board was told that the mayor felt totally unprepared and humiliated, and she considered that the general manager had deliberately withheld information on a very important issue. The Board considers that the report should have been provided to the mayor immediately upon its release.154 The Board considers that it appears that on this occasion the general manager failed to provide adequate support for the mayor in her role as representative of the council. A.3.7.4 Media support The Board heard evidence that from June 2015 the mayor no longer had direct contact with the council’s communications officer, and all media statements and interview appointments were managed by either the general manager or the DCG&GC.155 From October 2015 media was handled by an external consultant and contact was through the general manager. It is apparent that the mayor was dissatisfied with this arrangement, which led to a number of conflicts regarding accuracy, style, and attribution. A.3.7.5 Daily office access The Board heard evidence that the mayor’s access to areas within the main offices of GCC was more restricted than that of her predecessor.156 The Board was told that staff had been directed not to have contact with the mayor, and received evidence to support this. This evidence indicated that the mayor’s access was at odds with the access provided to the previous mayor. The Board considers that this restriction on the mayor’s activities publicly demonstrated the general manager’s lack of trust in the mayor. As a result of that lack of trust he placed tight restrictions on her access to senior management. The Board considers that this state of affairs constituted an unworkable relationship at the most senior levels of the organisation. A.3.7.6 Weekend office access The Board saw evidence that in October 2015, it took eight days for the general manager to organise restricted weekend access to the council offices for the mayor, despite her requesting it as a matter of urgency.157 The Board also heard that the mayor was unable to access the Mayor’s second hearing (2 August 2016, Question 12). Ref. D.24 and D.25 In his response to the Draft Report, the general manager stated that he had no recollection of this incident. 155 Mayor’s first hearing (6 February 2016), Question 26). Ref. D.18 156 Mayor’s hearings (9 February 2016, Question 24 and 2 August 2016, Question 12), Ref. D.18 and D.19 and D.24 and D.25; Ms. Buckland’s hearing (15 December 2015), Ref. D.7; Ms. Calphy’s hearing (15 December 2015). Ref. D.5 157 Mayor’s email requests to the general manager concerning access to council chambers (22, 23, 26 and 30 October 2015). Ref. Q. 22 153 154 94 building on a public holiday in January 2016, an incident which was witnessed by another alderman.158 The Board was told that on a normal working day, the mayor could access other parts of the council building only by having a member of staff use a staff swipe card to open the door. A.3.7.7 Public comments The Board considers that some public comments made by the general manager about the mayor’s approach to local government issues were derogatory and were unlikely to promote trust in the mayor’s capacity to undertake her role. At the 29 August 2016 council meeting, in his answer to the mayor’s QoN regarding timely distribution of the minutes (Item 17.6), the general manager noted it appears that the author of the QoN misinterpreted the requirements of the Local Government (Meeting Procedures) Regulations 2015, and specifically Regulations 34 and 35. It is unprofessional for such a veiled reprimand of an alderman to be included in the answer to a QoN, and the comment added nothing to the answer. In October 2015, when the mayor made a reasonable request for copies of risk management reports, the general manager told the mayor during the lengthy delay in providing them, that none of the other aldermen and none of his management team had requested copies of the reports.159 The Board considers this comment to be irrelevant to her request for information. Recommendation: that within three months of a council term, or within three months of the election or re-election of the mayor, or within three months of the employment of a new general manager, the mayor and general manager approve a Statement of Expectations to establish agreed protocols for fulfilment of their mutual and respective obligations under the Act and the Regulations, and to provide for the good governance of the council. 158 159 Mayor’s first hearing (9 February 2016, Question 28). Ref. D.18 and D.19 Email from the general manager to the mayor (20 November 2015). Ref. H.17 95 A.4. The Code of Conduct The Board heard and saw evidence of a number of potential breaches of the GCC Code of Conduct (the Code). These potential breaches related to:      improper use of information, conflict of interest, objective decision making, proper use of office, and relationships with the community and other aldermen. Findings The Board finds that the number and consistency of potential breaches of the Code of Conduct by the aldermen of GCC indicate that the council failed in its duty to comply with both the Act and the Meeting Regulations and was not delivering good government to the people of Glenorchy. Supporting evidence and information While some of these potential breaches may be symptomatic of the breakdown in the team dynamic at GCC, the Board notes with concern two particular incidents: the release of confidential information to the media while the closed session of council was still in progress on 16 March 2015, and the defeated resolution from 6 June 2016 meeting (Item 17), which failed to ensure that the legal costs of those involved (save the Minister and the Board) in the matter of Branch-Allen v Easther & Others would not be borne by the ratepayers of Glenorchy. A.4.1 Improper use of information The Board received evidence that confidential information from the closed session of the meeting of 16 March 2015 was released to The Mercury by Bright Media, acting on behalf of Ald. Pearce, King, Lucas, Slade, Nielsen, and Branch-Allen.160 The information related to advice provided to council by the Director of Local Government regarding the adjournment of the council meeting of 5 February 2015. The Board received evidence that the information was provided to Bright Media while the closed session of council was still in progress.161 Bright Media then forwarded it to media outlets. All aldermen and the general manager and In the general manager’s response to the Draft Report, he stated that when he became aware that aldermen had put out a media release on council letterhead, he contacted Bright Media to have it withdrawn, as it was not a council media release. Ref. Appendix D.12.7 161 The Board received verification from the director of Bright Media (email dated 2 February 2016) that the media release was sent out at 6.21 pm on 16 March 2015. The council meeting of 16 March 2015 did not conclude until 6.50 pm on 16 March 2015, as noted in the minutes. Ref. Q.23 160 96 DCG&GC read an affirmation at the commencement of their hearings with the Board.162 All aldermen and the general manager and the DCG&GC at hearing denied releasing the information during the closed session, although six aldermen later put out a signed statement with the same information as was released during the closed session.163 The Board considers that it is highly likely that this being the case, at least one alderman or senior staff member lied to the Board when questioned about this release.164 A.4.2 Conflict of interest The following Notice of Motion (NoM) (Item 17) was put forward at the 6 June 2016 meeting: that as the insurance company has recently indicated that the Directors and Officers Liability Insurance does not cover the legal costs incurred by aldermen in the matter of Branch-Allen v Easther and Others, council confirms that it has not and will not use ratepayers’ money to cover those same costs. The motion was lost on a vote of 3/7, with five of those voting against the motion having direct participation in the matter of Branch-Allen v Easther and Others (that is, Ald. Branch-Allen, King, Pearce, Slade and Lucas). Those aldermen who had incurred legal expenses could be perceived to have had a direct interest in ensuring that the possibility of payment of their legal fees by council was not removed. Accordingly, they should have declared that conflict of interest and removed themselves from the council chamber during debate and voting on the motion.165 A.4.3 Objective decision making At the meeting of 16 March 2015, council passed a motion (Item 18.1) which acknowledged the skills and commitment of the general manager in working towards Council’s long-term strategy as directed by elected members. The resolution was put forward as a NoM by Ald. Pearce and passed 7/3. Three of the four members of GMPRC (Ald. Branch-Allen and Lucas, and Ald. Slade, the committee chairman) voted in favour of the motion. A further motion was passed in the same item, acknowledging the skills and ability of the general manager in his continued strength and ability to manage and maintain the outstanding service All aldermen, the general manager, and the DCG&GC, were asked in hearing Regarding the release of information by Tony Harrison on March 16 2015: Did you release this information to Tony Harrison? If you did not, do you have any idea who wrote the release or provided the detailed information to Mr. Harrison? 163 Ald. Pearce’s hearing (19 January 2016), Ref. D.10; Ald. King’s first hearing (18 January 2016), Ref. D.15; Ald. Slade’s first hearing (19 January 2016), Ref. D.17; Ald. Stevenson’s first hearing (14 January 2016). Ref. D.16 164 Glenorchy City Council Code of Conduct (Adopted 30 July 2012) Part 5 – Aldermen must not disclose, without consent, confidential information or any other information which they have acquired as a result of their office with Council. Further, they must actively protect all confidential and other information of Council which comes into their possession or knowledge. Ref. F.1 165 Glenorchy City Council Code of Conduct (Adopted 30 July 2012) Part 2 – Aldermen must ensure that, when carrying out their public duty, they are not wrongfully influenced by other external interests that they have, or duties that they owe. They must therefore, in all such dealings, put the interests of their community first. The onus is on Aldermen to identify a conflict of interest, whether perceived or real, and take appropriate action to resolve the conflict in favour of their public duty. Ref. F.1 162 97 capacity and commitment to the citizens who live and work in this city and express full confidence in the general manager. This also passed 7/3, and again, three of the four members of GMPRC, including the committee chairman, voted in favour of the motion.166 The Board notes with concern that three of the four members of the GMPRC publicly declared through these motions their full support for the general manager and his performance, prior to undertaking any of the relevant assessment tasks of the committee. The mayor was also quoted in The Mercury before the meeting of 16 March 2015 that she would not support the motion to come before council.167 It is inappropriate for any alderman to state his or her intended vote before he or she has listened to the debate in the meeting.168 A.4.4 Proper use of office On 14 March 2015 an article in The Mercury quoted the mayor as saying that she did not have confidence in the general manager at that time.169 While this does not of itself bring council into disrepute, it may have led to an increase in dissatisfaction with council, and a reduction in the community’s level of confidence in its council.170 At the 24 October 2016 ordinary council meeting, the Board witnessed an alderman telling a member of the public gallery to ‘pull your head in’.171 The Board notes that the member of the public was interjecting in opposition to the DCG&GC at the time, but does not consider that this permits such an interjection from an alderman. This behaviour brought the office of councillor into disrepute.172 Glenorchy City Council Code of Conduct (Adopted 30 July 2012) Part 1 – Aldermen must ensure that they bring an impartial and unprejudiced mind to all matters being decided upon in the course of council duties. This does not mean that aldermen are automatically disqualified purely for having held a public view on a matter which is the subject of a council decision. In a case involving a Tasmanian council, the court found that “expressing such views is part of the electoral process (R v West Coast Council; ex parte Strahan Motor Inn [1995] TASSAC 47 (at paragraph 30)) provided that expressing an opinion does not go as far as indicating a decision that has been made. Elected representatives should adhere to council policy and legal advice in relation to expressing personal versus council views. Ref. F.1 167 The Mercury article (16 March 2015). Ref. I.7 168 Glenorchy City Council Code of Conduct (Adopted 30 July 2012) Part 1. Ref. F.1 169 The Mercury article (14 March 2015). Ref. I.1 170 Glenorchy City Council Code of Conduct (Adopted 30 July 2012) Part 3 – Aldermen must not improperly use their position to gain an advantage or confer a disadvantage for themselves or anyone else. They must not conduct themselves in a way which could bring the Council or the position of alderman into disrepute. Ref. F.1 171 Recording of the meeting of 24 October 2016 during Item 11. Ref. B.11 and B.12 172 Glenorchy City Council Code of Conduct (Adopted 4 July 2016) Part 3.1 - The actions of a councillor must not bring the Council or the office of councillor into disrepute. Ref. F.1 166 98 A.4.5 Relationships with the community, aldermen and council staff The Board witnessed a number of instances when aldermen failed to treat members of the public with courtesy and respect, one of which has been highlighted above. The Board has also heard and witnessed numerous examples of disrespectful behaviour within the council chamber.173 At the meeting of 6 June 2016 the mayor ordered Ald. Branch-Allen to leave the chamber after repeated interjections and a warning (Item 23.1). Ald. Branch-Allen refused to leave and the mayor asked the general manager to call the police. The mayor adjourned the meeting for ten minutes, and upon resumption of the meeting, it was found that the offending alderman and others had left the meeting, so that there was no longer a quorum. The meeting therefore had to be adjourned to a later date.174 At the meeting of 29 August 2016 the Board witnessed an alderman making offensive gestures to a member of the public gallery asking a question during PQT.175 Because of the seating arrangements at GCC it was unlikely that the mayor could have seen what was occurring. In a submission from a member of the public, the Board was told that at various times, during council meetings, the ratepayers of Glenorchy have been accused of bullying the Aldermen and being a ‘bunch of rabble’ to ‘here comes her rent-a-crowd’. These three statements have been made at Council meetings where the public gallery has had no ‘right of reply’.176 Recommendation: that GCC undertake an annual review of its performance in upholding the requirements of its Code of Conduct, and that its induction procedures include training in all aspects of the Code. Recommendation: that all elected members undertake compulsory training in the Code of Conduct within three months of the commencement of a council term. At hearing on 7 September 2016, Question 5), the DCG&GC described the council meeting of 29 August 2016 as ‘fantastic’. She supported this view by saying that there had been no defaming, screaming, or verbal assault at that meeting. Ref. D.28 and D.29 174 Glenorchy City Council Code of Conduct (Adopted 30 July 2012) Part 7 – Aldermen must be familiar with, and adhere to, laws relating to treatment of people (e.g. antidiscrimination laws) and must treat people with courtesy, fairness, dignity and respect. Ref. F.1 175 Glenorchy City Council Code of Conduct (Adopted 30 July 2012) Part 7 – Aldermen must be familiar with, and adhere to, laws relating to treatment of people (e.g. antidiscrimination laws) and must treat people with courtesy, fairness, dignity and respect. Ref. F.1 176 Ms. Kaye Smith’s submission. Ref. H.11 173 99 A.5. Management restructure, February 2015 On 8 October 2014 the managing director of CTMG wrote to the GCC general manager providing details in response to the general manager’s request for an Evaluation of the Strategic and Operational Review project in the context of ongoing financial sustainability.177 The general manager requested this project in response to a resolution of council which had not at the time been approved, but which passed on 13 October 2014 (Item 8). This resolution approved a new set of KPIs for the general manager, noting that the formal position of council is to break even by 2016-17. The report on the review was brought to council at its special meeting on 5 February 2015 (Item 3). As a result of the implementation of the recommendations of that report, the staffing structure of GCC at its most senior levels changed dramatically. Redundancies cost the council just under $2million. The number of directors immediately below the general manager reduced from five to three. Ms. Iskandarli was appointed council lawyer in January 2013 and in September 2013 she was appointed Manager, Legal and Governance. Following the restructure Ms. Iskandarli achieved prominence, firstly by her appointment by the general manager on 6 February 2015 as the Internal Restructure Coordinator, then as council’s Director of Corporate Governance, and then, almost immediately afterwards (8 April 2015), as its Director of Corporate Governance and General Counsel.178 Ms. Iskandarli has also been consistently appointed as the acting general manager in the absence of the general manager, up until December 2016, and again in January 2017. Letter from Mr. Michael Courtney to the general manager, 8 October 2014. Ref. M.3 Refer Management and Operations: Implementation of the Decisions of Council, 3.B.3.2, and Management and Operations: Management of Employees, including appointment, direction, and dismissal, 3.B.5.3, and documents referenced in those sections. 177 178 100 Findings The Board finds that while council had instructed the general manager to achieve a break even financial result by 30 June 2017, those aldermen who approved the recommendations in the CT Management Group Report on 5 February 2015 were negligent in approving the recommendations without adequate knowledge of the intent and potential consequences of their implementation, and without specific information on how council was to monitor the associated projects and budgets. The Board finds that council was negligent in failing to be specific in its resolution and in failing to make a determination where a choice was provided in the CTMG Report, as it is not possible to know from the minutes of 16 March 2015 what council actually approved. The Board finds that council approved the implementation of the CTMG Report without considering how the associated costs should be treated in the budget for the current financial year. The Board finds that the aldermen failed to give adequate consideration to the ramifications of adopting the recommendations of the CTMG Report for the employees of the council and on their city. The Board finds that the general manager failed to provide council with a copy of the CTMG report, which was necessary for them to be able to undertake their responsibilities as aldermen. Supporting evidence and information Council considered the Report at a workshop and council meeting on 5 February 2015. From 2 February to 4 February the mayor attempted to have the general manager provide the full report to all aldermen prior to the meeting.179 The mayor and other aldermen did not receive the redacted Report (with Annexure C removed) until 13 March 2015.180 This followed receipt of the Director of Local Government’s advice (10 March 2015)181 concerning the validity of the meeting adjournment, which included his view that the aldermen were entitled to see the Report. The Board heard that on 4 February 2015, the general manager sent all aldermen a copy of the PowerPoint presentation to be made at the 5 February workshop.182 When questioned at hearings, aldermen appeared confused about what material they had received prior to the 5 February 2015 meeting and when they had received it. Two aldermen told the Board that they could not recall if they had ever had a copy of the Report. Another said he thought he had received it on the day of the meeting, 5 February. Another said she had received the redacted Report on 5 February, but later in the same hearing said she was unsure if she had ever received the redacted Report. Another alderman said he had received the Emails from the mayor to the general manager (3-4 February 2015), seeking the CTMG Report. Ref. Q.15 Email from the general manager to aldermen attaching the CTMG report (13 March 2015). Ref. M.4 181 Director of Local Government’s advice of 10 March 2015, on the outcome of his inquiry into the adjournment and continuation of the special council meeting of 5 February 2015. Ref. M.1 182 Power Point presentation made at 5 February 2015 workshop. Ref. M.2 179 180 101 PowerPoint presentation on 3 February, but not the Report.183 The Board acknowledges that some time had elapsed between the meeting of 5 February 2015 and the conduct of hearings; however, the Board considers that the lack of consistency in answers regarding a Report which had such far-reaching consequences for the council supports the view that even after the redacted report was provided, most aldermen did not do the basic task of ensuring that they undertook independent analysis of the Report, and formed their own judgement about critical issues on finance, staffing, and management. The Board considers that the refusal by the general manager to provide the Report to the aldermen, and the subsequent adoption of the recommendations of the Report by council in a meeting which had been adjourned by the mayor, and thereafter improperly chaired by the deputy mayor, fuelled marked divisions within council.184 The meeting (on 5 February 2015) was continued on the advice of the Manager, Legal and Governance (now DCG&GC), advice which was subsequently deemed incorrect by the Director of Local Government and an external legal adviser to the mayor.185 An alderman expressed the view at hearing that the general manager did not need to consult the elected council about the restructure which would follow the release of the Report, as he (the alderman) considered it to be a purely operational matter.186 This view was shared by a majority of aldermen, all of whom thereby failed to effectively monitor the application of policies, plans and programs for the fair and equitable treatment of employees of the council; and failed to determine and review the council's resource allocation and expenditure activities. This was compounded by the fact that between 4 and 10 February 2015, a number of aldermen wrote to the general manager saying they did not wish to receive the Report, thereby deliberately limiting their access to the information on which they would base their decisions.187 Further, the Board considers that it is highly likely that these emails, sent by a majority of aldermen to the general manager and copied to the mayor, supporting his withholding of the Report from the aldermen, were an outcome of collusion between at least some of those aldermen. These emails were sent after an informal meeting had been held on 6 February 2015 at the council chambers, to which the mayor was not invited.188 The Board considers that the holding of such a gathering at that time exacerbated already high tensions within the council and supports the view that some aldermen were intent on widening the divisions in council, rather than seeking ways to work collegially. The Board considers that the content of the emails Ald. Nielsen’s hearing (19 January 2016), Ref. D.11; Ald. King’s first hearing (18 January 2016), Ref. D.15; the mayor’s first hearing (9 February 2016, Question 4), Ref. D.18 and 19; Ald. Lucas’s first hearing (19 January 2016), Ref. D.9; Ald. Pearce’s hearing (19 January 2016), Ref. D.10; Ald. Slade’s first hearing (19 January 2016). Ref. D.17 184 The Board notes that the meeting of 5 February 2015 was properly adjourned by the mayor. The decision to continue the meeting after the adjournment was made after advice was given to the remaining aldermen by the council lawyer (now DCG&GC). The resultant issues of breach of the Meeting Regulations, and the inaccurate advice provided, are dealt with in Governance: Council Meetings and Workshops, 3.A.7.1.2, and Management and Operations: Provision of Timely and Accurate Advice, 3.B.6.6, and documents referenced in those sections. 185 Advice to the mayor from Mr. Leigh Sealy SC (7 February 2015). Ref. O.4 186 Ald. King’s first hearing (18 January 2016). Ref. D.15 187 Emails were sent to the general manager and/or the mayor, stating in essence that no further information about the Report was required on 6 February 2015 (Ald. Pearce, Ald. King, Ald. Branch-Allen, and Deputy Mayor Quick), Ref. Q.27, Q.25, Q.24, Q.26; on 8 February 2015 (Ald. Stevenson and Ald. Pearce (for the second time)), Ref. Q.28; on 10 February (Ald. Lucas). Ref. Q.29. 188 Ald. Dunsby attended the meeting because she thought it was a meeting of the GMPRC ( Ald. Dunsby’s first hearing 14 January 2016, Question 3). Ref. D.12 183 102 and the action of holding a gathering from which the mayor was excluded indicate marked division within the council, and attempts to undermine the position of the mayor. On 11 February 2015, Ald. Branch-Allen invited all aldermen except the mayor to a meeting at 4 pm in the council committee room to discuss the reputation (sic) risk to Glenorchy City Council, its staff and Aldermen. This has been exasperated (sic) by media this morning on ABC and Andrew Wilkes (sic) comments in Federal Parliament. The mayor was copied into the email as a courtesy of our intentions (sic).189 The Board considers that asking aldermen to meet and expressly excluding the mayor for a second time within a week from a gathering to be held in the council chambers again emphasised to employees and community members that council was not functioning constructively.190 Following the ‘meeting’ of selected aldermen on the afternoon of 11 February, Ald. King, supported by a number of other aldermen, sent an email to the general manager with the request that it be forwarded to all staff.191 The email expressed the aldermen’s belief in the rightness of the general manager’s actions in commencing implementation of the recommendations of the CTMG Report, and their assurance that they needed no further information in order to make their decision. The email implied criticism of the mayor and ignored the advice of Ald. Stevenson to await the Director of Local Government’s decision on the legality of the adjournment of the meeting of 5 February 2015. The Board considers that the request to send this email to all staff overtly undermined the mayor and clearly indicated to all staff the divisions within council. The Board considers that the general manager’s decision to send this email immediately to all staff added significantly to the existing tensions within the council. Council resumed its consideration of the Report at its meeting of 16 March 2015 (Item 23), and approved the recommendations therein and those made by the general manager at the presentation made to council on 5 February. The minutes of the 16 March 2015 meeting record that council failed to specify precisely the recommendations from the Report when passing the motion to approve those recommendations. The Board has reviewed the CTMG Report and the PowerPoint presentation and notes that redundancies were not mentioned in either document, nor in the meeting agenda.192 The general manager stated in his response to the Draft Report that during the presentation and question and answer session on 5 February 2015 there were questions about potential redundancies and costs – I as general manager and council’s external HR legal advisor advised that this was unknown as the proper process to be followed meant that current affected staff would be given the opportunity to apply for the new positions in the structure or be offered other positions within council. Council was advised that there were to be 7 less management positions.193 It is apparent that if the recommendations in the Report were to be adopted, it would result in a significant restructure Email from Ald. Branch-Allen (11 February 2015) to eight aldermen with a copy to the mayor. Ref. Q.30 Ald. Dunsby and Ald. Stevenson did not attend the meeting. Ald. Stevenson declined to attend in an email to Ald. Branch Allen dated 11 February. Ref: H.17 (Attachment AB) 191 Email from Ald. King to the general manager (11 February 2015). Ref. Q.31 192 Refer CT Management Group Pty Ltd report Strategic and Operational Review 2015, Ref. M.4; Power Point presentation to council (5 February 2015), Ref. M.2; Agenda for the council meeting of 5 February 2015 (Item 3). Ref. A.43 193 Ref. Appendix D.12.68 189 190 103 of the council’s management, almost inevitably involving a number of redundancies for longserving senior staff. However, the Board heard evidence that a number of aldermen did not realise that there was a strong possibility that a significant number of the (then) current management team would be made redundant.194 The Board is of the opinion that the title of the Report may have contributed to the approach taken by a number of aldermen in considering the possible outcomes of their decisions. While the Report itself was named Strategic and Operational Review, the agenda item for the 5 February 2015 meeting (Item 3) was named General Managers (sic) KPI4 – GCC to break even by 2016-17. Given that the general manager’s KPI was agreed by council on 13 October 2014 (Item 8), the title of the agenda item lends weight to the view that aldermen may have considered that they were absolved of the responsibility of active monitoring and review. The Board considers that the general manager should have advised council of its responsibilities, and the aldermen themselves should not have accepted that the implementation of the recommendations in the Report was a purely operational matter outside their province. For example: the Board heard evidence from the mayor (hearing on 9 February 2016, Question10) that when a former long serving senior employee went to one of the aldermen to say farewell on her last day, the alderman expressed astonishment; it appeared to the employee that the alderman had no idea that redundancies at senior level were being taken, Ref. D.18 and D.19. Ald. Branch-Allen told the Board (hearing 18 January 2016) that the general manager gave a ‘brief overview’ of the redundancies but ‘nothing in depth’. Ref. D.13. Ald. Slade said (hearing 19 January 2016) that he did not know either the number of possible redundancies nor their cost. Ref. D.17. 194 104 A.6. Council policies and By-laws Finding The Board finds that council failed to fulfil its function of determining and monitoring the application of policies, plans and programs for the efficient and effective management of council’s assets, and the fair and equitable treatment of employees of the council. Supporting evidence and information The Board notes that the currency of council’s policies came to the attention of council through a NoM from Ald. Stevenson, and that this NoM revealed some significant failures in governance procedures. At the meeting of 13 April 2015 a successful NoM (Item 15.3) required the general manager to produce an up-to-date Policy Register. Comments from the general manager in the agenda for the meeting revealed that council needed to establish a Register of Policies, a Register of Gifts, a Register of Compliance, and an improved Register of Interests.195 It is the responsibility of the general manager to maintain a current Register of Interests, and the Board considers that the admitted failure to ensure that these important accountability and compliance tools had been maintained indicates poor governance procedures by both management and council. Until at least April 2015, the general manager did not maintain a register of council’s policies, noting that at that stage he had been general manager since 2011. The Board notes with concern that a NoM at the meeting of 26 October 2015 (Item 19.2), intended to review procedures for monitoring and review of by-laws, was defeated 7/3. The Board heard evidence that in a workshop in May 2015 the DCG&GC revealed that council had at that time 156 policies, only four of which had been brought to council for review within the timeframes set by council.196 In a report at 29 August 2016 council meeting (Item 17.4), 15 months later, council was told that 48 policies had been reviewed and adopted, five were on that day’s agenda for consideration, and 30 had been rescinded. Two more policies were updated at the meeting of 26 September 2016 (Item 9), and one policy rescinded on 24 October 2016 (Item 12). Some 70 policies remained outstanding for review. Some aldermen expressed doubt that this could be achieved by the proposed date of 31 December 2016. The agenda for the council meeting of 23 January 2017 (Item 10) recorded that 32 remained to be reviewed. The most prominent and serious examples of council’s failure to comply with its policies relate to the Code for Tenders and Contracts197 and the Policy on Nomination and Appointment of Aldermen to Committees and Other Bodies.198 The Board also has concerns about council’s Officer’s comments from the general manager to 13 April 2015 meeting (Item 15.3) about policy register. Ref. A.9 196 Mayor’s first submission p.45. Ref. H.17 197 Code for Tenders and Contracts. Ref. J.1 198 Policy on Nomination and Appointment of Aldermen to Committees and Other Bodies Ref. J.6 195 105 compliance with its Purchasing Card Procedures199 and council’s acceptance of a Grievance Policy200 (adopted on 26 October 2015) that will make it difficult and complex for any action to be taken against staff, particularly senior management.201 A.6.1 Compliance with Code for Tenders and Contracts Findings The Board finds that the Code for Tenders and Contracts adopted by council on 13 April 2016 does not promote the prescribed principles, contrary to s 333B(2)(c) of the Act. The Board finds that the council failed to comply with its policy Code for Tenders and Contracts. The Board finds that council and its management failed to look strategically at the breadth of proposed changes to the governance and operations of GCC, and thus did not comply with the four purchasing principles upon which the Code for Tenders and Contracts is based, viz., open and effective competition, value for money, enhancement of the capabilities of local business and industry, and ethical behaviour and fair dealing. The Board finds that council failed to comply with reg. 29(3) of the Local Government (General) Regulations 2015 (the General Regulations) by failing to include pertinent matters relating to tenders and contracts in its Annual Report 2015-16.202 Supporting evidence and information The Board’s findings in this respect relate to contracts awarded to CTMG over a number of years without the application of a tender or quotation process. The Board considers that it is relevant to this section to note that council approved a new set of KPIs for the general manager on 13 October 2014 (Item 8).203 The resolution included noting that the formal position of council is to break even by 2016-17. At the general manager’s first hearing on 3 February 2016, the Board asked him why the projects undertaken by CTMG had not been put out for tender. The general manager told the Board that as CTMG had done Stage 1, Project 1 (production of an Improvement Plan in 2012-2013), it should continue to build on that base information.204 In light of this statement, the Board considers that it is probable that aldermen were inadequately informed of the scope and likely consequences of the projects envisaged after February 2015, and failed in their duty Purchasing Card Procedures. Ref. J.3 Grievance Policy. Ref. J.4 201 For further detail regarding council’s compliance with its Purchasing Card Procedures, see Management and Operations 3.B.10.1, and documents referenced in that section. 202 2015-16 Annual Report. Ref. K.1 203 General manager’s KPIs approved by council 13 October 2014 (Item 8). Ref. C.24 204 General manager’s first hearing (3 February 2016, Question 2). Ref. D.20 and D.21 199 200 106 to question management’s proposed plan of implementation of the recommendations of the CTMG report. Questions regarding council’s compliance with its Code for Tenders and Contracts were raised by Ald. Stevenson in successive council meetings from September 2016 to January 2017.205 A majority of aldermen stated that it was wasting their time as aldermen to seek explanations of apparent non-compliance with council’s tendering policy. The Board considers that these aldermen were failing to fulfil their legislated function to monitor the council’s application of its policies for the efficient and effective provision of services and facilities, and the efficient and effective management of council’s assets.206 The Board considers that in failing to undertake a public tender process for the CTMG projects and services, there was a lack of transparency in the process adopted and tacitly approved by council. This meant that council was unable to effectively and efficiently monitor the provision of services and facilities, and management of council’s assets. The Board considers that without a public tender process, or call for quotations, council cannot know that it has achieved the best operational result for council. The Board also notes that if council was not to go to public tender for council’s strategic and operational reviews and implementation of the recommendations thereof, it should have approved an exemption in accordance with reg. 27 (Non-application of public tender process) of the Local Government (General) Regulations 2015. Council adopted a revised Code for Tenders and Contracts (the Code) at its meeting of 13 April 2016 (Item 11). The Code was last adopted on 7 December 2009 and amended on 28 March 2011. This contravened s 333B(2)(d) of the Act, which requires council to review its code at least once every four years. On 13 April 2015 Ald. Stevenson requested information about the total cost of projects given to CTMG (Item 15.1). The general manager reported to council on 3 August 2015 (Item 19) that the strategic and operational review process was instigated to review, document and implement a total review of all services and operations across the organisation. This process was divided into three stages. None of the projects comprising the three stages of the strategic and operational review was put out to public tender.207 Despite the Board’s requests,208 the general manager did not provide evidence that written quotations from a minimum of three suppliers were sought for any of the projects.209 The third stage of the strategic and operational review, started in October 2012, included three projects undertaken by CTMG. These comprised updating the strategic and operational review Minutes of 26 September 2016 (Item 28.4), Ref. A.31; 24 October 2016 (Item 30.1), Ref. A.32; 21 November 2016 (Item 25.1), Ref. A.34; 19 December 2016 (Item 25.4), Ref. A.35; 23 January 2017 (Item 20.2). Ref. A.36 206 The Act, s 28(2)(b)(i) and (ii) 207 The Code’s threshold for requiring three written quotations was from $10,000 to $109,999. The Code’s threshold for requiring public tender was $110,000 and greater. 208 Under s 222, the Board sent a Requirement to Produce Documents concerning quotations for CTMG work (11 January 2017). Ref. L.1 209 The first stage of the operational review included four project parts undertaken by CTMG, including a review of the strategies and efficiencies in the organisation (the Improvement Plan), implementation of the Improvement Plan, assessment of IT capacity and the development of an IT strategy as part of the Improvement Plan, and a service level review. Most of Stage 1 was completed between October 2012 and December 2013. The cost of this stage was $155,877. The cost of the completed sections (which excluded the service level review) was $150,802. The second stage included one project undertaken by CTMG, an assessment of the roles, relationships and responsibilities of management, including management skills. This took place between May 2013 and November 2013 (i.e., concurrent with Stage 1) and cost $81,544. 205 107 undertaken in Stage 1 to take into account the need to break even by 30 June 2017, implementation of the recommendations arising from that update, and a review of the operations of the works and services sections of council operations. The total cost of updating the strategic and operational review and implementing the proposed changes was $102,484. The cost of reviewing works and services from April 2015 to 30 June 2015 was $81,154. The total for all sections of the strategic and operational review over three financial years to 30 June 2015 was $421,590. The minutes of council meetings of 1 August 2016 (Item 17.6) and 29 August 2016 (Item 23.4) record that in response to a QoN, the general manager revealed that CTMG was paid $445,515.84 in the financial year ended 30 June 2016, making a total of $867,105.84 paid to CTMG over four financial years without the use of any tender process. The facts indicate that GCC failed to comply with its own policy Code for Tenders and Contracts in awarding the contracts to CTMG. The policy requires that an absolute majority of council has to resolve that a satisfactory result would not be achieved by inviting tenders (or obtaining three written quotes) because of (i) extenuating circumstances; or (ii) remoteness of the locality; or (iii) the unavailability of competitive or reliable tenderers. Under council’s Code for Tenders and Contracts (adopted 7 December 2009) 5.4.2 Written quotations, and 6 (h) Exemptions, and under council’s Code for Tenders and Contracts (adopted 13 April 2016) 10, Exemptions, an exemption should also have been approved by council when the contract was for procurement valued over $10,000. The Board also notes with concern that changes to the Code for Tenders and Contracts adopted by council on 13 April 2016 (Item 11) included two additional clauses which allow for exemptions to the requirement to comply with the Code.210 The exemptions now include capacity for the approving delegate not to go to public tender if the Consultant sought to be retained has historical knowledge of the project; and if there is a specific exemption approved by the general manager for this class of purchase and/or this supplier. The Board notes that neither of these exemptions was in place at the time of contracting CTMG to undertake work to the value of $421,590 from October 2012 to 30 June 2015. The Board considers that council’s acceptance of these additional exemptions by approval of the revised Code for Tenders and Contracts on 13 April 2016 breaches s 333B(2)(c) of the Act, Code for tenders and contracts, because it is does not promote all of the prescribed principles, viz., specifically, it does not promote open and effective competition and value for money; it might not enhance the capabilities of local business and industry; and it does not promote ethical behaviour and fair dealing by providing additional powers of exclusion to the general manager. Reg. 29 of the General Regulations requires council to report any contract for goods or services valued at or exceeding $100,000 but less than $250,000 in its Annual Report with details of the contract and the contractor. The Board notes that there is no record in the relevant sections of council’s Annual Reports for 2014-15 and 2015-16211 of contracts awarded to CTMG, despite the general manager’s advice to council that $445,515.84 was expended on CTMG projects in the 2015-16 financial year (council meeting minutes 1 August 2016 Item 17.6). This included two projects, Service Level Review ($215,031.84) and HR Consulting services ($113,606.49) (council meeting minutes 29 August 2016 Item 23.4), neither of which is recorded in the Annual Report 2015-16. The 210 211 Revised Code for Tenders and Contracts adopted at 13 April 2016 council meeting. Ref. J.5 GCC Annual Report 2014-15; GCC Annual Report 2015-16. Ref. K.1 and K.2 108 Board considers that this is a failure to comply with reg. 29(3) of the General Regulations. At the special council meeting on 7 November 2016 (Item 3) three aldermen voted against approval of the Annual Report because of this omission. Recommendation: that council’s Code for Tenders and Contracts be examined by the Auditor-General to determine whether it complies with the letter and the spirit of the Act. Recommendation: that council upholds the principles of transparent and accountable governance through stringent compliance with its Code for Tenders and Contracts. Recommendation: that the Auditor-General investigate whether council has complied with reg. 27(i) of the General Regulations, which state that council is not compelled to undertake a public tender process for a contract for goods or services, if the council resolves by absolute majority and states the reasons for the decision, being that a satisfactory result would not be achieved by inviting tenders because of – (i) extenuating circumstances; or (ii) the remoteness of the locality; or (iii) the unavailability of competitive or reliable tenderers. Recommendation: that the Auditor-General investigate whether council has complied with s 29 of the General Regulations, which prescribes council’s annual reporting requirements in relation to tenders and contracts. The Board notes that the Auditor-General released his Report No. 1 of 2017-18, Investigation into the procurement of goods and services from C T Management Group Pty Ltd by Glenorchy City Council. This report was provided to Parliament on 17 October 2017. 109 A.6.2 Compliance with the Nomination and Appointment of Aldermen to Committees and Other Bodies policy The Nomination and Appointment of Aldermen to Committees policy, that was required to be reviewed in April 2010, was not brought to council for review until the council meeting of 26 September 2016 (Item 16). 212 It was renamed Nomination and Appointment of Aldermen to Committees and Other Bodies. Findings The Board finds that the procedure adopted for the election of aldermen to committees at the council meeting of 1 December 2014 did not provide the level of transparency around the process which the community has a right to expect. Under the City of Glenorchy Community Plan 2015 – 2040, the community prioritised transparent and accountable government. The Board considers that the failure to adhere to council’s policy Nomination and Appointment of Aldermen to Committees and Other Bodies can be attributed to the general manager, who set out the procedure to be followed in the agenda for the council meeting, and also to the aldermen, who failed to monitor proper implementation of the procedure previously approved by council. The Board finds that there is strong evidence of inconsistency in the application of the Nomination and Appointment of Aldermen to Committees and Other Bodies policy by the aldermen, and that aldermen were not advised by the general manager that such inconsistency was poor governance and breached their responsibilities as aldermen. The Board finds that council approved amendments to the Nomination and Appointment of Aldermen to Committees Policy which had the effect of reducing the ability of aldermen to hold their committee representatives accountable to the council and thereby the community, and reduced the capacity of aldermen to know and understand the concerns of their community. The Board finds that the process adopted for the election of aldermen to the GCC Audit Panel in November 2016 did not comply with council’s policy Nomination and Appointment of Aldermen to Committees and Other Bodies, thereby limiting the capacity of some aldermen to participate in the election process. 212 Policy on Nomination and Appointment of Aldermen to Committees and Other Bodies. Ref. J.6 110 Supporting evidence and information The Board has seen three examples of failure to comply with this policy since the elections of October 2014. A.6.2.1 Conduct of ballots immediately after the October 2014 elections At the first ordinary council meeting following the elections, on 24 November 2014, the agenda included an item for the election of aldermen to committees and other bodies (Item 14). The minutes of the meeting record only that representatives were appointed to the Code of Conduct Panel and the Audit Panel. Under Item 14 (Appointment of aldermen to internal, external, and statutory committees and authorities), no resolution is recorded. The minutes do not provide an explanation for the deferral of appointments to other committees and bodies. The policy Nomination and Appointment of Aldermen to Committees (section 5, Conduct of a Ballot) stated that if a ballot was required, it was to be conducted at a council meeting; that only those aldermen attending the meeting could vote in the ballot; that votes would be counted by a council officer, with a second officer acting as scrutineer; and that the names of the successful candidates would be given to the mayor to announce to the council meeting. At the special council meeting on 1 December 2014, the agenda (Item 4) provided for the appointment of aldermen to internal, external, and statutory committees and authorities, and to the Glenorchy Planning Authority. The general manager set out the process for election as follows: Expressions of interest received are as detailed in the attached document (attachments to the agenda). The areas marked YELLOW indicate a ballot is required and ballot papers were distributed with the Council Agenda on Thursday 27th November 2014 – Aldermen were requested to provide the General Manager with their ballot votes before the Council meeting on 1st December 2014 (emphasis inserted by the Board). The areas marked RED indicate insufficient nominations have been received and Council will have to consider the matter in its meeting of 24th November 2014. (sic) Attachments to the agenda indicate that 20 of these appointments required that a ballot be conducted, or alternatively, additional nominations be called at the meeting.213 However, it is clear from the agenda that the ballots were conducted before the meeting. No explanation was provided by the general manager in the agenda for this variation. The Board concludes that the procedure adopted by the general manager for the election to committees conducted after the October 2014 elections did not comply with council’s policy in that the ballot was not conducted at a council meeting, with appropriate, associated measures for transparency and accountability, and that aldermen allowed these changes to pass unchallenged. There were insufficient nominations to fill vacancies on seven external bodies or committees. The agenda states that these vacancies had to be considered at the meeting on 1 December Attachment to the agenda for 1 December 2014 meeting concerning the filling of committee appointments (Item 4). Ref. A.40 213 111 2014. The minutes do not record how these vacancies were filled. The Board notes that the meeting, which included two planning items, lasted only 35 minutes. A.6.2.2 Appointment of representatives to the STCA working group At the council meeting of 26 October 2015 (Item 23), council made an appointment to the Southern Tasmanian Councils Authority’s working group to implement the transfer of functions of the Southern Waste Strategy Authority to the Southern Tasmanian Councils Authority. The minutes of the council meeting of 26 October 2015 record that council approves the current Southern Waste Strategy Authority representatives to represent GCC in the STCA proposed working group. At the council meeting of 9 May 2016, the appointed alderman, Ald. Slade, stated in answer to a QoN regarding his appointment (Item 22.4) that at the 1 December 2014 Council meeting I was elected to be the Council’s representative on SWSA. At the 26 October 2015 Council meeting, Council approved the current SWSA representatives, Alderman Slade and …the…Manager Waste Services, to represent Glenorchy City Council in the STCA proposed Working Group. All representations by me have been approved by Council at it’s (sic) meetings. Council’s policy for Nominations and Appointments to Committees required that for appointments to an outside body, the general manager had to send a memo to all aldermen seeking expressions of interest and detailing the requirements of the position. Should a ballot be required it was to be conducted under the policy directions. There is no record that expressions of interest were called for by the general manager in accordance with the policy, nor the result of that call for expressions of interest. There is no record of a vote having been taken in council. The Board notes with particular concern the failure of council to adhere to its policy in this instance, in contrast to the resolutions and actions taken to invalidate the mayor’s nomination to GMC at the special council meeting of 14 December 2015 (Item 2) on the grounds that the mayor’s nomination and appointment to GMC had not complied with the relevant council policy. A.6.2.3 Appointment of aldermen to the Audit Panel (November 2016) At the meeting of 21 November 2016, debate on Audit Panel – independent members’ remuneration and election of new aldermanic representatives (Item 15) revealed that the process adopted by the general manager to appoint aldermen to the Audit Panel did not comply with council’s policy. That process shortened the period allowed for nominations to be provided for consideration, thus depriving aldermen of their right to nominate for the vacant positions. The matter was resolved by council with passage of an amended resolution which stated in part that council notes these appointments have been inadvertently made outside Council’s ‘Nominations and appointments to committees and other bodies’ policy and emphasises the importance of Council adhering to the policy on all future occasions of nominations. A.6.2.4 Committee reports to council The general manager stated at his first hearing on 3 February 2016 that he was concerned about committees and wanted a section on the agenda where aldermen could ask questions about committee activities. When asked how committees report to council and how often this occurred, the general manager told the Board that most of them did not report to council at 112 all.214 The general manager indicated he wanted a new process around council’s committees, including new or revised terms of reference for all of them, but said that he was approaching this cautiously. The Board saw no change in the procedures for reporting on committee activities until the adoption of an amended policy in September 2016. However, the Board notes with concern that the updated policy Nominations and Appointments to Committees and Other Bodies (adopted by council on 26 September 2016, Item 16)215 has removed the obligation for aldermen to ensure that the minutes of the meetings they attend as council’s appointee are provided to council. Similarly, the obligation to provide an annual report of major issues in the committee has been removed. This means that the community, and other aldermen, have no formal mechanism for assessing the functionality and value of the committees and external bodies where council has aldermanic representation. Recommendation: that council amend its procedures for special committees, and representation on external bodies, to ensure that all council representatives report at least annually to council. Recommendation: that council amend its procedures for determining membership of all committees and external bodies to allow consideration of the suitability and aptitude of aldermen seeking appointment. Recommendation: that the Statement of Expectations between the Mayor and Aldermen detail the process to be used should the mayor wish to delegate her representation of council on an external body to another alderman. Recommendation: that as part of its annual review of aldermanic performance, council assesses its compliance with its policies relating to committees. Exceptions are the formal reports which come from GMPRC, LGAT, TasWater, and the council’s Audit Panel. Updated policy Nominations and Appointments to Committees and Other Bodies (adopted by council on 26 September 2016). Ref. J.6 214 215 113 A.6.3 Grievance Policy Finding The Board finds that council failed to uphold its responsibilities under the Act to determine and monitor the application of policies, plans and programs for the fair and equitable treatment of employees of the council. Supporting evidence and information The Grievance Policy adopted on 26 October 2015 (Item 24)216 provides that in the event of a complaint against the general manager, the complaint is taken to the chairman of the GMPRC, who will then take the complaint to the GMPRC, who will then seek advice from the DCG&GC on whether the complaint is formal or informal. The Board notes that determinations of informal complaints rest with the GMPRC, and that there is no appeal from the committee’s decision. The Board considers that the process whereby the DCG&GC provides advice to the GMPRC on the informality or formality of the complaint is undesirable. The DCG&GC is a direct report to the general manager and her performance assessment is undertaken by the general manager; thus there is a natural conflict of interest if she has to provide advice or make judgement calls in relation to matters concerning him. While ‘in-house’ lawyers may be exposed to such conflicts from time-to-time, they should be avoided where possible. Council’s Grievance Policy allows the members of the GMPRC to determine the severity of complaints against the general manager, and, if the complaint is deemed a formal complaint, the GMPRC is tasked with determination of the complaint itself. The Board considers that this contravenes the terms of reference for the GMPRC (the CDS), which do not provide any capacity for the committee to undertake this role. In the Board’s view, the committee’s behaviour demonstrated that it did not have the necessary objectivity to handle such matters. Given the public statements by three of the four members of the committee (including the chairman) in support of the general manager and his handling of his role, the Board considers that the committee may have been unable to bring the requisite objectivity and impartiality to the task of determining such a complaint.217 Under the policy the investigation of formal complaints against either the People and Safety Manager, or any director other than the DCG&GC, is undertaken by the DCG&GC. Investigation of formal complaints against the DCG&GC is undertaken by the general manager. The Board considers that complaints which cannot be dealt with by the People and Safety Manager should be dealt with by an external agency with the expertise and objectivity demanded by such situations. The policy states that should the complaint be deemed frivolous, vexatious, or malicious, the complainant will then be subject to a ruling under council’s Discipline Policy, even if the Grievance Policy adopted on 26 October 2015. Ref. J.4 See Media Release 16 March 2015, Ref. I.3, and minutes of the council meeting of 16 March 2015 (Item 18.1). Ref. A.8 216 217 114 complaint is withdrawn. Should the complainant withdraw the complaint, he or she can be asked the reason for withdrawal, may have to apologise for lodging the complaint, and may be required to attend mediation. The Board considers that the procedures contained in the policy are likely to discourage many employees from raising a complaint, particularly against a director or the general manager. Recommendation: that council amend its Grievance Policy to provide proper, safe channels for reporting complaints against senior staff. 115 A.7. Council meetings and workshops The Board considers that while some sections of meetings are conducted well, in accordance with good practice and with the Meeting Regulations, there are numerous examples of systemic failure in the conduct of both council and council committee meetings at GCC. Detailed findings regarding the operations of the GMPRC are dealt with in Governance: Assessment of the General Manager’s Performance by the General Manager Performance Review Committee (3.A.2). The Board makes findings in relation to the following matters that demonstrate systemic failure in the conduct of GCC council meetings:         Compliance with Meeting Regulations Closed Council Meeting procedures and accuracy of minutes Public Question Time Questions on notice (QoN) and Questions without Notice (QwN) Overt praise of the general manager and management by aldermen Staff attendance at meetings Workshops 116 A.7.1 Compliance with the Meeting Regulations The Board acknowledges that it is likely that all councils will be in breach of the Meeting Regulations occasionally. Findings The Board finds that the regularity and frequency of breaches of the Meeting Regulations by the aldermen of GCC indicated a lack of understanding of the principles of good governance and aldermanic legislative responsibilities and an unwillingness to change behaviours which did not serve the best interests of the community of Glenorchy. The Board finds that the decision of eight of the aldermen to continue the meeting of 5 February 2015 after the mayor had adjourned it breached the Act and the Meeting Regulations. The Board finds that the aldermen who continued the council meeting of 5 February 2015 after its adjournment by the mayor were unaware that there was no legal basis for them to continue the 5 February 2015 meeting, and to purport to make council decisions. The Board finds the practice of confirming closed council minutes in open council is contrary to reg. 34. The Board finds that failure to confirm minutes at the next council meeting is contrary to reg. 35; the Board considers that it is essential for council to recognise that being unable to confirm the decisions made at its most recent meeting detracts from its requirement to be accountable to its community. The Board finds that inability to confirm the minutes of the previous meeting prior to commencing the business of the current meeting also indicates a fundamental breakdown in council processes. Supporting evidence and information The Board heard and saw evidence of breaches of the Meeting Regulations, including reg. 11, Quorum; reg. 13, Adjournments; reg. 15, Closed meetings; reg. 16, Motions; reg. 17, Motions to amend motions; reg. 20, Procedural motions; reg. 28, Determination of voting; reg. 32, Minutes; reg. 34, Minutes of closed meeting; reg. 35, Circulation and inspection of minutes of open meeting, as detailed below. 117 A.7.1.1 Quorum Reg. 11: A meeting may only transact business if a quorum is present. The Board notes with concern that a meeting of the GMPRC was conducted on 5 February 2015 without a quorum.218 There is no evidence that this was noticed by the two aldermen who were present at the time, nor by the chairman of the committee, nor by the general manager and the DCG&GC, both of whom are also listed as present. At the meeting of the committee on 4 March 2015 (Item 1) it was noted that there could have been no meeting on 5 February 2015 as there was no quorum. The Board considers that it was remiss that the ‘notes’ of the meeting (which were sent to the Board as draft minutes of the meeting) do not record the absence of a quorum. A.7.1.2 Adjournment of a council meeting Reg. 13(1): The chairperson, at any time during a meeting, may adjourn the meeting – (a) to a later date; or (b) to a later time on the same day. This regulation was later amended to include (2) The chairperson may only adjourn a meeting – (a) for a proper purpose; and (b) if it is reasonable to do so in the circumstances; and (c) in good faith. This amendment did not come into force until 29 June 2015. The Board considers that at the special council meeting of 5 February 2015, the mayor adjourned the meeting in accordance with the Regulations (Item 3). This view was supported by the opinion of the Director of Local Government in his letter to the mayor of 10 March 2015, wherein he stated in my view, your adjournment of the Special Meeting was valid as it was done in accordance with regulation 13 of the Regulations. Furthermore, I consider that you exercised your power to adjourn the Meeting in a manner that was within the scope and purpose of the Act and the Regulations, and for a proper purpose.219 The Board is concerned that the aldermen who continued the adjourned meeting were inadequately acquainted with the Meeting Regulations, and relied on the inaccurate advice provided to them.220 The minutes of the meeting record (Item 3) that legal advice was given that Regulation 13 does allow the mayor to adjourn a meeting, however the mayor’s conduct and the whole reason claimed for the adjournment and the incorrect statement given, made the adjournment invalid. The attendance record of the meeting shows that this advice was provided by the Manager, Legal and Governance – council lawyer (now DCG&GC).221 Minutes of the GMPRC on 5 February 2015. Ref. C.3 Ref. M.1 220 The Board notes with concern that this inaccurate advice was not questioned or corrected by the general manager. 221 Ald. Stevenson stated in his response to the Draft Report that It should be noted that advice was provided by both Peter Brooks and Seva Iskandarli (sic) that the adjournment was not valid. I sought clarification at that point that should the Mayor be correct in the adjournment, what consequence would that have for any outcome. Firstly I was assured that the advice was correct, and following, that irrespective both clarification of the procedure would be sought from the Director of Local Government, and that no actions would occur until that advice was sought the next day. Ref. Appendix D.10.8 218 219 118 A.7.1.3 Procedural motions (Reg. 20) The Board observed that aldermen did not appear to be familiar with the correct wording of some procedural motions. While aldermen correctly suspended reg. 22, aldermen frequently moved to suspend standing orders, and the motions were accepted by the mayor. However, in the meeting of 24 October 2016 (Item 11), the mayor informed council that the Meeting Regulations do not permit general suspension of standing orders. At its meeting of 16 February 2015 council resolved to ‘lay Item 22 on the table’. This is not a legitimate procedural motion, and should have been corrected by the mayor as chairperson of the meeting. The Board considers that council should revert to moving either that the matter be deferred (and state when it will be reopened for consideration) or that the matter be referred to a committee, should that be the resolution of the council. The Board considers that these alternative forms of resolution comply with the Meeting Regulations and provide more accountability of council to its community and its staff. The council minutes record a number of times where the illegitimate procedural motion has been used. A.7.1.4 Abstentions Reg. 28(3): To abstain from voting is to vote in the negative. The Board has seen evidence that abstentions were recorded in the minutes of meetings held on 16 February 2015 (Item 2) and 6 July 2015 (Item 2), and on other occasions. The Board considers that these votes should be recorded in the minutes as votes in the negative, and that it is appropriate in the circumstance where an alderman states that he or she abstains in the vote, for the chairperson of the meeting to inform the alderman that this vote will be recorded as a negative. This will ensure all aldermen fully appreciate that it is their responsibility to reach a decision and to have that decision on the public record. A.7.1.5 Minutes of closed meetings Reg. 34(6): Minutes of closed meeting: At the next closed meeting, the minutes of a closed meeting, after any necessary correction, are to be confirmed as the true record by the council or council committee and signed by the chairperson of the closed meeting. The minutes show that at most GCC meetings, the minutes of the closed meeting were confirmed in the open meeting, rather than listed for confirmation in the closed meeting. The Board heard evidence that the minutes of the closed meeting were only considered in the next closed meeting if so resolved by council. The minutes of the meeting held on 26 October 2015 record that a resolution to discuss the minutes of the closed session of the council meeting of 19 October 2015 (Item 2) was defeated 6/4. A.7.1.6 Circulation and inspection of minutes of open meeting Reg. 35(1): The minutes of a meeting, other than a closed meeting – (a) as soon as practicable but at least at the next ordinary council meeting or next council committee meeting, that is open to the public, are to be circulated to all councillors; and (b) at the next ordinary council meeting or next council committee meeting, after any necessary correction, are to be confirmed as the true record by the council or the council committee and signed by the chairperson of the meeting. 119 At the meeting of 21 December 2015 (Item 2) council resolved to lay on the table (sic) the minutes of the meeting of 14 December 2015. These minutes were confirmed at the meeting of 25 January 2016 (Item 2). A.7.2 Closed council Findings The Board finds that the discussion of numerous items in closed council which could reasonably have been dealt with in open council belied council’s stated intention to be transparent in its activities and accountable to its community, and was contrary to the community’s priority for transparent and accountable government as stated in the City of Glenorchy Community Plan 2015 – 2040. The Board finds that in its use of procedures for closing the council meeting to members of the public, council did not fulfil its primary obligation to be accountable to the community and transparent in its decision making. These procedures include the reasons used for going into closed session and closing the meeting while still in closed session; debating items in closed session which could be debated before the public gallery, and regularly failing to determine at the conclusion of a closed session whether any information could be released to the public. Supporting evidence and information The Board observed numerous occasions where agenda items were debated in closed council, where it was not apparent why they could not have been discussed in open council, in the presence of the public gallery. While the minutes of the open session of council meetings consistently show that council resolved by an absolute majority to close part of the meeting to the public, the minutes of open council do not record with sufficient clarity the reason for going into closed session, other than to state that council will discuss matters described in reg. 15(2). However, reg. 15(5) (Closed meetings) states that If at a meeting a council or council committee closes part of a meeting, the grounds for closure are to be recorded in the minutes relating to the part of the meeting that is open to the public. The minutes record that aldermen occasionally questioned the inclusion of particular matters in the closed agenda, but rarely approved a resolution to bring an item out of closed session into open council. GCC meeting minutes have not usually recorded that council considered whether any of the information provided in closed session, or any of the matters debated and decided in closed session, could be released to the public, and recorded in the minutes of the open council. The Board notes that this occurred for some items, but was not an established procedure for every item discussed in closed council. 120 It was not GCC’s practice to revert to open council prior to closing the meeting. Minutes record that as at 31 December 2016, this happened at only one meeting since October 2014. The Board considers that one of the benefits council might gain in adopting best practice of going back into open council at the conclusion of the session of closed council is that aldermen would have the opportunity to reflect on whether any of the matters discussed in closed council should be reported in the minutes of open council.222 There are numerous examples of matters minuted in closed council which the Board considers could and should have been dealt with in open council. The examples below do not constitute a full account of these items. A.7.2.1 Meeting 19 January 2015 In closed council, an alderman asked for an update from the committee dealing with the Tolosa Park/Eady Street Master Plan (Item 18). The Board does not consider that this needed to be discussed in closed council. A.7.2.2 Meeting 14 December 2015 In closed council (Item 2), aldermen debated a motion regarding the process for, and appointment of, the mayor to GMC. The mayor had declared a pecuniary interest in the item and was not present for any part of the debate. The minutes record that council closed the meeting because the item dealt with information of a personal and confidential nature, or information provided to the council on the condition it is kept confidential. The Board does not consider that the matters discussed were personal or confidential. The issue was the process of nomination and appointment of the mayor to an external committee, and the view of some alderman that this process was flawed. This did not constitute a personal matter, nor did it rely on information provided on condition that it was kept confidential. The mayor told the Board in her response to the Draft Report that she had advised the general manager that the issue should be discussed in open council.223 A.7.2.3 Meeting 25 January 2016 In closed council, the minutes record two QwN and two statements from aldermen providing information to council (Item 25). The questions asked about the mayor’s attendance at a Rail Corridor Working Group meeting and associated matters; an alderman advised council of an open day to be held on 28 January at Chigwell, and another alderman advised council that the information system used by council to house minutes, agendas, and other information for aldermen was ‘problematic’. The Board does not consider that these matters needed to be discussed in closed council. A.7.2.4 Meeting 15 March 2016 (1) In closed council (Item 21.3), an alderman asked for the breakdown of the month by month employment costs against budget with the correct explanation for variances (over or under At a more basic level, if council does not revert to open session before closing the meeting, the public cannot know from the minutes the time the meeting concluded, as it will only be recorded in minutes of the closed meeting. 223 Ref. Appendix D.1.9 222 121 budget) for the current financial year. Given the broad nature of the question and the answer provided, the Board does not consider that this needed to be discussed in closed council, and indeed is a matter of public interest. A.7.2.5 Meeting 15 March 2016 (2) In closed council (Item 21.5), Ald. Stevenson asked the general manager: In relation to your update in the workshop dated 29th February 2016 you indicated a $450000 increase in waste management revenue; can you please indicate: a) What gross revenue increase will be needed to gain a net revenue increase of $450,000? b. What impact will this have on the long term viability of the landfill site? c. Is it possible to make this increase in one year? d. Does this include an increase in the booth toll for waste disposal? e. If so, will the potential reduction in the waste management centre use be assessed against the external environmental impact? The Board considers that this question and its answer were relevant to the citizens and ratepayers of Glenorchy, and the question and answer should have been dealt with in open council. A.7.2.6 Meeting 15 March 2016 (3) In closed council (Item 21.10), an alderman asked the general manager about the predicted total annual savings of $5.68m in the 2016-17 Budget; the alderman noted that this sum comprised capital and operational costs and asked for the breakdown of capital versus operational items. The Board considers that this question and its answer were relevant to the citizens and ratepayers of Glenorchy, and the question and answer should have been dealt with in open council. A.7.2.7 Meeting 9 May 2016 In closed council (Item 22.4), an alderman noted that the election of the mayor to LGAT was in exactly the same manner as that in which Ald. Slade was elected to SWSA. Following his 1st December 2015224 appointment to SWSA, Ald. Slade subsequently self-nominated for a sub-committee position. This process is consistent with the manner in which the mayor nominated for GMC. A process which on the 15 March 2016 Council declared void.’ The alderman then asked ‘it is worthy to note that Council has not formally been advised of this self-nomination and subsequent appointment to the subcommittee of SWSA. Should this appointment also be declared void? This did not constitute a personal matter, nor did it rely on information provided on condition that it be kept confidential. The Board considers that this question should not have been confined to closed council, but should have been dealt with in open council. 224 This should have been dated 1 December 2014. 122 A.7.3 Meeting procedures and accuracy of minutes The Board has seen evidence that on many occasions, the minutes were either incorrectly approved, or, if the approved minutes are an accurate recording of the meeting, then the processes of the meeting have been contrary to the Meeting Regulations. Findings The Board finds that many of the aldermen, some of whom have been on council for many years, had little acquaintance with the Meeting Regulations, particularly those pertaining to Motions in Division 2 of Part 2 of the Meeting Regulations. This led to tensions and disputes during meetings, disputes which could have been avoided if all aldermen were aware of their responsibilities to behave in accordance with the Regulations for the good of the meeting. The Board finds that council demonstrated numerous examples of inaccuracy and/or failures of basic meeting procedure, including failure to record the resolution, failure to record QwN, confused recording of items on the agenda, failure to distinguish between an amendment and the motion, failure to understand due process for correcting inaccurate minutes, inclusion in the minutes of irrelevant advice provided by the DCG&GC, and inclusion of unnecessary and inappropriate descriptions of perceived or assumed emotional behaviour. The Board finds that in deliberately altering the minutes of a meeting to remove the record of such a significant occurrence as the suspension of an alderman, council breached one of the fundamental principles which should and must be upheld by aldermen. There is no capacity in the Act or any other associated legislation for aldermen to change the minutes to avoid disclosure of a suspension. Given that under reg. 32(1) it is the responsibility of the general manager to ensure that the minutes of a meeting accurately record any matter discussed at the meeting and any decision made at the meeting, the Board finds that in confirming minutes with obvious errors and omissions, the council failed to monitor the performance of the general manager in one of his most basic functions, and thereby failed in its duty of provide for the good government of the city. The Board finds that the inaccurate recording of minutes and the failure of the aldermen to address this issue indicates a fundamental break down in council’s governance structure. Supporting evidence and information The Board notes with concern that the draft minutes of the meeting of 3 August 2015 were amended by a vote of 7/2 when they were confirmed at the next meeting (31 August 2015 Item 2 considered in closed session), to remove the record of the suspension of an alderman from the meeting.225 The mayor and Ald. Dunsby voted against the motion, and Ald. Stevenson was an apology for the meeting. The Board notes with concern that the minutes of the 3 August 2015 (Item 2) council meeting were not subsequently confirmed by council after the successful motion to remove reference to Ald. Lucas’s suspension. Ref. A.14 225 123 The Board considers that the primary purpose of a council meeting is to reach decisions on issues which will provide benefit, either immediate or long term, to the citizens of that municipal area. If these decisions are reached by confused processes, or recorded inaccurately, or recorded with misleading and selective emotive comment, the community’s capacity to understand those decisions and their supporting evidence is lost and the need for a democratically elected council comes into question. The Board heard from the general manager at his first hearing on 3 February 2016 that problems with the minutes were what he described as a big issue for the council, and that he needed to work out how to fix the problems. He informed the Board that the council had no consistent practice for recording minutes at the time of that hearing.226 At its meeting on 19 January 2015 (Item 15.1) council asked for a report on audio recording of council meetings and an appropriate policy. Seven months later, the general manager made a presentation to council on the issue at a workshop on 17 August 2015. Aldermen were to receive a demonstration of the technology on 7 March 2016. Audio recording commenced on 4 July 2016. The Board notes with concern that council took over 17 months to implement audio recording, despite the apparent lack of agreement about the accuracy of minutes and the general manager’s stated concern that the recording of minutes was a serious problem for council. Despite the fact that council meetings are now recorded, the Board notes that disputes over the accuracy of the minutes continued to occur. Recommendation: that council audio records both open and closed sessions of all council meetings. Recommendation: that the Meeting Regulations be amended to make audio recordings of all sessions of all council meetings mandatory, unless an exemption is approved by the Minister. A.7.3.1 Failure to record the resolution The minutes of the meeting of 13 April 2015 (Item 18 QoN and QwN) record that the general manager and the DCG&GC briefed council on a Worksafe matter, and that council agreed that the chairman of GMPRC and the DCG&GC would deal with the issue on behalf of council. There was no council resolution, no briefing paper, and no indication of the meaning of this statement, including the reason for appointing the chairman of the GMPRC to undertake this task. The Board considers that this should have been the subject of an agenda item with a proper report and recommendation to council, allowing subsequent debate and resolution. A.7.3.2 Failure to record a QoN or QwN The minutes of the meeting of 11 May 2015 record Item 22 as a question from an alderman. The question itself was not recorded. 226 General manager’s first hearing (3 February 2016, Question14). Ref. D.20 and D.21 124 A.7.3.3 Confused recording of items on the agenda The minutes of the meeting of 11 May 2015 record Item 17.4 as a QoN by Ald. Dunsby. The minute of that item records that a motion was put by Ald. King and seconded by Ald. Lucas, but there is no recorded resolution in the minutes. Two questions are then recorded, and the minutes state that officers’ comments were received. The minutes then record that the resolution was put and passed unanimously. The Board considers that council’s failure to notice in confirming these minutes that this record is incomprehensible indicates poor governance practice, as well as a breach of the Meeting Regulations. A.7.3.4 Failure to understand correct use of motions and amendments The minutes of the meeting of 11 May 2015 (Item 17.1) record a NoM moved and seconded, and then an amendment moved and seconded; the resolution of the amendment is not recorded, only the successful passing of the motion. The Board and the public must assume that the amendment was passed and subsequently became the motion and was then passed. This is not clear from the confirmed minutes. The minutes of the meeting of 11 May 2015 (Item 20) record an amendment moved and seconded, but there was no primary motion to amend. The minutes of the meeting of 1 June 2015 (Item 5) record an amendment moved and seconded, but there was no primary motion to amend. The Board considers that the general manager should have corrected such anomalies in consultation with the mayor before circulating the minutes, but given that he failed to do so, aldermen should have corrected these obvious errors before confirming the minutes. A.7.3.5 Failure to understand corrections to unconfirmed minutes The Board has seen evidence that some aldermen (specifically Ald. Branch-Allen, Pearce and Slade) failed to understand that the minutes may be considered by the mayor and aldermen prior to being presented to the next ordinary meeting of council for confirmation. This misunderstanding was supported by misleading advice from the DCG&GC, provided in an email to aldermen and the general manager on 6 February 2016,227 in which she stated that whether the council’s discussions and decisions are right or wrong is the matter for the council to decide at the meeting and when the council confirm (sic) the draft minutes. On 25 June 2015 the mayor wrote to all aldermen providing them with a marked up version of the minutes of the meetings of 11 May 2015 and 1 June 2015.228 The Board considers that information contained in emails sent on 26-27 June 2015 by Ald. Branch-Allen, Pearce and Slade 229 in response to the mayor’s email, to the effect that the unconfirmed minutes can only be changed at a council meeting, was incorrect and revealed a lack of knowledge of basic governance and meeting procedures. These aldermen did not appear to understand the difference between confirmed minutes and draft minutes. The Board considers that it is feasible and desirable for at least the mayor and the general manager to assess the first draft of the Email from the DCG&GC to all aldermen concerning the minutes (6 February 2016). Ref. Q.32 Email from the mayor to all aldermen with marked up version of meeting minutes (25 June 2015). Ref. Q. 33 229 Emails from three aldermen concerning the minutes (26-27 June 2015). Ref. Q.34 227 228 125 minutes for accuracy, and change them as necessary and agreed between them, so that the version which is attached to the agenda for the next meeting is deemed accurate by the general manager, as is his responsibility under the Act and the Meeting Regulations. If it was the practice at GCC for all aldermen to be allowed to comment on the accuracy of the first draft, the Board considers that good practice would dictate that aldermen comment within a timeframe which would then allow the general manager, ideally with the assistance of the mayor, to bring to the next council meeting an accurate account of the last meeting. A.7.3.6 Inclusion of emotive language and irrelevant interventions The Board considers that the inclusion of emotive detail into some sets of minutes was inappropriate, and may have served only to denigrate one or two aldermen, particularly the mayor. The references to emotions felt by those at the meeting add nothing to the process of decision-making and nothing to the decision itself. For example, the confirmed minutes of the meeting of 5 February 2015 (Item 3) record subjective information about the behaviour and alleged emotions of those present. 230 The Board considers that acceptance of these minutes with these inclusions risked undermining the mayor as chairperson of the council meeting, which was not in the best interests of the council. The minutes of the meeting of 24 October 2016 (Item 11) record that the majority of the Aldermen have raised their concerns and disappointment with the Mayor’s conduct. These minutes record (Item 16) that Aldermen Pearce, King and Lucas and Deputy Mayor Quick also recorded their disappointment at the content of the Mayor’s message. The Board is of the opinion that these notations added nothing to the decision of council and should not have been recorded in the minutes. The minutes of the meeting of 24 October 2016 (Item 30) record that an alderman referred to a question from a member of the public to the DCG&GC. The alderman said that the question had been asked aggressively. The Board considers that it was unnecessary to include this description in the minutes, as was the subsequent commentary provided by the DCG&GC. At the commencement of the closed session of the meeting of 15 March 2016, the minutes record advice provided by the DCG&GC to the mayor on the mayor’s ruling that members of the Board could attend the closed council meeting. The Board considers that it was inappropriate and unnecessary to have included this advice.231 When the deputy mayor took the chair for Item 20, the Board witnessed the DCG&GC’s attempt to persuade him that the Board members should be asked to leave the meeting. The deputy mayor overruled the DCG&GC. The minutes again record, unnecessarily, that members of the Board remained in the meeting for that item. At the meeting of 15 March 2016 (Item 20.1), the minutes record questions asked of the mayor by the DCG&GC, demanding to know which section of the Criminal Code the mayor The minutes state: After receiving a comprehensive and detailed briefing from CT Management Group and the general manager and asking questions as well, Mayor Johnston announced to everyone’s astonishment that she was adjourning the meeting…and The 8 aldermen and other parties present expressed their astonishment at the mayor’s conduct. Ref. A.6 231 This advice was contrary to the view later expressed by Chief Justice Blow in Branch-Allen v Easther [2016] TASSC 29, at [66]: Ms. Mason and Mr. Tilley were at the meeting to discharge their duties in relation to the inquiry ordered by the Minister. Their presence was not necessary for the conduct of the meeting, but, unlike the general public, they were there because they had official duties to perform…It was reasonable for them to be there because of the terms of reference of the Board of Inquiry. 230 126 considered may have been breached; telling the mayor that her ruling was incorrect; and stating that the mayor had to provide a reason for her ruling beyond the reason she had given. The minutes record that the DCG&GC strongly disagreed with the Mayor’s comments and ruling to Council in rejecting the motion. The Board considers that inclusion of these details, which were irrelevant to the decision made, served only to denigrate the mayor. Recommendation: that council undertake training in correct meeting procedure and the Meeting Regulations within three months of the commencement of a council term, and at least once more during the term of the council. Recommendation: that when considering compliance with the Meeting Regulations as part of their annual review of their own performance, aldermen examine their use of closed council meetings, and the accuracy and relevance of minutes. Recommendation: that the Meeting Regulations be amended so that draft minutes are made available to the mayor within two working days of a meeting, and that they are released to other aldermen only with the approval of the mayor. Recommendation: that to achieve greater understanding of council support requirements, the general manager ensure that relevant council staff are given adequate training in meeting procedure and the proper recording of minutes. A.7.4 Public Question Time Council minutes record that Public Question Time (PQT) is held in accordance with reg. 31(3) at all council meetings. The Board considers that the purpose of PQT is to provide an opportunity for members of the community to question and be apprised of council matters. Findings The Board finds that council’s restriction of public question time to one 15-minute period during the afternoon does not allow the community adequate opportunity to question its elected members. The Board finds that limiting questions to matters listed on the agenda for the current meeting breached reg. 31(2)(b) of the Meeting Regulations, did not facilitate the capacity of aldermen to know how to act in the best interests of their community, and did not demonstrate accountability to the community. 127 Supporting evidence and information A.7.4.1 Second PQT At its meeting on 13 April 2015 (Item 15.5), council voted against a motion to provide the community with a second 15 minute PQT later in any ordinary council meeting, just before the usual closing of the meeting to the public at approximately 6 pm, with Ald. Branch-Allen, King, Lucas, Nielsen, Pearce, Quick, and Slade voting against. Observation by the Board supports the contention in a submission from a community member that the majority of public attendees at council meetings are people not in full time employment, and that this is at least partly due to the difficulty for many people (not just full time workers) of arranging regular attendance at a meeting starting in mid-afternoon.232 Given that PQT is intended to allow for greater interaction between council and its community, the Board considers that holding only one PQT session at approximately 3.30 pm on a week day does not give the Glenorchy community sufficient opportunity to question its council on relevant matters. A.7.4.2 Restriction on PQT Reg. 31(2)(b) of the Meeting Regulations states that the chairperson of an ordinary council meeting may invite any member of the public present at the meeting to ask questions relating to the activities of the council. At the 11 May 2015 meeting (Item 17.1), council agreed to allow questions on any council matter during PQT. The minutes record that an amendment was moved to review the policy as part of council’s review of its meeting procedures, to align the policy to legislative requirements, and to review the policy in August 2015. The Board considers it unnecessary to include a requirement to comply with pertinent legislation. There is no record in the minutes that the amendment was put to the meeting and voted on, but the minutes record that the motion passed. At its meeting on 26 October 2015 (Item 15), council resolved to amend its policy and restrict questions from the public during council meetings to matters on the agenda of that meeting. The Board heard that in speaking to the motion, one alderman commented that this would return council to its previous practice (of restricting questions to items on the current agenda), and that in his view this had always worked well. The Board considers this to be contrary to reg. 31(2)(b) and thus beyond the power given by reg. 37 to determine other procedures relating to meetings. Further, from the perspective of good governance it was a retrograde step, not in the best interests of community engagement and not in line with principles of accountability and transparency contained in council’s community plan. Ald. Branch-Allen, King, Lucas, Nielsen, Pearce, and Slade voted in favour of the motion to impose the restriction. 232 Submission from Ms. Kaye Smith. Ref. H.11 128 A.7.5 Questions on Notice and Questions without Notice The Board heard repeatedly from some aldermen, the general manager, and the DCG&GC that the mayor had proved a disruptive influence in the council because of her questioning and challenging the general manager and the council. While adverse commentary to the Board has focussed on the mayor, Ald. Stevenson and Ald. Dunsby have also persistently challenged the general manager and the DCG&GC on the quality of information provided, its timeliness, and its relevance to the issues on hand. The Board heard frequent use of QoN and QwN in council meetings. The number of QoN increased dramatically from February 2016.233 While questions are a legitimate tool for aldermen to get the information they need, the increase in the number of QoNs indicated that at least some aldermen considered that they were not being served satisfactorily by management. This did not appear to be appreciated or acknowledged by senior management or the aldermen who criticised the repetitive questioning. Findings The Board finds that a majority of aldermen became complacent in their acceptance of direction and advice from the general manager and the DCG&GC, and resentful of the mayor’s challenge to that complacency. The Board notes the repetitive theme of some of the questions asked in council meetings, and finds that this occurred when the answers provided were either incomplete or inaccurate, or management did not provide an answer at all. The Board witnessed conflict within council caused by some questions put by aldermen. Criticism was levelled at aldermen who asked questions by other aldermen, the general manager, and the DCG&GC. The Board finds this reflected a culture of complacency in the elected body, and inappropriately discouraged aldermen from questioning information provided, and from requesting further relevant information about council matters. Supporting evidence and information A.7.5.1 Meeting 13 April 2016 At the council meeting on 13 April 2016 (Item 17.6), the mayor noted a report in The Mercury on 24 March 2016 that a council spokesperson said each alderman was meeting their own legal expenses in the case. The mayor asked who the spokesperson was and under what authority the spokesperson had acted, noting that the mayor is the spokesperson for council under the Act. The general manager answered that the question had already been answered and debated a number of times. The Board does not consider this to be an adequate or proper answer to a question regarding the mayor’s functions under the Act and regarding a specific incident which had occurred since the previous council meeting and obviously could not have been debated previously. Four (4) QoN were put forward in the period 13 October 2014 to 26 October 2015. One hundred and thirty (130) QoN were put forward in the period 23 November 2015 to 24 October 2016. 233 129 A.7.5.2 Meeting 9 May 2016 At a council meeting on 9 May 2016 (Item 16.3) Ald. Stevenson noted that at the 13 April 2016 meeting in relation to a QoN (Item 17.2), the general manager refused to detail the purpose of emails appended to an affidavit filed in the Supreme Court, on the grounds that the matter was sub-judice. Ald. Stevenson said it was still unclear why the emails referred to were sent to only two aldermen and not the full council. The general manager replied that the question was answered at the 13 April 2016 meeting. The answer provided at 13 April meeting was that an answer may be provided after the Supreme Court case has concluded. The case is scheduled for 11 April 2016. Aldermen need to be aware that the matter is being heard before Chief Justice Blow. It is sub-judice and it is considered inappropriate to answer this question as the matter is before the Court. This was clearly not an answer to Ald. Stevenson’s question. A.7.5.3 Review of policies At the council meeting on 29 August 2016 (Item 10) the Board heard the mayor and Ald. Stevenson ask several questions about council’s capacity to meet the timeline set by management for completion of the review of council’s policies. The general manager and the DCG&GC provided responses; both referred to further consultation with managers and the Audit Panel before the program of review could be completed. The general manager stated that it was intended to complete the review of policies by 31 December 2016. In debate the deputy mayor described the questioning as ‘hassling’ the staff; Ald. King praised the deputy mayor, thanking him for his speech and saying that he hoped that ‘the public took notice’; Ald. Slade inferred that the questions were ‘micro-management’; and in closing, Ald. Pearce referred to what he called a ridiculous obsession that some aldermen have got about not being informed. Ald. Pearce stated that he did not care how long the process took, or whether we are informed by a certain date or not; and reiterated that he fully trusted our management team to do their job. 234 The Board heard evidence in the recording of the meeting of 29 August 2016 that the number of policies reviewed by 30 June 2016 was significantly fewer than had been proposed by management, and that council had not had a progress report since May 2016. The Board considers that seeking to know whether this significant review would be thoroughly undertaken and completed by the set date is within the responsibilities and duties of aldermen under the Act. The Board is concerned that this active monitoring of council’s program of policy review was seen by several aldermen as ‘hassle’ or ‘micro-management’. A.7.5.4 Meeting 9 June 2015 The acting general manager (Ms. Iskandarli) emailed all aldermen on 10 June 2015 regarding questions asked by aldermen at the council meeting of 9 June 2015.235 Without reference to 234 235 Recording of meeting of 29 August 2016 (Item 10). Ref. B. 5, B.6 and B.7 Email from the DCG&GC to aldermen concerning questions asked at meeting (10 June 2015). Ref. Q.35 130 the mayor, who presided at the meeting, the acting general manager made several observations about the conduct of the meeting, and then wrote Yesterday observation from the management and some external parties was that aldermen asked many operational questions. I am concerned about this. Council should be looking at strategic matters, monitoring management actions in implementation of council decisions and policies, not to become involved in operational issues. No QoN or QwN are recorded in the minutes of the meeting. A.7.5.5 Meeting 6 June 2016 At the council meeting of 6 June 2016, Ald. Lucas asked a QwN (Item 17), viz., what is the time cost of the harassment of senior staff and senior management to answer questions put to them before every council meeting? The question was taken on notice and the Board has seen no evidence that an answer has been provided. The Board does not agree that aldermen asking questions of management constitutes harassment and is concerned that any alderman would take such a view of a legislatively provided process. A.7.6 Overt public praise for the general manager by aldermen Findings The Board finds that meetings have been used as a vehicle to overtly praise senior management in a way that is not usual and implies criticism of aldermen who might be questioning their performance, reports, or the provision of information. The Board finds that some reports to council contained unnecessary and inappropriate commentary in support of council staff. The Board finds that the public, overt support provided by the chairman of the GMPRC to the general manager indicated a lack of the objectivity and impartiality which should be brought to the task of chairing the GMPRC. Supporting evidence and information Resolutions supporting the general manager’s performance and decisions were passed at the meetings of 16 March 2015 (Item 18.1) and 3 August 2015 (Item 15.14) in open session. In March 2015, during the meeting to confirm adoption of the recommendations of the CTMG Report, council passed a resolution to acknowledge the skills and ability of the general manager in his continued strength and ability to manage and maintain the outstanding service capacity and commitment to the citizens who live and work in this city and express full confidence in the general manager. The resolution was carried 7/3, with the mayor and Ald. Dunsby and Stevenson voting against. No detail was provided regarding the achievements of the general manager to 131 warrant this resolution. Three of the four members of the GMPRC, including the chairman of the committee, voted for the resolution. The Board has heard several aldermen begin their statements on agenda items by praising the general manager for the quality of the report presented. This frequently occurred at the commencement of routine agenda items. The Board considers that this practice may indicate a loss of objectivity in assessing the performance of the general manager and his staff. In an answer to a QoN from the mayor at the meeting of 15 February 2016 (Item 16.4) regarding the Governance Strategy, DCG&GC stated: The hard and excellent work of previous management and current management and their staff in pushing this process and achieving the success is much appreciated and it could not be done without their support and help. The Board considers that this was unnecessary commentary in the meeting agenda, and notes that it was the DCG&GC herself who was tasked with providing the Governance Strategy to council when she was in the position of council lawyer. The Board notes that Ald. Pearce frequently commended the general manager in council meetings. However, when Ald. Stevenson submitted a NoM on 7 March 2016 (Item 20.1), asking for completion of the general manager’s annual review, Ald. Pearce questioned Ald. Stevenson’s capacity to act without prejudice in the future. The Board considers that this indicated that for this alderman, praise for the general manager did not indicate bias, but requesting completion of the general manager’s review could indicate adverse prejudice. The Board considers this to be indicative of muddled thinking and a lack of understanding around the issue of bias. The chairman of the GMPRC confirmed his unequivocal support for the general manager in his letter to the Minister for Planning and Local Government on 2 September 2015;236 the Board considers that this was evidence that the chairman of the committee tasked with conducting the general manager’s performance review was unable to bring the required objectivity to the task, and was unsuited to the office to which he was elected. A.7.7 Staff attendance Finding The Board finds that in not questioning the need for high staff attendance at council meetings, council failed to monitor the effective and efficient provision of services and the management of its assets. Supporting evidence and information The Board noticed that an unusually high number of staff attended entire council meetings. Many of them were not been called upon to provide any further advice, other than what had been provided in their reports. Council meetings on average lasted approximately three hours, 236 Letter from seven aldermen to the Minister (2 September 2015). Ref. Q.2 132 but have extended to six or more hours. The Board considers that it is likely that these staff could have been better employed on their normal duties, on the proviso that should they be needed they could be called into the meeting room.237 The Board notes that at the Special Meeting of 7 November 2016, with only one item on the agenda, staff in attendance included the general manager, three directors, and nine other senior staff, as well as the minute taker. Recommendation: that council review staff attendance at council meetings to ensure that staff time is used efficiently and cost effectively, and that any staff attendance enhances the capacity of aldermen to make sound decisions. Minutes of the meeting of 24 October 2016 record attendance by the following staff: Mr. P. Brooks (General Manager), Ms. S. Iskandarli (Director, Corporate Governance and General Counsel), Mr. E. Reale (Director, City Services and Infrastructure), Mr. T. McMullen (Acting Director, Community, Economic Development and Business), Mr. S. Scott (Manager, Governance and Risk), Ms. D. Berry (Manager, People and Safety), Mr. C. French (Manager, Business and Finance), Mr. D. Ronaldson (Manager, Community and Customer Service), Mr. P. Garnsey (Manager, Environment and Development), Mr. R. Grierson (Manager, Infrastructure, Engineering and Design), Mr. S. Mohamed (Manager, Waste Services), Mr. R. Frankcombe (Manager, Works), Mr. B. Hannan (Senior Internal Compliance Advisor), Mr. A. Falaki (Coordinator, Community Planning and Inclusion), Ms. J. Sleiters (Community Development Coordinator), Ms. E. McGoldrick (Coordinator, City Strategy and Economic Development) and Mrs. J. King (Mayoral and Executive Support Officer). Ref. A.32 237 133 A.7.8 Council workshops The Board acknowledges that many councils hold regular workshops to enable aldermen to be given information which will serve as background for their decision making, and to provide information on matters which will come to meetings for decision. The Board notes that workshops are not compulsory and that they are not governed by the same requirements for confidentiality which apply to closed sessions of council. Members of the public are rarely if ever able to attend GCC workshops. Findings The Board finds that the reliance on workshops to deal with important council matters behind closed doors contributed to the perception that there was lack of transparency and accountability in council’s governance procedures. The Board finds that the pre-planning for workshops was ad hoc, with no calendar of topics, late provision of workshop material, little or no input from aldermen into workshop topics, and little time allowed for aldermen to prepare. The Board finds that aldermen would benefit from the timely provision of reports and workshop documentation to enable reasonable preparation; that an annual calendar of workshop topics (subject to topical additions as required) would assist aldermen to understand and prepare for their duties; that aldermen should have more opportunities to propose workshop items; and that development of a council policy regarding purpose, content, attendance, and other relevant matters may bring council and senior staff to a shared understanding of the proper use of workshops and the need for transparent decision making. Supporting evidence and information Aldermen asked the general manager several times to provide more information about the program for workshops, so that they could adequately prepare and make better use of the time allocated. Several aldermen noted that little or no information was provided to aldermen before workshops, making it difficult to participate effectively. At the council meeting on 15 March 2016 (Item 16.2) Ald. Dunsby requested that material for workshops be provided before the workshop was held, where possible.238 Despite the general manager’s response, it is apparent from the question that the alderman considered that the information provided was insufficient.239 Ald. Stevenson told the Board at his second hearing (5 September 2016, Question 5) that he had asked for an annual calendar of workshops. Ref. D.32 and D33. Ald. Stevenson requested a workshop calendar in a QoN on 15 February 2016 (Item 16.20), Ref. A.22. Ald. Dunsby asked if they could have more information before workshops at the council meeting on 15 March 2016 (Item 16.2), Ref. A.23. The mayor raised a similar issue with the Board at her first hearing (9 February 2016, Question 34). Ref. D.18 and D.19 239 The response was that Council has already a process in place in relation to its Workshops namely: Management sends an Agenda about the Workshop well before the Workshop dates; and 238 134 The Board heard that, despite a request for a workshop calendar of matters which recur annually, this was not made available (with the exception of notification of the proposed dates for budget workshops). The Board heard several conflicting reports from aldermen and the general manager on the use and content of workshops. Some aldermen asserted that workshops dealt primarily or solely with items which were to be listed on the council meeting agenda; others told the Board that workshops rarely discussed items for the formal council meeting.240 The Board cautions against using workshops to conduct debate on agenda items to come before council. The Board heard no evidence to suggest that council decisions were being made in workshops. However, the Board considers that a common view held by some aldermen, that workshops enabled shorter council meetings and less need for debate, indicates that council as a whole did not take its responsibility for transparent government sufficiently seriously. Recommendation: that council establishes a calendar of workshops for each calendar year. The calendar should include adequate provision for workshops in setting the annual budget, including determining the capital works program and capital spending. Recommendation: that aldermen be provided with relevant information at least two days before workshops, to enable effective preparation. Recommendation: that council develop a policy on workshops, to assist both aldermen and staff to make effective use of the workshop, without detracting from council’s need to be transparent in its decision making. 1. The Agenda attaches, where it is possible, the documents about the items to be discussed at the Workshop. Ref. A.23 240 The Board heard various views from aldermen in hearings between14 January 2016 and 3 February 2016, including: that workshops meant that council meetings were only held to make final decisions on matters already debated in workshops; that workshops allowed insufficient time for discussion; that workshops were ‘good’ because it meant that aldermen had already been able to consider their vote; that workshop reports could come to aldermen before or after the workshop; that very little came to council without previously being discussed at workshops; that all council debate took place in workshops and meetings were then only needed to record decisions; that workshops allowed other stakeholders to talk about a range of issues sometimes relevant to the agenda items; that there was more discussion at workshops than at council meetings; that workshops were disjointed and did not relate to agenda items. The general manager told the Board at his hearing on 3 February 2016 that the workshops are presentations to aldermen mostly on matters which are not on the agenda. Refer Ald. Nielsen’s hearing (19 January 2016), Ref. D.11; the general manager’s first hearing (3 February 2016), Ref. D.20 and D.21; Ald. King’s first hearing (18 January 2016), Ref. D.15; the mayor’s first hearing (9 February 2016, Question 34), Ref. D.18 and D.19; Ald. Lucas’s first hearing (19 January 2016), Ref. D.9; Ald. Pearce’s hearing (19 January 2016), Ref. D.10; Ald. Slade’s first hearing (19 January 2016). Ref. D.17 135 A.8. The general manager’s personal leave and return to work, January 2017 The Board considers that in a properly functioning council, the mayor and the general manager reach agreement about those officers able to take on the role of acting general manager, so that the mayor’s appointment of an acting general manager will be considered appropriate by the general manager, and the transition from general manager to acting general manager will be carried out smoothly and efficiently, with minimal disruption to the staff and the aldermen. On 16 January 2017 the mayor exercised her power under s 61(6) of the Act to appoint an acting general manager when the general manager informed council that he was taking almost three weeks of additional personal leave because of illness. Reaction from the general manager and the DCG&GC, and some aldermen, ensured that this procedure was disruptive, unsettling for staff of the council, and not in the best interests of the community, highlighting as it did the depths of misunderstanding and animosity between the general manager and the mayor. Findings The Board finds that the general manager acted beyond the scope of his authority under the Act by his appointment of the DCG&GC as acting general manager during his period of personal leave. The Board finds that the general manager’s allegation that the mayor acted illegally in appointing the Director, City Services and Infrastructure as acting general manager was inappropriate and untrue, and was not in the best interests of the council, particularly as he circulated this allegation to all council staff. The Board finds that the general manager displayed barely restrained antagonism towards the mayor in his email to staff (23 January 2017), his tardiness in providing her with his medical certificate providing clearance for his return to work, his rudeness towards her in front of his directors, and his refusal to leave the 23 January 2017 council meeting when requested to do so. The Board considers that this behaviour was not in keeping with his obligations to support and liaise with the mayor in her role, and was not in keeping with the reasonable expectations of the community. The Board finds that the DCG&GC displayed unprofessional, unseemly, and improper behaviour in her defiance of the mayor, and in her intimidatory actions in dealing with her fellow director. The Board finds that the aldermen who opposed the motion to require the general manager to attend a fit-for-work assessment chose to ignore legal advice provided to the mayor specifically related to the general manager’s return to work, and in so doing, neglected their responsibilities for the health and safety of their employee, the general manager. The Board finds that the decision to accept the general manager’s early return to work by a majority of aldermen was contrary to statements made by those aldermen in the week preceding the council meeting, when a number expressed their concerns for the general manager’s health and well-being, and considered it unlikely that he would return to work. 136 Supporting evidence and information A.8.1 The appointment of an acting general manager The general manager was due to return from annual leave on 9 January 2017. That morning he emailed the council to state that he was taking personal leave from 9 January 2017 to 13 January 2017 inclusive, and that the DCG&GC was appointed acting general manager.241 On Monday, 16 January 2017, the DCG&GC told the mayor that the general manager was taking a further period of personal leave until 3 February 2017. He purported to appoint the DCG&GC as acting general manager during his leave. Written notification of his personal leave and his appointment of the DCG&GC as acting general manager came to council on the afternoon of 16 January 2017.242 After receipt of the general manager’s email stating that he was taking an extended period of personal leave, several aldermen approached the mayor to raise their concerns about the acting general manager arrangements. On the evening of 16 January 2017, the mayor emailed the Director, City Services and Infrastructure (Mr. Emilio Reale), to advise him that in accordance with s 61(6) of the Local Government Act 1993, she was appointing him as acting general manager until it is confirmed or otherwise by Council. The appointment was effective immediately for the period up to and including 23 January 2017, the date of the next ordinary council meeting. The mayor emailed all aldermen, the general manager, and the three directors (the three most senior staff reporting directly to the general manager) to inform them of the appointment. The acting general manager informed all staff of his appointment by email on the morning of 17 January 2017.243 A.8.2 Response to the appointment of Mr. Reale as acting general manager A.8.2.1 Response of the general manager On the morning of 17 January 2017, the general manager emailed Mr. Reale, with copies to all directors and managers, stating that the Mayor has acted illegally in what she has done and I am at a loss to understand your actions and how you have acted. The general manager asserted that the Mayor cannot legally appoint an acting general manager unless there is a vacancy- and there is not a vacancy- I am only on sick leave. As I stated in my email I as GM (general manager) have the authority to appoint an acting GM.244 General manager’s email concerning his personal leave (9 January 2017), Ref. Q.36. The mayor did not challenge this announcement of the appointment by the general manager. 242 Email correspondence 16 January 2017 – verbal report from the DCG&GC to the mayor concerning the general manager’s extended personal leave, reported in the mayor’s email to the Board 23 January 2017, Ref. Q.41; email from the general manager to aldermen advising appointment of DCG&GC as the acting general manager (16 January 2017). Ref. Q.42 243 Email from the mayor to Mr. Emilio Reale, aldermen and the general manager concerning the appointment of an acting general manager (16 January 2017), Ref. Q.37; email from Mr. Reale to staff concerning his appointment as acting general manager (17 January 2017), Ref. Q.38 244 General manager’s email to Mr. Reale (17 January 2017). Ref. Q.38 241 137 The Board is of the opinion that a careful reading of the relevant provisions of the Act shows that:     Section 61(6) confers a power on the mayor to appoint a person as acting general manager; The council itself does not have any power to appoint anyone as acting general manager – other than as appears in s 61(6)(b); That power is only activated in circumstances where the mayor has appointed a person as acting general manager; There is no power, express or otherwise, in the Act by which the general manager is able to appoint a person as acting general manager. In his response to the Draft Report, the general manager noted that he had a delegation from the council (from 1 July 2011), which the Board found gave him authority to appoint acting general managers for a period of up to five weeks.245 The general manager’s leave on this occasion extended to seven weeks, therefore exceeding the period allowed under his delegation. The Board further considers that the general manager’s delegation to appoint an acting general manager should only apply in circumstances where the general manager is able to fulfil the requirements of his office; that is to say, is not unable to perform his duties by virtue of illness or other incapacity. A.8.2.2 Response of the DCG&GC On the evening of 16 January 2017, following the mayor’s announcement of her appointment of Mr. Reale as acting general manager, the DCG&GC texted Mr. Reale and advised him that she was the acting general manager, and stating that I need to have a face to face discussion with you. Under the delegation from the GM I have to remind You (sic) that you are reporting to me not to the Mayor.246 Mr. Reale met the DCG&GC on the morning of 17 January 2017, at the DCG&GC’s request, and was accompanied by the mayor. In an email the DCG&GC sent later that day to Mr. Reale, the DCG&GC revealed that at that meeting she had:    questioned the mayor’s right to attend the meeting with Mr. Reale; repeatedly stated that the mayor's decision was wrong and that the mayor had no power to appoint Mr. Reale as the acting general manager in the council’s particular circumstances; and told Mr. Reale that his appointment was and is invalid. The email stated to Mr. Reale: I trust you have not actioned any matter as "Acting General Manager" as you will not be able to claim an honest belief and avoid any personal liability under the law.247 Ref. Appendix D.12.91 Text from the DCG&GC to Mr. Reale stating she was the acting general manager (16 January 2017). Ref. Q.39 247 Email from the DCG&GC to Mr. Reale (17 January 2017). Ref. Q.40 245 246 138 The Board considers that the DCG&GC’s statement was an attempt to intimidate Mr. Reale and to dissuade him from continuing to act in the position to which he had been appointed. The DCG&GC’s email also said that she was told by the mayor, upon questioning, that the decision to appoint Mr. Reale was supported by Ald. Branch-Allen, Lucas, Stevenson and Dunsby. The DCG&GC continued to assert the authority of acting general manager in defiance of the mayor. A meeting of the Executive Leadership Team on 17 January 2017 was cancelled by the DCG&GC purporting to be the acting general manager. Several emails were sent by the DCG&GC to senior staff above her signature block, designating herself as acting general manager. However, the agenda for the ordinary council meeting of 23 January 2017 was posted to the council’s website on Wednesday 18 January naming Mr. Reale as the acting general manager. On 18 January 2017 Ald. Branch-Allen met the mayor and told her that after the mayor informed the DCG& GC about receiving support from other aldermen, the DCG&GC had sent her (Ald. Branch-Allen) what the alderman described as inappropriate and abusive text messages and inappropriate and abusive emails and had spoken to her in an inappropriate and abusive manner. Ald. Branch-Allen’s allegations against the DCG&GC were repeated in front of the acting general manager, Mr. Reale.248 On 19 January 2017 the mayor wrote to Ald. BranchAllen, with a copy to Mr. Reale, stating I write to acknowledge the meeting that we had yesterday afternoon in relation to the alleged conduct of the Director of Corporate Governance and General Counsel, Ms. Seva Iskandarli.249 On 20 January 2017, Mr. Reale sent Ald. Branch-Allen an amended version of the mayor’s email, including in it his account of the alleged abusive behaviour which Ald. Branch-Allen had reported, and her allegation that Ms. Iskandarli had told her that she (Ms. Iskandarli) already had a copy of the Board’s report for the Minister of Planning and Local Government. He requested a response from Ald. Branch-Allen, confirming or amending the account of her complaint. He repeated this request on 21 January 2017.250 As at 8 February 2017, no response to the request had been received.251 Email from the mayor to the Board concerning Ald. Branch-Allen’s claim that she had received an abusive text from Ms. Iskandarli (23 January 2017). Ref. Q.41 249 The Board heard that Ald. Branch-Allen also submitted a complaint to the Director of Local Government regarding the alleged statement by the DCG&GC that she (the DCG&GC) had a copy of the Board’s report but has not seen this complaint. Refer to the mayor’s email to Ald. Branch-Allen with a copy to Mr. Reale (19 January 2017). Ref. Q.44 250 Emails from Mr. Reale to Ald. Branch-Allen concerning the conduct of Ms. Iskandarli (20 and 21 January 2017). Ref. Q.44 251 The email from the mayor also stated: As I am sure you appreciate the serious nature of the alleged conduct disclosed to us means that it is important that appropriate records are kept. To this end I request that you provide me with a copy of any text messages, emails or file notes in your possession as evidence of the alleged conduct. I have duty of care to you and likewise the Acting General Manager has a duty of care to you and Ms Iskandarli. It assists us in fulfilling that duty if we have this information. I request that you provide this information to me before Monday 23 January 2017. (Mayor’s email to Ald. Branch-Allen, 19 January 2017). Ref. Q.44 248 139 A.8.2.3 Response of the aldermen Aldermen received notification from the general manager of his intention to take personal leave until 3 February 2017 by email at approximately 4 pm on 16 January 2017.252 This email included his purported appointment of the DCG&GC as acting general manager. The mayor told the Board that she received support for her appointment of Mr. Reale from a majority of aldermen.253 Ald. Branch-Allen and Ald. Lucas spoke with the mayor soon after receiving the general manager’s notification, and raised their concerns about the capacity of the DCG&GC to fill the role for three weeks.254 On 17 January 2017 the mayor talked informally with Ald. Branch-Allen at the council chambers. The mayor told the Board that Ald. Branch-Allen reiterated her concerns about the DCG&GC’s position, and that Ald. Branch-Allen said that she had been talking with all aldermen and that she had organised the numbers and there would be unanimous support for Emilio (Mr. Reale).255 The Board considers that it was reasonable for the mayor to assume that the aldermen of the council supported the appointment of Mr. Reale as acting general manager, and there is evidence that the mayor continued to hold this view until Monday 23 January 2017.256 A.8.3 General manager’s return to work The general manager returned to work on the morning of 23 January 2017. He sent an email to all staff that morning, in which he wrote of the unfortunate issue last week regarding an attempt to appoint an Acting General Manager. He described the mayor’s appointment as invalid and not in line with the Local Government Act. He stated that he had received advice from three senior lawyers from 3 different Tasmanian law firms and this was also confirmed by yet further legal advice from a Senior Solicitor (Queen Counsel) (sic).257 The general manager held a meeting with his three directors on the morning of 23 January 2017. The Board received evidence that the mayor entered the meeting on two occasions, firstly to ask for the general manager’s certificate showing that he was fit to return to work; and secondly, to direct the general manager to cease work and leave the building.258 The Board was told that the general manager refused to leave and told the mayor that she had ‘no authority’ General manager’s email to aldermen concerning his personal leave (16 January 2017). Ref. Q.42 The Board has seen emails from Ald. Branch-Allen, Lucas, and Stevenson (all sent on 16 January 2017), supporting Mr. Reale’s appointment (Ref. Q.42), and has been told (in an email from the mayor to the Board, 23 January 2017) that Ald. Dunsby, Pearce, King, Nielsen and Slade also gave verbal or written support. Ref. Q.41 254 The mayor told the Board that she asked Ald. Branch-Allen why she considered the DCG&GC to be unsuitable for the appointment. According to the mayor’s advice to the Board, Ald. Branch-Allen responded that it was because Seva (the DCG&GC) was incredibly poor at time management, she gave inaccurate advice and they did not think she was competent, that she had a conflict of interest and that she was under investigation. (Mayor’s email to the Board (23 January 2017). Ref. Q.41 255 Mayor’s email to the Board (23 January 2017). Ref. Q.41 256 Mayor’s email to the Board (23 January 2017). Ref. Q.41 257 General manager’s letter to staff on his return to work (23 January 2017). Ref. Q.43 258 The mayor provided written notice to the general manager on the second occasion of her entry to the meeting, which she said was based on legal advice she had obtained regarding his return to work. Ref. Q.45 252 253 140 to give him that direction.259 The general manager remained at work and attended the council meeting on the afternoon of 23 January 2017.260 Shortly after the council meeting commenced council resolved to go into closed session to consider a pressing personnel issue.261 Council wished to discuss the general manager’s return to work when he had been on personal leave because of illness. The general manager remained for the entire session despite being asked by the mayor to leave.262 The general manager stated that he disagreed with the mayor’s assertion in her email to aldermen on the morning of 23 January 2017 that he was not fit to return to work. 263 He described himself as fit, willing and happy. This self-description contrasted with the mayor’s email to aldermen before the meeting, in which she stated:      Peter (the general manager) provided a medical certificate on 16 January stating that he was suffering from a medical condition and was unfit to work for a period of three weeks. In his email providing a medical certificate he advised that a family related issue had affected his health as a type 2 diabetic. Peter refused to provide me with a medical certificate showing he was fit for work until he sent the email to all aldermen at 10:30 am. The medical certificate is dated 20 January yet Peter made no attempt to contact me to indicate his early return to work. Peter’s physical appearance and demeanour suggest that he is still very unwell. The mayor provided council with legal advice she had obtained from an external law firm, which supported her contention that council had a duty of care to ensure that the general manager was properly fit to return to the onerous responsibilities of being general manager of a large urban council.264 Mr. McMullen and Mr. Reale’s accounts of the meeting with the general manager on 23 January 2017. Ref. Q.45 and Q.44 260 The members of the Board and the Director of Local Government attended the entire council meeting. 261 This item did not appear on the agenda, but was taken immediately following Item 1. 262 Some aldermen supported the general manager’s contention that he should be allowed to remain, and the mayor did not insist that he leave. 263 Mayor’s email to aldermen advising her view that the general manager was not fit to return to work (23 January 2017). Ref. Q.46 264 The advice from Mr. Craig Green of Dobson Mitchell Allport Lawyers stated: In certain circumstances where there is a reasonable basis for concerns about an employee’s medical capacity or fitness for work, further information can be sought about an employee’s capacity and/or the employee can be directed to attend an examination by an independent medical practitioner. 259 Reasonable concerns about the employee’s fitness for work can arise in a number of circumstances where: · the employee has been absent from work for an extended period of time; · the employee attends work unannounced after an absence for an extended period of time; · limited or no medical information has been provided about the employee’s illness; · the work performed by the employee is significant and there are risks to the employer and the employee in that regard; · the employee’s illness and/or treatment may affect their ability to perform their job; · the employer needs to ensure that it complies with its obligations under work health and safety legislation. Additional points include any observations about a person (including their appearance, their behaviour and general demeanour) and their conduct upon resuming work. In the present circumstances, where · Mr. Brooks has been on leave for a number of weeks (including both annual and personal leave); 141 At the conclusion of lengthy and occasionally heated debate, Ald. Stevenson moved that council does not accept the general manager’s medical certificate dated 20 January 2017 and requires him to attend a fit for work assessment. The motion was lost 3/6. The mayor, and Ald. Dunsby and Stevenson voted in favour of the motion. Consequently, council resolved by default that the general manager was fit to return to work, despite his curtailing his personal leave by two weeks, and despite the fact that a number of aldermen who opposed the motion had expressed concern about the general manager’s health three days before. Additionally, the matter of power to appoint an acting general manager was not resolved with the general manager. Recommendation: that the Act be clarified to ensure that the power to appoint an acting general manager lies with the mayor, with the proviso that an appointment must be approved by council at its next ordinary meeting. Recommendation: that council ensure that the general manager’s contract of employment includes the provision that any leave (annual or personal) must be approved by the mayor. Recommendation: that any delegated authority given to the general manager to appoint an acting general manager during a period of leave be clearly limited to occasions when the general manager is fully able to fulfil the functions of his office. · despite being provided with a medical certificate on 20 January 2017 certifying that he was fit to return to work on 23 January 2017, he did not communicate his intention to return to work; · Mr. Brooks has provided a medical certificate certifying him to be incapacitated for work until 3 February 2017; · the medical certificate of 20 January 2017 contains very little information about Mr. Brooks’ capacity to perform all of his duties, other than advising that he has a medical condition but will be fit to return to work on 23 January 2017; · as General Manager, Mr. Brooks must perform significant work and accordingly, there are risks to both the Council and Mr. Brooks; · Mr. Brooks’ performance of his duties may be affected by his illness and/or any treatment; and · It is unclear what the Council needs to do to meet its work health and safety obligations then there is a reasonable basis for you, as Mayor, to make further enquiries with respect to Mr. Brooks’ fitness to work. Email from Mr. Craig Green. Ref. O.7 142 Part B: Management and Operations The general manager The role of the general manager, as defined in s 62 of the Act, is to:        be responsible for the day-to-day operations and affairs of the council; appoint, direct and dismiss employees; manage strategic planning processes and annual reporting; prepare the council’s estimates; ensure council policies are implemented; liaise with the mayor; and manage the resources and assets of the council. The general manager must also:     manage the grey area of strategic versus operational responsibilities; be responsive to the needs and views of all elected members; have a clear understanding of responsibilities and requirements under the Act; and support the council with policies and procedures. The general manager and good governance An effective general manager will promote a culture of good governance and show commitment to the characteristics of good governance. In a practical sense, general managers can promote good governance by:          regularly providing elected members with the information they need to fulfil their roles; ensuring that advice from the administration considers the political context; ensuring sufficient resources are set aside to implement the policies and decisions made by the council; ensuring that council officers and elected members understand the structure of local government and their roles in it; providing support to the mayor and elected members when dealing with councillor conduct issues; helping to ensure that all elected members have equal access to information and resources; providing appropriate support for good decision making processes, such as undertaking appropriate community engagement and timely provision of meeting papers; developing processes for the major strategic planning exercises, which ensure elected members have plenty of opportunities for input; ensuring that council officers are given appropriate education and training relating to ethical conduct, as required in the general manager’s role as a Principal Officer under the Integrity Commission Act 2009; 143   taking leadership in modelling good governance; and recognising that elected members have a ‘representation’ role and that they will be advocating for individuals or communities at different times.265 The GCC general manager’s contract of employment (contract) requires him to demonstrate outstanding capacity in a number of areas, including leadership and building and maintaining external relationships. It also details clear direction for his relationship with the aldermen, including the mayor. He is required to: 265  Provide visionary, inspirational leadership to the organisation; promote and model behaviour consistent with continuous improvement principles and the organisation’s vision and values; drive innovation, learning and continuous improvement in the organisation.  Develop productive relationships with relevant Ministers, other Members of Parliament, government departments and agencies, media and key community groups to maximise funding and investment opportunities; enhance the image of the City through the active promotion of its achievements and positive involvement at regional and state forums; role model effective communication with the community, including key groups and agencies representing the community; facilitate community input to decision making processes through informed public debate and consultation; develop collaborative and constructive relationships with the business community.  Provide the support and assistance required by the Mayor and Aldermen for the efficient discharge of their responsibilities under the Local Government Act and other legislation, meeting the reasonable expectations of the community; maintain a cooperative relationship with GCC, based on an ethical foundation of mutual respect and trust; provide timely and accurate information and advice, supported by evidence, to GCC, with recommended actions and timeframes on major issues or concerns impacting on its operations; ensure expeditious actioning of GCC decisions; report on the application of GCC’s delegated authorities; ensure compliance with the Local Government Act and other relevant legislation. Good Governance Guide Tasmania p.35-6 144 Findings The Board finds that the general manager consistently failed to perform some of the functions defined in his contract over a significant period of time, and that this reduced the capacity of aldermen to carry out their functions under the Act. The Board finds that a majority of aldermen consistently failed to monitor and challenge the general manager on the performance of his functions under his contract. The Board finds that the general manager failed to comply with a number of functions under the Act and Regulations and frequently failed to comply with principles of good governance and effective leadership.266 Through its investigations the Board found numerous examples of these failures relating to a wide range of matters, including: 1. 2. 3. 4. 5. 6. 7. 8. compliance with council policies implementation of council plans implementation of the decisions of council management of the operations of council management of employees, including appointment, direction, and dismissal provision of timely and accurate advice provision of timely, relevant, and high quality reports to council timely assistance to council in the development of its Annual Report (including the Budget), Annual Plan, and assessment of its performance against these plans 9. management of council resources and assets 10. provision of advice and responses during meetings 11. maintenance of a cooperative relationship with the council, based on an ethical foundation of mutual respect and trust. The Board also found that the general manager failed to liaise adequately with the mayor; he failed to treat aldermen fairly and equitably; and he failed to ensure that council minutes were consistently accurate. These issues are dealt with elsewhere in this report.267 Recommendation: that the Act be amended to clarify that the Minister may direct a council to terminate the employment of a general manager following investigation by the Director of Local Government, or a Board of Inquiry, or similar investigative independent authority.268 Refer the Local Government Act 1993 and the Local Government (Meeting Procedures) Regulations 2015. Refer Governance: Relationship between the Mayor and the General Manager, (liaison with the mayor and treatment of aldermen). Ref. 3.A.1. Refer also Governance: Council Meetings and Workshops, 3.A.7.3, and documents referenced in that section. 268 Blow CJ in Branch-Allen v Easther [2017] TASSC 54, at [6] said: There is no express power for the Minister to recommend the termination of the employment of a council's general manager. However the power conferred by s 225(2) to direct a council to "take such other steps as the Minister thinks necessary" would appear to empower the Minister, if he thinks it necessary, to direct a council to terminate its general manager's employment. 266 267 145 B.1. Compliance with council policies The role of management, led by the general manager, is to ensure that council policy is followed in undertaking operational tasks such as calling for contracts or tenders. This ensures that aldermen can be confident that the procedures used fulfil council’s responsibilities for good governance and public accountability and are lawful, complying with the Act and the Regulations. The role of the general manager is to comply with council policy in undertaking duties which provide for the good governance of the council and its community. This includes his duty to ensure that elections within council are conducted fairly, transparently, and in accordance with proper practice. Findings The Board finds that the general manager frequently failed to comply with important council policies, and that he failed to either recognise or advise council of these failures. The Board finds that advice provided to council by the general manager in the review of some policies failed to bring significant issues to the attention of aldermen, with the result that some updated policies no longer comply with the Act, or the policy changes reduced council’s accountability and transparency for its community, its staff, and in its business dealings.269 The Board finds that the general manager failed in his duty under the Act to ensure that council complied with GCC policy, in particular, its policy Nomination and Appointment of Aldermen to Committees and Other Bodies, its policy Code for Tenders and Contracts, and its Purchasing Card Procedures.270 Supporting evidence and information In Governance: Council Policies and By-laws (3.A.6), the Board presents findings and supporting evidence regarding compliance with the council’s Code for Tenders and Contracts including:    the Code for Tenders and Contracts adopted by council on 13 April 2016 (Item 11) does not comply with s 333B (2)(a) of the Act; the council failed to comply with its policy Code for Tenders and Contracts; council failed to comply with reg. 29(3) of the Local Government (General) Regulations 2015 (the General Regulations) by failing to include pertinent matters relating to tenders and contracts in its Annual Report 2015-16.271 Refer Governance: Policies and By-laws, 3.A.6.1, and documents referenced in that section. Compliance with and use of council’s Purchasing Card Procedures is reported in Management and Operations: Management of Council Resources and Assets, 3.B.9.1, and documents referenced in that section. 271 Refer Governance: Policies and By-laws, 3.A.6.1, and documents referenced in that section. 269 270 146 In Governance: Council Policies and By-laws, the Board presents findings and supporting evidence regarding council’s non-compliance with its policy Nomination and Appointment of Aldermen to Committees and Other Bodies in the matters of:    272 the procedure adopted for the election of aldermen to committees finalised at the meeting of 1 December 2014 (Item 4); the procedure adopted for the election of an alderman to the Southern Tasmanian Councils Authority’s working group dealing with the Southern Waste Strategy Authority at the meeting of 26 October 2015 (Item 23); and the procedure adopted for the election of two aldermen to the council’s Audit Panel in November 2016 (Item 15).272 Refer Governance: Policies and By-laws, 3.A.6.2.4, and documents referenced in that section. 147 B.2. Implementation of council plans The general manager has responsibility for implementing council’s plans and programs under s 62(1)(a) of the Act. Findings The Board finds that while some plans advanced according to their timelines, other significant projects stalled or were deferred without adequate explanation of the reasons for delay. The Board finds this is evidence of poor strategic planning and failures in risk management and risk mitigation that resulted in a lack of accountability to the council and the community. Supporting evidence and information The quarterly progress report on the annual plan for the period ended 30 June 2016 provided a status update on council’s high priority areas.273 The update showed only one high priority area as on schedule, viz., redevelopment of the council’s website. This project was to conclude on 30 June 2016. Although shown as on schedule, the project was still not completed by December 2016. The status report showed that seven of ten high priority areas were marked red (i.e. not completed/review required). Projects marked for completion by 30 June 2016 or earlier included:       a review of council’s operational services; development of a brand strategy for the city; development of a communications strategy including internal, external, and community consultation, and social media; implementation of the performance reporting system for corporate strategic planning; development of a ten-year strategic plan; and development and implementation of a performance management framework (KPIs) for each department and individual employee(s) linked to achievement of council Annual Plans and strategic action plans. Implementation of the communications strategy was due for completion by 31 December 2016. This did not occur. The Board considers that the slow rate of progress on these high priority areas indicates that the timeframes set by management for development and implementation of council’s programs were unrealistic, or the general manager was failing to provide adequate oversight of the projects to ensure timely completion. There was a lack of accountability to aldermen and the community and evidence of inability to prioritise work plans to meet strategic deadlines. The situation was exacerbated by the general manager’s recommendation to council that it approve 273 Quarterly Annual Plan Progress Report as at 30 June 2016. Ref. K.3 148 the recommendations of the CTMG report, which council did. This approval immediately resulted in the restructure of multiple leadership positions within the organisation and changes to management personnel. Following are examples of failures to manage implementation of council plans. B.2.1 Berriedale Peninsula Master Plan, including the Berriedale Caravan Park B.2.1.1 The Berriedale Peninsula Master Plan The development of a master plan for the Berriedale Peninsula, as detailed in the 2014-15 to 2016-17 Annual Plan,274 was to have been completed and implementation commenced by 30 June 2015. This did not occur. The 2015-16 to 2018-19 Annual Plan275 required the development of a master plan to be completed by 30 June 2016 with the implementation to commence in 2016-17. The quarterly Annual Plan progress report to 30 June 2016 showed that development of the master plan was not completed in the forecast timeframe and although this project had a medium priority, the report stated that the development of a draft master plan would be a task for a future year and that implementation of the plan would also be for future years with a low priority. The Board considers it unacceptable that the project has been so significantly delayed with no reasons provided in the progress report for the aldermen to consider. B.2.1.2 The Berriedale Caravan Park Development On 10 June 2014 (Item 11), council agreed to advertise that an area adjacent to the Museum of Old and New Art (MONA), on the Berriedale foreshore, was intended for redevelopment. At the time the area had been used as a caravan park for over 30 years. Council planned that the successful redeveloper would be ready to commence its development by the time the current lease expired on 30 June 2015. On 11 May 2015 (Item 14), council agreed to advertise for Expressions of Interest (EoI) for redevelopment of the site. Three proponents were then asked to submit proposals on the basis of Request for Proposal (RFP) documentation provided by council. On 26 October 2015 (Item 22), council approved the outcome of the EoI process (including the RFP process) and awarded the proposed lease to MONA, subject to the outcome of public consultation and successful negotiation of lease terms and conditions with MONA. Subsequently, a licence over the site was granted to MONA with the intention of signing a lease at a later date. The mayor provided a verbal update on the Berriedale Caravan Park site at a closed session of the council meeting on 23 January 2017 (Item 20). This report revealed that MONA had lodged a development application for the site and during the assessment process, the application was referred to TasWater, which has responsibility for the sewerage treatment plant immediately adjacent to the caravan park site. TasWater required the applicant (MONA) to provide a report on the emissions from the treatment plant. MONA appealed this decision, but the requirement for a report was upheld by the Resource Management and Planning Appeal Tribunal (RMPAT). 274 275 2014-15 to 2016-17 Annual Plan. Ref. K.4 2015-16 to 2018-19 Annual Plan. Ref. K.5 149 The council’s Berriedale Caravan Park – Expression of Interest Development Documents did not draw attention to the proximity of the sewerage treatment plant; nor did they draw attention to the 400 metre attenuation zone surrounding the treatment plant which would be required by the Glenorchy Interim Planning Scheme 2015 (GIPS).276 When council issued Request for Proposal documentation to preferred developers in July 2015, these documents did not alert the developers to the significant changes implemented by the new GIPS which came into force on 1 July 2015, other than to state that the relevant planning scheme was the GIPS, and that Respondents will be deemed to have examined and to be aware of all the risks; contingencies, and other circumstances having an effect on their proposal, which is obtainable by the making of reasonable enquiries.277 Council did not organise information meetings with the three proponents.278 The Board considers that council management, under the leadership of the general manager, should have taken a far more proactive role in its communication with prospective developers, given the significance and sensitivity of any proposed redevelopment. The mayor reported to the council meeting that at a recent meeting with MONA representatives, council was severely criticised for allowing EoIs to be called for a development within a sewerage treatment plant attenuation zone, when council, as owners of the land and as shareholders in TasWater, should have been aware that emissions from the plant were not compliant with emissions standards. Furthermore, the mayor reported, if MONA were to be successful in its development application, it had to provide a report on the emissions, knowing that the report would find that the plant is non-conforming.279 Discussions with TasWater about plans to fix the emissions from the plant revealed that the project is not a priority for TasWater for the foreseeable future. At the council meeting of 23 January 2017, the mayor described council’s situation as extremely difficult, given that GCC owns the land, acts as the planning authority, and is a shareholder in TasWater. MONA is a very significant business investor in the Glenorchy municipal area. To compound the problems for council, the non-compliance of the sewerage treatment plant also puts at risk further development already proposed for the area, viz., a hotel investment of approximately $200 million. The Board considers that the issues brought to the attention of the aldermen by the mayor, as detailed in the preceding paragraphs in this section, arose because of management’s inadequate oversight of council’s planning and property departments. There appears to have been a lack of communication between the two sections prior to the release of the EoI and RFP documentation, so that council failed to consider the ramifications arising from the provisions of the planning scheme when a development application was lodged. Given the very high economic and social value of the proposed developments, the Board considers that far greater attention should have been given to ensuring that the proposed site and its surrounds had been properly assessed before calling for EoIs. Refer to Minutes of 23 January 2017 Ref. A.36 and B.18; and Berriedale Caravan Park Expression of Interest document. Ref. P.1 277 Request for Proposal documentation. Ref. P.12 278 Meetings were held with two of the three proponents at the instigation of the proponents. 279 The mayor said in her verbal report to the council meeting that the report is expected to cost approximately $100,000. 276 150 B.2.2 Implementation of the Glenorchy CBD Strategic Framework The Annual Plan 2014-15 to 2016-17 states that the implementation of this project, with a medium priority, was to have been completed by 30 June 2016. The Annual Plan progress report to 30 June 2016 stated that implementation of the strategic framework was ‘on schedule’ but also stated that the draft CBD strategic framework has been prepared and is yet to be considered by council prior to public consultation. The necessity to proceed at this stage has been overtaken by more detailed consultancy investigation on urban design associated with the CBD revitalisation project and incorporation of a Specific Area Plan focussed on urban design in the Glenorchy CBD into the Planning Scheme. The Board notes with concern the length of time this project has taken, given that the CBD revitalisation project only came to council for formal endorsement on 19 December 2016 (Item 11). B.2.3 Implementation of the Wilkinsons Point & Elwick Bay Precinct Master Plan The Annual Plan 2014-15 to 2016-17 indicated that this project, which is a medium priority, was to be completed by 30 June 2016. This did not occur. The project was included in the Annual Plan 2015-16 to 2018-19, and the quarterly update to 30 September 2016, provided to council on 19 December 2016, indicated that the project was marked for completion by 30 June 2017.280 The minutes show that an update on this project was provided to aldermen at the council meeting on 29 August 2016 (Item 19). During debate on the item aldermen expressed uncertainty about the status of the project and noted that it had not progressed as quickly as expected. The Board notes with concern that at its meeting on 7 September 2016, the project steering committee did not make a decision about how to progress the plan, except to say that any funding would not be available until at least the 2017-2018 financial year, and this would need a successful ‘budget bid’.281 Nevertheless, the quarterly update on the Annual Plan provided to council on 19 December 2016 (Item 18) showed the project as on schedule. The mayor submitted to the Board that the Wilkinsons Point/Elwick Bay Master Plan was arguably Council’s biggest opportunity for private sector investment.282 Despite this, and despite council’s concern regarding lack of progress, council did not ensure that the project was adequately resourced. Quarterly Annual Plan Progress Report as at 30 September 2016. Ref. K.6 Minutes of the Wilkinson’s Point and Elwick Point Master Plan Steering Committee meeting (7 September 2016). Ref. P.2 282 Mayor’s first submission p.27. Ref. H.17 280 281 151 B.2.4 Council website This project was to have commenced during 2014-2015, and to be completed by 30 June 2016. The quarterly Annual Plan progress report to 30 June 2016 indicated that the project was on schedule. There is no evidence that this project has been completed at the time of writing this report and at the council meeting of 26 September 2016 (Item 27) council resolved to endorse the general manager’s approval of an exemption to the requirement to obtain three (3) written quotes for procurement, made under clause 10.2(f) of the Code for Tenders and Contracts, in order to facilitate the award of the contract for Phases 3 and 4 of the Glenorchy City Council Website Redevelopment Project. The Board concludes that not only has the progress on this project been slow, but the information contained in the quarterly report was incorrect. 152 B.3. Implementation of the decisions of council The general manager’s primary duty is to implement the decisions of council. If implementation was delegated to a subordinate, it remained the general manager’s responsibility to ensure that the task was completed to the satisfaction of council. In the event that this was not possible, the general manager should have provided advice and information to council to enable it to reassess its decision, reorder its priorities, or reiterate its determination that the task be done. While not all council resolutions include designated completion dates, it is expected that the general manager will implement decisions within reasonable timeframes and keep the council apprised of progress, delays and risks. It should not have been necessary for any alderman to make repeated requests for information about outstanding projects or tasks. Conversely, the general manager may not commence any project or activity unless council has made a decision in a council meeting for implementation to commence. Finding The Board finds that the general manager unreasonably protracted implementation of some council decisions, and also implemented at least one critical process with far-reaching consequences without the authority of a council decision. Supporting evidence and information B.3.1 Audio recording of council meetings At its meeting on 19 January 2015 (Item 15.1) council asked for a report on audio recording of council meetings and the development of an appropriate policy for it to consider. At the meeting of 6 July 2015 (Item 14), an alderman asked the general manager when audio recording of meetings would be introduced, and was told by the DCG&GC that a workshop presentation would be given to aldermen later in July. This did not occur. Aldermen received a presentation on audio recording at a workshop held on 17 August 2015. Aldermen resolved to approve a policy on audio recording at the council meeting on 26 October 2015 (Item 17), and required the general manager to negotiate and enter into an agreement with the preferred EoI applicant a suitable audio recording solution for council (sic). Aldermen received a demonstration of the technology at a workshop on 7 March 2016. Audio recording of council meetings commenced on 4 July 2016. The Board notes that many councils around Australia record council meetings, and considers that taking more than 17 months to implement council’s decision to introduce technology which could improve its public accountability and the accuracy of its minutes is excessive. 153 B.3.2 2015 council restructure Following the adjournment of the special meeting on 5 February 2015, eight aldermen agreed to accept the recommendations of the CT Management Group (CTMG) Report (Item 3). The decision taken at this time was not a council decision as it was not taken at a council meeting.283 The Board considers that the general manager should have known this to be the case. Despite this the general manager immediately commenced implementation of the recommendation that council adopt the 3 director, 10 manager model organisation structure that supports increased leadership, strategy efficiency and savings (sic). On 6 February 2015 the general manager sent a memo to all staff stating that I can advise that yesterday council on 5 February 2015 unanimously supported the recommendations from CT Management Group after being fully briefed and receiving a presentation by CT Management Group. Council had requested that I as the general manager implement the recommendations from the CT Management Group.284 The memo also stated that the general manager briefed the executive management team on 5 February 2015, and advised that consultation with affected managers would commence on 11 February 2015. Unions were to be advised on 6 February 2015. The general manager also stated that I have today, 6 February 2015 appointed an internal restructure co-ordinator – Seva Iskandarli (Manager, Legal and Governance); and please continue to do your jobs as usual as we implement the above process. The Board considers that implementing the decision (which was invalid at the time) was premature and contrary to the Act and the Meeting Regulations. Council had not at that stage made a decision and this did not occur until 16 March 2015. The Board notes with concern that the general manager appointed Ms. Iskandarli as restructure co-ordinator despite her current position being spilled as part of the restructure process. The Board considers this appointment to have been inappropriate, given her material and pecuniary interest in the outcomes of the restructure. Refer Governance: Management Restructure, February 2015, 3.A.5, for details about the adjourned meeting of 5 February 2015 and documents referenced in that section. 284 General manager’s email to staff advising council support for CTMG recommendations and appointment of Ms Iskandarli as Restructure Coordinator (6 February 2015). Ref. Q.47 283 154 B.4. Management of the operations of council Findings The Board finds that the general manager failed to monitor a number of significant council operations and projects and thereby failed to effectively manage the resources and assets of the council. The Board finds that poor management of some significant council projects adversely affected the relationship between council and a number of key investors in the municipality. The Board finds that the general manager failed to manage some basic functions of council, including the timely provision of information to the Board of Inquiry. Supporting evidence and information B.4.1 CCTV system At hearing on 2 August 2016 the mayor told the Board that council had resolved at its meeting on 12 February 2013 to receive a report on protocols allied to the installation and maintenance of a CCTV monitoring system in the Glenorchy CBD.285 The mayor stated that this had not been done but that CCTV cameras were installed. Her concerns at this time were that she had been informed by Tasmania Police that the cameras were not working properly. Subsequent investigation by the mayor revealed that the maintenance contractor was no longer employed by GCC but was continuing to receive footage from the cameras. At hearing on 6 September 2016 the general manager told the Board that there were no monitors in council and monitoring occurred in the police station. He agreed that the contractor had been dismissed 14 months previously. The general manager said that he had then requested the installation of a monitor in the council building so that council could be sure that the cameras were operating.286 The Board considers that the general manager should have been aware before the intervention by Tasmania Police that the CCTV system was not operating correctly, and that it could have been used for fraudulent purposes in the absence of active monitoring. The presence of the system was intended to provide security to the Glenorchy community, and council was given a Commonwealth grant to enable this to happen. 285 286 Mayor’s second hearing (2 August 2016, Question 6). Ref. D.24 and D.25 General manager’s second hearing (6 September 2016, Question 30). Ref. D.26 and D.27 155 B.4.2 Derwent Entertainment Centre (DEC) The DEC was to be the venue for an international netball game on 1 August 2015. The game had to be transferred to another venue almost at the last minute because it was found that the playing surface was unsuitable for an international match. The game was advertised for several weeks beforehand, and the Board considers that this failure to recognise the standard of facilities required for an international sporting event is evidence of failure to manage the day-today operations of a major council asset.287 B.4.3 Emergency management The Board received evidence that as a result of the restructure of senior management from February 2015, the Emergency Management Coordinator and Deputy Coordinator were made redundant with little notice, and were not replaced.288 The Board was told that the general manager took responsibility for emergency management himself for a period of time, without having done the necessary training. The mayor told the Board that while the general manager was responsible for emergency management, he took five weeks of annual leave. The Board considers that these functions are important for the welfare and safety of the employees of the council and the community, and is concerned that the general manager does not appear to have given sufficient forethought to the possible consequences of his decision to offer redundancies to the most senior employees in this area, particularly during the bushfire season. B.4.4 Provision of information to the Board of Inquiry The Board considers that the delays and refusals to provide material to the Board were symptomatic of reluctance on the part of management to assist the Board in its Inquiry, and of organisational mismanagement which appears to limit the ability of senior management to provide basic information within a reasonable timeframe.289 Finding The Board finds that throughout the course of its Inquiry, the general manager and his agent, the DCG&GC, rarely complied with the timeframes to produce documents to the Board, made in accordance with s 222 of the Local Government Act 1993. The general manager stated in his response to the Draft Report (Appendix D.12.102) that officials from Netball Tasmania had been present during inspections of the court surface prior to cancellation of the game at the DEC, and that GCC had undertaken some repairs in the week preceding the fixture. 288 The mayor’s first submission p 36. Ref. H.17 289 Blow CJ in Branch-Allen v Easther [2016] TASSC 29, at [99] said: It is clear that the Board and its staff were not getting appropriate cooperation from the general manager in relation to the provision of documents. His obfuscation in relation to the confidential agendas and the documents relating to Ms. Iskandarli’s appointment appear to be symptomatic of a much larger problem. 287 156 Supporting evidence and information Over the course of the Inquiry (since October 2015), under s 222 of the Local Government Act 1993, the Board issued 45 Requirements to Produce Documents to the general manager as the proper officer of council.290 Some of the Board’s requests were ignored and some required repeated requests before the general manager complied. Some requests were disputed and on numerous occasions, many documents were provided later than the stipulated timeframe.291 On two occasions, the Board had to summons the proper officer to appear in person to produce the documents, as he had failed to comply with the s 222 notices issued by the Board. There were also three occasions where information sought by the Board was not received and after a number of notices to comply, the Board advised the general manager of its intention to authorise a person to physically attend council and retrieve the required documents, which were then finally produced.292 Examples of failure to comply, or delay in compliance, include: B.4.4.1 February – March 2016 On 18 February 2016, under s 222, a written Requirement for Documents was issued to the general manager, as the proper officer, for the production of a number of documents.293 Owing to the number of documents requested, the Board allowed the general manager until Monday 29 February 2016 to produce those documents. On 23 February, the Board received an email from the DCG&GC asking why the documents were requested and stating that she was not subject to the Inquiry Terms of Reference.294 A second request under s 222 was issued on 1 March 2016 with a revised due date.295 This request was ignored. On 18 March 2016, a Summons was issued for the proper officer to appear before the Board with the required documents.296 The DCG&GC emailed the Board stating that the Summons was invalid.297 The Summons was reissued on 12 April (due to a delay caused by the Supreme Court matter), requiring the production of documents at 2 pm on 18 April 2016.298 The general manager and the DCG&GC arrived 15 minutes late. Of the seven documents requested, the general manager failed to produce three items, stating that they were confidential and he was seeking legal advice concerning their production. The documents were eventually produced as a result of a subpoena issued by the Solicitor-General during the matter of Branch-Allen v Easther.299 This refers to Requirements to Produce Documents which were received by Mr. Peter Brooks as general manager. It does not include RPDs which were sent when a different officer was acting as general manager. 291 The Board’s Requirements to Produce Documents are contained in L.1. 292 The Board’s advice (12 December 2016) and (7 October 2016) and (7 December 2016). Ref. L.1 293 Requirement to Produce Documents (18 February 2016). Ref. L.1 294 Email from the DCG&GC to the Board querying document requirement (23 February 2016). Ref. Q.48 295 Second Requirement to Produce Documents (1 March 2016). Ref. L.1 296 Summons to appear with required documents on 31 March 2016 (18 March 2016). Ref. L.1 297 Email from the DCG&GC to the Board (31 March 2016). Refer Management and Operations, 3.B.5.3.2, and documents referenced in that section. Ref. also Q.49 298 Reissued summons (12 April 2016). Ref. L.1 299 Branch-Allen v Easther [2016] TASSC 29. 290 157 B.4.4.2 Provision of agenda, April 2016 On 12 April 2016, a member of the Board’s secretariat contacted the general manager by phone and asked, in accordance with the Board’s power under s 222, for a copy of the closed council agenda and attachments for the council meeting on 13 April 2016, to be sent to the Board by 5 pm that day.300 The general manager failed to provide any materials until 2.45 pm on 13 April, when the Board was seated in the council chamber awaiting the start of the meeting.301 As the general manager failed to provide the document within the stipulated time, the Board requested the mayor to provide the agenda and attachments.302 B.4.4.3 Provision of the minutes of 26 September 2016 meeting On 25 October 2016, under s 222, a Requirement to Produce Documents by 28 October 2016 was issued to the general manager for the council minutes of the 26 September 2016 and 24 October Council meetings.303 The general manager did not provide the documents and provided no explanation for this failure to the Board. After two more Requirements to Produce Documents (issued under s 222), the materials were provided on 3 November 2016.304 B.4.4.4 Provision of employment contracts and legal advice On 8 December 2016, under s 222, a Requirement to Produce Documents by 12 pm, Monday 12 December 2016, was issued to the general manager requesting employment contracts between the council and the DCG&GC, and a copy of the legal advice received by the general manager referenced in an email on 26 August 2015.305 At 5.34 pm on 12 December, the Board asked the general manager why the required documents had not been provided.306 The DCG&GC emailed the Board on 13 December 2016, requesting additional information about the requisitioned email.307 The DCG&GC stated that due to her working commitments, she had not had enough time to seek the information required. The Board responded directly to the general manager and advised him that he had not provided a reasonable excuse for his failure to provide the required documents to the Board. The Board also advised the general manager that dealing with the requirement to produce documents was his responsibility, and it was his duty to ensure the documents were provided on time despite delegating their collection to another person.308 The documents were subsequently provided at 4.55 pm on 13 December 2016.309 In his response to the Draft Report (Appendix D.12.104) the general manager denied that the Board had requested the documents under s 222. 301 General manager’s email to the Deputy Director of Local Government attaching the agenda (13 April 2016). Ref. Q.50 302 Refer Governance: Relationship between the Mayor and the General Manager, 3.A.3.2, and documents referenced in that section. 303 Requirement to Produce Documents (25 October 2016). Ref. L.1 304 Requirement to Produce Documents (25 October 2016); Requirement to Produce Documents (3 November 2016). Ref. L.1 305 Requirement to Produce Documents (8 December 2016). Ref. L.1 306 Email from the Board to the general manager (12 December 2016). Ref. Q.51 307 Email from the DCG&GC to the Board requesting further information (13 December 2016). Ref. Q.52 308 Board’s email to the general manager in response (13 December 2016). Ref. Q.53 309 DCG&GC contracts, email of 26 August 2015, and legal advice. Ref. L.3 300 158 B.4.4.5 Provision of tender documents Under s 222, a Requirement to Produce Documents was issued to the acting general manager, Ms. Iskandarli, on 12 January 2017, requiring the production of documents relating to the tender process for the design and construction of the King George V (KGV) hydrotherapy pool. The documents were required to be provided to the Board by 10 am Monday, 16 January 2017.310 On 16 January 2017, Ms. Iskandarli emailed the Board seeking an extension to 18 January 2017 as the council officers tasked with collecting the required information had a large workload serving the community. The Board advised Ms. Iskandarli that an extension would be granted to 5 pm, Monday 16 January.311 At 4.50 pm, Ms. Iskandarli emailed the Board advising that the documents were too large to be sent by email and that a courier would deliver the documents on the morning of 17 January.312 The documents were eventually delivered shortly before midday on 17 January 2017. Requirement to Produce Documents (12 January 2017). Ref. L.1 The Board stated that the documents were urgently required in order for the Board to meet its intended timeframe in the provision of materials to affected persons. Refer email from the DCG&GC (16 January 2017) and the Board’s response (16 January 2017). Ref. Q.54 312 DCG&GC email to the Board re delivery of documents (16 January 2017). Ref. Q.54 310 311 159 B.4.5 The KGV sports and community facility The KGV project commenced in December 2014 and, as at 14 November 2017, has not been completed. The Board received evidence from stakeholders and some aldermen concerning significant operational problems associated with the redevelopment project.313 Findings The Board finds that the KGV project has been beset by problems throughout its implementation, including delays in construction and construction of facilities unfit for purpose. The Board finds that poor management of the KGV project imposed significant additional expense and stress on the tenants, brought about by extensive disagreements on a number of matters, including leasing arrangements. The Board finds that the general manager failed to keep council adequately informed of the progress of the KGV project, and that this reduced council’s ability to monitor the general manager’s management of council’s assets and resources. Supporting evidence and information B.4.5.1 Construction of the redevelopment The Board understands that, following discussions between the Glenorchy District Football Club (GDFC), the council, and Mr. Andrew Wilkie MP, the council submitted an application for funding to redevelop the KGV site under the Commonwealth Government’s Regional Development Australia Fund. The application was successful and grant funding totalling $8.7 million was approved on 19 June 2012.314 The grant was intended to improve sporting and community facilities available in the region, with a project completion date of 5 December 2014. The works to be undertaken included a multi-purpose sports and community hub facility, a Transport Museum Display shed, a multi-purpose pitch/oval, and new pedestrian access and landscaping.315 The proposed community hub was to house the GDFC, the Migrant Resource Centre (MRC) and an Allied Health Facility. Revive Physiotherapy, which the Board understands had been part of the initial discussions with the GDFC and Mr. Wilkie, took up the tenancy as the allied health provider.316 Mayor’s email to the Board (19 January 2017), Ref. Q.55; Ald. Stevenson’s second hearing (5 September 2016, Question 8), Ref. D.32 and D.33; Ald. Branch-Allen’s second hearing (9 September 2016, Question 4), Ref. D. 30 and D.31; Board’s records of meetings with Ms. O’Neill, Mr. Kingston; and Messrs Amos and McCann (KGV stakeholder meetings, 12 July 2016). Ref. D.8 314 Extract concerning KGV grant from Commonwealth website. Ref. P.3 315 KGV Funding Agreement. Ref. P.4 316 The Board sent a s 222 Requirement to Produce Documents (20 January 2017) to council requesting any documentation relating to the Expression of Interest (EOI) process for the filling of the Allied Health Facility at the KGV complex. Ref. L.52. The Board received no evidence of an expression of interest process for the allied health tenancy with council’s response to this requirement, but rather, details of the tendering process for the lease of the 313 160 While the three tenants are currently occupying the premises, the Board was advised by the tenants in July 2016 that the project had not been completed and as at 17 September 2017, only Revive had signed a lease. The Board understands that the other two tenants have not signed leases because a number of serious defects in the building had yet to be remedied.317 The GDFC has signed a memorandum of understanding (MoU) with the council and an agreement to lease but as at 17 September 2017 no lease has been agreed and signed.318 The Board was told that there were a number of delays in starting construction initially caused by the inability of council and the GDFC to finalise agreement around the demolition of the club space. Construction eventually commenced in December 2014 with a revised completion date for the first quarter of 2016.319 The GDFC told the Board (12 July 2016) that the GDFC was concerned that the project control group did not meet regularly during construction, and as at July 2016, had not met for approximately 12 months.320 The Board heard that during the construction phase there were disagreements between the tenants and the council about floor plan layout, what amenities were included in the build budget, and what contributions tenants were expected to make towards fit out costs. All three tenants told the Board that there was inadequate consultation on the floor plans and fit outs that had resulted in parts of the redevelopment not being fit for purpose, and that a number of defects, some significant, were identified during and following the construction phase. The Board was told that the significant number of unresolved construction issues made the lease negotiations being conducted at the same time with council difficult. The Board was told that there were also construction delays that further hindered the project’s process. The deficiencies noted by the tenants included:     An insufficient number of toilets were available to MRC staff and visitors, and only one MRC kitchen area provided; The kitchen intended to be used for commercial purposes by the GDFC (as specified in the grant deed) was unfit for purpose and was unable to be used full time as intended; The cafe (specified in the grant deed) was stocked with domestic appliances, which made it unfit for the purpose intended, as it was little more than a coffee shop;321 The GDFC bar required refitting; hydrotherapy pool. Evidence that the tenancy of the building space was tendered was provided by the acting general manager in his response to the Draft Report (Appendix D.11.11). 317 Outstanding actions list attached to 23 January 2017 council meeting agenda. Ref. A.41 318 The redevelopment required the demolition of the existing buildings occupied by the GDFC, which GDFC had financed and built on land owned by the council. These arrangements were reflected in the MoU. Refer to the MOU between GDFC and GCC, Ref. P.5, and the Agreement to Lease. Ref. P.6 319 Quarterly Annual Plan Progress Report as at 30 June 2016. Ref. K.3 320 Refer notes from the Board’s meeting with GDFC (KGV stakeholder meetings, 12 July 2016), Ref. D.8. The general manager stated in his response to the Draft Report that the GDFC attended weekly or fortnightly on site meetings with Council’s project manager and builders and contractors. Ref. Appendix D.12.108 321 MRC told the Board that the café had been intended for use as a training facility shared by the MRC and the GDFC, and that GDFC wanted to use it for commercial returns. The fit out was not appropriate for these purposes. (KGV stakeholder meetings, 12 July 2016). Ref. D.8 161        Revive Physiotherapy negotiated for a separate entrance, thus losing the concept of a shared ‘community space’ and adversely affecting security features for the entire facility; The MRC counselling rooms had not been soundproofed as stipulated in the planning process, thereby not affording a sufficient level of privacy for clients; The MRC had no duress alarm and the location of the common lift created security issues for MRC; There were no security doors between the first floor and the MRC on the second floor, creating further security concerns; A hot water cylinder was located in the IT equipment room and as a result it was not possible to get the IT equipment insured; The Allied Health facility had not been wired to the standard required for a medical facility, resulting in additional cost to the tenant; A state of the art function room for GDFC was included in the design. Once constructed it was discovered that no AV wiring had been fitted in the ceiling and this would have to be retrofitted to make the function room fit for purpose.322 On 17 September 2017 the acting general manager informed the Board that each of the tenants is occupying the building and has concerns about building defects which are affecting the tenure arrangements. As a result of these concerns, none of the tenants is paying any rent to the council. Neither the MRC nor the GDFC has yet signed a lease, and Revive has not signed a lease for use of the hydrotherapy pool.323 B.4.5.2 The hydrotherapy pool There have been numerous significant issues with the hydrotherapy pool constructed in the complex. The pool was not included in the original project and there was no funding allocated to it in the federal grant. Thus when the main project was put to tender it did not include the pool. The Board was told on 12 July 2016, that when council decided to proceed with construction of the pool, this was treated as a job variation, rather than a separate project, and it was not put out to tender.324 At its meeting of 16 February 2015 (Item 20) council approved funding up to $381,000 to construct a hydrotherapy pool within the KGV complex, noting that the reporting brief in the minutes proposed that expressions of interest would be sought to operate the pool under terms which would ensure there would be no financial impact on council’s long-term financial plan. At the 11 May 2015 council meeting (Item 17.4) it was noted that $800,000 had been generated in interest on the grant funding being held by council due to the delayed start to the project, and Ald. Dunsby asked why funding for the hydrotherapy pool, approved at the 16 February 2015 meeting, was not sourced from these funds.325 There is no minuted response, apart from a note that officer comments were provided. On 6 July 2015 (Item 14) Ald. Dunsby Refer notes from KGV stakeholder meetings (12 July 2016) and MRC update (24 June 2016). Ref. D.8 Ref. P.11 324 Under s 222, the Board issued a Requirement to Produce Documents (12 January 2017) regarding the tender processes for the hydrotherapy pool. Ref. L.34. No tender documents for the construction of the pool were provided; only tender documents for the lease of the pool once constructed. 325 It was a condition of the grant deed that any interest earned on grant funding must be used for the project (clause 4.2). Ref. P.10 322 323 162 again asked for a response to the question asked at the 11 May meeting. The minutes record that the general manager advised that officer comments were provided at that meeting but no comments from officers are recorded in either set of minutes. The question regarding the source of funds was not answered. The Board was told that the initial design for the pool was developed by council in-house. At an early stage of construction, the project was reviewed by an architect who advised that the pool was not designed to Australian standards: the ceiling was too low and the concourse and doorways too narrow. There was no capacity to install a hoist which was critical as the pool was to be used by people with disabilities.326 The Board was told that the DCG&GC had engaged another architect and a number of modifications were made to the hydrotherapy pool; however, the modifications impinged on the GDFC’s amenity by partially obstructing the view from the coaches’ box and grandstand, and this has not been rectified. The Board was told that while the pool was closer to the Australian Standard after the modifications, it still did not fully meet it.327 At the council meeting of 15 February 2016 (Item 20.5) it was noted that a further $211,586 would be required to remedy the pool’s defects.328 At that meeting Ald. Stevenson asked why the brief given for construction of the pool had not required it to meet the Australian Standard. The DCG&GC replied that the brief was for building only, and the matter of meeting the Australian Standard was raised later by a different consultant. The Board was told by the mayor in an email dated 19 January 2017, that there were ongoing problems with the hydrotherapy pool, problems which were brought to her attention by the proposed lessee.329 At the council meeting on 23 January 2017 (Item entitled ‘Lease Hydrotherapy Pool’ brought forward by the general manager under reg. 8(6) of the Meeting Regulations in closed session), the DCG&GC reported that council has received a certificate from the sub-contractor that the pool meets all relevant standards, inclusive of AS 3979-2006, that the pool has been commissioned and is compliant and that all works were installed to specifications provided. Tenant (sic) has alleged that the pool is not fit for purpose and is not compliant but has not produced evidence. Council are (sic) investigating these allegations further. At the council meeting of 20 March 2017, the outstanding actions list for closed council (Item 19) revealed that an independent consultant from Melbourne had inspected the pool, and had provided a preliminary report advising that the pool is not compliant or fit for purpose. The report to council then states Refer notes from meeting with Mr. Kingston (KGV stakeholder meetings, 12 July 2016). Ref. D.8 Refer notes from meeting with Mr. Kingston (KGV stakeholder meetings, 12 July 2016). Ref. D.8 328 The answer to a QoN (Item 20.5) revealed that after council’s allocation of $381,000 on 15 February 2015, a further $205,298.40 would be required to achieve a revised option which was considered to be fit for purpose. This additional expenditure will be met through internal savings and progressed through the Infrastructure Management Group. Ref. A.22 329 In December 2016, the mayor was notified by the proposed lessee that particular concerns were that the plant equipment installed (pumps, filters, etc.) were of a domestic or low-grade commercial quality and not suitable for hydrotherapy use; and that the rendering of the pool surface was beginning to dissolve in the water and was not the appropriate standard. It was claimed by the proposed lessee that he had the pool specification independently assessed, and that the specification did not meet any acceptable standard for use as a hydrotherapy pool. Refer email from the mayor to the Board (19 January 2017). Ref. Q.55 326 327 163 An action plan for rectification works – which will include installing new plant – has been prepared, and the consultant is also reviewing scope of works for the installation of new plant under the consultant’s direction (which will ultimately be incorporated into a request for quotes). Practical completion has not yet been granted to Macquarie Builders. The terms of the lease were settled on 7 February 2017 ready for signing. However, on 10 March 2017 the tenant’s solicitor requested further amendments to the lease to include a warranty regarding the fitness of the plant and issues around commerciality of the pool. The tenant’s solicitor is preparing a further revised lease for review. The tenant does not want to accept liability to pay rent until St. Giles takes possession of the pool. As at 20 March 2017, more than two years since council approved funding for construction, the pool was not available for use, and the proposed lease for the pool had not been signed by council and the lessee, despite the lessee’s intention to commence use of the pool before the end of January 2017. On 17 September 2017, in response to a Requirement to Produce Documents under s 222, the acting general manager informed the Board that the pool was in use, but that a lease agreement had not been signed with the tenant.330 B.4.5.3 Project management The project was managed in-house by a council employee who was also working for part of the time on council’s Moonah Arts Centre development. The Board heard that the prospective tenants of the KGV complex encountered a lot of problems that they attributed to poor project management. Following the 2015 council restructure, the DCG&GC took overall responsibility for the project and became the direct liaison for the tenants.331 The Board heard that the inclusion of the DCG&GC as the primary contact, manager and negotiator for the council on this project introduced further issues in working with the tenants. The Board was told by a number of people that the DCG&GC was difficult to deal with, and one tenant had refused to be present in the same room as the DCG&GC during negotiations. The Board received evidence that the DCG&GC appeared to have viewed the project as a commercial venture, and not a community development project. The Board heard evidence (12 July 2016) from the GDFC that the DCG&GC advised this is a commercial transaction, we can knock your building down, despite the fact that the GDFC owned the original building on the site. One tenant described the experience with the DCG&GC as hand to hand combat all the way.332 After a long and protracted process, the leases for the KGV site were due to be signed by 14 October 2016. This did not occur and the mayor raised the issue at the 24 October 2016 council meeting (Item 29), and other aldermen also expressed concern.333 In response to their questions, the general manager and the DCG&GC stated that the project was progressing well. The DCG&GC told aldermen that the leases had not been signed because the tenants had not had time to do so. DCG&GC stated that she had received no advice from the MRC, verbal or written, that failure to remedy defects was the reason for delay in signing the lease. The Board Email from the acting general manager to the Board. Ref. P.11 Refer notes taken at KGV stakeholder meetings (12 July 2016). Ref. D.8 332 Refer notes taken at KGV stakeholder meetings (12 July 2016). Ref. D.8 333 Ald. Lucas asked whether defects requiring remediation were causing delays in signing leases, and the DCG&GC replied that this would be unreasonable, and that no such issues had been raised with GCC. Ald. Branch-Allen said that it was a matter of concern that the leases had not been signed, and said it should be ‘a matter of priority’. Ref. Q.55 330 331 164 is concerned to note that this advice is in stark contrast to evidence received from the GDFC and the MRC during the Inquiry.334 On 14 November 2016, a tour of the KGV site was conducted for the aldermen. During the tour the aldermen were given a ten-minute presentation by the president of the GDFC. In that presentation, the president advised of a number of issues including the unsuitable nature of the kitchen and floors, and electrical and security issues. The president also advised the aldermen that the football club had been charged for all the electricity supplied to the site during construction, because council’s project manager had failed to get an independent power connection for the builders. The amount of this was approximately $30,000335 and the club was still being billed for the whole building’s consumption as of 20 January 2017.336 Additionally, the football club stated concerns about the delays in construction and the loss of trade to the club during that time. The Board heard that as a result of the financial stress placed on the GDFC, it began seeking financial assistance from council to compensate for the delay.337 The Board received evidence that at the conclusion of the tour on 14 November 2016, the aldermen discussed the issues that had been raised by the tenants. Aldermen raised these issues with the general manager and the DCG&GC, who said that the tenants were overstating their situation, that the project was progressing well, and that the tenants themselves were difficult to deal with.338 B.4.5.4 Proposed opening ceremony On 16 November 2016, the general manager sent the mayor a copy of the invitation he had prepared for the opening of the KGV site to be held on 5 December 2016. The Board heard that none of the tenants had been consulted on the proposed opening date and neither had the mayor, the federal department that provided the funding, nor Mr. Wilkie.339 The Board was told that without the mayor’s knowledge and in a notable breach of protocol, the general manager and DCG&GC had approached the Governor of Tasmania to open the facility, and the Governor had agreed to do so.340 The Board saw evidence that the DCG&GC, on behalf of the general manager, commenced discussions with the Federal Department of Infrastructure and Regional Development prior to 18 November 2016, regarding the Minister’s attendance at the KGV opening. On the request of the contract manager for Regional Programmes within that department, the DCG&GC on 21 November 2016 submitted three possible dates for the opening, none of which complied with the requirement of the grant deed to provide at least 45 days’ notice.341 Further Refer notes taken at KGV stakeholder meetings (12 July 2016). Ref. D.8 Email from the mayor to the Board (17 November 2016). Ref. Q.56 336 Email from the mayor to the Board (19 January 2017). Ref. Q.55 337 Email sent to aldermen by a Member of the PCG and GDFC representative at the Site Meetings, and forwarded to the Board by the mayor (17 November 2016). Ref. Q.56 338 Mayor’s email to the Board concerning KGV (17 November 2016). Ref. Q.56 339 Invitation to the KGV opening and email responses from the tenants (email from GDFC 16 November 2016); email from the mayor to the Board (17 November 2016); emails from Ms. O’Neill (MRC) and from Mr. John Kingston (Revive) (16 November 2016). Ref. P.7 and P.8. 340 Mayor’s email to the Board concerning KGV (17 November 2016). Ref. Q.56, and the email exchange between Government House and the DCG&GC (concluding 14 November 2016). Ref. P.7. 341 The grant deed (clauses 24.8, 24.9, 24.10, 24.11, and 24.12) includes detailed requirements for conduct of the official opening of the facility, including three options for opening ceremony dates, with notice provided at least 45 days before the first date; an invitation to the nominated federal representative to officiate at the opening; and a requirement that the attendance of any other State or Federal politician or official be approved by the federal government. 334 335 165 communication from the contract manager revealed that the Minister’s office had been in contact with the mayor, and that it was agreed that the opening be postponed until the second half of January 2017. This provoked two strongly worded emails from the DCG&GC to the federal department, stating that all decisions on the date of the opening would be taken by the general manager, not the mayor.342 Ultimately, the general manager agreed to postpone the official opening.343 As at 29 September 2017, the KGV facilities have not had an official opening ceremony to comply with the terms of the grant deed. Email exchange between the contract manager and the DCG&GC (November 2016 – 24 December 2016). Ref.P.8. 343 Mayor’s email to the Board concerning KGV (19 January 2017). Ref. Q.55. 342 166 B.5. Management of employees, including appointment, direction, and dismissal B.5.1 Dismissal of a newly appointed director Finding The Board finds that the general manager failed to ensure that the former Director Community, Economic Development and Business received fair and equitable treatment without discrimination.344 Following the 2015 restructure an external applicant was appointed to the newly created position of Director Community, Economic Development and Business (DCEDB) and commenced work on 29 June 2015. The general manager terminated the DCEDB’s appointment on 20 August 2015, 38 working days after her commencement. On 27 August 2015 the DCEDB made a general protections application to the Fair Work Commission under the Fair Work Act 2009 seeking relief, and the council lodged a response on 4 September 2015. On 15 September the parties reached a mediated settlement by way of a deed whereby the former DCEDB agreed to resign and the council paid her a $50,000 termination payment.345 The former DCEDB told the Board at hearing that she had witnessed a lot of angst in the organisation. She had picked up on widespread perceptions of the general manager’s favouritism towards the DCG&GC and had concerns about the DCG&GC’s conduct. She told the Board that she had raised these concerns with the general manager on 3 August 2015 and he subsequently held a meeting on 4 August 2015 with the DCG&GC and the DCEDB to discuss matters raised by the DCEDB. The former DCEDB told the Board that the two directors did not agree on the facts of the incidents in question.346 On 20 August 2015, the general manager met with the DCEDB and told her he was terminating her employment with one week’s notice under the probation clause in her contract. The Board was told that when the DCEDB asked the reasons for her termination, he cited complaints that had been made about her, and including that she had disobeyed instructions despite repeated warnings. The former DCEDB told the Board she was then walked out of the building by personnel from Human Resources.347 The Board asked the former DCEDB what instructions she might not have obeyed that warranted immediate dismissal. She told the Board that the only instruction she could think of related to the disclosure in the 2014-2015 Annual Report of a breakdown of the payments under the redundancy program that occurred as a result of the management restructure.348 She told the Board that the DCG&GC had given direct instructions to the finance team (the former The Act, s 63(2) Board’s hearing notes and material provided by Ms. D. Hood (hearing 21 December 2015), Ref. D.2, and General Protection Application to Fair Work Australia. Ref. P.9 346 Refer notes of Ms. D. Hood’s hearing (15 December 2015). Ref. D.2 347 Refer notes of Ms. D. Hood’s hearing (15 December 2015). Ref. D.2 348 Refer Governance: Management Restructure, February 2015 (3.A.5) and documents referenced in that section. 344 345 167 DCEDB’s area of oversight) to remove a note in the report about the redundancy disclosure. The DCG&GC had indicated to her that the Tasmanian Audit Office agreed to this.349 The former DCEDB said she had checked this with the Audit Office and was advised that the disclosure had to remain. The DCG&GC was asked to attend a meeting at the Audit Office, following which the redundancy disclosures were reported in Note 9 of the Financial Statements. The DCEDB said that the DCG&GC later denied directing the finance team to remove the note.350 The Board heard that after being told that the Audit Office had advised in writing on the need to include the redundancy information, the general manager signed the statements. When the Board asked the DCG&GC about issues surrounding the termination of the DCEDB, at hearing on 7 September 2016, she told the Board that she had not been involved in the termination as she had been away when it occurred. She said an external lawyer had advised the general manager that the conduct of the DCEDB was such that it constituted immediate termination. When asked what had warranted the immediate termination, the DCG&GC said that the DCEDB had gone against the general manager’s instructions, citing an incident where she alleged the DCEDB had failed to abide by the general manager’s instruction in relation to work health and safety requirements at the DEC, which resulted in the cancellation of an international netball match.351 The DCG&GC could not recall any other examples of the DCEDB’s failure to follow instructions, but said that when the facts were presented to external lawyers they determined that the DCEDB’s conduct warranted immediate termination. The DCG&GC went on to deny that she had refused to settle the dispute with the DCEDB at the mediation session with the general manager.352 The Board asked the general manager about the termination at hearing on 6 September 2016. He said he had received complaints about the DCEDB from some aldermen and there were issues where he had requested certain things to happen which did not. He referred to the netball incident at the DEC and said he had terminated the DCEDB for not being ‘part of the team’ and not following instructions. The Board asked what instructions she had disobeyed and he said there were a range but he could not elaborate, on the grounds that it was a private matter between him and the employee. The Board asked him about the redundancy remuneration disclosure and he said he had not been involved in those discussions and all he knew was that advice had been sought from the Auditor-General and had been followed.353 On the evidence provided to the Board, the DCEDB was dismissed without warning after she had raised concerns about the DCG&GC’s performance with the general manager; and following a dispute with the DCG&GC which related to either the disclosures to be included in the financial section of the Annual Report, or the placement of those disclosures in the Notes to the section. The Board considers that if the dispute related only to the placement of agreed disclosures in the financial statement, rather than omission of legislated disclosure, it is insufficiently material to warrant dismissal. In addition, the general manager stated that the These statements were denied by the DCG&GC in her response to the Draft Report, wherein she said that she had suggested as her personal opinion that the redundancy disclosure should be moved from Note 44 in the financial statements to Note 9. Ref. Appendix D.13.7 350 Refer notes of Ms. D. Hood’s hearing (15 December 2015). Ref. D.2 351 The netball match was scheduled for 1 August 2015 and cancelled at the last minute because the floor did not meet appropriate standards. This was barely one month into the DCEDB’s contract. See Management and Operations: Management of the Operations of Council, 3.B.4.2, and documents referenced in that section. 352 DCG&GC’s second hearing (7 September 2016, Question 11). Ref. D.28 and D.29 353 General manager’s second hearing (6 September 2016, Question 33). Ref. D.26 and D.27 349 168 DCEDB was dismissed because of her alleged responsibility for the failure of the floor in the DEC to be of a proper standard for an international sporting event, when she had been at GCC for a very short time and the event had been organised months in advance. B.5.2 March 2015 – the termination of an employee Finding The Board finds that the DCG&GC, when acting as the general manager, failed to ensure that an employee of the council received fair and equitable treatment without discrimination. Supporting evidence and information On 17 June 2015 the mayor emailed the acting general manager (Ms. Iskandarli) seeking information about her action in terminating an employee (reportedly with mental health issues) who had posted on Facebook his intention to protest outside the Council Chamber.354 The complainant went on to conduct his protest and from his reported actions he was clearly in a distressed state. In her email the mayor noted that council had a duty of care to ensure the employee (who had not yet been terminated) suffered no mental and physical harm as a result of council’s actions, given that council was already aware that he was suffering from mental health issues through recent sick leave requests. The mayor described the employee as highly vulnerable both physically and mentally at this point in time. She also noted that the media had contacted council earlier in the day about this matter, and expressed her concern that she had not been notified or briefed and had found out about the protest on Facebook. The acting general manager responded the next day by email dismissing the mayor’s concerns about the mental health of the employee and expressing an unsympathetic interpretation of the employee’s position and actions. She disputed the employee’s state of mental health, despite his stated intentions, and stated that council had no evidence that the man was suffering from mental health issues.355 The acting general manager (the DCG&GC) also confirmed that she had given the employee an ultimatum, viz., that if he went ahead with his protest, his employment would be terminated.356 This matter was related to the earlier Worksafe Issue that occurred in March 2015. See Governance: Relationships between the Mayor and the Aldermen, 3.A.1.5, and documents referenced in that section. Refer email from the mayor to the DCG&GC (17 June 2015). Ref Q.57 355 The employee’s announced intention was to protest against his treatment by council (about which he had lodged a complaint against the general manager) by standing outside the council chambers, in his underpants, with a goat. This he subsequently did. 356 DCG&GC’s email to the mayor (18 June 2015). Ref. Q.58 354 169 B.5.3 Managing the performance of the DCG&GC and/or failure of the DCG&GC to undertake her roles in accordance with the Act and the Regulations Finding The Board finds that the general manager failed to manage the professional performance of the DCG&GC to the detriment of the council and the community. The Board finds that the DCG&GC’s behaviour damaged the relationship between GCC and its community, and actively undermined the authority of the mayor. The Board finds that the actions of the DCG&GC in challenges to the mayor’s authority and failure to correct or retract inaccurate advice, and interference in the relationships within the aldermanic body, contributed significantly to the dysfunctionality of the council. Supporting evidence and information The general manager appointed Ms. Iskandarli as the council lawyer in early 2013 when she had very little experience of legal work in Australia, and very limited experience in, or knowledge of, local government. In these circumstances the Board considers that as her immediate superior, the general manager had greater than normal responsibility for monitoring her performance and providing constructive guidance, not only in governance and relevant legislation, but also in the culture and practice of local government in Tasmania. In September 2013 Ms. Iskandarli was appointed Manager, Legal and Governance. As a result of the 2015 restructure, three new director positions were created reporting directly to the general manager. Despite her limited experience, Ms. Iskandarli was promoted to one of these positions, the DCG&GC,357 and has consistently been appointed by the general manager to be acting general manager in his absence.358 Ms. Iskandarli was appointed to the position of Director of Corporate Governance (DCG) through an internal selection process; the position was not advertised externally and Ms. Iskandarli was the only applicant. The Board requested a range of documents relating to the appointment, including the selection report and advertisement. The Board eventually received the selection report, which was redacted in parts. This revealed that the selection panel comprised two external consultants and the general manager. There were comments on the selection of Ms. Iskandarli from the two consultants but no comments from the general General manager’s email to staff, the mayor and aldermen announcing the DCG&GC’s appointment (April 2015). Ref. Q.60 358 The DCG&GC has been appointed acting general manager (by the general manager) 26 May 2015-29 June 2015 inclusive; 9 May 2016-13 May 2016; 4 July 2016-6 July 2016; 13 September 2016-16 September 2016; 9 January 2017-13 January 2017. She was also acting general manager on 25 January 2016, although this was not included in the information provided to the Board by the DCG&GC. The other two directors have only been appointed as acting general manager (by the general manager) once each, in December 2016 and January 2017, when both the general manager and the DCG&GC were on leave simultaneously. The Director, City Services and Infrastructure, was appointed acting general manager by the mayor (16 January 2017) (refer Governance: The General Manager’s Personal Leave and Return to Work, January 2017 3.A.8.1, and documents referenced in that section. Email from DCG&GC (16 January 2017). Ref. Q61 357 170 manager. One of the consultants qualified his recommendation to appoint Ms. Iskandarli and recommended that unless the general manager was ‘absolutely guaranteed’ that he could not find a better director through external recruitment, then the general manager should consider advertising the position externally. The consultant noted some concerns with Ms. Iskandarli’s capacity to fill the position but did recommend her for appointment. It should be noted that the other two director positions were publicly advertised and filled by external candidates when none of the internal candidates were considered suitable for appointment. Similarly the second-tier manager positions were publicly advertised and all but one of these were filled by external applicants.359 The Board considers that given that Ms. Iskandarli was the sole internal candidate for the position of Director of Corporate Governance, the process used for appointing Ms. Iskandarli to the very senior position she now occupies lacked transparency and was not in the best interests of the council. A more open process that was likely to attract a larger pool of qualified candidates was warranted. The Board heard several parties inside and outside council question the competence of the DCG&GC.360 In 2012 Ms. Iskandarli graduated from the University of Tasmania with a Bachelor of Laws and Bachelor of Business, and with a Graduate Diploma of Legal Practice, and joined GCC as a casual property officer.361 In January 2013 she was appointed GCC’s lawyer. The general manager informed aldermen and staff of the appointment by an email stating in part that Ms. Iskandarli was highly qualified and experienced to perform this role.362 The Board considers that Ms. Iskandarli’s qualifications and experience were overstated by the general manager, given her recent graduation and very limited work experience, particularly in local government.363 The Board considers that the numerous examples where the DCG&GC has provided inaccurate advice and exhibited inappropriate behaviour are evidence that the general manager has failed in his responsibility to effectively mentor, manage and monitor the performance of the DCG&GC. The Board has seen and heard numerous examples, both oral and written, of actions, advice and behaviour on the part of the DCG&GC which it considers to have been obstructive and sometimes unreliable, detrimental to the council, and damaging to the relationship between the mayor and the aldermen.364 In addition, the Board observed in council meetings that there were occasions when the DCG&GC debated an issue or interjected commentary into the aldermen’s debate, rather than Documentation concerning the selection process and Ms. Iskandarli’s appointment. Ref. L.2 Submissions of Mr. Andrew Wilkie (Ref. H.1), Mr. Phil Butler (Ref. H.3), Mr. Luke Martin (Ref. H.2); letter to the Board from Mr. Mark Miller (14 July 2016), Ref. H.13; and the mayor’s first hearing (9 February 2016, Question14). Ref. D.18 361 Ms. Iskandarli’s curriculum vitae. Ref. L.4 362 General manager’s email announcing Ms Iskandarli’s appointment as council lawyer (9 January 2013). Ref. Q.62 363 The Board received evidence that Ms. Iskandarli had worked as a lawyer in Moscow for a maximum period of two years, after she had graduated with a Bachelor of Laws from Moscow State University in 2004. She achieved TAFE diplomas in Business Management, and Business – Human Resources, and an advanced diploma in Logistics Management in 2006-7. From 2008-12 she undertook a Bachelor of Laws and Bachelor of Business, and a Graduate Diploma of Legal Practice at the University of Tasmania. She worked as a legal secretary in 2008 and as a legal researcher from 2009-2011, at the same time as undertaking her legal studies in Tasmania. She had one week’s work experience with a Senior Counsel in Hobart in 2012. 364 Examples of provision of inaccurate advice. Ref. 3.A.6.3-10; examples of inappropriate behaviour. Ref. 3.A.1.7, 3.B.5.3.3, 3.B.6.3 359 360 171 offered advice. These included the DCG&GC’s responses to the Chair of the Audit Panel (council meeting 25 January 2016, Item 21); the DCG&GC’s debate with the mayor regarding the right of the Board to remain in a closed session of council (15 March 2016); the DCG&GC’s argument against the mayor’s ruling at the meeting of 15 March 2016 (Item 20.3). This indicates an absence of professionalism and a lack of self-control in one of the most senior members of council staff. There were also occasions when contrary to good meeting practice and professional behaviour, the DCG&GC refused to leave meetings when asked to do so by the mayor (11 May 2015 – Item 21, and 13 April 2016 – Item 21.3). The Board observed in council meetings that the general manager did not intervene to require the DCG&GC to exercise restraint and to comply with the Meeting Regulations, and to ensure that her actions on behalf of council were undertaken with integrity and in the best interests of the council and the community. The Board is of the opinion that the numerous examples of the DCG&GC’s poor performance indicate the unsuitability of the general manager’s consistent appointment of her as acting general manager. Following are further detailed examples of the general manager’s failure to manage the professional behaviour of the DCG&GC. B.5.3.1 Council meeting 15 March 2016 This Report provides details of the mayor’s rejection of a motion at the council meeting on 15 March 2016 (Item 20.1), and the email sent by the DCG&GC to the general manager and aldermen on 16 March 2016.365 The mayor emailed the general manager on 16 March 2016 and asked that he take action to ensure that there is no repeat (of the DCG&GC’s breach of protocol, including criticisms of the office of the mayor and the mayor’s chairing of the meeting) & counsel her as to proper protocol when dealing with elected members & the Office of the Mayor.366 The general manager responded to the mayor’s email of 16 March by email on 29 March 2016, noting that he was not present during debate on Item 20.1, but that he had been briefed on the matter by the DCG&GC.367 He asserted that the DCG&GC always acted professionally and with respect to all issues. He further stated that if the Director Corporate Governance & General Counsel raises her concerns in a professional manner about an issue that has occurred at a Council Meeting concerning breaches of the Regulations and serious allegations against Council, it is a statement of fact; and the Director Corporate Governance & General Counsel will always act professionally and with respect to all issues. Refer Governance: Relationships between the Mayor and the Aldermen, 3.A.1.7, and documents referenced in that section; DCG&GC’s email to the general manager and aldermen criticising the mayor (16 March 2016). Ref. Q.63 366 Mayor’s email to the general manager concerning the DCG&GC’s criticism of the mayor (16 March 2016). Ref. Q.64 367 General manager’s response to the mayor (29 March 2016). Ref. Q.65 365 172 The general manager concluded that he would take no action against the DCG&GC. The Board does not consider that the DCG&GC behaved in a professional manner, and does not consider that her assertions during and after the meeting were correct, nor that her demands to the mayor were warranted. The general manager’s email indicated that he had not spoken to the mayor about this matter. The Board concludes that the general manager had unreasonably accepted the DCG&GC’s version of events and failed to liaise with the mayor in an attempt to reconcile opposing views. This was not in the best interests of the council. The Board also notes with concern that following the DCG&GC’s severe criticism of the mayor and her handling of the meeting of 15 March 2016,368 four aldermen emailed the mayor, variously asking her to stop bullying and harassing myself, some Aldermen, the GM (general manager) and some staff of Glenorchy City Council; acknowledging the sound legal advice the DCG&GC provided to council; and informing her that this is a great opportunity for us all to learn the correct procedures of governance and meeting protocols from a highly experienced and qualified legal professional (i.e. the DCG&GC) who is employed to advise us all.369 The Board considers that these aldermen were mistaken in their interpretation of the mayor’s behaviour, and willingly accepted information from the DCG&GC which was patently incorrect. The Board considers that the lack of response by the general manager, and the support provided to the DCG&GC by some of the aldermen, reinforced her unprofessional behaviour.370 B.5.3.2 Issue of summons to the Proper Officer to produce documents On 18 March 2016 the Board issued a Summons to the proper officer at GCC.371 It was the expectation of the Board that this would be handled by the general manager as the most senior officer of the council. The Summons required council to produce a number of documents, including:  A copy of the advertisement(s) for the position of Director, Corporate Governance and General Counsel;  A copy of the selection report for the position of Director, Corporate Governance and General Counsel;372 and  Details of the pay structure and current remuneration for the positions of Director, Corporate Governance and General Counsel, Director of Community, Economic Development and Finance, and Director City Services and Infrastructure;  A copy of council’s policy on study assistance for council employees. DCG&GC’s email to the general manager and aldermen criticising the mayor (16 March 2016). Ref. Q.64 Emails from four aldermen to mayor criticising her and supporting the DCG&GC (Ald. King 19 March 2016, Ald. Pearce 17 March 2016, Ald. Branch-Allen 17 March 2017, Ald. Slade 17 March 2017). Ref. Q.66 370 Refer also Management and Operations: Provision of timely and accurate advice, 3.B.6.8, and documents referenced in that section. 371 Summons to the GCC proper officer to appear and produce documents (18 March 2016). Ref. L.1 372 Under s 222, the Board issued a Requirement to Produce Documents to obtain copies of the advertisement and the selection report for the position of Director, Corporate Governance and General Counsel (18 February 2016). The material provided referred only to the position of Director, Corporate Governance. The Board therefore assumes that the position title was changed after the position was advertised and the selection process had concluded. 368 369 173 On 31 March 2016 the DCG&GC emailed the Board to inform it that the Summons issued by the Board on 18 March 2016 to the proper officer at GCC was, in her opinion, invalid.373 The Board concludes from this that despite the fact that the Board required information about the appointment of the DCG&GC, the general manager delegated the response to the DCG&GC herself. The Board considers that the general manager should have referred this matter to another officer if he was unable to undertake the task himself; and that, in the event that the general manager did inappropriately ask the DCG&GC to provide the information, she should have refused to do so on the grounds that she had a potential conflict of interest. The Board considers that the DCG&GC’s response to the Board was both intemperate and inaccurate. In part her email stated that The Summons dated 18 March 2016 has not been validly issued and accordingly it is INVALID (the DCG&GC’s emphasis). Furthermore, I also want to point out that some of the requested information is not within the TORs or relevant to the purpose of the Inquiry. You may wish to seek legal advice concerning the proper application of section 217. The Board refuted all arguments put by the DCG&GC in a letter dated 12 April 2016, and concluded with the advice that the Summons would be reissued immediately, and noting that the Board did not consider that the proper officer of Council had a reasonable excuse for failing to comply with the Summons dated 18 March.374 The council subsequently responded to the Summons as issued. In relation to this matter, the Chief Justice observed that in the circumstances Ms. Iskandarli’s conduct in allowing the general manager to refer the first request to her when it concerned her appointment, jumping to the conclusion that there must be allegations against her, arguing that the first Summons was invalid, and then withdrawing her opposition to the Board’s request, despite protestations of impropriety, all seems very strange.375 B.5.3.3 Advice regarding draft minutes In an email sent to aldermen on 6 February 2016, the DCG&GC indicated that the minutes she was sending out with the email had some amendments inserted by the mayor.376 The DCG&GC contended that it was the role of management to record accurately the discussions and decisions of council, and stated that at all times management have (sic) applied this principle and we will continue to apply it. It is not management’s role to record what should have happened at the meeting but what did happen at the meeting. Email from the DCG&GC to the Board (31 March 2016). Ref. Q.49 The Board’s letter to council (12 April 2016). Ref. Q.67 375 Blow CJ in Branch-Allen v Easther [2016] TASSC 29, at [92]. 376 Email from the DCG&GC to aldermen concerning amendments to minutes (6 February 2016). Ref. Q.32 373 374 174 The DCG&GC then stated that if the council alleges that in some cases the draft minutes are not correct, this simply means that when the council was making a decision about that particular item, the council made the wrong decision but which was correctly recorded (sic). The Board is of the view that these statements indicated that the DCG&GC considered that any proposed amendment to the draft minutes was intended to alter a decision made by the meeting; and that this was what the mayor intended by proposing amendments to the draft minutes. The DCG&GC’s comments and explanation were at best confused and confusing. The general manager did not act to clarify or address the situation. The Board has witnessed and been given further evidence of the failure of the DCG&GC to undertake her roles in accordance with the Act and the Regulations, some examples of which are given below.377 B.5.3.4 Advice regarding confirmation of minutes Following the council meeting of 9 June 2015, the DCG&GC (then acting general manager) emailed all aldermen, informing them that the council had not treated confirmation of the minutes of previous meetings correctly, and that they should have adhered to the requirements of the Meeting Regulations in the time taken in debate, and the treatment of questions from the public.378 The DCG&GC did not advise the mayor of her concerns before sending the email. The Board considers that the requirement for confirmation of the minutes should have been discussed with the mayor before or following the meeting, given the mayor’s legislated role to oversee the councillors in the performance of their functions and exercise of their powers. Compliance with the Meeting Regulations is a matter for the chairperson of the meeting. Any comment from the acting general manager should have been confined to a private discussion with the mayor. B.5.3.5 Request for a special meeting of council In an email sent to the mayor on 24 November 2016 the DCG&GC, on behalf of the chairman of the GMPRC, requested the mayor to convene a special council meeting on 5 December 2016.379 This was to discuss the general manager’s performance review for the period ending 30 June 2016, possible amendments to the general manager’s contract, and the impending resignation of the chairman of GMPRC. The DCG&GC cited reg. 4 of the Meeting Regulations. The Board notes that reg. 7 of the Meeting Regulations requires any such request from aldermen to be in writing and signed by the aldermen. No staff member has the power to request the mayor to convene a special council meeting on behalf of any aldermen. In addition, at 20 March 2017 council meeting, the Board heard the DCG&GC state that the revisions of the general manager’s contract dealt only with Cl. 5. This is incorrect. When, under s 222, the Board issued a Requirement to Produce Documents (23 March 2017) to obtain a copy of the recording, council responded that no recording of the closed meeting was held. 378 Email from the DCG&GC to aldermen concerning minutes (10 June 2015). Ref. Q.35 379 Email from the DCG&GC to the mayor requesting the mayor to convene a special council meeting (24 November 2016). Ref. Q.68 377 175 The mayor emailed the DCG&GC on 25 November 2016 requesting clarification of the decisions made at the GMPRC committee meeting on 21 November 2016, and asked for confirmation of the accuracy of the DCG&GC’s advice about the committee meeting.380 The Board considers that the DCG&GC’s response to this request was unnecessarily hostile and defiant and contained inaccurate information.381 Recommendation: that council ensures that the general manager consults with the mayor and aldermen on senior executive appointments and associated remuneration packages. Recommendation: that the Act be amended to make it mandatory for the general manager to consult the mayor and aldermen on senior executive appointments and associated remuneration packages. Email from the mayor to the DCG&GC concerning the GMPRC (25 November 2016). Ref. Q.69 The email from the DCG&GC to the mayor, copied to the general manager and Ald. Slade (27 November 2016) read: Kristie, The points 1, 2 and 3 in my email of 24 November 2016 very clearly articulate what was agreed at the GMPRC Meeting on 21 November 2016. I will not be entering into any debate about your comments concerning the accuracy of my statements about the GMPRC as those comments are your opinion and I will ignore them. In relation to the 5 December 2016 matter, the GMPRC considered the possibility of having a Special Council Meeting on 28 November 2016 subject to the Chair’s clarification with the General Manager who was absent from the meeting at the time when the GMPRC considered points 1,2 and 3. The fact that you, without anybody’s knowledge or consulting with anybody, called the Federal Minister's office and cancelled the opening of the KGV on 5 December 2016, made 5 December 2016 free, and the Chair, after discussion with the General Manager, agreed to have the Special Council Meeting on 5 December 2016. Seva Iskandarli. Ref.Q.70 380 381 176 B.6. Provision of timely and accurate advice One of the most important functions of the general manager is to ensure that the council is provided with accurate advice on the exercise and performance of its powers and functions (the Act, s 62(1)(d)). Finding The Board finds numerous examples where the general manager or his direct report, the DCG&GC, provided inaccurate or confused advice to council, and the acceptance of this advice by the majority of aldermen contributed significantly to the disharmony and dysfunctionality within council. Supporting evidence and information B.6.1 Annual Leave On 6 May 2016 the general manager emailed aldermen to advise that he was taking annual leave for five days from 9 May 2016 and had appointed the DCG&GC as acting general manager for the period.382 On 6 May 2016 Ald. Stevenson wrote to the general manager to ask what the process was for him (the general manager) to take leave.383 On the same day the mayor emailed the general manager, noting that the email from the general manager was the first time she had been made aware of his intention to take a week’s leave starting on 9 May.384 She then stated that under your Contract of Employment Clause 8 (1) (b) the taking of annual leave is to be by agreement between the parties, namely yourself and the GCC. As I have not had a request from you nor any prior knowledge of you taking annual leave, could you please advise me how you sought this agreement, if at all? On 8 May 2016 the general manager replied to the mayor and Ald. Stevenson, copying in all aldermen and the DCG&GC.385 He stated that his contract was between himself and Glenorchy City Council, which he then described as an organisation, namely a legal entity not the Council (Aldermen). At the council meeting of 6 June 2016 (adjourned to be resumed on 4 July 2016) Ald. Stevenson asked (Item 23.4) if the general manager could please explain and clarify, in his opinion, who is the Council? The general manager replied that the CoE (contract) is between Glenorchy City Council and general manager, Mr. Peter Brooks, not between the aldermen and the general manager, Mr. Peter Brooks. ‘Council’ is Email from the general manager to aldermen concerning his leave (6 May 2016). Ref. Q.71 Email from Ald. Stevenson to the general manager seeking clarification (6 May 2016). Ref. Q.72 384 Email from the mayor to the general manager concerning his leave (6 May 2016). Ref. Q.73 385 General manager’s email response to the mayor and Ald. Stevenson, copied to aldermen (8 May 2016). Ref. Q.74 382 383 177 Glenorchy City Council which is an organisation, namely a legal entity and not the Council (Aldermen). Parties to the CoE defined (sic) as Glenorchy City Council with its ABN number as an organisation, a legal person, namely a body corporate established under section 18 and 19 of the Local Government Act 1993.386 The Board considers the general manager’s response was a nonsensical attempt to justify his failure to inform the mayor as a matter of courtesy that he intended to take leave. The Board is of the view that the effect of s 18 of the Act is to establish a council and by s 19(1), such a body is incorporated.387 The council’s functions and powers are set out in s 20, though the list is not exclusive. A council consists of persons elected in accordance with Part 4 of the Act, as stated in s 25(1). Section 22(1) of the Act gives the council the power to delegate certain of its functions to the general manager.388 The Board concludes that the general manager is an employee of the corporate body, the council, which comprises the elected aldermen. B.6.2 Unjustified criticism of an alderman On 8 March 2016, the general manager emailed all aldermen regarding a NoM submitted by Ald. Stevenson for the agenda of the meeting of 15 March 2016.389 In his email the general manager said that he found this so called ‘assessment’ prepared by Ald. Stevenson absolutely inappropriate and unprofessional. …..It is beyond the principles of good governance that an individual alderman undertakes this action individually. Ald. Stevenson needs to understand his role as an alderman and what he can and cannot do… The Board considers that this email illustrated poor judgement on the part of the general manager, and showed a lack of professionalism that is concerning in a chief executive officer. The Board also considers that the general manager was incorrect in his assertion that an alderman should be prevented from bringing forward a NoM which complied with the Act and associated Regulations. Clause 8 (1) (b) of the general manager’s contract states that annual leave is to be taken at a time or times as may be agreed between the parties and, in the absence of agreement, when directed by GCC on at least one (1) months’ notice. 387 Section 18(1) of the Act states that There is established in each municipal area a council. 388 Section 22(1) of the Act states: Subject to subsection (2), a council, in writing, may delegate with or without conditions to the general manager, controlling authority, a council committee or a special committee, any of its functions or powers under this or any other Act, other than – (a) this power of delegation, unless authorized by the council; and (b) the powers referred to in subsection (3). 389 General manager’s email to aldermen concerning Ald. Stevenson’s NoM (8 March 2016). Ref. Q.75. The NoM stated: 1. That this council acknowledges the General Manager’s report on his key performance indicators as provided; and further that this Council immediately assesses his subjective key performance indicators to complete the process. 2.That the General Manager, in accordance with his Contract of Employment be advised of the outcome of his performance review completed by full Council. 386 178 B.6.3 Amendment of the Financial Report 2014-15 The Audit Panel minutes from 23 September 2015 record that Council’s Financial Report for 2014-15 (endorsed by the Audit Panel on 12 August 2015 and signed by the general manager on 14 August 2015) failed to include a $1.167m federal government grant received in the 2014-2015 period.390 The minutes note that management subsequently amended the report to include this ‘significant revenue item’. The Audit Panel discussed with management the reason for ‘the significant late change’. The minutes record the explanation that the payment was a grant for 2015-16 which had been received and banked in 2014-15. The Audit Panel chairman gave a verbal report to council at its 25 January 2016 (Item 21) meeting and in referring to the 2014-15 financial statements, commented on the late amendment which the DCG&GC, who was acting general manager, claimed was a ‘minor administrative matter’. The acting general manager subsequently emailed all aldermen, with copies to the chairman and members of the Audit Panel, with a convoluted explanation about the omission and amendment.391 The email concluded that It also needs to be noted that due care must be taken by any person when making a brief, or giving other information, to either the council or any other committee, to ensure that the brief or other information is based on facts and correct information. I also advise that this unfortunate issue has utterly disappointed every council officer who is involved in Audit Panel matters. The email contained a veiled reprimand to the chairman of the Audit Panel. The Board considers this inappropriate, given the statutory functions of the Audit Panel. The Board also concludes that the DCG&GC attempted to make light of the significant late change to the accounts, involving the inaccurate omission of $1.167 million in the annual accounts, by her reference to this as a ‘minor administrative matter’. B.6.4 Advice regarding 2.5% salary increase At the 25 January 2016 council meeting (Item 17), when the DCG&GC was acting general manager, Ald. Stevenson asked her to provide further details on what had previously been described, in corporate performance indicators, as an ‘unbudgeted’ 2.5% salary increase. Ald. Stevenson also asked how the increase had been determined, given the Enterprise Agreement (EA) had not been settled. The minutes record that the acting general manager stated that the salary increase had been budgeted, as the 2014-15 Budget included provisions for a salary increase in the second pay period in October 2014 on the expectation that the EA 2015 would be in place. As the EA was not concluded the general manager approved a 2.5% pay increase to commence on 1 May 2015, as a ‘gesture of goodwill,’ on the expectation of a new EA. In an email to aldermen and the general manager, dated 9 February 2016, the DCG&GC reiterated this advice but referred 390 391 Audit Panel minutes (23 September 2015). Ref. E.3 Email from the DCG&GC to alderman concerning audit matter (30 January 2016). Ref. Q.76 179 to the reference to an unbudgeted increase in the corporate performance indicators as a ‘typo error.’392 The Board concludes that insufficient care was taken to ensure the accuracy of information provided to aldermen. The alderman was justified in questioning a significant expense shown in the corporate indicators as unbudgeted. The use of the word ‘unbudgeted’ cannot properly be described as a typographical error. B.6.5 Payment to an ex-employee At the council meeting on 25 January 2016 (Item 25.1) Ald. Stevenson stated that council had been advised at the meeting of 21 December 2015 (Item 14), that a payment of $50,000 to an ex-employee, described in the corporate indicator report as a ‘termination payment’, was in fact a redundancy payment. At the 25 January 2016 meeting (Item 25.1), the acting general manager (Ms. Iskandarli) was asked whether the payment was related to ‘termination’ or ‘redundancy’. The acting general manager responded that the payment is not a redundancy payment but is a termination payment. The minutes record that the acting general manager then stated that this payment was made …as a result of a legal dispute in relation to termination. At the council meeting of 15 February 2016 (Item 20.4) council was advised that the ex-employee had successfully challenged the terms of her termination of employment and council had agreed to the payment in settlement of the legal dispute. The Board considers that this information could and should have been provided to aldermen as soon as the expenditure was reported in the corporate indicators. The Board notes with concern that the payment was described variously as a redundancy, a termination payment made under a contract of employment, and finally, as a payment made in settlement of a legal dispute with an ex-employee. B.6.6 Advice regarding adjournment of the council meeting (5 February 2015) The minutes of the 5 February 2015 (Item 3) council meeting record that, following the adjournment of the meeting by the mayor, legal advice was given (by Ms. Iskandarli as Manager, Legal and Governance at that time) that Regulation 13 does allow the Mayor to adjourn a meeting, however the Mayor’s conduct and the whole reason claimed for the adjournment and the incorrect statement given, made the adjournment invalid. As a general principle such action can only be for a proper purpose. The Board considers that the advice given to the aldermen as stated in the minutes of the meeting implied that the mayor did not adjourn the meeting for a proper purpose. However, Email from the DCG&GC to aldermen and the general manager concerning 2.5% salary increase (9 February 2016). Ref. Q.77 392 180 on the contrary, both the Director of Local Government and external senior legal counsel advised council and the mayor that she had adjourned the meeting for a proper purpose.393 The Board considers that the effect of this inaccurate advice has been far-reaching and has contributed to a most unpleasant chapter in the affairs of the council. Had the aldermen been more knowledgeable about the Regulations, and had they questioned the Manager, Legal and Governance or the general manager, they might not have relied on the manager’s incorrect advice. B.6.7 Inaccurate advice on meeting procedure (1) In an email dated 26 October 2015 to the general manager and all aldermen, the DCG&GC incorrectly advised the proper procedure for dealing with motions at council meetings.394 The DCG&GC stated that if an alderman wants to move a new motion instead of what is included in the agenda for council’s consideration the proper procedure is as follows: (i) an alderman moves and another alderman seconds what is proposed in the agenda – it is discussed and voted and rejected; (ii) then the alderman may move a new motion during a meeting under Regulation 16. This is simply a new, not ‘alternative’ motion; (iii) if council will not follow this procedure it will result that an agenda item and the recommendation remains unresolved (sic). This advice was incorrect and the Board considers that it led to further confusion amongst aldermen about correct meeting procedure. B.6.8 Inappropriate and inaccurate advice on meeting procedure (2) At the council meeting of 15 March 2016 (Item 20.1) the mayor rejected a foreshadowed motion on the grounds that she considered the motion to be unlawful, and could involve a breach of the Criminal Code (intimidation of a witness). The mayor said that she would refer the matter to the Director of Public Prosecutions. The mayor emailed the general manager on 16 March 2016 and requested a copy of the draft minutes of the meeting of 15 March 2016. The general manager did not respond. On the same day the DCG&GC emailed the mayor (with copies to the general manager and all aldermen), asserting that the mayor had mismanaged the council meeting of the previous day; had acted unlawfully; had made misleading and unjustified comments, and had been discourteous to her fellow aldermen. She also asserted that the mayor needed to ask for legal advice, and questioned the right of the mayor to give verbal warnings to aldermen whom the mayor considered to be in breach of the Meeting Regulations.395 Advice to the mayor from Mr. Leigh Sealy SC (7 February 2015), Ref. O.4; Director of Local Government’s advice of 10 March 2015, on the outcome of his inquiry into the adjournment and continuation of the special council meeting of 5 February 2015. Ref. M.1 394 Email from the DCG&GC to the general manager and aldermen concerning proper process for dealing with motions (26 October 2015). Ref. Q.78 395 DCG&GC’s email to the general manager and aldermen criticising the mayor (16 March 2016). Ref.Q.16 393 181 The DCG&GC’s email misrepresented the mayor’s reasons for rejecting the motion, and wrongfully asserted that the chairperson of the meeting cannot halt debate when it becomes apparent that the intent of the motion is to approve an unlawful action. The DCG&GC stated incorrectly that the mayor had to provide her reasons for declaring the motion unlawful: there is no obligation on the chairperson to provide exact details for such a declaration. The DCG&GC concluded her email by demanding that the mayor provide her with the mayor’s reasons for declaring the motion unlawful, and under what legislation she did this; what the mayor meant by her reference to the Criminal Code; and why the mayor had said that she would refer the matter to the Director of Public Prosecutions. The DCG&GC stated that she wanted answers to these questions so that she could include the answers in the minutes of the meeting. As the mayor did not provide answers to these questions in the meeting, this information could not be added to the minutes as it did not form part of the proceedings of the meeting. The DCG&GC’s demand to have this information so that she could wrongfully include it in the minutes was a direct contradiction of her previous assertion that the minutes would record only what had taken place in the meeting.396 B.6.9 Inappropriate and inaccurate advice recorded in council minutes A member of the Board of Inquiry and a member of its secretariat attended the council meeting on 15 March 2016. Council moved into closed session at approximately 5.50 pm and an alderman asked the reason for the Board representatives to be present in the closed session of the council meeting. The mayor responded that the Board had powers under the Act to attend. The minutes of the meeting contain advice the DCG&GC provided to council, stating that in her opinion the Board should have been excluded from the meeting and that the mayor’s reasons for allowing the Board to remain were incorrect.397 The Board finds that the DCG&GC inappropriately allowed insertion into the minutes of advice she provided which was overruled by the mayor during the meeting. When the mayor left the meeting, after declaring a pecuniary interest in Item 20, the Board witnessed the DCG&GC again attempt to persuade the deputy mayor, who had assumed the chair, that the Board should be required to leave the meeting. The minutes, which were then being recorded by the DCG&GC, fail to record that the deputy mayor overruled the DCG&GC.398 The Board notes that the remarks made by the DCG&GC were interruptions to the proceedings, and were not given as a result of a request for advice from the chairperson of the meeting. In her email to aldermen (6 February 2016), the DCG&GC contended that it is the role of management to record accurately the discussions and decisions of council, and stated that at all times management have (sic) applied this principle and we will continue to apply it. It is not management’s role to record what should have happened at the meeting but what did happen at the meeting. Ref. Q.32 397 Refer to minutes from 15 March 2016 meeting (at the commencement of the closed session of the meeting). Ref. A.23 398 Blow CJ in Branch-Allen v Easther [2016] TASSC 29, at [66]: Ms. Mason and Mr. Tilley were at the meeting so as to discharge their duties in relation to the inquiry ordered by the Minister. Their presence was not necessary for the conduct of the meeting but, unlike the general public, they were there because they had official duties to perform, and not because of any personal, political, or intellectual interest in the business of the meeting. It was reasonable for them to be there because of the terms of reference of the Board of Inquiry. 396 182 B.6.10 The GMPRC Deed of Confidentiality This Report has previously commented on the draft Deed of Confidentiality proposed for the GMPRC.399 The Board received evidence from a senior legal practitioner that the Deed of Confidentiality drafted by Ms. Iskandarli for execution by members of the General Manager Performance Review Committee was ….totally misconceived. The contents of the Deed reflect an erroneous view of the law. Ms. Iskandarli’s apparent advice to members of the committee concerning their obligations of confidentiality and the effect of same upon the evidence they could give to the Board of Inquiry was clearly erroneous.400 See Governance: The General Manager Performance Review Committee, 3.A.2.6, and documents referenced in that section. 400 Letter from Mr. Mark Miller (14 July 2016). Ref. H.13 399 183 B.7. Provision of timely, relevant, and high quality reports to council Findings The Board finds that the general manager failed to ensure that aldermen received certain critical reports that they should have had in order to fulfil their functions. The most notable of these failures was the general manager’s withholding of the CTMG Report, with its recommendations for sweeping changes to the management structure that had significant financial repercussions for the organisation through redundancies.401 The Board finds that the general manager’s failure to provide a report to council on its major projects and operational issues unreasonably limited council’s ability to monitor its resources and assets as it was required to do. Supporting evidence and information The council’s Annual Plan 2014-15 to 2016-17 included a goal to develop an economic development strategy for Glenorchy for the years 2015-16 and 2016-17. Despite the importance of this task, the Annual Plan progress report for the period ending 30 June 2016 indicated that no progress had been made to that date. Major projects and operational issues report At the council meeting on 9 June 2015 (Item 13.3), Ald. Stevenson asked for a brief report on projects and major operational issues summary to be presented to each council meeting. The resolution was passed unanimously. At the council meeting on 6 July 2015 (Item 14), Ald. Stevenson asked the general manager for an update on the report, and was told by the general manager that management would ask aldermen what content they required. At the 21 December 2015 meeting (Item 19) Ald. Stevenson asked when the report would be provided to council. The general manager said that he expected it to come to the council meeting on 25 January 2016. At the council meeting on 15 February 2016 (Item 16.12) Ald. Stevenson asked the general manager why the report had not yet been provided, and the general manager replied that council’s direction in its resolution (of 9 June 2015) was too broad. He said that ‘something’ would be provided to council at a workshop in February 2016. At the workshop on 29 February 2016, council received a presentation called Major Strategic and Operational Projects Update to Council by General Manager. Ald. Stevenson said in the council meeting of 15 March 2016 (Item 16.5) that the workshop had not included any discussion of the report council required. Ald. Stevenson again asked when council would receive the report, and the general manager said that he was waiting to be told what council required. At the council meeting of 26 September 2016 (Item 19.1) the mayor noted that it had been fifteen months since council, through a formal decision, required the general manager to produce a brief monthly major projects report for each council meeting and that he had failed to do so. The mayor noted that the general manager had advised council that he had decided to engage a consultant to assist with the development of a corporate reporting framework. A 401 This matter is dealt with in Governance: Management Restructure, February 2015, 3.A.5. 184 workshop on this topic was scheduled for 5 September 2016 but was cancelled and rescheduled for 10 October 2016. At the council meeting on 23 January 2017 (Item 12) the Board heard that the report had not yet been provided to council. The Board considers that allowing this matter to continue without resolution for over nineteen months illustrates a fundamental breakdown in council process. The Board considers that the general manager should have been able to provide a draft report on major projects and any major operational issues within two months of the council decision, i.e., by the August 2015 council meeting. The Board considers that these matters are integral to the general manager’s role and that it was essential that aldermen were kept apprised of major operational issues. The Board considers it was reasonable and responsible for aldermen to seek a monthly report on these matters. The general manager’s failure to provide this report limited the capacity of aldermen to fulfil their duties to monitor the Budget, to monitor the effective and efficient management of council’s assets, and to monitor the manner in which services were provided by the council. 185 B.8. Timely assistance to council in the development of its Annual Report (including the Budget), Annual Plan, and assessment of its performance against these plans Findings The Board finds that the aldermen had limited ability to have reasonable, responsible input into the development of the Budget and the Annual Plan. The Board finds that because of the delays in providing reports on performance against the Annual Plan, and forecasts of the end-of-year performance against Budget, council was unable to monitor its progress through the financial year, and unable to assess the possible need for adaptation in its programs, plans, and budgets. The Board finds that in setting the Budget and Annual Plan for 2016-17, aldermen were limited in their ability to make rational, well-founded decisions based on accurate, up to date information on council’s performance because they were not provided with timely reports on actual performance in the year ended 30 June 2016. Supporting evidence and information B.8.1 Budget 2016-17 The Board received some evidence indicating that opportunities for aldermanic input into the 2016-17 Budget, particularly the Operational Budget, diminished in 2016. The Board heard evidence that, at a Budget workshop, when asked what if the aldermen don’t agree with the priority ratings (of possible items for inclusion into the Budget, as agreed by the general manager and his directors), the answer provided was it is an operational matter.402 The Board considers this to be an unacceptable situation and that aldermen should feel that they have had adequate opportunity for input into all areas of the council Budget, especially items considered to be high priorities.403 Three Budget workshops were held for aldermen for the preparation of the 2016-2017 Budget. There was also a Community Forum and two council meetings. The Board heard from several aldermen that despite these workshops, these aldermen felt that they had little or no opportunity to contribute to discussion or to vary the proposals brought forward by management. Several aldermen told the Board that they considered that the Budget was a fait accompli so far as management was concerned.404 The mayor said in hearing on 2 August 2016 that in total, council spent less than five hours in consideration of the Operational and Capital Ald. Stevenson’s second hearing (5 September 2016, Question 4). Ref. D.32 and D.33 In her response to the Draft Report, Ald. Lucas stated that she felt that she had had the ability to have more than reasonable input into the budget process, including many workshops – outlining scenarios of where we would be (financially) into the future. I felt I had ample opportunity to influence budget priorities. Ref. Appendix D.6.33 404 Mayor’s second hearing (2 August 2016, Question 13);Ald. Stevenson’s second hearing (5 September 2016, Question 4). Ref. D.24 and D.25 402 403 186 Budgets, the Annual Plan, and asset management planning in the lead up to the Budget meeting on 20 June 2016.405 The Board notes with concern that aldermen expected to receive notice to submit bids for capital expenditure in October or November, early in the budget process; however, aldermen were only asked for input in January 2016, relatively late in the process of budget formulation.406 At the first Budget workshop held on 21 March 2016 a PowerPoint presentation delivered high level information on Asset Management Planning and the 2016-2017 Capital Budget Formulation.407 At that meeting another workshop was scheduled for 30 March 2016 (Budget Assumptions) but this did not occur. A second Budget workshop, held on 26 April 2016, provided information about the draft Annual Plan 2016-17 and the Operational Budget 2016-17. Aldermen were not given detailed reports at the first and second workshops; high level presentations were given by PowerPoint. A further Budget workshop was scheduled for 16 May 2016 but this did not occur. The Board was told that the draft Budget was provided to aldermen on the day before the community forum which was held on 19 May 2016. A PowerPoint presentation was given to attendees at the forum. The Board heard in evidence from one alderman that she had learned more about the 2016-17 Budget during that presentation than she had by attending the council Budget workshop sessions. At the conclusion of the forum, attendees were advised that a further council Budget workshop would be held on 30 May 2016.408 This workshop was not held. A third Budget workshop was held on 6 June 2016 prior to a council meeting held the same day. The Board assumes that the workshop dealt with the matter listed for the council agenda on the same day, viz., 2016-17 Budget and Long Term Financial Plan assumptions and parameters. The Board notes that consideration of Budget Assumptions and Parameters at the council meeting of 6 June 2016 (Item 9), some 14 days prior to the council meeting where the Budget Estimates were approved, supports the evidence received by the Board that aldermen had little opportunity for input into the Budget preparation.409 The Board is of the view that setting the Budget Assumptions and Parameters is a task to be undertaken at the commencement of the Budget process, not at the end. At its 6 June 2016 meeting (Item 9), council resolved to accept the information provided in the 2016-17 Budget and Long Term Financial Plan Assumptions and Parameters paper attached to the agenda.410 At the council meeting on 20 June 2016, council adopted the 2016-17 Annual Plan, the 2016-17 Budget Estimates, the 2016-17 Rolling 10-year Long Term Financial Plan, and the 2016-17 Schedule of Fees and Charges without amendment. Mayor’s second hearing (2 August 2016, Question13). Ref. D.24 and 25. Ald. Stevenson also stated in his second hearing (5 September 2016, Question 4) that he did not consider that aldermen had sufficient input into the budget process . Ref. D.32 and D.33 406 Ald. Stevenson’s second hearing (5 September 2016, Question 4), Ref. D.32 and 33, and the mayor’s second hearing (2 august 2016, Question 13). Ref. D.24 and D.25. Email from Russell Grierson, Manager Infrastructure Engineering & Design, to all aldermen (19 January 2016). Ref. L.6 407 2016-17 Budget PowerPoint. Ref. G.17 408 Ald. Dunsby’s second hearing (5 September 2016). Ref. D. 34 and D.35 409 In his response to the Draft Report, the acting general manager (Mr McMullen) stated that the Budget Assumptions and Parameters paper was prepared in the last quarter of 2015, but that officers were instructed to defer presentation to council. Ref. Appendix D.11.7. 410 2016-17 budget paper – attachment to 6 June 2016 agenda. Ref. G.12 405 187 Three aldermen (the mayor, and Ald. Dunsby and Stevenson) voted against adopting the Annual Plan, the 2016-17 Budget Estimates, the 2016-17 Rolling 10-year Long Term Financial Plan, and the 2016-17 Schedule of Fees and Charges. At hearing on 2 August 2016 the mayor told the Board that the three aldermen voted against adopting these highly significant plans because of a lack of information surrounding the expectation in the Budget that council could achieve productivity dividends of $2.32 million in the financial year 2016-17.411 She also noted that council had received a request from TasWater to cap the dividends payable to owner councils, including GCC; but the council’s 2016-17 Budget assumed a 4% increase in dividends. The Board considers that the general manager should have provided the aldermen with a clear and specific process for monitoring the achievement of the productivity dividend before recommending the adoption of the Budget Estimates. The Board notes with concern that a motion put by Ald. Stevenson at the council meeting of 4 July 2016 (Item 19.2), that the Audit Panel be requested to review, monitor and report to council regularly on the productivity dividend of $2.32m in the 2016-17 Budget, was defeated 3/5. Ald. Branch-Allen, Lucas, King, Pearce and Quick voted against motion, and Ald. Nielsen and Slade were absent. Council adopted the Budget Estimates and the Annual Plan for 2016-17 without knowing sufficient detail of council’s projected performance against the Budget and the Annual Plan for the year ended 30 June 2016. The last report on achievement of the Annual Plan for the year ending 30 June 2016 that council had received was for the period ended 31 December 2015. Management did not provide an estimate of council’s performance against Budget for the 201516 financial year to aldermen to analyse when considering the 2016-17 Budget assumptions, although council did have actual figures for the period to 30 April 2016. The Board considers that this limited the ability of aldermen to make rational, well-founded decisions based on accurate, up to date information on council’s performance. At the 26 September 2016 council meeting (Item 28.1) the mayor asked again for the report of performance against Budget for the year ended 30 June 2016, and was told by the general manager that it would not be available for presentation to council until 24 October 2016, some four months after the end of the financial year and the setting of the 2016-17 Budget. The Board considers that the process conducted for aldermen to consider the Budget for 2016-17 unnecessarily restricted their ability to comply with their requirement under the Act to develop and monitor the implementation of strategic plans and budgets. At the council meeting of 19 December 2016 (Item 23), council was told that the internal auditors had concluded a review of the Budget process followed by GCC. Ald. Stevenson asked the member of the Audit Panel appearing before council whether consideration had been given to allowing aldermen to have input into the review. Ald. Stevenson was told that this had not occurred because the brief for the auditors drawn up by management had not included this requirement. The acting general manager described this as an oversight. The review of the Budget process had been requested because of concern about a perceived lack of aldermanic and community input into the setting of the 2016-17 Budget. The Board concludes that failing to allow aldermen input into the review of the Budget process limited their capacity to improve their processes for setting future council budgets. Mayor’s second hearing (2 August 2016, Question 27). Ref. D.24 and D.25. This was confirmed by Ald. Stevenson and Ald. Dunsby in hearings on 5 September 2016. Ref D.32 and D.33 and D. 34 and D.35 411 188 The Board considers that it is not good governance to set a schedule of dates for Budget workshops and then disregard that schedule. Setting the Budget for the coming year is one of the aldermen’s most important tasks and every opportunity should be afforded the aldermen for input into this process. The Board recommends that in setting the Budget for future years, a timeline of target dates and Budget workshops is established early enough to enable aldermen to have significant participation and input. Recommendation: that the general manager ensure that aldermen are given projected end of year financial results throughout the budget setting process, and that the trial results are updated as necessary to inform aldermen of council’s financial position as accurately as possible before the next budget is approved. B.8.2 Monitoring of productivity dividends Finding The Board finds that some aldermen raised legitimate, pertinent questions about the productivity dividend assumptions in the 2016-17 Budget, and the general manager failed to provide timely and accurate answers; this did not allow aldermen to monitor the efficient and effective provision of services, facilities, and assets, and the fair and equitable treatment of the employees of the council. Supporting evidence and information Council’s 2016-17 Budget412 included the assumption that council would realise $2.32 million in ‘productivity dividends’ during the financial year, in order to realise the projected surplus of $186,397. The mayor told the Board at hearing on 2 August 2016 that the general manager was asked to explain how he planned to achieve the productivity dividends at the Budget workshop on 21 March 2016, but was unable to provide any details of how this was to be done.413 At the 4 July 2016 council meeting the mayor again raised her concerns about achievement of the productivity dividend (Item 19.2)414. At the 19 December 2016 council meeting Ald. Stevenson (Item 21.2) asked the general manager to provide an update on progress towards achieving the productivity (or efficiency) dividend in the Budget. The mayor also questioned the acting general manager on progress.415 The acting general manager (Mr. Tony McMullen) provided an Efficiency Dividend Analysis for the period to 31 October 2016.416 This showed that 2016-17 Budget. Ref. Index Package G Mayor’s second hearing (2 August 2016, Question 13). Ref. D.24 and D.25 414 Record of council meeting (4 July 2016) at 2.23.37. 415 Record of council meeting (19 December 2016) at 3.12.58. 416 Efficiency Dividend Analysis to 31 October 2016 provided at 19 December 2016 council meeting (Item 21.2). Ref. A.35 412 413 189 management expected to realise the savings primarily through savings in wages and salaries, viz., $712,000 through a ‘vacancy dividend’, and $1,049,000 through salary savings.417 Council was told that the vacancy dividend had been quantified on the basis that this amount had been saved in each of the last three annual Budgets. The Board questions whether in this case, the Budget Estimates should have taken this reasonable expectation of savings into account. The acting general manager’s answer provided no detail on the method to be used to realise $1,049,000 in salary savings. A breakdown of the remaining $551,000 was provided, showing savings over nine different areas of expenditure. Again the Board questions why these ‘savings’ could not have been reflected in the Budget Estimates, thus providing aldermen with a far more accurate picture of estimated expenditure. B.8.3 Reports of performance against the Annual Plan The Board received evidence that the mayor, and Ald. Dunsby and Stevenson, showed concern about delays in receiving progress reports on the Annual Plan.418 Council expected to be given a report on progress for each quarter of the financial year. At the council meeting on 24 October 2016, the mayor asked a detailed QoN of the general manager (Item 21.4), noting, in part, that council had received the quarterly Annual Plan progress report for the period ending 31 March 2016 at its meeting on 1 August 2016, four months after the end of the relevant quarter. In his answer the general manager detailed the procedure for finalising the report, and stated that it is anticipated that reporting should be possible using current processes in two to three months of the end of the reporting period. This could be further exacerbated by up to a month if the report is available at a point in time that is out of synchronisation with the council meeting cycle. The general manager stated further that council should expect a time lag of between seven and twelve weeks from the end of the relevant quarter. On 1 August 2016 (Item 11), council considered the report for the quarter ended 31 March 2016, 123 days after the end of the quarter (17 weeks 4 days). On 24 October 2016 (Item 17), council considered the report for the quarter ended 30 June 2016, 116 days after the end of the quarter (16 weeks 4 days). The December 2015 report came to council on 13 April 2016 (Item 14) 104 days after the end of the quarter (14 weeks 6 days). The Board considers that the tardy provision of these reports severely affected council’s ability to monitor the implementation of its Budgets and Annual Plan. The Vacancy Dividend was defined as salary savings in the timing gap between a resignation and commencement of a replacement position; and the step (within grading) of new appointment being lower than that of the resigning incumbent. 418 QoN were asked by the mayor (24 October 2016 Item 21.4); by Ald. Dunsby (15 March 2016 Item 16.8 and Item 16.11); and by Ald. Stevenson (15 February 2016 Item 16.16, 15 March 2016 Item 16.5, 4 July 2016 Item 22.1, 1 August 2016 Item 17.1). 417 190 B.9. Management of council resources and assets The Board considers that the general manager failed to manage effectively some of the resources and assets of council. The Board notes that council’s procedures for oversight and management of credit cards differ significantly from those of comparable councils. Findings The Board finds that much of the expenditure on credit cards falls outside the established procedures, and that the council’s Purchasing Card Procedures document is significantly out of date and the procedures themselves are not delivering the intended benefits of the system. The Board finds that management does not appear to be providing oversight to many of the issued credit cards or transactions, as a large number of purchases were in breach of the current council policy. The Board finds that as a result of inadequate council oversight and monitoring, management has approved significant expenditure on the provision of external legal advice, some of which may have little direct benefit for the community. Supporting evidence and information B.9.1 Use of credit cards Under s 222, the Board issued a Requirement to Produce Documents to obtain records of all credit card purchases made by council staff since the October 2014 elections.419 The documents provided revealed that more than 100 officers had access to credit over this period through council’s purchasing card system. The total expenditure for the period from October 2014 to September 2016 was over $590,000.420 The council’s policy on Purchasing Card Procedures421 indicated that council last reviewed its purchasing card practices in the 20012002 financial year. Following that review council introduced a CBA purchasing card in conjunction with specialized financial software, and the council’s Ordering of Goods and Services Policy as a purchasing tool to procure low value goods and services. Council rescinded the Ordering of Goods and Services Policy at its meeting on 24 October 2016 (Item 12), claiming that the policy had become redundant through the operation of council’s Code for Tenders and Contracts and legislative provisions. As of December 2016, council had not amended its Purchasing Card Procedures to reflect the rescission of the Ordering of Goods and Services Policy. The Purchasing Card Procedures document stipulates that purchasing cards are only to be used for ‘bona fide purchases of goods and services which fall in line with the transaction limit deemed by the Executive Leadership Team (currently with a value of $600).’ Requirement to Produce Documents (21 September 2016). Ref. L.1 Credit card records. Ref. T.1 421 Purchasing Card Procedures. Ref. J.3 419 420 191 The listed benefits of this scheme are:         Provision of interest free funds for the purchase of goods and services; Suppliers receive payment within 72 hours of the transaction taking place; Reducing the paperwork associated with the purchasing and payment process; Reducing the number of supplier payments processed; Provides efficient financial reporting as commitments are recorded on a timely basis; Increased control over employee spending; Provides a controlled framework; Flexibility to analyse and monitor purchasing for future needs. The transaction limit for officers is $600 and $1,500 for managers. Those employees who hold a purchasing card are empowered by their position to purchase as authorized officers in accordance with the delegation from the relevant manager. The Purchasing Card Procedures stipulates that cards must not be used for cash withdrawals and under no circumstance for personal purchases, and there are listed protocols for dealing with any such occurrences and any breaches, including forfeiture of the card. The Board considers that compliance with the Purchasing Card Procedures is not consistent, with a number of purchases falling outside the provisions. Close scrutiny of the extensive records of the 100 plus cardholders for the period from 20 October 2014 to 15 September 2016 reveals that while a large portion of transactions prima facie appear legitimate (e.g., purchases of trade goods from suppliers), significant amounts have been spent on items such as alcohol ($10,399.81), meals ($20,222), with some being quite expensive, such as a $534.40 transaction made at a local hotel by the Chief Parking Officer; coffees and bakery goods ($6,353.25), and approximately $1,764 on flowers. Additionally, council officers have spent in excess of $19,144 on educational courses and $19,732 on memberships to professional bodies and organisations. Council officers also spent approximately $32,907 on flights and in-flight purchases in addition to approximately $13,845 on accommodation. In many instances the purchases exceeded the stipulated transaction limits. Many transactions could not be described as purchasing ‘low cost goods and services’. Additionally, a comparison with the policies of some other similar sized councils indicates that the GCC decentralized approach is very unusual in giving so many staff access to credit. Other similar sized councils issue fewer than ten cards and some fewer than five. The Board recommends that the Purchasing Card Procedures be reviewed in order to restrict access to credit, minimize the risk of misuse of cards, and implement a more accountable system for purchasing goods and services.422 Recommendation: that council amend its credit card procedures to restrict access to credit to the general manager and his direct reports. Recommendation: that council amend its procedures for monitoring credit card usage to ensure greater accountability and transparency in their use. Ald. Stevenson questioned the process for approval of the general manager’s credit card expenditure and the role of the Audit Panel in monitoring these expenses (15 February 2016 Item 16.22). 422 192 B.9.2 Legal expenses Under s 222, the Board issued two Requirements to Produce Documents to obtain records of all legal expenses incurred by council for the 2015-16 and the 2016-17 financial years.423 The records council provided indicated that despite council’s employment of four people as legal practitioners, external legal advice totalling $778,732.19 was incurred between 29 June 2015 and 31 March 2017, with an additional $48,617.10 pending. On the evidence provided, the Board notes that council sought independent legal advice regularly, and has consulted at least six different legal firms since June 2015.424 Examples of expenditure on external legal advice include:      an amount of $69,805.30 spent solely on issues related to the Board of Inquiry, including $7,146.00 referenced as ‘Ald. Branch-Allen’;425 legal costs to 29 August 2016 relating to the LandVisionCivil windup matter totalling $93,515.40, including GST;426 $53,474.02 for a Procurement Strategy; $12,671.00 for advice regarding local government tendering requirements and the application of council’s Code for Tenders and Contracts; the use of external legal advice for matters such as the interpretation of meeting procedure, shown by records in council meeting minutes and committee meeting minutes. In response to a Requirement to Produce Documents under s 222, the acting general manager told the Board that the payment of two invoices totalling $7,146.00 referenced ‘Jenny BranchAllen’ was made on the understanding that legal expenses relating to the BoI were covered under council’s Councillors and Officers’ Insurance Policy.427 The Board considers that this level of expense on legal advice is unusually excessive and the Board is concerned that despite questions by the mayor and Ald. Stevenson regarding particular items, this may reflect an inappropriate attitude among some aldermen and/or some council staff in relation to the necessity to seek external advice.428 The Board considers that this is likely to result from inadequate oversight by council in relation to expenditure on external legal services; and result in unnecessary expenditure that may not be in the best interests of the Glenorchy community. Requirement to Produce Documents (11 November 2016 and 29 March 2017). Ref. L.1 Records of legal expenses. Ref. T.2 425 The majority of this sum was paid to barristers who represented the general manager and the DCG&GC during their summoned appearances before the Board in August 2016. 426 The matter was unresolved at the time of writing this Report. 427 Letter from the acting general manager to the Board (11 April 2017), with two invoices attached. Ref. T.2 428 Ald. Stevenson asked a QoN regarding the legal fees for the LVC matter at the meeting on 1 August 2016 (Item 17.2); and a QoN regarding council’s current external legal advice costs year to date, and what they had been for the past four financial years, at the meeting on 15 March 2016 (Item 21.8). 423 424 193 Recommendation: that council adopts a policy to govern the use of external legal advisors. The policy should include guidance on the circumstances in which the general manager may seek external advice, and direction on the maximum expense which can be incurred on any matter before the matter needs to be brought to council for approval. Council approval of such expense should be sought even if the amount is less than the total amount budgeted for that management section. Recommendation: that council budgets include specific allocation of legal expenses within each management section, to enable aldermen to monitor resource allocation and delivery of efficient service. 194 B.10. Provision of advice and responses during meetings The Board considers that the general manager had critical responsibility for ensuring that aldermen were provided with information which would have enabled them to carry out their duties under the Act, including their duty to monitor the efficient and effective provision of services and facilities, and the efficient and effective management of council’s assets. Finding The Board finds that the general manager failed to provide information to some aldermen when legitimately asked to do so. Supporting evidence and information Advice to council regarding the tendering of CTMG projects At the 29 August 2016 council meeting, Ald. Stevenson asked a QoN (Item 23.4), requesting an itemised list of projects undertaken by CTMG in the financial year 2015-16. Ald. Stevenson then asked why the service level review included in the list, and costing more than $215,000, had not gone to tender. The general manager replied that council had ‘adopted this process’ at its meeting of 16 March 2015 (Item 23), a ‘process’ which, according to the general manager, provided council with an exemption under the Code for Tenders and Contracts from the need to go to tender. He said that he had not needed to refer his decision (not to go to tender) back to council, because the decision of 16 March 2015 to adopt the recommendations of the CTMG Report meant that he could use his ‘delegation and exemption’ to use a contractor if in his opinion, they would be the best people. The mayor asked that the specific exemption under the Code for Tenders and Contracts be provided to council in writing, and the general manager said that he would provide it to her if I have time. The Board notes that prior to 29 June 2015 (i.e., on 16 March 2015) cl. 23(1) of the General Regulations stated that a council must invite public tenders for any contract it intends to enter into for the supply or provision of goods or services valued at or above $100 000 (excluding GST). At the 26 September 2016 council meeting (Item 28.4), Ald. Stevenson requested further information regarding council’s contracts with CTMG for the provision of services in the financial year ending 30 June 2016. Ald. Stevenson noted that at the last council meeting council was presented the expenditure on CT management for the past financial year. Two of those items were in excess of the threshold for which council should tender under its own tender protocols. Ald. Stevenson asked the general manager to explain why council had not gone to public tender for these contracts. The general manager’s answer ran to approximately two pages of the minutes. The answer did not include the word tender and the Board concludes that the answer provided was irrelevant to the question, and that the general manager was either unable to answer the question, or refused to do so. 195 At the 24 October 2016 council meeting (Item 30.1), Ald. Stevenson again asked specifically for the general manager to tell council under which exemption by regulation he determined that no tender process was necessary for the projects awarded to CTMG. Ald. Stevenson included with his question a list of the possible exemptions by regulation which could be invoked.429 The general manager replied that the detailed answer to this question will be provided at the 21 November 2016 council meeting. Ald. Stevenson repeated his question at the November meeting (Item 25.1). The general manager responded that management is working with the external lawyers ….to provide legal advice to the general manager and council in relation to this matter. The general manager added that the external lawyers had requested an extension of time and this had been granted. At the 19 December 2016 (Item 25.2) meeting Ald. Stevenson repeated his question. The acting general manager (Mr. McMullen) responded that the external law firm initially engaged to provide advice to the general manager and council had advised that this matter should be referred to an external independent barrister. The acting general manager said that the advice would be provided to aldermen when council received it. At the council meeting on 23 January 2017 (Item 20.2),430 Ald. Stevenson repeated his question and the general manager tabled his answer at the meeting.431 Given the complexity of the document the general manager provided, and the brief time aldermen had to consider the issues covered, the Board considers that this matter warranted further investigation.432 The Board considers that the inability of the general manager to answer this question was an example of the general manager unreasonably failing to provide information to the aldermen when asked to do so. One outcome was that aldermen could not be sure that council’s assets had been managed as effectively as possible. The Board is concerned that the general manager appeared to be incapable of telling his council why such significant projects did not go to public tender in accordance with council’s policy and the Act and Regulations, and why details of the projects were not included in the Annual Reports. Reg. 27 of the General Regulations The QoN (Item 20.2) was moved from the closed section of the meeting to the open council meeting, by resolution of an absolute majority of the council. 431 The general manager’s advice relied on a Memorandum of Advice provided by Mr. B. McTaggart SC (The Compliance of Glenorchy City Council with the Local Government Act and Regulations and its Code for Tenders and Contracts – 19 January 2017) tabled by the general manager at 23 January 2017 meeting. Memorandum of Advice. Ref. O.5 432 Further information regarding this matter is provided in Management and Operations: Maintenance of a cooperative relationship with GCC, based on an ethical foundation of mutual respect and trust, 3.B.11.2, along with referenced documents. Prior to the conclusion of matters concerning the Board and affected parties being conducted in the Supreme Court, and the consequent inability of the Board to conclude this Report, the AuditorGeneral has conducted an investigation into the failure to tender for projects undertaken by CTMG, and his Report was presented to Parliament on 17 October 2017. 429 430 196 B.11. Maintenance of a co-operative relationship with GCC, based on an ethical foundation of mutual respect and trust Proposed revision of the general manager’s contract433 B.11.1 Findings The Board finds that the DCG&GC acted outside the authority given in the resolution of council at its meeting of 26 September 2016 (Item 26(d)) by allowing the review of the general manager’s contract to go far beyond the stipulation that it be restricted to consideration of clause 5. The Board finds that the DCG&GC’s actions in response to council’s resolution of 26 September 2016, to review only clause 5 of the general manager’s contract, constituted unethical and unprofessional conduct. The Board finds that the general manager acted unethically and unprofessionally, and in breach of his functions under the Act, in instructing his personal lawyer to undertake a full review of his contract, in direct conflict with the instruction of council that any review be confined to clause 5 of the contract. The Board finds that the general manager acted unethically and unprofessionally, and in breach of his functions under the Act, in providing for council’s consideration a revised contract which, if accepted, would have provided substantial personal and monetary benefits to the general manager, as well as severely limiting the mayor’s ability to oversee and assess his performance. Supporting evidence and information The minutes of the GMPRC meeting of 29 July 2016 (Item 1) record that the construction of Clause 5 (Performance) of the CoE (contract) is confused and the committee would like this to be reviewed and the chair will discuss this matter with the director who acts on behalf of council. The chair recommends to the general manager that he discusses this matter with his personal lawyer.434 As a result of this advice from the GMPRC, at the council meeting of 26 September 2016 (Item 26(d)), council resolved to consider changes to clause 5 of the general manager’s contract, and required that council and the General Manager seek their own legal advice in the clarification and amendment, if necessary, of clause 5 of the Contract of Employment. The Board considers that the bizarre interpretation of this resolution, primarily by the DCG&GC, the general manager, and The role of the GMPRC in this matter is dealt with in Governance: General Manager Performance Review Committee, 3.A.2.3, and documents referenced in that section. 434 GMPRC minutes. Ref. C.10 433 197 Ald. Slade, led to a series of events which could have had serious financial and operational consequences for council and the community. Following the September 2016 council meeting, the DCG&GC reported to the GMPRC at its meeting of 21 November 2016 (Item 5) that the general manager’s personal lawyer had commenced the review of his contract, and that once she received the advice from the general manager’s lawyer, she would send that advice to an independent lawyer for review. The reporting brief in the agenda for the special council meeting of 5 December 2016 (Item 3) stated that at 21 November 2016 GMPRC meeting, the GMPRC was advised that in accordance with the council’s resolution of 26 September 2016, the CoE has been reviewed by the general manager’s personal lawyer. A review has also been undertaken by the Director, Corporate Governance and General Counsel, on behalf of council. The council resolution did not authorise the DCG&GC to undertake her own review of any part of the contract. In addition, the resolution did not authorise any further activity by the GMPRC, and the Board considers that the DCG&GC should have advised the members of the committee that their proper role in reviewing clause 5 was as aldermen of the council, not members of the GMPRC. The attachments to the report in the agenda435 for the special meeting of 5 December 2016 provided aldermen with a revised contract (Contract A) recommending changes to a substantial number of contract clauses.436 This version had been given to the general manager by his personal lawyer.437 On the day of the meeting at approximately midday, the DCG&GC emailed all aldermen, attaching a second revision of the contract (Contract B)438 which had been provided to council by the lawyer engaged by council, theoretically to review clause 5 of the contract. Contract B was effectively a review of the changes made in Contract A. It was not a review of clause 5 of the contract. The Board concludes that the instructions provided to council’s external lawyer did not make the intention of council clear, viz., to review only clause 5 of the contract.439 The Board is concerned that some of the comments the council’s external lawyer made in Contract B included suggestions that some alterations were subject to further instructions from Ald. Slade. The Board considers that Ald. Slade had no instructional role to play in this process and that both he and the DCG&GC acted well outside their authority in allowing the external lawyer to rely on Ald. Slade’s advice. The Board is extremely concerned that this complex document, Contract B, was provided to aldermen only shortly before the start of the meeting, contrary to reg. 8(1)(b)(i) of the Meeting In an email from Ald. Slade to Ald. Stevenson (5 December 2016), Ald. Slade says that the report was in fact prepared by himself, and that the name of the DCG&GC appearing as the author of the report was ‘an administrative error’. Ref. Q.11 436 Revised general manager’s contract A. Ref. C.16 437 Further detail is provided in Governance: General Manager Performance Review Committee, 3.A.2.3, and documents referenced in that section. 438 Revised general manager’s contract B. Ref. C.17 439 Instructions provided by council to Mr. McTaggart SC concerning the general manager’s contract (email to the Board from the DCG&GC, 3 February 2017). Ref. O.6 435 198 Regulations.440 The Board is also extremely concerned to note that the DCG&GC informed aldermen in her email of 5 December 2016441 that she would send the version provided by council’s lawyer (Contract B) to the general manager for him to consult with his lawyer. The resolution of council required aldermen to be able to make an assessment of two independent sets of legal advice. The DCG&GC’s proposed course of action was contrary to council’s direction and without the authority of council on a matter of significant material interest to both the council and the general manager. In the agenda for the special meeting on 5 December 2016 (Item 3), Ald. Slade was referred to as the qualified person under s 65 of the Act, viz., a person who has the qualifications or experience necessary to give such advice, information or recommendation. The Board considers that Ald. Slade’s role as chairman of the committee tasked with the review of the general manager’s performance did not mean that he should have been named automatically as the qualified person under the Act to make recommendations about a contract of employment, and he should not have been given that delegation by the general manager. In the agenda for the meeting of 5 December 2016 (Item 3), the DCG&GC recommended to council the approval of a revised contract for the general manager which effectively provided the general manager with:       Favourable terms of reappointment (removing the possibility of advertising the position); Favourable monetary reward in the event of dismissal by the council before the expiry of his contracted term of employment; Removal of the mayor from any prescribed role in the assessment of his performance and removal of the requirement that he report to the mayor; Favourable alterations for payment of his professional development activities, including attendance at conferences, and making budgetary approval of these expenses mandatory; Favourable alterations to the procedures for taking his annual and personal leave; Alterations to the procedure to be followed in the reviews of his performance, to the effect that the general manager would participate in compiling his own assessment of his performance, the assessment panel’s assessment of his performance, and the final report which considered both previous reports. He would also participate in setting recommendations for payment of his performance bonus and/or remuneration variation.442 Reg. 8 (1)(b)(i) states: The general manager is to – in the case of a council meeting, provide each councillor with the agenda and any associated reports and documents at least – 2 days before a special council meeting. 441 Email from the DCG&GC to aldermen about the general manager’s contract (5 December 2016). Ref. Q.79 442 Contract A (the attachment to the agenda) provided: Within fourteen (14) days of the meeting referred to in clause 5.3(d), a final report must be prepared by the Independent Facilitator and signed by both the authorised GCC delegates or representatives and the General Manager, if they agree with its contents. The report will include: (i) Conclusions about the General Manager’s performance during the period the subject of the performance review; (ii) Any proposal to pay a Performance Bonus to or vary the remuneration to the General Manager (for an Annual Review only); (iii) Any directions or recommendations made to the General Manager in relation to future performance by the General Manager of the obligations under this Contract; and (iv) Determination of specific: (A) Key Performance Indicators to apply to the next KPI Review; or 440 199 The recommendation in the agenda for the meeting did not stipulate which revised version of the contract was to be considered, advising council only to ACCEPT and APPROVE the amendments to the Contract of Employment between Glenorchy City Council and General Manager, Mr. Peter Brooks. Both versions provided greatly enhanced monetary and personal benefits to the general manager. The mayor adjourned the special meeting of 5 December 2016 because she considered that the role of the DCG&GC in bringing the report to council represented a serious conflict of interest for the DCG&GC; and because the contract(s) attached to the agenda for council’s consideration constituted reviews of the entire contract, not just Clause 5; and because the proposed changes, if approved, would significantly benefit only the general manager. The mayor stated (in part): In the absence of independent and external advice and given the obvious pecuniary conflict of interest and significant financial gain to be made by the general manager it cannot be reasonably said that accepting these amendments would be acting in the best interest of the community.443 The council did not make a decision about the general manager’s contract. The mayor adjourned the meeting until 20 March 2017. Recommendation: that any advice required to assist council in matters pertaining to the general manager’s contract of employment be obtained from independent external lawyers. (B) Performance Criteria and the Performance Milestones to apply to the next Annual Review and the Bonus with any proposed amendments agreed after consultation between GCC and the General Manager. Ref. C.16 443 Mayor’s statement of reason for adjournment of 5 December 2016 meeting. Ref. Q.80 200 B.11.2 Memorandum of Advice regarding CTMG contracts and tender compliance Findings The Board finds that the general manager, on behalf of GCC, incurred significant expense in accessing retrospective legal advice regarding his actions in dealing with the CTMG contracts and services, first from one firm of lawyers, and then from a Senior Counsel. The general manager needed this retrospective advice because he was unable to explain to the satisfaction of some aldermen his failure to tender for projects which in total have cost council over $500,000 since October 2014, and his failure to include CTMG projects in the Annual Report, as required under reg. 29(3) of the General Regulations.444 The Board finds that the legal Advice provided to council to explain council’s failure to seek tenders for the CTMG projects and services, and the failure of council to report these projects in its Annual Reports, was based on information which was not supported by formal council records.445 Supporting evidence and information Ald. Stevenson asked the general manager a series of questions regarding the process adopted by the general manager in providing contracts to CTMG for the provision of a variety of services to council over several years.446 According to council records, the total paid to CTMG over the three financial years 2012-13, 2013-14, and 2015-16 was $867,105.84.447 At the council meeting on 23 January 2017 (Item 20.2), Ald. Stevenson again asked:    Which specific exemption existed for the CT management expenditure; How was it approved under that exemption; Will it be recorded within the Annual Report as required under the Code for Tender? (sic) The general manager tabled an answer to the question at the council meeting, viz., a Memorandum of Advice (The Compliance of Glenorchy City Council with the Local Government Act and Regulations and its Code for Tenders and Contracts) (the Advice), provided by a Senior Counsel.448 Regulation 29(3) states: For the purposes of section 72(1)(e) of the Act, a council is to report the following in its annual report in relation to any contract, for the supply or provision of goods or services valued at or exceeding $100,000 (excluding GST) but less than $250,000, that is entered into, or extended, in the financial year to which the annual report relates: (a) a description of the contract; (b) the period of the contract; (c) the periods of any options for extending the contract; (d) the value of the contract (excluding GST); (e) the business name of the successful contractor; (f) the business address of the successful contractor. 445 The Board perused council minutes, witnessed debate and discussion at council meetings, and sought evidence of tender documents and/or requests for quotations. 446 See Management and Operations: Provision of Advice and Responses during Meetings, 3.B.10, and documents referenced in that section. 447 Refer council meeting reports and minutes 3 August 2015 (Item 19) Ref. A.14; 1 August 2016 (Item 17.6) Ref. A.29; 29 August 2016 (Item 23.4). Ref. A.30 448 Memorandum of advice concerning CTMG from Mr. McTaggart SC tabled at 23 January 2017 meeting. Ref. O.5 444 201 The Board considers that the Advice provided to council at its meeting on 23 January 2017, supposedly to give a satisfactory answer to these questions, contained material which was unlikely to promote respect and trust between the general manager and aldermen, and material likely to cause aldermen to question the ethical basis on which the general manager was carrying out his role. The Advice relied on instructions given by the general manager through an external legal firm. The instructions listed in the Advice included:     That all the CTMG recommended projects which took place in the financial year 201516 were identified in the agenda for the council meeting on 16 March 2015;449 That the council decided to treat each program separately; That CTMG sent a series of proposals to the council relating to various programs which included its proposed fees, as requested by the council; and That council did not split the proposals into programs to avoid compliance with the public tender process. Contrary to these instructions, the Board notes the following:  The agenda for the 16 March 2015 council meeting did not identify any projects specifically to be undertaken by CTMG itself. At that meeting aldermen resolved, as part of a longer recommendation, to approve the recommendations made by the CT Management Group Pty Ltd and the general manager in the presentation of 5 February 2015. No attachment or further information on the recommendations of the CTMG Report was provided. The resolution was passed on the recommendation of the general manager (Item 23, Director of Local Government Response).  Nowhere is it recorded in the meeting minutes that aldermen decided at a council meeting to treat each program arising from implementation of the CTMG Report separately, nor did council consider whether or not this might affect its compliance with its Code for Tenders and Contracts.  Nowhere is it recorded in the meeting minutes that aldermen were provided with a ‘series of proposals’ including proposed costs, which they could approve or reject as they determined, in accordance with council’s budget priorities and financial performance. The Board considers that the process described in the Advice for employing the services of CTMG is unusually informal, viz., Most of the requests for assistance from CTMG were made verbally by the council’s general manager. The request broadly took the form of Mr. Brooks calling Michael Courtney (Managing Director of CTMG) and requesting that CTMG ‘start project X’; then a month later ‘start project Y’ and so on. The Memorandum of advice referred only to projects in the 2015-16 financial year. Ald. Stevenson’s questions covered the spectrum of CTMG projects over a number of financial years. 449 202 The Advice, presumably based on the instructions, stated that …On 16 March 2015 Council resolved to accept the programs proposed by CTMG even though the fees for those programs had not yet been proposed and agreed. The Council having done so, it would not have been reasonable for the General Manager or his delegate to then embark on the process of obtaining quotations from other potential suppliers as per the ‘current methods employed by the Council to procure’ referred to in the Code…. The Board considers that there are two basic fallacies in this statement. Firstly, as noted in this report in Governance: Management Restructure, February 2015 (3.A.5), the agenda for the meeting did not provide supporting detail for the recommendations from the CTMG report, despite their complexity and the far-reaching consequences of their implementation. Aldermen had to rely on material which had been provided to them at a workshop on 5 February 2015, over five weeks earlier, and on the redacted CTMG report, which they received on 13 March 2015. In addition, the recommendations in the CTMG Report merely outlined in very broad terms actions which council could undertake at some time in the future.450 The Board does not consider that these actions could be defined as ‘programs’ in any realistic sense. Indeed, the Advice refers to the ‘proposals’ which had to be ‘split…into programs’ as implementation occurred.451 Secondly, there is no indication in the resolution passed by council that all programs that might arise from acceptance of the recommendation would automatically be undertaken by CTMG. The resolution stated that council approves the recommendations made by the CT Management Group Pty Ltd and the general manager in the presentation of 5 February 2015. Scrutiny of the recommendations presented in the material given to aldermen on this item does not provide any indication that council approved CTMG to undertake any of the projects which could have arisen from adoption of the report’s recommendations. The Board considers that the Advice uses the term ‘council’ ambiguously, not clarifying where decisions were purported to have been made by the aldermen, or by the general manager on the basis of a resolution passed by the council. The Board accepts that this lack of clarity may be attributed to the information (or lack thereof) accompanying the brief to the Senior Counsel.452 Refer the CTMG report (Ref. M.4) and the PowerPoint. Ref. M.2 Cl. 8 of the Advice states: The scope of the works proposed in respect to each program was totally different and the council decided to treat each program separately as a result. Council did not split the proposals into programs to avoid compliance with the public tender process. 452 For example: Cl. 11 of the Advice states that the Council issues multiple Purchase Orders authorising CTMG to proceed with its proposals, all relating to consultancy services provided by CTMG for the benefit of the Council. 450 451 203 Section Four: Summary of Findings and Recommendations 4.1 Findings A. Governance Findings The Board finds that: (a) the failure of the council to perform many of its functions seriously affected the operation of the council; and (b) the irregularity of the conduct of the council seriously affected the operation of the council. Further, the Board finds that the council failed to provide leadership and good governance to the city and is in need of major reforms in governance and management. The Board is strongly of the view that this cannot be achieved by the council elected in October 2014, and a management structure which includes the current general manager and the current DCG&GC. The Board finds that as a result of their ignorance of the principles and practice of good governance, poor knowledge and understanding of the Local Government Act 1993 (the Act), and ignorance of proper meeting procedure, a number of aldermen failed to monitor effectively council’s performance, council’s assets, and the performance of the general manager. The Board finds that the animosity, defiance, distrust, and lack of willingness to work together for the good of the council and the community, demonstrated in the events surrounding the general manager’s extended personal leave in January 2017, are evidence that the council did not address the dysfunctionality in its relationships, most particularly within the elected body, and between the mayor, the council, the general manager, and the Director of Corporate Governance and General Counsel (DCG&GC). The Board considers that these events indicate that in the 16 months from the commencement of the Inquiry to the suspension of the aldermen, key people in GCC failed to modify their behaviour, to the extent that the council’s governance framework upon which council and the community depends, appears to be beyond repair. Relationships between the Mayor and the Aldermen (3.A.1) The Board finds that in the accumulation of examples of negative and/or poor behaviour and conduct on the part of aldermen, in particular the relationships between the mayor and aldermen, there is convincing and plentiful evidence that the council was failing to provide for the good government of the municipal area. The Board finds that the mayor’s authority to act as chairperson of the council was challenged consistently throughout the term of this council. Challenges included interference with her capacity to facilitate communication by the council with the community; interference with her obligation to monitor the performance of the general manager; and overt challenges to her authority to act as the chairperson of the council in council meetings. 204 The Board finds that a majority of aldermen denied the mayor fair and equitable treatment, and breached Parts 1 and 7 of the Code of Conduct 2012, when the council resolved to call for two external authorities to investigate her nomination to the Local Government Association of Tasmania (LGAT) General Management Committee (GMC), before receiving the mayor’s explanation of her conduct. The Board finds that Ald. Branch-Allen, Lucas, King, Nielsen, Pearce and Slade acted outside their authority in advising LGAT of their view of the mayor’s election to GMC, without any delegation from council to do so. Assessment of the general manager’s performance by the General Manager Performance Review Committee (3.A.2) The Board finds that the aldermen who represented council on the GMPRC collectively failed to undertake their duties and responsibilities as authorised by the council and prescribed in the Local Government Act 1993, s 28(1)(e) and s 28(2)(d). The Board finds that the GMPRC wrongfully undertook tasks which were the responsibility of the whole council, including setting performance indicators and reviewing the contract of employment of the general manager. The Board finds that council wrongfully allowed the GMPRC to assume responsibility for tasks which were the responsibility of the full council, including setting the general manager’s performance indicators, managing a review of the general manager’s contract, and the determination of complaints made against the general manager. The Board finds that council wrongfully allowed the DCG&GC and the chairman of the GMPRC to assume responsibility for dealing with a significant and contentious Worksafe issue on behalf of council. The Board finds that the aldermen who comprised the GMPRC had a duty to undertake their responsibilities honestly and fairly, with a view to providing council with sound and unbiased recommendations based on agreed KPIs and a transparent and council-agreed assessment process. The Board does not consider that the committee fulfilled these obligations since the council election of October 2014 and the subsequent committee elections in December 2014. The Board finds that the GMPRC should not have been established as a special committee of council because it had a statutory function to monitor the performance of the general manager (s 28(2)(d) of the Act). A committee with that function must be established under s 23 of the Act, (Council committees). The effect of this is important, as a committee established under s 23 must be conducted in accordance with prescribed procedures (s 23(3)), such as the Meeting Regulations, whereas a special committee’s procedures are determined by the council (s 24(3)).453 The Board finds that the council, the GMPRC, and the general manager must take responsibility for failing to recognise that this committee was improperly constituted to undertake the general manager’s performance review. Special committees are not compelled to comply with the Act and the Regulations unless the council so determines. Without such a determination, the committee is not bound to keep proper records and is not bound by the confidentiality provisions of reg. 15(9) of the Meeting Regulations. 453 205 The Board finds that council, through the GMPRC, failed to comply with the spirit and the letter of almost every term of the committee’s CDS. The Board finds that the practices and leadership of the GMPRC reflected poor standards of governance in maintaining proper records, adhering to meeting regulations, reporting to council, fulfilling assigned responsibilities within reasonable timeframes, accountability, and compliance with the requirements of the Act and the Regulations. The Board finds that Ald. Slade did not adequately fulfil his role as chairman of the GMPRC and failed to demonstrate the leadership, impartiality, accountability and responsibility which the role demanded. The Board finds that the chairman of GMPRC improperly advised the general manager of the outcome of his (the general manager’s) performance appraisal before council had been informed, and before council had the opportunity to amend or refuse the committee’s recommendation for payment of a performance bonus.454 The Board finds that the GMPRC failed in its critical duty to distinguish between appraisal of the general manager in upholding the normal functions of his office, and achievement of excellence or outstanding results. This in turn led the committee to focus on achievement of the general manager’s performance bonus (a benefit only to the general manager), rather than on continuous improvement of his performance for the benefit of the organisation and the community. The Board finds that the GMPRC changed the methodology approved by council for assessment of the general manager’s performance in the year ended 2 January 2016 to ensure that the general manager would receive at least part of his performance bonus. On the committee’s initial assessment, the general manager would not have been entitled to any part of this bonus. The Board finds that in changing the methodology for assessment of the general manager’s performance without the approval of council, the GMPRC acted improperly, unethically and outside its terms of reference.455 The Board finds that the acceptance by council of key performance indicators (KPIs) for the assessment of the general manager’s performance almost nine months into the year under review was unsatisfactory for the organisation and unfair to the general manager. The Board finds that the chairman of the GMPRC and the DCG&GC contradicted each other’s evidence in their respective hearings before the Board, regarding whether or not changes were made to the methodology for assessing the general manager’s performance for the period ending 2 January 2016. The Board regards this contradiction in evidence as a serious matter, given that the outcome of the change to the methodology resulted in a significant financial gain for the general manager. Refer Governance: Assessment of the General Manager’s Performance by the General Manager Performance Review Committee, section 2.7, and documents referenced in that section. 455 The Board notes that this change to the methodology was not only done without council approval; it also related to potential (and realised) monetary gain for the general manager. 454 206 Relationship between the mayor and the general manager (3.A.3) The Board finds that the relationship between the mayor and the general manager degenerated from the time of the local government elections in 2014, and became dysfunctional, in that the usual and necessary functions of a council leader (mayor) working with the chief employee (general manager) could not be performed. This was despite several attempts by the Minister for Planning and Local Government and the Director of Local Government to improve the relationship. The Board finds no evidence to support the view that the mayor must bear full responsibility for the disharmony at Glenorchy City Council (GCC); nor does the Board find evidence to support the view that the general manager’s performance has been exemplary, and that he bore no responsibility for the breakdown in relationships between himself and the mayor, and the mayor and some aldermen. The Board finds that both the mayor and the general manager must bear some responsibility for the breakdown in their relationship. In addition, responsibility for the poor relationship and the worsening of that relationship lies with several long-standing aldermen, and with the DCG&GC.456 The Board finds that the general manager failed to provide support for the mayor, and support for the office of the mayor, in ways which reduced her capacity to undertake the duties of office. These failures included public and internal demonstration of his opposition to her as mayor, unreasonable refusals to provide information which she required in order to carry out her role as an alderman and as mayor, and reduction in the mayor’s direct access to the organizational arm of council, including council’s media office. The Board finds that the general manager failed to provide appropriate information to council which could have enabled aldermen to take a more balanced and objective view of the role of the mayor. The Code of Conduct (3.A.4) The Board finds that the number and consistency of potential breaches of the Code of Conduct by the aldermen of GCC indicate that the council failed in its duty to comply with both the Act and the Meeting Regulations and was not delivering good government to the people of Glenorchy. Management restructure, February 2015 (3.A.5) The Board finds that while council had instructed the general manager to achieve a break even financial result by 30 June 2017, those aldermen who approved the recommendations in the CT Management Group Report on 5 February 2015 were negligent in approving the recommendations without adequate knowledge of the intent and potential consequences of their implementation, and without specific information on how council was to monitor the associated projects and budgets. These are addressed in Governance: Relationship between the Mayor and the Aldermen (3.A.1), and Management and Operations: Management of Employees, including Appointment, Direction, and Dismissal (3.B.5.3.2), and documents referenced in those sections. 456 207 The Board finds that council was negligent in failing to be specific in its resolution and in failing to make a determination where a choice was provided in the CTMG Report, as it is not possible to know from the minutes of 16 March 2015 what council actually approved. The Board finds that council approved the implementation of the CTMG Report without considering how the associated costs should be treated in the budget for the current financial year. The Board finds that the aldermen failed to give adequate consideration to the ramifications of adopting the recommendations of the CTMG Report for the employees of the council and on their city. The Board finds that the general manager failed to provide council with a copy of the CTMG report, which was necessary for them to be able to undertake their responsibilities as aldermen. Council policies and By-laws (3.A.6) The Board finds that council failed to fulfil its function of determining and monitoring the application of policies, plans and programs for the efficient and effective management of council’s assets, and the fair and equitable treatment of employees of the council. Compliance with Code for Tenders and Contracts (3.A.6.1) The Board finds that the Code for Tenders and Contracts adopted by council on 13 April 2016 does not promote the prescribed principles, contrary to s 333B(2)(c) of the Act. The Board finds that the council failed to comply with its policy Code for Tenders and Contracts. The Board finds that council and its management failed to look strategically at the breadth of proposed changes to the governance and operations of GCC, and thus did not comply with the four purchasing principles upon which the Code for Tenders and Contracts is based, viz., open and effective competition, value for money, enhancement of the capabilities of local business and industry, and ethical behaviour and fair dealing. The Board finds that council failed to comply with reg. 29(3) of the Local Government (General) Regulations 2015 (the General Regulations) by failing to include pertinent matters relating to tenders and contracts in its Annual Report 2015-16. Compliance with the Nomination and Appointment of Aldermen to Committees and Other Bodies policy (3.A.6.2) The Board finds that the procedure adopted for the election of aldermen to committees at the council meeting of 1 December 2014 did not provide the level of transparency around the process which the community has a right to expect. Under the City of Glenorchy Community Plan 2015 – 2040, the community prioritised transparent and accountable government. The Board considers that the failure to adhere to council’s policy Nomination and Appointment of Aldermen to Committees and Other Bodies can be attributed to the general manager, who set out the procedure to be followed in the agenda for the council meeting, and also to the aldermen, who failed to monitor proper implementation of the procedure previously approved by council. 208 The Board finds that there is strong evidence of inconsistency in the application of the Nomination and Appointment of Aldermen to Committees and Other Bodies policy by the aldermen, and that aldermen were not advised by the general manager that such inconsistency was poor governance and breached their responsibilities as aldermen. The Board finds that council approved amendments to the Nomination and Appointment of Aldermen to Committees Policy which had the effect of reducing the ability of aldermen to hold their committee representatives accountable to the council and thereby the community, and reduced the capacity of aldermen to know and understand the concerns of their community. The Board finds that the process adopted for the election of aldermen to the GCC Audit Panel in November 2016 did not comply with council’s policy Nomination and Appointment of Aldermen to Committees and Other Bodies, thereby limiting the capacity of some aldermen to participate in the election process. Grievance Policy (3.A.6.3) The Board finds that council failed to uphold its responsibilities under the Act to determine and monitor the application of policies, plans and programs for the fair and equitable treatment of employees of the council. Compliance with Meeting Regulations (3.A.7.1) The Board finds that the regularity and frequency of breaches of the Meeting Regulations by the aldermen of GCC indicated a lack of understanding of the principles of good governance and aldermanic legislative responsibilities and an unwillingness to change behaviours which did not serve the best interests of the community of Glenorchy. The Board finds that the decision of eight of the aldermen to continue the meeting of 5 February 2015 after the mayor had adjourned it breached the Act and the Meeting Regulations. The Board finds that the aldermen who continued the council meeting of 5 February 2015 after its adjournment by the mayor were unaware that there was no legal basis for them to continue the 5 February 2015 meeting, and to purport to make council decisions. The Board finds the practice of confirming closed council minutes in open council is contrary to reg. 34. Circulation and inspection of minutes of open meeting (3.A.7.1.6) The Board finds that failure to confirm minutes at the next council meeting is contrary to reg. 35; the Board considers that it is essential for council to recognise that being unable to confirm the decisions made at its most recent meeting detracts from its requirement to be accountable to its community. The Board finds that inability to confirm the minutes of the previous meeting prior to commencing the business of the current meeting also indicates a fundamental breakdown in council processes. 209 Closed Council (3.A.7.2) The Board finds that the discussion of numerous items in closed council which could reasonably have been dealt with in open council belied council’s stated intention to be transparent in its activities and accountable to its community, and was contrary to the community’s priority for transparent and accountable government as stated in the City of Glenorchy Community Plan 2015 – 2040. The Board finds that in its use of procedures for closing the council meeting to members of the public, council did not fulfil its primary obligation to be accountable to the community and transparent in its decision making. These procedures include the reasons used for going into closed session and closing the meeting while still in closed session; debating items in closed session which could be debated before the public gallery, and regularly failing to determine at the conclusion of a closed session whether any information could be released to the public. Meeting procedures and accuracy of minutes (3.A.7.3) The Board finds that many of the aldermen, some of whom have been on council for many years, had little acquaintance with the Meeting Regulations, particularly those pertaining to Motions in Division 2 of Part 2 of the Meeting Regulations. This led to tensions and disputes during meetings, disputes which could have been avoided if all aldermen were aware of their responsibilities to behave in accordance with the Regulations for the good of the meeting. The Board finds that council demonstrated numerous examples of inaccuracy and/or failures of basic meeting procedure, including failure to record the resolution, failure to record QwN, confused recording of items on the agenda, failure to distinguish between an amendment and the motion, failure to understand due process for correcting inaccurate minutes, inclusion in the minutes of irrelevant advice provided by the DCG&GC, and inclusion of unnecessary and inappropriate descriptions of perceived or assumed emotional behaviour. The Board finds that in deliberately altering the minutes of a meeting to remove the record of such a significant occurrence as the suspension of an alderman, council breached one of the fundamental principles which should and must be upheld by aldermen. There is no capacity in the Act or any other associated legislation for aldermen to change the minutes to avoid disclosure of a suspension. Given that under reg. 32(1) it is the responsibility of the general manager to ensure that the minutes of a meeting accurately record any matter discussed at the meeting and any decision made at the meeting, the Board finds that in confirming minutes with obvious errors and omissions, the council failed to monitor the performance of the general manager in one of his most basic functions, and thereby failed in its duty of provide for the good government of the city. The Board finds that the inaccurate recording of minutes and the failure of the aldermen to address this issue indicates a fundamental break down in council’s governance structure. 210 Public Question Time (3.A.7.4) The Board finds that council’s restriction of public question time to one 15-minute period during the afternoon does not allow the community adequate opportunity to question its elected members. The Board finds that limiting questions to matters listed on the agenda for the current meeting breached reg. 31(2)(b) of the Meeting Regulations, did not facilitate the capacity of aldermen to know how to act in the best interests of their community, and did not demonstrate accountability to the community. Questions on Notice and Questions without Notice (3.A.7.5) The Board finds that a majority of aldermen became complacent in their acceptance of direction and advice from the general manager and the DCG&GC, and resentful of the mayor’s challenge to that complacency. The Board notes the repetitive theme of some of the questions asked in council meetings, and finds that this occurred when the answers provided were either incomplete or inaccurate, or management did not provide an answer at all. The Board witnessed conflict within council caused by some questions put by aldermen. Criticism was levelled at aldermen who asked questions by other aldermen, the general manager, and the DCG&GC. The Board finds this reflected a culture of complacency in the elected body, and inappropriately discouraged aldermen from questioning information provided, and from requesting further relevant information about council matters. Overt public praise for the general manager by aldermen (3.A.7.6) The Board finds that meetings have been used as a vehicle to overtly praise senior management in a way that is not usual and implies criticism of aldermen who might be questioning their performance, reports, or the provision of information. The Board finds that some reports to council contained unnecessary and inappropriate commentary in support of council staff. The Board finds that the public, overt support provided by the chairman of the GMPRC to the general manager indicated a lack of the objectivity and impartiality which should be brought to the task of chairing the GMPRC. Staff attendance (3.A.7.7) The Board finds that in not questioning the need for high staff attendance at council meetings, the council failed to monitor the effective and efficient provision of services and the management of its assets. 211 Council Workshops (3.A.7.8) The Board finds that the reliance on workshops to deal with important council matters behind closed doors contributed to the perception that there was lack of transparency and accountability in council’s governance procedures. The Board finds that the pre-planning for workshops was ad hoc, with no calendar of topics, late provision of workshop material, little or no input from aldermen into workshop topics, and little time allowed for aldermen to prepare. The Board finds that aldermen would benefit from the timely provision of reports and workshop documentation to enable reasonable preparation; that an annual calendar of workshop topics (subject to topical additions as required) would assist aldermen to understand and prepare for their duties; that aldermen should have more opportunities to propose workshop items; and that development of a council policy regarding purpose, content, attendance, and other relevant matters may bring council and senior staff to a shared understanding of the proper use of workshops and the need for transparent decision making. The general manager’s personal leave and return to work, January 2017 (3.A.8) The Board finds that the general manager acted beyond the scope of his authority under the Act by his appointment of the DCG&GC as acting general manager during his period of personal leave. The Board finds that the general manager’s allegation that the mayor acted illegally in appointing the Director, City Services and Infrastructure as acting general manager was inappropriate and untrue, and was not in the best interests of the council, particularly as he circulated this allegation to all council staff. The Board finds that the general manager displayed barely restrained antagonism towards the mayor in his email to staff (23 January 2017), his tardiness in providing her with his medical certificate providing clearance for his return to work, his rudeness towards her in front of his directors, and his refusal to leave the 23 January 2017 council meeting when requested to do so. The Board considers that this behaviour was not in keeping with his obligations to support and liaise with the mayor in her role, and was not in keeping with the reasonable expectations of the community. The Board finds that the DCG&GC displayed unprofessional, unseemly, and improper behaviour in her defiance of the mayor, and in her intimidatory actions in dealing with her fellow director. The Board finds that the aldermen who opposed the motion to require the general manager to attend a fit-for-work assessment chose to ignore legal advice provided to the mayor specifically related to the general manager’s return to work, and in so doing, neglected their responsibilities for the health and safety of their employee, the general manager. The Board finds that the decision to accept the general manager’s early return to work by a majority of aldermen was contrary to statements made by those aldermen in the week preceding the council meeting, when a number expressed their concerns for the general manager’s health and well-being, and considered it unlikely that he would return to work. 212 B. Management and Operations Findings The Board finds that the general manager consistently failed to perform some of the functions defined in his contract over a significant period of time, and that this reduced the capacity of aldermen to carry out their functions under the Act. The Board finds that a majority of aldermen consistently failed to monitor and challenge the general manager on the performance of his functions under his contract. The Board finds that the general manager failed to comply with a number of functions under the Act and Regulations and frequently failed to comply with principles of good governance and effective leadership. Compliance with council policies (3.B.1) The Board finds that the general manager frequently failed to comply with important council policies, and that he failed to either recognise or advise council of these failures. The Board finds that advice provided to council by the general manager in the review of some policies failed to bring significant issues to the attention of aldermen, with the result that some updated policies no longer comply with the Act, or the policy changes reduced council’s accountability and transparency for its community, its staff, and in its business dealings. The Board finds that the general manager failed in his duty under the Act to ensure that council complied with GCC policy, in particular, its policy Nomination and Appointment of Aldermen to Committees and Other Bodies, its policy Code for Tenders and Contracts, and its Purchasing Card Procedures. Implementation of council plans (3.B.2) The Board finds that while some plans advanced according to their timelines, other significant projects stalled or were deferred without adequate explanation of the reasons for delay. The Board finds this is evidence of poor strategic planning and failures in risk management and risk mitigation that have resulted in a lack of accountability to the council and the community. Implementation of the decisions of council (3.B.3) The Board finds that the general manager unreasonably protracted implementation of some council decisions, and also implemented at least one critical process with far-reaching consequences without the authority of a council decision. Management of the operations of council (3.B.4) The Board finds that the general manager failed to monitor a number of significant council operations and projects and thereby failed to effectively manage the resources and assets of the council. 213 The Board finds that poor management of some significant council projects adversely affected the relationship between council and a number of key investors in the municipality. The Board finds that the general manager failed to manage some basic functions of council, including the timely provision of information to the Board of Inquiry. Provision of information to the Board of Inquiry (3.B.4.4) The Board finds that throughout the course of its Inquiry, the general manager and his agent, the DCG&GC, rarely complied with the timeframes to produce documents to the Board, made in accordance with s 222 of the Local Government Act 1993. The KGV sports and community facility (3.B.4.5) The Board finds that the KGV project has been beset by problems throughout its implementation, including delays in construction and construction of facilities unfit for purpose. The Board finds that the poor management of the KGV project imposed significant additional expense and stress on the proposed tenants, brought about by extensive disagreements on a number of matters, including leasing arrangements. The Board finds that the general manager failed to keep council adequately informed of the progress of the KGV project, and that this reduced council’s ability to monitor the general manager’s management of council’s assets and resources. Dismissal of a newly appointed director (3.B.5.1) The Board finds that the general manager failed to ensure that the former Director Community, Economic Development and Business received fair and equitable treatment without discrimination. March 2015 – the termination of an employee (3.B.5.2) The Board finds that the DCG&GC, when acting as the general manager, failed to ensure that an employee of the council received fair and equitable treatment without discrimination. Managing the performance of the DCG&GC and/or failure of the DCG&GC to undertake her roles in accordance with the Act and the Regulations (3.B.5.3) The Board finds that the general manager failed to manage the professional performance of the DCG&GC to the detriment of the council and the community. The Board finds that the DCG&GC’s behaviour damaged the relationship between GCC and its community, and actively undermined the authority of the mayor. The Board finds that the actions of the DCG&GC in challenges to the mayor’s authority and failure to correct or retract inaccurate advice, and interference in the relationships within the aldermanic body, contributed significantly to the dysfunctionality of the council. 214 Provision of timely and accurate advice (3.B.6) The Board finds numerous examples where the general manager or his direct report, the DCG&GC, provided inaccurate or confused advice to council, and the acceptance of this advice by the majority of aldermen contributed significantly to the disharmony and dysfunctionality within council. Provision of timely, relevant, and high quality reports to council (3.B.7) The Board finds that the general manager failed to ensure that aldermen received certain critical reports that they should have had in order to fulfil their functions. The most notable of these failures was the general manager’s withholding of the CTMG Report, with its recommendations for sweeping changes to the management structure that had significant financial repercussions for the organisation through redundancies. The Board finds that the general manager’s failure to provide a report to council on its major projects and operational issues unreasonably limited council’s ability to monitor its resources and assets as it was required to do. Timely assistance to council in the development of its Annual Report (including the Budget), Annual Plan, and assessment of its performance against these plans (3.B.8) The Board finds that the aldermen had limited ability to have reasonable, responsible input into the development of the Budget and the Annual Plan. The Board finds that because of the delays in providing reports on performance against the Annual Plan, and forecasts of the end-of-year performance against Budget, council was unable to monitor its progress through the financial year, and unable to assess the possible need for adaptation in its programs, plans, and budgets. The Board finds that in setting the Budget and Annual Plan for 2016-17, aldermen were limited in their ability to make rational, well-founded decisions based on accurate, up to date information on council’s performance because they were not provided with timely reports on actual performance in the year ended 30 June 2016. Monitoring of productivity dividends (3.B.8.2) The Board finds that some aldermen raised legitimate, pertinent questions about the productivity dividend assumptions in the 2016-17 Budget, and the general manager failed to provide timely and accurate answers; this did not allow aldermen to monitor the efficient and effective provision of services, facilities, and assets, and the fair and equitable treatment of the employees of the council. 215 Management of council resources and assets (3.B.9) The Board finds that much of the expenditure on credit cards falls outside the established procedures, and that the council’s Purchasing Card Procedures document is significantly out of date and the procedures themselves are not delivering the intended benefits of the system. The Board finds that management does not appear to be providing oversight to many of the issued credit cards or transactions, as a large number of purchases were in breach of the current council policy. The Board finds that as a result of inadequate council oversight and monitoring, management has approved significant expenditure on the provision of external legal advice, some of which may have little direct benefit for the community. Provision of advice and responses during meetings (3.B.10) The Board finds that the general manager failed to provide information to some aldermen when legitimately asked to do so. Proposed revision of the general manager’s contract (3.B.11.1) The Board finds that the DCG&GC acted outside the authority given in the resolution of council at its meeting of 26 September 2016 (Item 26(d)) by allowing the review of the general manager’s contract of employment to go far beyond the stipulation that it be restricted to consideration of clause 5. The Board finds that the DCG&GC’s actions in response to council’s resolution of 26 September 2016, to review only clause 5 of the general manager’s contract of employment, constituted unethical and unprofessional conduct. The Board finds that the general manager acted unethically and unprofessionally, and in breach of his functions under the Act, in instructing his personal lawyer to undertake a full review of his contract of employment, in direct conflict with the instruction of council that any review be confined to clause 5 of his contract. The Board finds that the general manager acted unethically and unprofessionally, and in breach of his functions under the Act in providing for council’s consideration a revised contract of employment which, if accepted, would have provided substantial personal and monetary benefits to the general manager, as well as severely limiting the mayor’s ability to oversee and assess his performance. Memorandum of Advice regarding CTMG contracts and tender compliance (3.B.11.2) The Board finds that the general manager, on behalf of GCC, incurred significant expense in accessing retrospective legal advice regarding his actions in dealing with the CTMG contracts and services, first from one firm of lawyers, and then from a Senior Counsel. The general manager needed this retrospective advice because he was unable to explain to the satisfaction of some aldermen his failure to tender for projects which in total have cost council over 216 $500,000 since October 2014, and his failure to include CTMG projects in the Annual Report, as required under s 29(3) of the General Regulations. The Board finds that the legal Advice provided to council to explain council’s failure to seek tenders for the CTMG projects and services, and the failure of council to report these projects in its Annual Reports, was based on information which was not supported by formal council records. 217 4.2 Recommendations The Board recommends that the Minister recommend that the Governor by order dismiss the aldermen, in accordance with s226 of the Local Government Act 1993; that a Commissioner be appointed in accordance with s231 of the Act; and that the Commissioner immediately implement an extensive review of management practices at Glenorchy City Council, with reference to its responsibilities for good governance, organisational health, and effective, efficient, and compliant operational management. The Board recommends that the Glenorchy City Council Board of Inquiry Report be released in accordance with s 227 of the Act, to inform the Tasmanian community and particularly the residents and ratepayers of Glenorchy of the findings and recommendations of the Board, and to facilitate greater community involvement in the election and monitoring of the next Glenorchy City Council. A. Governance Recommendations Relationships between the Mayor and the Alderman (3.A.1) Recommendation: that within three months of a council term, the mayor and aldermen approve a Statement of Expectations to establish agreed protocols for fulfilment of their mutual and respective obligations under the Act and the Regulations, and to provide for the good governance of the council. Recommendation: that the Director of Local Government issue a model Statement of Expectations for Mayors and Aldermen, and that adoption of a Statement of Expectations be recommended to all councils. Recommendation: that the Act be amended to make training in local government procedures mandatory for all aldermen, and that the provision include a commitment by candidates for election to undertake such training within six months of the declaration of the poll. Recommendation: that council review and formalise its induction procedures for new mayors and new aldermen, including the roles to be undertaken by the mayor and the general manager in the induction procedures. Recommendation: that council undertake an annual review of its own performance, including but not limited to its compliance with the Act and associated Regulations, compliance with the Code of Conduct, compliance with its Statement of Expectations, compliance with its policies and procedures, its conduct of meetings and workshops, and its oversight and review of the general manager. Recommendation: that council determine its aldermanic professional development program based on the outcomes of its annual review. Recommendation: that the Act and the Regulations be amended to provide additional powers for the popularly elected mayor. These powers should include, but not necessarily be limited to, the mayor’s automatic representation of council on all external bodies (with the power to delegate such representation); the mayor’s power to approve the agenda prior to its release by 218 the general manager; the mayor’s power to approve the release of the draft minutes to other aldermen; the mayor’s power to approve the general manager’s leave; the mayor’s power to appoint an acting general manager. November 2014: Election of aldermen to the General Manager Performance Review Committee (GMPRC) (3.A.1.1) Recommendation: that the mayor be ex-officio a member of any committee established to make recommendations regarding the general manager’s KPIs, and/or make recommendations regarding changes to his remuneration; and that the mayor be ex-officio the chairperson of any committee established to assess the performance of the general manager and/or to consider changes to the general manager’s contract of employment. October 2015: Election to GMC (3.A.1.2) Recommendation: that the mayor ex-officio be appointed as council’s representative on all external bodies, with the power to delegate that appointment to another alderman should the mayor wish to do so. The process of such delegation should be part of the Statement of Expectations of the mayor and aldermen. Media statements and letters (3.A.1.4) Recommendation: that protocols regarding media statements be included in the Mayor and Aldermen’s Statement of Expectations. The general manager’s Contract of Employment (contract) (3.A.2.3) Recommendation: that should council establish a committee to consider matters pertaining to the general manager’s contract of employment, the committee should be authorised only to make recommendations to full council for decision. Recommendation: that council remove any provision for payment of a performance bonus from the general manager’s contract of employment. Recommendation: that council adopts the Remuneration clauses of the General Manager Template Contract of Employment of LGAT for the general manager’s CoE, with particular reference to relevant factors to be considered in reviewing the general manager’s remuneration package. 3 January 2016 – 2 January 2017 assessment period (3.A.2.4.2) Recommendation: that the general manager’s Key Performance Indicators (or similar assessment tools) be considered by full council. Should council establish a committee to provide recommendations to council regarding the general manager’s KPIs, its terms of reference should ensure that all aldermen are given ample opportunity to have input into setting the general manager’s KPIs. 219 Review of the period 3 January 2016 – 2 January 2017 (3.A.2.5.3) Recommendation: that all aldermen be involved in appraising the general manager’s performance, and that the matter not be delegated to a council committee. Should council establish a committee to provide recommendations to council regarding the general manager’s performance, its terms of reference should ensure that all aldermen are given ample opportunity to have input into the final assessment and any outcomes of that assessment. Recommendation: that aldermen who are not members of a council committee considering the general manager’s contract of employment, or a committee established to provide recommendations regarding the general manager’s KPIs, or a committee established to provide an initial appraisal of the general manager’s performance, be permitted to attend all committee meetings as observers. Failure to liaise on council meeting agendas (3.A.3.2) Recommendation: that the Meeting Regulations be amended so that while the agenda is drafted by the general manager, it must be approved by the mayor prior to release to the aldermen. Failure to provide adequate support for the mayor and the office of the mayor (3.A.3.7) Recommendation: that within three months of a council term, or within three months of the election or re-election of the mayor, or within three months of the employment of a new general manager, the mayor and general manager approve a Statement of Expectations to establish agreed protocols for fulfilment of their mutual and respective obligations under the Act and the Regulations, and to provide for the good governance of the council. Relationships with the community, aldermen and council staff (3.A.4.5) Recommendation: that GCC undertake an annual review of its performance in upholding the requirements of its Code of Conduct, and that its induction procedures include training in all aspects of the Code. Recommendation: that all elected members undertake compulsory training in the Code of Conduct within three months of the commencement of a council term. Compliance with code for tenders and contracts (3.A.6.1) Recommendation: that council’s Code for Tenders and Contracts be examined by the Auditor General to determine whether it complies with the letter and the spirit of the Act. Recommendation: that council upholds the principles of transparent and accountable governance through stringent compliance with its Code for Tenders and Contracts. Recommendation: that the Auditor General investigate whether council has complied with s 27(i) of the General Regulations, which state that council is not compelled to undertake a public tender process for a contract for goods or services, if the council resolves by absolute majority and states the reasons for the decision, being that a satisfactory result would not be 220 achieved by inviting tenders because of – (i) extenuating circumstances; or (ii) the remoteness of the locality; or (iii) the unavailability of competitive or reliable tenderers. Recommendation: that the Auditor General investigate whether council has complied with s 29 of the General Regulations, which prescribes council’s annual reporting requirements in relation to tenders and contracts. Compliance with the nomination and appointment of alderman to committees and other bodies policy (3.A.6.2) Recommendation: that council amend its procedures for special committees, and representation on external bodies, to ensure that all council representatives report at least annually to council. Recommendation: that council amend its procedures for determining membership of all committees and external bodies to allow consideration of the suitability and aptitude of aldermen seeking appointment. Recommendation: that the Statement of Expectations between the Mayor and Aldermen detail the process to be used should the mayor wish to delegate her representation of council on an external body to another alderman. Recommendation: that as part of its annual review of aldermanic performance, council assesses its compliance with its policies relating to committees. Grievance policy (3.A.6.3) Recommendation: that council amend its Grievance Policy to provide proper, safe channels for reporting complaints against senior staff. Meeting procedures and accuracy of minutes (3.A.7.3) Recommendation: that council audio records both open and closed sessions of all council meetings. Recommendation: that the Meeting Regulations be amended to make audio recordings of all sessions of all council meetings mandatory, unless an exemption is approved by the Minister. Recommendation: that council undertake training in correct meeting procedure and the Meeting Regulations within three months of the commencement of a council term, and at least once more during the term of the council. Recommendation: that when considering compliance with the Meeting Regulations as part of their annual review of their own performance, aldermen examine their use of closed council meetings, and the accuracy and relevance of minutes. Recommendation: that the Meeting Regulations be amended so that draft minutes are made available to the mayor within two working days of a meeting, and that they are released to other aldermen only with the approval of the mayor. 221 Recommendation: that to achieve greater understanding of council support requirements, the general manager ensure that relevant council staff are given adequate training in meeting procedure and the proper recording of minutes. Staff attendance (3.A.7.7) Recommendation: that council review staff attendance at council meetings to ensure that staff time is used efficiently and cost effectively, and that any staff attendance enhances the capacity of aldermen to make sound decisions. Council workshops (3.A.7.8) Recommendation: that council establishes a calendar of workshops for each calendar year. The calendar should include adequate provision for workshops in setting the annual budget, including determining the capital works program and capital spending. Recommendation: that aldermen be provided with relevant information at least two days before workshops, to enable effective preparation. Recommendation: that council develop a policy on workshops, to assist both aldermen and staff to make effective use of the workshop, without detracting from council’s need to be transparent in its decision making. General Managers personal leave and return to work, January 2017 (3.A.8) Recommendation: that the Act be clarified to ensure that the power to appoint an acting general manager lies with the mayor, with the proviso that an appointment must be approved by council at its next ordinary meeting. Recommendation: that council ensure that the general manager’s contract of employment includes the provision that any leave (annual or personal) must be approved by the mayor. Recommendation: that any delegated authority given to the general manager to appoint an acting general manager during a period of leave be clearly limited to occasions when the general manager is fully able to fulfil the functions of his office. 222 B. Management and Operations Recommendations Recommendation: that the Act be amended to clarify that the Minister may direct a council to terminate the employment of a general manager following investigation by the Director of Local Government, or a Board of Inquiry, or similar investigative independent authority. Budget 2016-17 (3.B.8.1) Recommendation: that the general manager ensure that aldermen are given projected end of year financial results throughout the budget setting process, and that the trial results are updated as necessary to inform aldermen of council’s financial position as accurately as possible before the next budget is approved. Use of credit cards (3.B.9.1) Recommendation: that council amend its credit card procedures to restrict access to credit to the general manager and his direct reports. Recommendation: that council amend its procedures for monitoring credit card usage to ensure greater accountability and transparency in their use. Legal expenses (3.B.9.2) Recommendation: that council adopts a policy to govern the use of external legal advisors. The policy should include guidance on the circumstances in which the general manager may seek external advice, and direction on the maximum expense which can be incurred on any matter before the matter needs to be brought to council for approval. Council approval of such expense should be sought even if the amount is less than the total amount budgeted for that management section. Recommendation: that council budgets include specific allocation of legal expenses within each management section, to enable aldermen to monitor resource allocation and delivery of efficient service. Proposed revision of the general manager’s contract (3.B.11.1) Recommendation: that any advice required to assist council in matters pertaining to the general manager’s contract of employment be obtained from independent external lawyers. 223 Section Five: Conclusion The Inquiry has been a long and difficult process for all involved, not least the mayor, aldermen, and staff of Glenorchy City Council, and the Glenorchy community. The Board thanks all those who gave willingly of their time and assistance to allow the Inquiry to be conducted thoroughly and conscientiously, prior to the presentation of the Report. The Board is deeply indebted to the two members of its secretariat, who worked unstintingly for over two years to assist the Board in its research, to provide guidance on legislation, and to carry out administrative tasks which complemented the Board’s work. Finally the Board thanks the Minister for his patience and understanding of the matters which delayed completion of the Report within the projected timeframe. The Board sincerely hopes that the recommendations within the Report will assist the Minister to provide directions to council which will improve its governance practices, and in so doing, will provide for better government and improved services for the people of the Glenorchy community. Lynn Mason Barry Easther 224 Appendices A. Matters to be included in compulsory training for newly elected aldermen Understanding the Local Government Framework  Legislation – the Act and regulations, other relevant legislation  Local government’s relationship with State and Federal Governments  Roles and responsibilities of councillors, including as employers of the general manager  Roles and responsibilities of the general manager and the mayor  Council meetings and committees and workshops – procedures, agendas and minutes  Key council documents e.g. Strategic Plan, Annual Report.  Code of Conduct Local Government Strategic Planning, Accountability and Reporting  Community consultation  Policy development and decision making  Strategic planning  Accountability (of councillors and general manager)  Performance measurement (quarterly and annual reporting of council’s performance)  Performance measurement (reporting of the general manager’s performance against his or her KPIs) Financial Management  Financial planning  Long term asset management  Budgeting  Government funding  Rates Land Use Planning – the Basics  The planning system  Role of the Planning Authority  Planning decisions  The Planning Scheme Elected Member Learning and Development  Annual assessment of individual learning and development needs  Ongoing learning and development opportunities 225 B. Inclusions in the Mayor and Aldermen Statement of Expectations A number of Australian councils now have Council Charters, or Statements of Expectation, which express the commitment of aldermen to work together and to work with and support the mayor and deputy mayor in their roles. The Statement of Expectations is a reciprocal commitment by the aldermen and the mayor to move beyond statutory compliance towards best practice in local government. It is founded on the acceptance by all aldermen that they are accountable to one another for the good government of their community, and that good government relies on ethical, accountable behaviour as well as statutory compliance. Review of outcomes from the Statement of Expectations should be part of the annual review of the aldermen. A Statement of Expectations may include, but not be limited to, the following matters:           Commitment to selection of ‘best candidate’ to committees and external bodies Commitment to acceptance of guidance from the mayor Commitment to open debate and acceptance of defeat with good grace Commitment to the spirit and letter of the code of conduct Commitment to continuous improvement Commitment to mutual support in public and in private Commitment to good preparation for all meetings and workshops Protocols regarding media statements, including statements by aldermen other than the mayor Procedures to be followed in the event of grievances between aldermen Procedures to be followed if the mayor decides to delegate her ex-officio representation of council on external bodies 226 C. Inclusions in the Mayor and General Manager Statement of Expectations The relationship between the mayor and general manager is critical to the smooth functioning of the council. This is the nexus between the executive and operational arms. They must make every effort to cooperate and overcome difficulties. A Statement of Expectations between the mayor and general manager sets out how they will interact with each other, and with aldermen, staff and the community. Review of outcomes from the Statement of Expectations should be part of the performance assessment of the general manager, and part of the annual review of the aldermen. A Statement of Expectations may include, but not be limited to, the following matters:  Regular meetings and the recording of outcomes and decisions of those meetings  Provision of information between both parties, including the scope of information and the timelines associated with requests  The taking of leave by the general manager  The appointment of an acting general manager by the mayor  The conduct of meetings, including staff attendance and provision of advice during meetings  The conduct of workshops  the approval of agendas and draft minutes  the provision of support for the ceremonial and representational roles of the mayor  the protocols for media releases and responses to media requests  procedures to be followed in the event of disagreement between the mayor and the general manager 227 D. Board’s consideration of responses to the Draft Report In considering all responses received on the Draft Report, the Board has taken the following approach:     D.1 Where the response suggested amendments to factual statements in the text, the Board has made appropriate amendments after verifying the accuracy of the comments. Unverified additional information which the Board does not consider material to the Report has been considered but has not generally resulted in changes to the text. Where the response has requested the addition to the timeline (section 2) of detail already contained in the body of the Report, the Board has considered whether the detail in both the timeline and the main report is sufficient, and amended or retained the text as a result of that consideration. If the Board considers that the naming of individual persons does not add materially to the Report, such names have not been included. Board consideration of Mayor Johnston’s response to the Draft Report The Board received the mayor’s response, with an attached spreadsheet, on 11 May 2017. Further information was provided on 1 June 2017. On 14 June the Board wrote to the mayor seeking clarification of several points in her initial response. The mayor provided further information on 20 June 2017. The Board has considered the mayor’s responses and provides commentary as follows on matters raised therein. The Board makes no comment on matters raised by the mayor in agreement with the Report. 1. Mayor’s response: Overview The mayor observed that it was not fair or reasonable to suggest all parties must share equal culpability, and further notes that many decisions of ‘council’ were not made unanimously and often faced clear and unwavering opposition from both myself, Matt Stevenson and Jan Dunsby. Board comment: a statement has been included in the Report to note that the term ‘council’ refers to the collective body, and should not be taken to mean that the decision or action taken or not taken by the council was necessarily reached or agreed by all aldermen. Where relevant and significant, voting records on council resolutions have been included. 2. Mayor’s response: Gravity of the Findings and recommendations The mayor requested that the voting record be included and any observed opposition to council resolutions or inaction be noted where possible; and that the Report be amended to name aldermen responsible for matters cited in evidence. Board comment: where relevant and significant, voting records on council resolutions have been included, and aldermen have been named in the Report text. 228 3. Mayor’s response: response in relation to the mayor Board comment: the Board notes the mayor’s statements regarding her statements to the media on 14 March 2015 and 16 March 2015, and her explanation for the tone of some of her emails as highlighted in the Report. 4. Mayor’s response: meeting procedures and minutes issues The mayor observed that it’s unreasonable to suggest that all errors or anomalies (in the minutes) were purely as a result of the chair’s conduct or that of the elected body. Board comment: the Report critically reviews the role of the general manager and the DCG&GC in managing the minutes (ref. 3.B 5.3.3, 3.B 5.3.4, 3.B 6.9, and 3.A 7.3.6), and does not state that the mayor failed in her duty to try to ensure the accuracy of the minutes. The Board has added recommendations regarding training for aldermen and staff minute secretaries, and monitoring by council. 5. Mayor’s response: recommendations and next steps The mayor states: I have become aware of instances where I believe individuals have lied under affirmation and whilst these lies have not ultimately impacted on the Draft Report findings, they are worthy of further investigation and independent action. The mayor asks that the Board consider referring such instances to authorities such as the Tasmanian Integrity Commission or Tasmania Police. Board comment: the Board notes the mayor’s request but considers that such action lies outside its terms of reference. 6. The mayor requests that the Board submit its report to the Minister as soon as possible after the response deadline of 1 June 2017. Board comment: the Board will conclude its report as soon as possible. 7. With regard to the Draft Report’s recommendation that the council be dismissed and a commissioner appointed for a minimum of twelve months, the mayor states: I submit that it’s in the community’s best interests to have an immediate election, after the disclosure of the full report to the public (or at very least the Executive Summary), and an elected body working on the basis of greatly improved governance practices and a renewed drive for transparency and accountability. Board comment: the Board has weighed the mayor’s comments and supporting reasons and after deliberation has amended its draft recommendation. 8. The mayor noted that the Draft Report contained no recommendations for legislative change. She stated her support for the popular election of mayors and for the clarification and strengthening of the hierarchical relationship between the mayor and the general manager. 229 Board comment: the Draft Report contained those recommendations which, if accepted, could adversely affect aldermen and some senior staff members. The final Report contains recommendations for legislative change. 9. Mayor’s response: attachment Board comment: subject to confirmation of the mayor’s statements, the Board has amended the Report as a result of the mayor’s submission to include the names of responsible aldermen and voting records, where appropriate. The Board has defined its use of the term ‘council’ when referring to the aldermanic body. Where opposition to actions or resolutions is not clarified beyond the voting record, the Board has relied on the voting record. When an issue is clarified later in the Report, the text has not been changed. In response to the mayor’s statement that at the council meeting on 14 December 2015, she had granted the request for the special council meeting but stipulated in an email to the GM that it ought to be considered in open Council, the Board has amended the text of 3.A.7.2.2. 230 D.2 Board consideration of Deputy Mayor Quick’s response to the Draft Report The Board received Ald. Quick’s response on 1 June 2017. On 8 June the Board wrote to Ald. Quick to request clarification of some details in his response. Ald. Quick replied on 20 June 2017. The Board has considered Ald. Quick’s responses and provides commentary as follows on matters raised therein. The Board makes no comment on matters raised by Ald. Quick in agreement with the Report, nor on matters raised by Ald. Quick which refer to the purpose and processes of the Board of Inquiry, rather than the Draft Report. Response to the Draft Report 1. Ald. Quick submitted that in your findings, there is no differentiation between work done by individual councillors to alleviate the obvious disharmony and ensure that the council as a whole resolved the issues raised by you. You have lumped us all together and tarred us with the same brush and only highlighted the work of the two councillors who supported the Mayor. Board comment: A statement has been included in the Report to note that the term ‘council’ refers to the collective body, and should not be taken to mean that the decision or action taken or not taken by the council was necessarily reached or agreed by all aldermen. Where relevant and significant, voting records on council resolutions have been included. 2. Ald. Quick submitted that the Inquiry asserts in its findings that I should not have questioned the authority of the Mayor; this beggars belief. I don't believe that in a democracy, one person has the right to rule roughshod over anyone, even if the Local Government regulations allow this. Then for the Inquiry to find that I am to blame for much that is wrong with the operation of the council, is laughable. Board comment: the Board has weighed Ald. Quick’s comments and supporting reasons and after deliberation has retained its draft finding. 3. Ald. Quick submitted that it is true that at the commencement, many members of the council were determined to thwart the Mayor, but I was not one of them!!! I used my long experience in politics to act as a mediator between the two groups and was achieving real progress in this regard. At the outset the Mayor confided in me and worked with me, but this collaboration did not last long when I dared question her actions and motives; something I thought needed to be done. The Board, in my mind, has not recognised my work in this regard, and through its select findings, seeks to have my service terminated. A real injustice!!! Board comment: the Board has weighed Ald. Quick’s comments and supporting reasons and after deliberation has retained its draft finding. 231 4. Ald. Quick submitted (in his response on 20 June 2017) that he had spoken to Ald. King, Pearce, Nielsen and Lucas to try to achieve greater harmony within the council, but that the mayor was not willing to move from her stated position of ‘Clean out the council’. He also submitted that he had achieved agreement from other aldermen to withdraw the motion to amend the general manager’s contract (insert date), but that the mayor had refused to allow this to happen. Board comment: the Board has weighed Ald. Quick’s comments, evidence, and supporting reasons, and after deliberation has retained the text of the Draft Report. 232 D.3 Board consideration of Ald. Branch-Allen’s response to the Draft Report The Board received Ald. Branch-Allen’s interim response on 1 June 2017, and a further letter to the Board on 21 June 2017. The Board has considered Ald. Branch-Allen’s responses and provides commentary as follows on matters raised therein. The Board makes no comment on matters raised by Ald. BranchAllen in agreement with the Report, nor on matters raised by Ald. Branch-Allen which refer to the purpose and processes of the Board of Inquiry, rather than the Draft Report. If the material provided by Ald. Branch-Allen had already been given to the Board before the release of the Draft Report, it has already been considered in the findings and recommendations in the Draft Report. Response to the Draft Report 1. The Draft Report included the Board’s finding that as a result of their ignorance of the principles and practice of good governance, poor knowledge and understanding of the Local Government Act 1993 (the Act), and ignorance of proper meeting procedure, a number of aldermen failed to monitor effectively council’s performance, its assets, and the performance of the general manager. In response Ald. Branch-Allen stated that the aldermen needed to be named. Board comment: Aldermen are named where appropriate throughout the Report. The Board has considered Ald. Branch-Allen’s response and after deliberation has retained the text in the Draft Report. 2. The Draft Report included the following text: The Board received some submissions which alleged that the overt and public support for the general manager through resolutions passed in open council led to a perceived loss of objectivity and independence in the assessment of the general manager’s performance against his KPIs. The Board considers that making public statements praising the general manager’s performance without any assessment against performance indicators could have created difficulties should a wider and more critical performance review be less fulsome in its appraisal. Adding credibility to this assertion, the Board heard evidence that the GMPRC adjusted the general manager’s assessment methodology for his 2015-16 performance appraisal at the committee’s meeting on 29 July 2016, to ensure that he qualified for at least part of the performance bonus, as defined in his contract of employment. Ald. Branch-Allen stated in response that she believed that this only occurred twice since the October 2014 elections. She also stated that the GMPRC acted in good faith, and that alongside they were working on a new way of monitoring the performance of the GM…The Mayor alleging a criminal offence had been committed by the Chair Stuart Slade and David Pearce in a council meeting severally (sic) impacted on the work of the GMPRC. Board comment: the Board has weighed all Ald. Branch-Allen’s comments and after deliberation has retained the text of its Draft Report. 3. The Draft Report included the Board’s finding that the animosity, defiance, distrust, and lack of willingness to work together for the good of the council and the community, demonstrated in the events surrounding the general manager’s extended personal leave in January 2017, are 233 evidence that the council did not address the dysfunctionality in its relationships, most particularly within the elected body, and between the mayor, the council, the general manager, and the Director of Corporate Governance and General Counsel (DCG&GC). The Board considers that these events indicate that in the 18 months since the Inquiry commenced, key people in GCC have failed to modify their behaviour, to the extent that the council’s governance framework upon which council and the community depends, appears to be beyond repair. Ald. Branch-Allen in response stated that she could find no evidence to support the Board’s use of the word ‘defiance’. She also stated that I had many conversations about the performance of the Director of Corporate Governance under the prefaces (sic) this is operational and not really my business, raising concerns of their performance and workload. The general manager did not take this on board which is his right to do so. The general manager in my view was over influenced by the DCG&GC and I had been expressing this to my fellow aldermen. This was increasingly leading in my opinion to poor decision making. Board comment: the Board has weighed all Ald. Branch-Allen’s comments and after deliberation has retained the text of its Draft Report. 4. The Draft Report included the following text: In submissions to the Board and in hearings some aldermen quoted statistics regarding the number of motions which were passed unanimously by council, referring to this as evidence that council worked as a team, or that good governance was being adhered to. In hearings a number of aldermen refuted allegations of dysfunctionality in council by citing their belief that there was efficient service delivery within the municipal areas. The Board considers that, while basic services may have been maintained, and a number of motions passed unanimously, these factors of themselves do not support the view that the elected body was functioning properly and in the best interests of the community. On the contrary, as evidenced through the minutes of council meetings held since October 2014, a number of resolutions which go to the heart of GCC’s functionality have not been passed unanimously. In response Ald. Branch-Allen provided statistics on voting in council meetings and identified a ‘pattern’ of voting by the mayor, and Ald. Dunsby and Stevenson. She stated in part that she could not identify the ones you refer to the contrary. She also stated that the Board was not in a position to make such a statement without being fully involved in all discussions taking place. They (the Board of Inquiry) were not in workshops and did not hear debate until recording of meetings recently started…to be informed to draw that conclusion. Board comment: the Board has weighed all Ald. Branch-Allen’s comments. The Board notes that its members and secretariat attended a number of council meetings and listened to debate and voting. The Board has also relied on the minutes of meetings. The Board has therefore retained that part of its statement regarding voting. 5. The Board has added text to section 3.A.1 to support its contention that a number of resolutions which go to the heart of GCC’s functionality have not been passed unanimously. 234 6. The Draft Report included the following text: In addition, a minority of aldermen persistently questioned the general manager on matters pertinent to the proper functioning of the council, and the repetition of their questions concerning certain contentious issues indicates that these aldermen were not satisfied with the answers and information they received: information which they deemed to be essential to the effective performance of their duties as aldermen, as prescribed in the Act. In response Ald. Branch-Allen stated in part that Our question times was (sic) a repetition of the same question time and time again. Most aldermen were satisfied with the GMs response to most questions…These Aldermen failed to articulate in Council meetings how this was effecting (sic) their performance of their duties as prescribed in the Act. Board comment: the Board has weighed all Ald. Branch-Allen’s comments and after deliberation has retained the text of its Draft Report. 7. The Draft Report included the following text: From council meeting minutes the Board identified a number of examples of resolutions passed where it was apparent that some aldermen had little or no understanding of the potential outcome of their decisions. These included council decisions taken to accept the recommendations of the CT Management Group (CTMG) report; the decision taken by council (on 11 May 2015, Item 17.1) to permit members of the public to ask questions on any council-related matter; and council’s rejection of the Annual Report 2015-16 at its meeting of 24 October 2016 (Item 16). In response, Ald. Branch-Allen stated that this was not true. Board comment: the Board has weighed all Ald. Branch-Allen’s comments and after deliberation has retained the text of its Draft Report. 8. The Draft Report included the following text: The Board considers that these examples (provided in the Report, section A) illustrate excessive reliance upon advice, sometimes inaccurate, proffered by the general manager and/or the DCG&GC, and failure by the majority of aldermen to properly understand their roles as aldermen and their responsibilities for oversight, review, and monitoring. In response Ald. Branch-Allen stated that you have a Gm and DCG&GC and staff to provide advice. They are the most crucial factor. Alderman (sic) are not experts but elected member (sic) by the community. They do not have a job description as such… Board comment: the Board has weighed all Ald. Branch-Allen’s comments and after deliberation has retained the text of its Draft Report. 9. The Draft Report included the Board’s finding that the mayor’s authority to act as chairperson of the council was challenged consistently throughout the term of this council. Challenges included interference with her capacity to facilitate communication by the council with the community; interference with her obligation to monitor the performance of the general manager; and overt challenges to her authority to act as the chairperson of the council in council meetings. 235 In response Ald. Branch-Allen stated that I can only find evidence that support rigours (sic) debate and questioning to hold account the actions of the Mayor. Board comment: the Board has weighed all Ald. Branch-Allen’s comments and after deliberation has retained the text of its Draft Report. 10. The Draft Report included the Board’s finding that in the accumulation of examples of negative and/or poor behaviour and conduct on the part of aldermen, in particular the relationships between the mayor and aldermen, there is convincing and plentiful evidence that the council was failing to provide for the good government of the municipal area. In response Ald. Branch-Allen stated that she had not behaved poorly or negatively. Board comment: the Board has weighed all Ald. Branch-Allen’s comments and after deliberation has retained the text of its Draft Report. 11. The Draft Report included the Board’s finding that council denied the mayor fair and equitable treatment, and breached Parts 1 and 7 of the Code of Conduct 2012, when it resolved to call for two external authorities to investigate her nomination to the Local Government Association of Tasmania (LGAT) General Management Committee (GMC), before receiving the mayor’s explanation of her conduct. In response Ald. Branch-Allen stated that the mayor had failed to undertake proper process in applying to represent council on an external committee. She said that aldermen had no option but to take their action after the mayor’s refusal to address this issue. The Draft Report states that the mayor responded to council within the timeframe set, i.e., by 23 December 2015; the Board therefore concludes that the mayor did address the issue as required. Board comment: the Board has weighed all Ald. Branch-Allen’s comments and after deliberation has retained the text of its Draft Report. 12. Ald. Branch-Allen said that the Board’s finding that the aldermen who represented council on the GMPRC collectively failed to undertake their duties and responsibilities as authorised by the council and prescribed in the Local Government Act 1993, s 28(1)(e) and s 28(2)(d), was incorrect. Board comment: Ald. Branch-Allen provided no reasons to support her contention. After deliberation the Board retained its finding. 13. Ald. Branch-Allen said that the Board’s finding that the GMPRC wrongfully undertook tasks which were the responsibility of the whole council, including setting performance indicators and reviewing the contract of employment of the general manager, was not correct, and that recommendations were provided to the full council. Board comment: the Board has weighed Ald. Branch-Allen’ comments and supporting reasons and after deliberation has retained its draft finding. 236 14. Ald. Branch-Allen said that the Board’s finding that council wrongfully allowed the GMPRC to assume responsibility for tasks which were the responsibility of the full council, including setting the general manager’s performance indicators, managing a review of the general manager’s contract, and the determination of complaints made against the general manager, was not correct. Board comment: the Board has weighed Ald. Branch-Allen’s comments and after deliberation has retained its draft finding. 15. Ald. Branch-Allen said that the Board’s finding that the GMPRC should not have been established as a special committee of council because it had a statutory function to monitor the performance of the general manager (s 28(2)(d) of the Act). A committee with that function must be established under s 23 of the Act, (Council committees). The effect of this is important, as a committee established under s 23 must be conducted in accordance with prescribed procedures (s 23(3)), such as the Meeting Regulations, whereas a special committee’s procedures are determined by the council (s 24(3)), was not correct. She said that the committee had been operating in that format for approximately 15 years, and that no-one brought this to our attention as a council. Board comment: the Board has weighed Ald. Branch-Allen’s comments and supporting reason and after deliberation has retained its draft finding. 16. Ald. Branch-Allen said that the Board’s finding that the practices and leadership of the GMPRC reflected poor standards of governance in maintaining proper records, adhering to meeting regulations, reporting to council, fulfilling assigned responsibilities within reasonable timeframes, accountability, and compliance with, and requirements of, the Act and the Regulations, was not correct. She stated that minutes were kept. They were accurate. Reports went to the Mayor and Council either written and verbal (sic). Board comment: the Board has weighed Ald. Branch-Allen’s comments and supporting reasons and after deliberation has retained its draft finding. 17. Ald. Branch-Allen said that the Board’s finding that the GMPRC failed in its critical duty to distinguish between appraisal of the general manager in upholding the normal functions of his office, and achievement of excellence or outstanding results. This in turn led the committee to focus on achievement of the general manager’s performance bonus (a benefit only to the general manager), rather than on continuous improvement of his performance for the benefit of the organisation and the community, was not true, and cited instances where the committee had requested improvement from the general manager. Board comment: the Board has weighed Ald. Branch-Allen’s comment and after deliberation has retained its draft finding. 18. The Draft Report included the Board’s finding that the relationship between the mayor and the general manager degenerated from the time of the local government elections in 2014, and became dysfunctional, in that the usual and necessary functions of a council leader (mayor) working with the chief employee (general manager) could not be performed. This was despite 237 several attempts by the Minister for Planning and Local Government and the Director of Local Government to improve the relationship. In response Ald. Branch-Allen stated that the relationship between the Mayor and the GM was unworkable long before her election of Mayor (sic). Board comment: the Board has weighed all Ald. Branch-Allen’s comments and after deliberation has retained the text of its Draft Report. 19. The Draft Report included the Board’s finding that the general manager failed to provide support for the mayor, and support for the office of the mayor, in ways which reduced her capacity to undertake the duties of office. These failures included public and internal demonstration of his opposition to her as mayor, unreasonable refusals to provide information which she required in order to carry out her role as an alderman and as mayor, and reduction in the mayor’s direct access to the organizational arm of council, including council’s media office. In response Ald. Branch-Allen stated in part that in the beginning, I saw the GM go above and beyond to support the Mayor. I acknowledge that both over time made this impossible. Board comment: the Board has weighed all Ald. Branch-Allen’s comments and after deliberation has retained the text of its Draft Report. 20. The Draft Report included a finding regarding the information aldermen had prior to deciding to implement the recommendations of the CTMG Report. Ald. Branch-Allen stated that she was aware that the potential cost was approximately $1.9 million. Board comment: this finding has been amended to reflect responses from Ald. BranchAllen and Ald. Stevenson. 21. Section 3.A.6.1 of the Draft Report: Ald. Branch-Allen stated that the Board’s findings on council’s compliance with the Code for Tenders and Contracts, and its compliance with relevant legislation, were not true. Board comment: the Board has weighed all Ald. Branch-Allen’s comments and after deliberation, and noting the absence of any supporting evidence provided by Ald. BranchAllen, has retained the text of its Draft Report. 22. Section 3.A.6.2 of the Draft Report: Ald. Branch-Allen stated that the Board’s findings on council’s compliance with its policy on Nomination and Appointment of Aldermen to Committees and Other Bodies were not true or not substantiated. Board comment: the Board has weighed all Ald. Branch-Allen’s comments and after deliberation has retained the text of its Draft Report. 238 23. The Draft Report included the Board’s finding that regularity and frequency of breaches of the Meeting Regulations by the aldermen of GCC indicated a lack of understanding of the principles of good governance and aldermanic legislative responsibilities and an unwillingness to change behaviours which did not serve the best interests of the community of Glenorchy. In response Ald. Branch-Allen stated List of breaches????? Are these proven breaches?? (sic) Board comment: seven specific breaches of the Meeting Regulations are listed below this finding, supported by evidence from the minutes or by witness at council meetings. The Board after deliberation has retained the text of its Draft Report. 24. The Draft Report included the Board’s finding that inability to confirm the meeting minutes also indicates a fundamental breakdown in council processes. In response Ald. Branch-Allen stated that this was not true; the minutes were confirmed. Board comment: the Board has amended this finding to provide greater clarity. 25. The Draft Report included the Board’s finding that in setting the Budget and Annual Plan for 2016-17, aldermen were limited in their ability to make rational, well-founded decisions based on accurate, up to date information on council’s performance because they were not provided with timely reports on actual performance in the year ended 30 June 2016. Ald. Branch-Allen disagreed with this finding. Board comment: the Board has weighed Ald. Branch-Allen’s comments and after deliberation has retained the text of its Draft Report. 239 D.4 Board consideration of Ald. Dunsby’s response to the Draft Report The Board received Ald. Dunsby’s response, with attachments, on 25 May 2017. On 9 June 2017 the Board asked Ald. Dunsby if she would like to provide clarification of some points in her response. Ald. Dunsby responded on 14 June 2017. The Board has considered Ald. Dunsby’s responses and provides commentary as follows on matters raised therein. The Board makes no comment on matters raised by Ald. Dunsby in agreement with the Report. 1. Ald. Dunsby stated that the Manager, Legal and Governance (later the DCG&GC, Ms. Iskandarli) chose to attribute comments to me in those meeting notes (from the ‘meeting’ on 5 February 2015) that were not true and which I asked to be rectified both by email and at the 4 March 2015 meeting. Ald. Dunsby submitted in attachment an email dated 13 February 2015 from herself to the DCG&GC to substantiate her statement, and an email from Ms. Iskandarli to Ald. Dunsby (15 February 2015), stating that I am not in the position to make any changes to the minutes as written, my notes clearly record what was said at the meeting on the day, 5 February 2015. The minutes of the meeting must record what was said at the meeting. If you disagree with the content of the minutes, I would advise, within your right (sic), to raise it at the next committee meeting for debate about the minutes.457 Board comment: Ms. Iskandarli’s email provided by Ald. Dunsby shows that there are contrary views held by Ald. Dunsby and the minute taker. Ms. Iskandarli’s email states that she had raised Ald. Dunsby’s query about the accuracy of the minutes with the general manager, who confirms the accuracy of the minutes. As Ald. Dunsby, the general manager, and the DCG&GC were the only people present at the time, the Board does not consider that noting this disagreement about the accuracy of minutes adds materially to the findings and recommendations of the Report. 2. Ald. Dunsby stated that she believed that the copies of minutes (of GMPRC meetings) that were provided to the Board of Inquiry were those that were prepared as draft minutes, and not those eventually adopted as the true record. Board comment: The Board requested copies of minutes of GMPRC meetings under s 222 (1 December 2016).458 For the purposes of its findings and recommendations, the Board has relied on documents provided by the general manager. 457 458 Attachment to Ald. Dunsby’s response to the Draft Report. Ref. V.1. Requirement to Produce Documents. Ref. L.1. 240 3. Ald. Dunsby provided an attachment entitled General Manager’s Key Performance Indicators (KPIs) for the 12 months – 3 January 2016 to 2 January 2017, which she stated were drafted by a consultant following a meeting with the GMPRC committee on 28 April 2015. The paper shows tracked changes attributed to the consultant and to Ald. Branch-Allen.459 Board comment: The Board required council to provide it with the minutes of all GMPRC meetings held since October 2014.460 The Board did not receive any minutes for a meeting on 28 April 2015. A Requirement to Produce Documents under s 222 was sent to council on 30 May 2017 to procure these minutes.461 The Report has been amended accordingly. 4. Ald. Dunsby stated that the minutes of the GMPRC meeting on 21 November 2016 contain information that has not been correctly recorded. Board comment: As this was the last meeting of the GMPRC prior to the suspension of the aldermen on 8 February 2017, the minutes have not been confirmed. The Board therefore made no changes to its Report as a result of this disclosure. 5. Ald. Dunsby stated that the Glenorchy Community has been patient through this drawn-out process, but they are now hungry for resolve and to have a say via an election. I implore you to take into account the period of Administration from 8 February when making a recommendation. This community deserves a chance to know the facts and make informed choices at an election held as soon as possible. To leave this community further in abeyance until 2018 will continue the extreme frustrations being experienced. Board comment: the Board has weighed Ald. Dunsby’s comments and supporting reasons and after deliberation has amended its draft recommendation. Attachment to Ald. Dunsby’s response to the Draft Report. Ref. V.1 Requirement to Produce Documents (1 December 2016). Ref. L.1. 461 Requirement to Produce Documents (30 May 2017). Ref. L.1 459 460 241 D.5 Board consideration of Ald. King’s response to the Draft Report The Board received Ald. King’s interim response on 1 June 2017. On 21 June 2017 the Board received Ald. King’s final response, in which he stated that I see no point at this time in providing any response additional to that I provided earlier. The Board has therefore considered the response provided by Ald. King on 1 June 2017. On 1 June 2017 Ald. King only provided the Board with the response he had given to the allegations made against him in earlier submissions to the Board. This was received by the Board on 29 February 2016 and was considered by the Board in drafting its Report. Ald. King provided no response to the Draft Report itself; as a result, no changes were made to the Draft Report as a result of Ald. King’s response. 242 D.6 Board consideration of Ald. Lucas’s response to the Draft Report The Board received Ald. Lucas’s draft response on 1 June 2017, and a further response on 21 June 2017. The response on 21 June included the statement provided on 1 June, and an additional statement. The Board has therefore considered Ald. Lucas’s response of 21 June 2017 and provides commentary as follows on matters raised therein. The Board makes no comment on matters raised by Ald. Lucas in agreement with the Report, nor on matters raised by Ald. Lucas which refer to the purpose and processes of the Board of Inquiry, rather than the Draft Report. If the material provided by Ald. Lucas had already been given to the Board in her submission, or in her response to allegations against her (received by the Board on 22 February 2016), it has already been considered in the findings and recommendations in the Draft Report. Where Ald. Lucas has provided her opinion on the motives of other aldermen, particularly the mayor, without corroborating evidence, the Board has considered those opinions and given appropriate weight to Ald. Lucas’s statements. The Board requested supporting information from Ald. Lucas on 3 July 2017; no further information was provided by Ald. Lucas. Response to the Draft Report 1. Ald. Lucas stated your opinions regarding the Mayor’s election campaign are highly questionable. When key components of good governance in local government are high ethical standards, fostering respectful relationships, understanding your role and complying with Acts of Parliament the environment the Mayor created and then used to attack the Council and its members speaks for itself, and shows she is unable or unwilling to fulfil her duties in terms of her responsibilities for good governance, which require her to act as a competent chair not the sole decision-maker. Board comment: the Board has weighed Ald. Lucas’s comments and supporting reasons and after deliberation has retained the text of its Draft Report. 2. Ald. Lucas stated The mayor and her supporters have relentlessly attacked the General Manager and other senior staff - apparently on the strength of her election mandate. This is not a valid reason for attempting to direct council employees - apart from actual attempts, the repetitive questioning on operational matters amounts to breaching Section 28 (3). Board comment: the Board has weighed Ald. Lucas’s comments and after deliberation has retained the text of its Draft Report. 3. Ald. Lucas stated that the mayor had no positive relationships except those with Ald. Dunsby and Stevenson. She stated that from the day she stepped into the Mayor’s office, she sought to impose herself on her fellow Aldermen and the General Manager. She had no interest in respectful relationships. Her election slogan “Clean up Glenorchy and Clean out the Council” was continued when she became Mayor. Board comment: the Board has weighed Ald. Lucas’s comments and after deliberation has retained the text of its Draft Report. 243 4. Ald. Lucas stated that The Mayor acts as though she is right on every occasion in every matter. She does not respect the views of her colleagues, ever (they have 127 years of Local Government experience between them, and Ald. Quick has 15 years as a highly respected Federal MP). The Mayor and her two supporters are three of the least experienced Aldermen at Glenorchy (16 years between them). We rarely hear an original thought come from her two supporters, that has not been initiated by the Mayor. Board comment: the Board has weighed Ald. Lucas’s comments and after deliberation has retained the text of its Draft Report. 5. Ald. Lucas stated that The BOI draft quotes the Mayor halting debate due to “..the motion is unlawful and that there may be a breach of the Criminal Code... ... and that the Mayor will refer this matter to the Director of Public Prosecutions”. When Ald. Slade questioned this legal decision by the Mayor (based on her own personal legal advice which she can’t legally give without a Practicing Certificate) the BOI has interpreted this as “The Board considers this remark could be seen as an attempt to intimidate the Chairperson of a meeting”. A more accurate summary of the incident may be “The Mayor had no right to impose her (supposed) knowledge of the Criminal Code on her colleagues, effectively acting as a lawyer in the Council chamber - and she should have answered Ald. Slade’s question in the spirit of proper debate, good governance, respectful relationships and her responsibility to comply with relevant Acts of parliament”. Board comment: the Board weighed Ald. Lucas’s comment and considers that the mayor at the time was carrying out her role as the chairperson of the meeting. After deliberation the Board has retained the text of its Draft Report. 6. Ald. Lucas stated, with reference to acting as the spokesperson of the council, that it is an indisputable fact that the Mayor has breached this responsibility on multiple occasions, and yet this BOI draft has downplayed its importance, and attempted to compare it with media statements of other Aldermen who were acting on their own behalf. Board comment: the Board has weighed Ald. Lucas’s comments and after deliberation has retained the text of its Draft Report. 7. Ald. Lucas stated that The Mayor almost never complies with the terms of the Code of Conduct. She does not appear to believe that it applies to her. Standards of Conduct of the Code of Conduct that she routinely breaches include: Decision Making (bring an open and unprejudiced mind) - the Mayor clearly she believes that her view cannot be questioned. Use of Office - a very high percentage of the Mayor’s time in the last two years has been used to undermine her colleagues and Glenorchy Council - a clear contradiction to this standard. Use of Resources (strictly for the purpose of performing his or her role). The Mayor’s use of resources has been destructive rather that productive - a clear breach of this standard. She has imposed a heavy loading on the General Manager’s and other staffs’ workload to the detriment of their ability to carry out their normal duties. Use of Information (to assist in performing his or her role in the best interests of the community). The Mayor’s use of information has been destructive rather that productive - a clear breach of 244 this standard. In addition she has twisted the meaning of information to suit her own agenda. The BOI Draft is riddled with the misuse and reinterpretation of information. Relationships with Alderman and Council Employees - (respectful in his or her conduct, communication and relationships with fellow Aldermen and Council employees in a way that builds trust and confidence in the Council). The Mayor’s relationships are the exact opposite to this - see the analysis in this document in relation to governance. Representation (An Alderman is to represent himself or herself and the Council appropriately and within the ambit of his or her role, and clearly distinguish between his or her views as an individual and those of the Council.) As articulated elsewhere, the mayor performs extremely poorly in this area. Other breaches by the Mayor, as per the Model Code of Conduct include failure to:               make decisions free from personal bias or prejudgement. give genuine and impartial consideration to all relevant information known to him or her, or of which he or she should have reasonably been aware. make decisions solely on merit and not take irrelevant matters or circumstances into account when making decisions. act openly and honestly in the public interest. treat all persons with courtesy, fairness, dignity and respect not cause any reasonable person offence or embarrassment not bully or harass any person. listen to, and respect, the views of other councillors in Council and committee meetings and any other proceedings of the Council, and endeavour to ensure that issues, not personalities, are the focus of debate. influence, or attempt to influence, any Council employee or delegate of the Council, in the exercise of the functions of the employee or delegate. contact an employee of the Council in relation to Council matters unless authorised by the General Manager of the Council. clearly indicate when he or she is putting forward his or her personal views. personal views must not be expressed in such a way as to undermine the decisions of the Council or bring the Council into disrepute. show respect when expressing personal views publicly. personal conduct not reflect, or have the potential to reflect, adversely on the reputation of the Council. Board comment: the Board has weighed Ald. Lucas’s comments and after deliberation has retained the text of its Draft Report. 8. Ald. Lucas stated that You (the Board of Inquiry) know that public statements in support of the General Manager were a reaction to the Mayor’s public denigration of the General Manager in Council, through the media and in public… you know that there is no connection between such statements, made in a generally supportive way, and the GMPRC that is a structured process carried out by four Aldermen elected by the group… I am one of the four members of the GMPRC. We had advice from an external HR expert and at times from the Council lawyer. We followed an agreed process to the best of our ability. We did not make decisions, only 245 recommendations to the full Council… The level of scrutiny and challenge to the general manager… amounts to breaching Section 28 , as the clear intention is to direct how he discharges his duties. Board comment: the Board has weighed Ald. Lucas’s comments and after deliberation has retained the text of its Draft Report. 9. Ald. Lucas stated that The Council is operating according to the direction given by its Alderman and the Strategic Plan/Operational Plan/Community Plan. Its performance against KPIs is better through this period than it has been for many years. Board comment: the Board has weighed Ald. Lucas’s comments and after deliberation has retained the text of its Draft Report. 10. In response to the Board’s statement that a minority of aldermen persistently questioned the general manager on matters pertinent to the proper functioning of the council, and the repetition of their questions concerning certain contentious issues indicates that these aldermen were not satisfied with the answers and information they received: information which they deemed to be essential to the effective performance of their duties as aldermen, as prescribed in Act, Ald. Lucas stated that Only some Aldermen were unhappy – those directly aligned with the Mayor. The majority of my colleagues were satisfied with responses from senior staff and the General Manager. The same questions were answered over and over, but the Mayor and Aldermen Stevenson and Dunsby were never happy with the answers as they did not suit their agenda. Board comment: the Board has weighed Ald. Lucas’s comments and after deliberation has retained the text of its Draft Report. 11. Ald. Lucas stated that The CT Management decision was a good process – the majority of Aldermen found the information and presentation material to be more than enough to make a decision and we voted accordingly. We felt fully informed, and if we had had any reservations at all we would have raised them. Board comment: the Board has weighed Ald. Lucas’s comments and after deliberation has retained the text of its Draft Report. 12. In response to the Board’s statement that Council took no action to oppose Ald. Slade’s decision (at 13 April 2016 meeting, Item 21.3) that the General Manager Performance Review Committee (GMPRC) would not meet until he had answers to unrelated questions he had asked of the mayor, despite the fact that this effectively deferred completion of the general manager’s review for the period ended 31 December 2015, and the setting of his Key Performance Indicators (KPIs) for the period commencing 3 January 2016. The majority of aldermen appear to have supported Ald. Slade without considering the consequences of his actions, Ald. Lucas stated that surely (Ald. Slade) can make minor decisions such as this without being accused of governance breaches. Board comment: the Board has weighed Ald. Lucas’s comments and after deliberation has retained the text of its Draft Report. 246 13. Ald. Lucas stated that the call to investigate the Mayor for her nomination of the LGAT General Management Committee was because she had breached the Council policy on representation on committees. Board comment: the Board has weighed Ald. Lucas’s comments and after deliberation has retained the text of its Draft Report. 14. In response to the Board’s finding that six aldermen acted outside their authority in advising LGAT of their view of the mayor’s election to GMC, without any delegation from council to do so, Ald. Lucas stated This is not correct. The Mayor nominated herself without going through the official process, and subsequent happenings were as a result of her actions. Board comment: the Board has weighed Ald. Lucas’s comments and after deliberation has retained the text of its Draft Report. 15. In response to the Board’s statement that the aldermen who represented council on the GMPRC collectively failed to undertake their duties and responsibilities as authorised by the council and prescribed in the Local Government Act 1993, s 28(1)(e) and s 28(2)(d), Ald. Lucas stated that This is disgusting. The GMPRC followed the process that was in place. We sought expert advice from an HR expert. Our job was to prepare a report and present it to Council, for discussion and changes. The Mayor prevented this from happening by not allowing it to be heard and discussed. Board comment: the Board has weighed Ald. Lucas’s comments and after deliberation has retained the text of its Draft Report. 16. In response to the Board’s finding that the GMPRC wrongfully undertook tasks which were the responsibility of the whole council, including setting performance indicators and reviewing the contract of employment of the general manager, Ald. Lucas stated that This is not correct. It does need to be acknowledged that the process could use some fine-tuning into the future. Board comment: the Board has weighed Ald. Lucas’s comments and after deliberation has retained the text of its Draft Report. 17. In response to the Board’s finding that the full council wrongfully allowed the GMPRC to assume responsibility for tasks which were the responsibility of the full council, including setting the general manager’s performance indicators, managing a review of the general manager’s contract, and the determination of complaints made against the general manager, Ald. Lucas stated This is not correct. We were charged with putting together a report to go to the full Council – no decisions were made at the GMPRC level. Board comment: the Board has weighed Ald. Lucas’s comments and after deliberation has retained the text of its Draft Report. 18. The Draft Report includes the finding that the aldermen who comprised the GMPRC had a duty to undertake their responsibilities honestly and fairly, with a view to providing council with sound and unbiased recommendations based on agreed KPIs and a transparent and councilagreed assessment process. The Board does not consider that the committee fulfilled these obligations since the council election of October 2014 and the subsequent committee elections in December 2014. In response Ald. Lucas stated that The GMPRC followed the process we had 247 in place. We acknowledge that there may be some fine-tuning that could be done, but everything was done with transparency and lack of bias. Board comment: the Board has weighed Ald. Lucas’s comments and after deliberation has retained the text of its Draft Report. 19. The Draft Report includes the finding that the GMPRC should not have been established as a special committee of council because it had a statutory function to monitor the performance of the general manager (s 28(2)(d) of the Act).50 A committee with that function must be established under s 23 of the Act, (Council committees).51 The effect of this is important, as a committee established under s 23 must be conducted in accordance with prescribed procedures (s23(3)), such as the Meeting Regulations, whereas a special committee’s procedures are determined by the council (s 24(3)).52. In response Ald. Lucas stated that This was the process decided by the full Council, and a decision of Council… (The statements in the finding) do not represent a valid argument. Both versions (Special committee or Council committee) would do the job effectively. This statement appears to be an attempt to give the Mayor more powers to aggressively attack the GM. Board comment: the Board has weighed Ald. Lucas’s comments and after deliberation has retained the text of its Draft Report. 20. The Draft Report includes the finding that the GMPRC changed the methodology approved by council for assessment of the general manager’s performance in the year ended 2 January 2016 to ensure that the general manager would receive at least part of his performance bonus. On the committee’s initial assessment, the general manager would not have been entitled to any part of this bonus. In response Ald. Lucas stated that This did happen – the GMPRC process evolved from an early position which it was felt was unfair. Board comment: the Board has weighed Ald. Lucas’s comments and after deliberation has retained the text of its Draft Report. 21. The Draft Report includes the finding that in changing the methodology for assessment of the general manager’s performance without the approval of council, the GMPRC acted improperly, unethically and outside its terms of reference. In response Ald. Lucas stated that We were always taking it back to Council for discussion. The GMPRC has no decision-making authority. I did not act improperly or unethically in this process. My motivations were fairness and impartiality. We had independent advice to guide us – and we knew that our role in the GM’s assessment was to collect information and produce a balanced report for the full Council to consider. We did this. Board comment: the Board has considered Ald. Lucas’s comments and has added a footnote to section 3.A.2.5.2. 248 22. The Draft Report contains the statement that the Board found no evidence to support the view that the mayor must bear full responsibility for the disharmony at Glenorchy City Council (GCC); nor does the Board find evidence to support the view that the general manager’s performance has been exemplary, and that he bore no responsibility for the breakdown in relationships between himself and the mayor, and the mayor and some aldermen. in response Ald. Lucas stated that she totally disagreed with the finding. Board comment: the Board has weighed Ald. Lucas’s comments and after deliberation has retained the text of its Draft Report. 23. The Draft Report contains the statement that Council considered the (CTMG) Report at a workshop and council meeting on 5 February 2015. From 2 February to 4 February the mayor attempted to have the general manager provide the full report to all aldermen prior to the meeting. The mayor and other aldermen did not receive the redacted Report (with Annexure C removed) until 13 March 2015. This followed receipt of the Director of Local Government’s advice (10 March 2015) concerning the validity of the meeting adjournment which included his view that the aldermen were entitled to see the Report. The Board heard that on 4 February 2015, the general manager sent all aldermen a copy of the PowerPoint presentation to be made at the 5 February workshop. Ald. Lucas responded that …a simple allegation has been microscopically analysed to death – a whole lot of considerations not previously raised have been introduced to try and create problems that don’t exist. There was nothing wrong at all with the Management Restructure process… Board comment: the Board has weighed Ald. Lucas’s comments and after deliberation has retained the text of its Draft Report. 24. In response to the Board’s finding that council approved the implementation of the CTMG Report without ensuring that aldermen had an estimate of the cost of the restructure, and without considering how that expense should be treated in the budget for the current financial year, Ald. Lucas disagreed, and stated that We had more than enough information and analysis of the financial implications of the restructure for the Council budget. We were well informed all the way through the process, and any questions that we had were well answered. Board comment: the Board has weighed Ald. Lucas’s comments and after deliberation has retained the text of its Draft Report. 25. In the Draft Report the Board found that the aldermen failed to consider the ramifications of adopting the recommendations of the CTMG Report for the employees of the council and on their city. Ald. Lucas said this was not true. Board comment: the Board has weighed Ald. Lucas’s comments and after deliberation has retained the text of its Draft Report. 249 26. In the Draft Report the Board found that council and its management failed to look strategically at the breadth of proposed changes to the governance and operations of GCC, and thus did not comply with the four purchasing principles upon which the Code for Tenders and Contracts is based, viz., open and effective competition, value for money, enhancement of the capabilities of local business and industry, and ethical behaviour and fair dealing. Ald. Lucas said she disagreed with this finding. Board comment: the Board has weighed Ald. Lucas’s comments and after deliberation has retained the text of its Draft Report. 27. Ald. Lucas responded to the Draft Report’s findings in section 3.A.7 – Council Meetings and Workshops, including a number of criticisms of the mayor and the Board. Board comment: the Board has weighed Ald. Lucas’s comments and after deliberation has retained the text of its Draft Report. 28. In the Draft Report the Board found that the general manager failed in his duty under the Act to ensure that council complied with GCC policy, in particular, its policy Nomination and Appointment of Aldermen to Committees and Other Bodies, its policy Code for Tenders and Contracts, and its Purchasing Card Procedures. Ald. Lucas stated that she totally disagreed with the finding. Board comment: the Board has weighed Ald. Lucas’s comments and after deliberation has retained the text of its Draft Report. 29. In the Draft Report the Board found that advice provided to council by the general manager in the review of some policies failed to bring significant issues to the attention of aldermen, with the result that some updated policies no longer comply with the Act, or the policy changes reduced council’s accountability and transparency for its community, its staff, and in its business dealings. Ald. Lucas stated that she disagreed with the finding. Board comment: the Board has weighed Ald. Lucas’s comments and after deliberation has retained the text of its Draft Report. 30. In the Draft Report the Board found that the general manager failed to monitor a number of significant council operations and projects and thereby failed to effectively manage the resources and assets of the council. Ald. Lucas stated that she disagreed with the finding. Board comment: the Board has weighed Ald. Lucas’s comments and after deliberation has retained the text of its Draft Report. 31. In the Draft Report the Board found evidence of poor strategic planning and failures in risk management and risk mitigation that have resulted in a lack of accountability to the council and the community. The Board finds this is evidence of poor strategic planning and failures in risk management and risk mitigation that have resulted in a lack of accountability to the council and the community. Ald. Lucas stated that she disagreed with the finding. Board comment: the Board has weighed Ald. Lucas’s comments and after deliberation has retained the text of its Draft Report. 250 32. In the Draft Report the Board found that there are numerous examples where the general manager or his direct report, the DCG&GC, provided inaccurate or confused advice to council, and that council’s acceptance of this advice contributed significantly to its disharmony and dysfunctionality. Ald. Lucas stated that the reverse is true.\ Board comment: the Board has weighed Ald. Lucas’s comments and after deliberation has retained the text of its Draft Report. 33. In the Draft Report the Board found that because of the delays in providing reports on performance against the Annual Plan, and performance against Budget, council was unable to monitor its progress through the financial year, and unable to assess the possible need for adaptation in its programs, plans, and budgets. In response Ald. Lucas stated I totally disagree. This is just rubbish……I felt I had the ability to have more than reasonable input into the budget process, including many workshops – outlining scenarios of where we would be (financially) into the future. I felt I had ample opportunity to influence budget priorities. Board comment: the Board has weighed Ald. Lucas’s comments and after deliberation has added a footnote to 3.B.8.1. 34. In the Draft Report the Board found that some aldermen raised legitimate, pertinent questions about the productivity dividend assumptions in the 2016-17 Budget, and the general manager failed to provide timely and accurate answers; this did not allow aldermen to monitor the efficient and effective provision of services, facilities, and assets, and the fair and equitable treatment of the employees of the council. In response Ald. Lucas stated that I don’t agree with anything in the rhetoric about the budget 2016-2017. This is all mumbo jumbo/ill-informed opinion – designed to sound important – but is totally incorrect…and not worth me trying to answer in detail. 35. Ald. Lucas stated in her response that I feel that I had the ability to have more than reasonable input into the budget process, including many workshops – outlining scenarios of where we would be (financially) into the future. I felt I had ample opportunity to influence budget priorities. Board comment: a footnote has been added to section 3.B.8.1 to include Ald. Lucas’s statement. 36. In the Draft Report the Board found that in setting the Budget and Annual Plan for 2016-17, aldermen were limited in their ability to make rational, well-founded decisions based on accurate, up to date information on council’s performance because they were not provided with timely reports on actual performance in the year ended 30 June 2016. Ald. Lucas stated that she totally disagreed with this finding. Board comment: the Board has weighed Ald. Lucas’s comments and after deliberation has retained the text of its Draft Report. 37. In the Draft Report the Board made a number of findings regarding the proposed revision of the general manager’s contract (3.B.11). Ald. Lucas disagreed with the Draft Report’s findings, or stated that she was unable to comment. Board comment: the Board has weighed Ald. Lucas’s comments and after deliberation has retained the text of its Draft Report. 251 D.7 Board consideration of Ald. Nielsen’s response to the Draft Report The Board received Ald. Nielsen’s response on 21 June 2017, in which he stated that I see no point at this time in providing any response additional to that I provided earlier. Ald. Nielsen did not provide any earlier response to the Draft Report; as a result, no changes were made to the Draft Report in relation to Ald. Nielsen’s response. 252 D.8 Board consideration of Ald. Pearce’s response to the Draft Report The Board received Ald. Pearce’s draft response on 1 June 2017, and a further response on 21 June 2017. In the later response, Ald. Pearce stated that I see no point at this time in providing any response additional to that I provided earlier. The Board has therefore considered Ald. Pearce’s response of 1 June 2017 and provides commentary as follows on matters raised therein. The Board makes no comment on matters raised by Ald. Pearce in agreement with the Report, nor on matters raised by Ald. Pearce which refer to the purpose and processes of the Board of Inquiry, rather than the Draft Report. If the material provided by Ald. Pearce has already been given to the Board in his submission, it has already been considered in the findings and recommendations in the Draft Report. Response to the Draft Report 1. Ald. Pearce submitted that Ald. Dunsby and Ald. Stevenson used questions on notice to attempt to put the general manager on trial in front of the Board of Inquiry members – purely for the purpose of making him look bad. The mayor then used her position to stop the general manager’s right of reply and to stop other aldermen from speaking on the matter. This showed bias by the mayor and typified her whole approach. Board comment: the Board has weighed Ald. Pearce’s comments and supporting reasons and after deliberation has retained its draft finding. 2. Ald. Pearce submitted that I tried to do a notice of motion against Ald. Dunsby for leading GMPRS (sic) incomplete reports. The mayor would not allow me to do so. This demonstrates her conflict of interest and lack of objectivity in assessment of the general manager’s performance. Board comment: the Board has weighed Ald. Pearce’s comments and supporting reasons and after deliberation has retained its draft finding. 3. Ald. Pearce submitted that he had proposed a notice of motion in support of the general manager, and the mayor intended to refuse to accept it; and that on another occasion the mayor had accused Ald. Pearce of accusing her of not doing her job. Board comment: the Board has weighed Ald. Pearce’s comments and supporting reasons and after deliberation has retained its draft finding. 4. Ald. Pearce submitted that the mayor’s questioning of the Audit Committee, which included three independent members; her failure to accept their recommendation; and her constant questioning of the general manager on matters relating to it was politically motivated and not genuine interest. Board comment: the Board has weighed Ald. Pearce’s comments and supporting reasons and after deliberation has retained its draft finding. 253 5. Ald. Pearce submitted that Mayor Johnston unjustifiably, publicly called into question the Professionalism of council’s Legal Consul (sic) and Director of Corporate Governance, Ms. Seva Iskandarli, openly challenging her ability to act as the Legal Consul (sic) and Advisor to the Members of the General Manager’s Performance Review Panel. I consider such accusations to be completely unnecessary, unwarranted and a complete misuse of authority under the Local Government Act of Tasmania. On at least two occasions that I can recall, Mayor Johnston has quite aggressively rejected legal advice given by Ms. Iskandarli, questioning her ‘objectivity’. This has been despite the Director of Governance having the full confidence of Council. On both occasions Mayor Johnston has chosen to ignore this and over-ruled the majority point of view. Again, I consider this to be a misuse of authority under the Act and an attempt to interfere in the administrative responsibilities of the general manager and his management team. Board comment: the Board has weighed Ald. Pearce’s comments and supporting reasons and after deliberation has retained its draft finding. In his response Ald. Pearce also raised fresh allegations against the mayor, specifically, that the mayor had not referred a matter to the DPP when she had said she would do so; and that she had used social media to create campaigns against me that were unnecessary and very damaging; and that on numerous occasions where I asked for clarification on issues, the mayor threatened to force me to leave the meeting – and threatened to call the Police. The Board requested further information regarding these allegations from Ald. Pearce. Ald. Pearce responded in an undated email to the Board in which he stated I see no point at this time in providing any response additional to that I provided earlier. The Board has considered this response and after deliberation has made no other changes to the text as a result of Ald. Pearce’s response. 254 D.9 Board consideration of Ald. Slade’s response to the Draft Report The Board received Ald. Slade’s interim response on 1 June 2017, and an email on 21 June 2017, in which Ald. Slade stated that he saw no reason at this time in providing any response additional to that I provided earlier. The Board has therefore considered the response provided by Ald. Slade on 1 June 2017. The Board makes no comment on matters raised by Ald. Slade which refer to the purpose and processes of the Board of Inquiry, rather than the Draft Report. If the material provided by Ald. Slade has already been given to the Board in his submission, it has already been considered in the findings and recommendations in the Draft Report. Response to the Draft Report 1. Ald. Slade said that the Board’s finding that the aldermen who represented council on the GMPRC collectively failed to undertake their duties and responsibilities as authorised by the council and prescribed in the Local Government Act 1993, s 28(1)(e) and s 28(2)(d) was incorrect. Board comment: Ald. Slade provided no reasons to support his contention. After deliberation the Board retained its finding. 2. Ald. Slade said that the Board’s finding that the GMPRC wrongfully undertook tasks which were the responsibility of the whole council, including setting performance indicators and reviewing the contract of employment of the general manager, was not correct, and that recommendations were provided to the full council. Board comment: the Board has weighed Ald. Slade’s comments and supporting reasons and after deliberation has retained its draft finding. 3. Ald. Slade said that the Board’s finding that council wrongfully allowed the GMPRC to assume responsibility for tasks which were the responsibility of the full council, including setting the general manager’s performance indicators, managing a review of the general manager’s contract, and the determination of complaints made against the general manager, was not correct, and that the GMPRC had delegated authority from the Full Council. Board comment: the Board has weighed Ald. Slade’s comments and after deliberation has retained its draft finding. 4. Ald. Slade said that the Board’s finding that council wrongfully allowed the DCG&GC and the chairman of the GMPRC to assume responsibility for dealing with a significant and contentious Worksafe issue on behalf of council, was not correct, because the Full Council approved this action. Board comment: the Board has weighed Ald. Slade’s comments and supporting reason and after deliberation has retained its draft finding. 255 5. Ald. Slade said that the Board’s finding that the aldermen who comprised the GMPRC had a duty to undertake their responsibilities honestly and fairly, with a view to providing council with sound and unbiased recommendations based on agreed KPIs and a transparent and councilagreed assessment process. The Board does not consider that the committee fulfilled these obligations since the council election of October 2014 and the subsequent committee elections in December 2014, was not correct, and that the GMPRC undertook their responsibilities at all times, honestly and fairly. Board comment: the Board has weighed Ald. Slade’s comments and supporting reason and after deliberation has retained its draft finding. 6. Ald. Slade said that the Board’s finding that the GMPRC should not have been established as a special committee of council because it had a statutory function to monitor the performance of the general manager (s 28(2)(d) of the Act). A committee with that function must be established under s 23 of the Act, (Council committees). The effect of this is important, as a committee established under s 23 must be conducted in accordance with prescribed procedures (s 23(3)), such as the Meeting Regulations, whereas a special committee’s procedures are determined by the council (s 24(3)), was not correct. He said that the committee had been operating in that format for over 15 years. Board comment: the Board has weighed Ald. Slade’s comments and supporting reason and after deliberation has retained its draft finding. 7. Ald. Slade said that the Board’s finding that the council, the GMPRC, and the general manager must take responsibility for failing to recognise that this committee was improperly constituted to undertake the general manager’s performance review, was not correct, because the committee had been operating in that format for over 15 years. Board comment: the Board has weighed Ald. Slade’s comments and supporting reason and after deliberation has retained its draft finding. 8. Ald. Slade said that the Board’s finding that council, through the GMPRC, failed to comply with the spirit and the letter of almost every term of the committee’s CDS, was not correct. Ald. Slade provided no further information to support his statement. Board comment: the Board has weighed Ald. Slade’s comments and after deliberation has retained its draft finding. 9. Ald. Slade said that the Board’s finding that the practices and leadership of the GMPRC reflected poor standards of governance in maintaining proper records, adhering to meeting regulations, reporting to council, fulfilling assigned responsibilities within reasonable timeframes, accountability, and compliance with, and requirements of, the Act and the Regulations, was not correct. Board comment: the Board has weighed Ald. Slade’s comments and supporting reasons and after deliberation has retained its draft finding. 256 10. Ald. Slade said that the Board’s finding that Ald. Slade did not adequately fulfil his role as chairman of the GMPRC and failed to demonstrate the leadership, impartiality, accountability and responsibility which the role demanded, was not correct. Ald. Slade said that he was a former mayor, deputy mayor and alderman for 26 years and a company director for 30 years, and that he had impeccable governance experience and undertook his role as chairman with due diligence always. Board comment: the Board has weighed Ald. Slade’s comments and supporting reason and after deliberation has retained its draft finding. 11. Ald. Slade said that the Board’s finding that the chairman of GMPRC improperly advised the general manager of the outcome of his (the general manager’s) performance appraisal before council had been informed, and before council had the opportunity to amend or refuse the committee’s recommendation for payment of a performance bonus, was not correct. Ald. Slade provided no further information to support his statement. Board comment: the Board has weighed Ald. Slade’s comment and after deliberation has retained its draft finding. 12. Ald. Slade said that the Board’s finding that the GMPRC failed in its critical duty to distinguish between appraisal of the general manager in upholding the normal functions of his office, and achievement of excellence or outstanding results. This in turn led the committee to focus on achievement of the general manager’s performance bonus (a benefit only to the general manager), rather than on continuous improvement of his performance for the benefit of the organisation and the community, was not correct. He said that at all times, the committee understood its role and function. Board comment: the Board has weighed Ald. Slade’s comment and after deliberation has retained its draft finding. 13. Ald. Slade said that the Board’s finding that the GMPRC changed the methodology approved by council for assessment of the general manager’s performance in the year ended 2 January 2016 to ensure that the general manager would receive at least part of his performance bonus. On the committee’s initial assessment, the general manager would not have been entitled to any part of this bonus, was not correct. Ald. Slade provided no further information to support his statement. Board comment: the Board has weighed Ald. Slade’s comment and after deliberation has retained its draft finding. 14. Ald. Slade said that the Board’s finding that in changing the methodology for assessment of the general manager’s performance without the approval of council, the GMPRC acted improperly, unethically and outside its terms of reference, was not correct. Ald. Slade provided no further information to support his statement. Board comment: the Board has weighed Ald. Slade’s comment and after deliberation has retained its draft finding. 257 D.10 Board consideration of Ald. Stevenson’s response to the Draft Report The Board received Ald. Stevenson’s response, with two supporting attachments, on 1 June 2017. On 8 June 2017 the Board wrote to Ald. Stevenson, requesting clarification of parts of his response. Ald. Stevenson responded with additional information on 21 June 2017. The Board requested further clarification of his response on 30 June, and received a response to this request on 26 September 2017. The Board has considered Ald. Stevenson’s responses and provides commentary as follows on matters raised therein. The Board makes no comment on matters raised by Ald. Stevenson in agreement with the Report. Response to the Draft Report 1. Ald. Stevenson noted the use of the term ‘the council’ to indicate a decision or action taken, and indicated that these decisions or actions were not necessarily unanimous, and that such decisions or actions were from time to time the subject of rigorous or repeated questioning by a minority of aldermen. Board comment: a statement has been included in the Report to note that the term ‘council’ refers to the collective body, and should not be taken to mean that the decision or action taken or not taken by the council was necessarily reached or agreed by all aldermen. Where relevant and significant, voting records on council resolutions have been included. Where questions have been recorded in the minutes, or the Board has seen evidence of relevant questioning, this is noted in the Report. 2. Ald. Stevenson submitted that it is inaccurate to suggest that only in later months two other aldermen questioned management. My questioning of management has been strong and consistent and not simply limited to this term of council. Evidence goes back to project management capability, budget performance and appropriate procurement from past councils. Board comment: the draft finding (3.A.7) has been amended. 3. Ald. Stevenson submitted that before voting to approve the recommendations in the CTMG Report, he went to great lengths to ensure that I had appropriate knowledge of what was being approved, and the reporting mechanisms that would be used on the basis of that approval. Board comment: the Board has considered all Ald. Stevenson’s statements with regard to his voting in favour of accepting the report’s recommendations on 5 February 2015. The finding (3.A.5) has been amended to reflect that while some aldermen (including Ald. Stevenson, by his own statement) may have asked for and been given relevant information before voting for the recommendations, the information provided was not specific, and subsequent events indicate despite the assurances given, council struggled to monitor implementation of the recommendations. 258 4. Ald. Stevenson submitted that the Board fails to reference legal threats made by the general manager against myself. Board comment: the Board has weighed Ald. Stevenson’s comment and supporting reasons and after deliberation has retained its draft text. 5. Ald. Stevenson noted that the Draft Report failed to recognise the deficiency in being able to raise concerns through formal council avenues. Board comment: the Board notes that Ald. Stevenson cited avenues such as through council meetings, through the general manager, or via the Audit Panel. Other avenues not cited by Ald. Stevenson include lodging complaints under the Code of Conduct provisions of the Act (one lodged but not yet heard because of the commencement of the Inquiry), or approaches to the Director of Local Government (one submitted by Ald. Dunsby). The Board has weighed Ald. Stevenson’s comments and supporting reasons and after deliberation has retained its draft text. 6. Ald. Stevenson stated that the recommendations present (in the Draft Report) are blunt, and ultimately do not deal directly with ensuring that those people (described by Ald. Stevenson as unfit to hold office or any position of governance responsibility) are held accountable directly. Board comment: the Board’s recommendations are based on the collective body, the council. Where possible and appropriate in the Report, the Board has cited individual actions taken by aldermen. Action against individual parties may be taken by other authorities as a result of the findings of this Report. 7. With regard to the Draft Report’s recommendation that the council be dismissed and a commissioner appointed for a minimum of twelve months, Ald. Stevenson stated: Dismissing the current council is appropriate, however allowing the passage of 12 months between the dismissal and an election of a new council only serves to allow the actions of those primarily responsible for the failings of council to have their failing fade in the mind of the public. He requested a swift election following the dismissal of the current council. Board comment: the Board has weighed Ald. Stevenson’s comments and supporting reasons and after deliberation has amended its draft recommendation. Response to the Attachments 8. Ald. Stevenson’s commented that It should be noted that advice was provided by both Peter Brooks and Seva Iskandarli (sic) that the adjournment was not valid. I sought clarification at that point that should the Mayor be correct in the adjournment, what consequence would that have for any outcome. Firstly I was assured that the advice was correct, and following, that irrespective both clarification of the procedure would be sought from the Director of Local Government, and that no actions would occur until that advice was sought the next day. Board comment: This information has been added in a footnote in the relevant section of the report (3.A.7.1.2). 259 9. Ald. Stevenson attested that he was not invited to the meeting of aldermen on 11 February 2015. Board comment: the email invitation went to eight aldermen, including Ald. Stevenson, and was copied to the mayor. 10. Ald. Stevenson submitted that council’s inability to address its dysfunction was in the face of the development and adoption of its Governance Framework. This lack of self-reflection while at the same time suggesting that the council was improving its standard is significant and telling. Board comment: a footnote has been added to section 3.A.1. 11. Ald. Stevenson submitted that the report labours on the mayor and aldermen. He takes issue with this. He and he assumes 2 other aldermen were strongly concerned to improve poor governance arrangements throughout the period. He did not engage in poor behaviour for the sake of opinion-based politics. There were glaring holes that needed to be fixed. The ongoing pursuit of this has been tangled in the Board’s assessment that poor behaviour and relationships centred the dysfunction. Broad brushing everyone as contributing to dysfunction and making this the centre of the issues undervalues the lengths that he and others went to point out structural failings across council. Board comment: there is evidence throughout the Draft Report that he and two other aldermen attempted to do this. The Board notes that the Draft Report has been criticised by other aldermen on the basis that it does name aldermen who did not vote with the majority. While taking Ald. Stevenson’s statements into consideration, it is the Board’s view that the effect of council’s make up, factionalism and voting patterns led to dysfunctionality, despite the attempts of some aldermen to remedy this. 12. Ald. Stevenson stated that it should be noted that the underperformance of GMPRC in upholding its duties had been pointed out to committee members and chair many times. The unwillingness to address these issues cannot be attributed to ignorance of these failings but a willingness to ignore them, particularly the chair. Board comment: the Board considers that given its findings with regard to the operations of the GMPRC, it is unnecessary to emphasise the failures in its performance by including additional evidence that non-committee members brought these to the committee’s attention. The Draft Report includes specific references to the role of Ald. Slade as committee chairperson. 13. Ald. Stevenson submitted that while some tasks assumed by GMPRC were not explicitly within the TOR GMPRC was a natural fit to undertake grunt work for council…e.g. development of KPIs. He stated that these should have been included in the TOR had there been a review, which there was not. He suggests that although some tasks were completed by GMPRC this did not materially impact the governance of council. This does not hold true across all instances e.g. chair informing GM of review outcomes before council ratification. Board comment: the Board has weighed Ald. Stevenson’s comments and supporting reasons and after deliberation has retained its draft finding. 260 14. In the Draft Report the Board found that both the mayor and the general manager must bear some responsibility for the breakdown in their relationship. In addition, responsibility for the poor relationship and the worsening of that relationship lies with several longstanding aldermen, and with the DCG&GC. Ald. Stevenson submitted that while he supported this finding, in his experience and assessing the evidence in the report it appears that the Mayor’s concerns were significant governance issues and the GM seemed to act duplicitously. Board comment: the Board has weighed Ald. Stevenson’s comment and after deliberation has retained its draft finding. 15. In the Draft Report (section 3.A.5) the Board found that council was negligent in failing to be specific in its resolution and in failing to make a determination where a choice was provided in the CTMG Report, as it is not possible to know from the minutes of 16 March 2015 what council actually approved. Ald. Stevenson submitted that no choice was needed as there was clear and explicit advice that council was approving a strategy and specific projects would be brought back to council. This is no different to the approval of many other items of strategy that council regularly approves where specific actions are further subject to council review and approval if necessary. Board comment: the Board has weighed Ald. Stevenson’s comment and supporting reasons and after deliberation has retained its draft findings. 16. Ald. Stevenson submitted that the report (the CTMG Report) was a necessary council document but not necessary for the scope of the decision they made. Had council been functioning effectively the GM would not have been able to proceed unchecked. Board comment: the Board has weighed Ald. Stevenson’s comments and supporting reasons and after deliberation has retained its draft finding. 17. Ald. Stevenson submitted that ongoing questions were raised surrounding the cost and cost of external legal expenses,. There was a clear attempt by myself and the mayor at times to provide oversight and monitoring of these expenses. Board comment: the text of section 3.B.9.2 (3.B.10.2 in the Draft Report) has been altered to reflect this statement and a footnote has been added to refer to two specific council meeting minutes. 18. Ald. Stevenson submitted that at the time of the Auditor General’s report which made recommendation in to credit card use in councils, … questions were asked about our entire CC policy. This fell on deaf ears within Council. Board comment: a footnote has been added to 3.B.9.1 (3.B.10.2 in the Draft Report) to include reference to a QoN asked by Ald. Stevenson at the meeting of 15 February 2016. 261 D.11 Board consideration of Mr. Tony McMullen’s response to the Draft Report The Board received the current acting general manager’s response (Mr. Tony McMullen), including an appendix, on 30 May 2017. On 9 June 2017 under s 222, the Board required Mr. McMullen to provide further information to clarify his response. Mr. McMullen provided responses on 15 June 2017 and 11 July 2017. The Board has considered the acting general manager’s responses and provides commentary as follows on matters raised therein. The Board makes no comment on matters raised by the acting general manager in agreement with the Report. Response to the Draft Report 1. The acting general manager submitted that it could be beneficial for the Board to note multiple sources of disruption to ‘business as usual’ at council from about 2013 onwards. He cites an 80 item improvement plan recommended by CT Management on top of council’s existing Annual Plan; the February 2015 management team restructure and its aftermath; and the BOI process. Board comment: adoption of the recommendations of the CTMG Report has been added to the text as an additional factor. The Board considers that the general manager and his senior managers nevertheless had a duty to provide realistic workplans to their staff, and to provide aldermen with up to date, relevant reports on progress, including timely information regarding changes to the implementation of major projects. 2. The acting general manager submitted that Council undertook a two-phase process to identify a preferred proponent for the redevelopment of the (Berriedale) caravan park. Phase 1 was an EOI process agreed to by council at its 11 May 2015 meeting. 3 submissions were received by 24 June 2015. The EOI documentation was based on the Glenorchy Planning Scheme 1992 provisions as this was the planning scheme applying at the time. The 1992 Scheme did not contain attenuation provisions. A Phase 2 Request for Proposals process was then undertaken involving the three proponents to the EOI process. This commenced in July 2015 concluding on 19 August 2015. The Glenorchy Interim Planning Scheme (GIPS)2015 took effect from 1 July 2015. The RFP documentation at ‘2.1 Statutory Planning Issues’ (on p.3) cited the applicable planning scheme as the GIPS 2015. It also identified the applicable codes including E9Attenuation. It also set out relevant conditions of the RFP including a clause putting the onus on respondents to inform themselves. (p9) MONA was advised that it was the preferred proponent on 4 November 2015 subject to a successful lease of public land process under s178 of the LG Act and successful negotiation of a lease with council. Neither of these requirements has been fulfilled. MONA negotiated as 12 month licence over the land which expired in January 2017. Board comment: the Board notes that the minutes of the council meeting of 26 October 2015 refer only to an EoI process. The Board subsequently requested a copy of the RFP documentation and records of any briefings which took place between council and the successful RFP candidates prior to the RFP process.462 As a result of further information provided, the Board has made changes to the text of the Draft Report.463 462 463 Requirement to Produce Documents (9 June 2017). Ref.L.1. Expressions of Interest, Berriedale Foreshore Glenorchy. Ref. P.1. 262 3. The acting general manager submitted that the CCTV system in Glenorchy was intended to deter graffiti. Board comment: the Board has considered the acting general manager’s response and after deliberation has retained the Draft Report text. 4. The acting general manager submitted that local netball officials had deemed the playing surface of the DEC suitable for an international netball game. Board comment: the Board has considered the acting general manager’s response and has retained the Draft Report text. 5. The acting general manager submitted that there was an EOI process for leasing the Allied Health Facility at KGV and that it was advertised in The Mercury on 18 April 2012. He attached the advertisement to his response. Board comment: the text (3.B.4.5.1) has been changed, and a footnote added to explain that the Board had requested all documentation on this matter under s 222, but that nothing was sent to show that an EoI process had been conducted. 6. The acting general manager submitted that he has been advised that the pool project was outside the scope of the federally funded KGV project and it would therefore not have been appropriate to apply the funds generated through interest to the pool so it was council-funded. Board comment: the Board has considered the acting general manager’s response and after deliberation has retained the Draft Report text. The minutes do not record any response to the alderman’s questions. 7. The acting general manager submitted that the Budget Assumptions and Parameters paper was prepared in the last quarter of 2015. However, officers were requested to defer presentation to council. Board comment: the Budget Assumptions and Parameters paper was provided to aldermen at the workshop on 6 June 2016. The Board notes that the general manager in his response to the Draft Report agreed that this information was provided before the draft budget was presented to council. The Board contends that this information should have been available to aldermen earlier in the budget process, to enable them to make informed judgements during the process of budget setting. After deliberation and consideration of the information provided, the Board has amended the text of the Draft Report by the addition of a footnote to 3.B.8.1. 8. In reference to the Draft Report (3.B.10.1, now 3.B.9.1), the acting general manager submitted that he is advised that the standard transaction limit is $600 unless a larger transaction limit is needed based on business need and subject to line manager/director approval and that as with a normal domestic credit card transaction, transaction limits are matched with the card limit by the bank at the time of transaction. So it is unlikely that a purchase would be allowed in excess of the stipulated transaction limits. Board comment: the Board has considered the acting general manager’s response and in light of the terms of the relevant council policy, has retained the Draft Report text. 263 9. In reference to the Draft Report (3.B.11, now 3.B.10), the acting general manager submitted that it may be material that, at the time of the purported procurement decision, the applicable tender limit under the Act or Regs was $100,000 not $250,000. This would arguably put a ceiling on the quantum of council’s purported original procurement decision as council would not have been able to legally entertain a procurement decision in excess of the (then) statutory limit of $100,000. Board comment: this information has been added to the Draft Report in section 3.B.10. 10. In reference to the Draft Report (3.B.12.1, now 3.B.11.1), the acting general manager submitted that it appears McTaggart was asked to consider only procurement expenditure in a single financial year (2015/16). This artificially constrained the advice given that services provided by CTMG both before and after the 15/16 year may have been relevant to the question of whether the procurement limits had or had not been surpassed. It is nevertheless noted that the advice sought responded to an aldermanic question about CTMG expenditure in the 15/16 year. Board comment: the question asked by Ald. Stevenson at the 23 January 2017 council meeting did not specify only one financial year. A footnote has been added to section 3.B.11.2 to note the restriction of the Advice to only one financial year. 11. In reference to the Draft Report which stated that The Board notes with concern there was no expression of interest process for filling the allied health tenancy, the acting general manager provided a copy of a newspaper advertisement calling for expressions of interest in the tenancy and closing on 12 May 2012. Board comment: the Board notes that the Board sent a s 222 Requirement to Produce Documents (20 January 2017) to council requesting any documentation relating to the Expression of Interest (EOI) process for the filling of the Allied Health Facility at the KGV complex.464 The Board received no evidence of an expression of interest process for the allied health tenancy with council’s response to this requirement. The text of the Draft Report has now been amended (3.B.4.5.1). 464 Requirement to produce documents (20 January 2017). Ref. L.1. 264 D.12 Board consideration of Mr. Peter Brooks’s response to the Draft Report The Board received the general manager’s response (Mr. Peter Brooks), including an appendix, on 13 September 2017. Attachments to his response were received on 25 September 2017. The Board has considered the general manager’s responses and provides commentary as follows on matters raised therein. The Board makes no comment on matters raised by the general manager in agreement with the Report, nor does it make comment on statements which repeat the contents of the Report. Where the general manager has disagreed with an opinion of the Board, or a conclusion the Board has drawn from the evidence, without any statement other than that he disagrees, the Board has given full consideration to his comments, but unless noted, has made no change to the text of the Report. If the material provided by the general manager has already been given to the Board in his submission or in hearings, it has already been considered in the findings and recommendations in the Draft Report. Response to the Draft Report 1. Executive Summary section: The Board has considered the general manager’s responses. The general manager made several requests in his response to this section for the Board to provide more evidence of its findings. Evidence to support the findings in the Draft Report is contained in the body of the Report. After deliberation the Board has made no consequent changes to the Executive Summary. 2. Key Findings section: The Board has considered the general manager’s responses and after deliberation has made no consequent changes to the Key Findings. 3. The Draft Report stated that the general manager provided an affidavit in support of Ald. Branch-Allen’s action in the Supreme Court against the Board of Inquiry. The general manager stated that he was subpoenaed to provide affidavits. Board comment: after consideration of the evidence provided in Court documents, the text of the Draft Report (section 1) has been retained. The general manager was not subpoenaed to provide his affidavit in support of Ald. Branch-Allen. Timeline Section of the Draft Report: general manager’s response 4. The Board considered all the general manager’s comments. Where no correction was made to the events which took place, the Board has not amended the Timeline. 5. 6 February 2015: the general manager stated that he and the manager of legal services met with the DLG on the morning of 6 February 2015 to seek advice on what I as GM should do in relation to the mayor’s adjournment of the 5th February 2015 special council meeting. Board comment: this item has been added to the Timeline (section 2 of the Report). 265 6. 13 March 2015: the general manager stated that Missing from the BOI’s timeline is the media release by the mayor in relation to the Director’s findings – the mayor states in the BOI’s attachment Package S9 that the Director agreed that she could send out a media release. I am advised that the mayor released an embargoed media release prior to the Director issuing his media release at 3pm on 11th March 2015 and that there was no agreement for the mayor to make any media comment as can be quite clearly seen in the Director’s letter (BOI’s attachments Package M1). Board comment: the letter from the DLG to the mayor (10 March 2015) advised that any disclosure of confidential Council information to the public would be a breach of the Act. The detail of my findings contained in this letter is confidential in so far the findings refer to confidential Council information. However, because of the public interest which this matter has generated, I intend to publicly release a brief outline of my findings.465 The mayor sent out a media release marked ‘Embargoed until 3.15pm, 11 March, 2015.466 The statement did not contain information regarding matters disclosed by the DLG regarding the CTMG Report, but refers in the main to her adjournment of the meeting of 5 February and the subsequent ‘decision’ made by council after the adjournment. The Board does not consider that this release contravened the advice provided by the DLG in his letter to the mayor. The Board has weighed the general manager’s comments and after deliberation and consideration of the evidence it has added a timeline reference (11 March 2015) to the text of the Draft Report. 7. 17 March 2015: the general manager stated that it should be noted by the BOI that when I as GM became aware of the Aldermen’s media release on council letterhead – it was I as GM who contacted Bright Communications and advised that the MR was not a Council MR and that it should be withdrawn as it was on Council letterhead. Board comment: a footnote has been added to 3.A.4.1. 8. 30 June 2015: the general manager stated that I suggested to the mayor about meeting the next day but the mayor was unavailable – we met on 2/7/2015 when both the Mayor & I were available. Board comment: the text of the Draft Report has been amended to reflect this statement (3.A.3.3.1, and section 2). 9. 23 December 2015: the general manager stated that aldermen were provided with a copy of the mayor’s response as soon as he received it. Board comment: the text of the Draft Report has been amended to include this occurrence. 465 466 Letter from the DLG to the mayor (10 March 2015). Ref.M.1 Media article in The Mercury. Ref. I.11 266 10. 23 March 2016: the general manager stated that he did not attend Court in support of the aldermen. Board comment: the phrase ‘in support of the aldermen’ has been removed from the text. 11. 19 April 2016: the general manager stated that his affidavit to the Court was not in support of Ald. Branch-Allen’s application. Board comment: the Board has considered the general manager’s affidavit, which was provided voluntarily to the Court, and has retained the text of the Draft Report. 12. 2 January 2017: the general manager stated that the DCG&GC did not become acting general manager at this time. Board comment: the text of the Draft Report (section 2) has been amended. Response to Draft Findings and Recommendations (Governance) 13. The general manager stated that the Draft Report alleged that he consistently relies on poor advice, and that this is incorrect. Board comment: the Board considered the general manager’s contention but does not agree that this statement is contained in the Report, and therefore has not amended the text. 14. The general manager stated that the BOI also provide (sic) supporting evidence to their draft finding ….. that indicates that because a minority of Aldermen (2 or 3) persistently questioned the GM and were not satisfied with the responses/answers provided that this is evidence that the GM has somehow not fulfilled his role and the Aldermen deemed this information was “essential” to fulfilling their role. Board comment: the Board has considered the general manager’s response and after deliberation has retained the text of the Draft Report. 15. The general manager stated that the BOI above advise that examples provided (CT Management recommendations, public question time and the annual report item) supports that Aldermen “had little or no understanding of the potential outcome of their decisions” – this is not evidence that Aldermen had little or no understanding. The CT management process is very well documented and has been well communicated to all aldermen – I ensured that any questions, queries or concerns were answered by independent experts at the council meeting. Board comment: the Board has considered the general manager’s response and after deliberation and consideration of the evidence it has seen and heard has retained the text of the Draft Report. 267 16. The general manager stated that advice is provided to aldermen and can be either accepted or rejected by them. Board comment: the Board has considered the general manager’s response and acknowledges that it is the role of the general manager and staff to provide advice to aldermen. The text in the Draft Report refers to the aldermen’s understanding of their roles and the accuracy of some of the advice provided. After deliberation and consideration of the evidence it has seen and heard the Board has retained the text of the Draft Report. 17. The general manager described the statement that overt and public support for the general manager through resolutions passed in open council led to a perceived loss of objectivity and independence in assessment of the general manager’s performance against his KPIs as ‘ridiculous’. Board comment: the Board has considered the general manager’s response and after deliberation and consideration of the evidence it has seen and heard has retained the text of the Draft Report. Response to 3.A.1: Relationships between the mayor and the aldermen 18. The general manager stated that council amended the Terms of Reference of a council committee by a council decision. Board comment: the Report (3.A.1.1) has been altered to include the Board’s response to the information provided by the general manager. 19. The general manager commented on the mayor’s capacity to provide input into the assessment of the general manager’s performance and the role of the chairman of the GMPRC. Board comment: the Board has considered the general manager’s response and after deliberation and consideration of the evidence it has seen and heard has retained the text of the Draft Report. 20. The general manager stated that the mayor was provided with an opportunity to provide an explanation of her conduct in her self-nomination for a position on the GMC. Board comment: the Draft Report notes the Board’s concern that council called for an investigation into the mayor’s nomination to GMC nine days before it could expect to receive the mayor’s explanation of her conduct. The Board does not dispute that the mayor was asked to provide an explanation of her conduct. After deliberation and consideration of the evidence it has seen and heard the Board has retained the text of the Draft Report. 268 21. The general manager stated that he asked the mayor if ‘she required me to do anything’ regarding her nomination to GMC. Board comment: the Report (3.A.1.2) has been altered to include the Board’s response to the information provided by the general manager. 22. The general manager stated that he thought that the mayor did not bring the matter to council for decision because ‘she was fearful that she may not be nominated by her own council’. Board comment: the Board has considered the general manager’s response and after deliberation and consideration of the evidence it has seen and heard has retained the text of the Draft Report. 23. The general manager provided confirmation of his email of 11 October 2016 (att. Q3). He disputed the contents of the mayor’s email to the Board on 16 October 2016 (Q4). Board comment: as the Draft Report’s reference to the mayor’s email of 16 October 2016 is not pertinent to the general manager’s response, the Board has considered the general manager’s response and has amended only the wording of the text regarding assistance from council’s public relations consultant (3.A.1.3). 24. The general manager stated that attendees at the council’s AGM ‘represent a very small minority of community members and it is incorrect for the BOI to state that the “community” is dissatisfied with council’. Board comment: the Board has considered the general manager’s response and after deliberation and consideration of the evidence it has seen and heard has retained the text of the Draft Report. 25. The general manager stated that he considered that the footnote regarding a newspaper article was incorrectly referenced. Board comment: the reference was correct but the newspaper changed the headline of the article in later publication. The footnote has been amended (3.A.1.6). 26. The general manager provided an explanation of the delegation of the Worksafe issue to the chairman of the GMPRC and the DCG&GC. The general manager also stated in his response to s 3.A.1.5 that the mayor has involved herself in clearly a staff issue and it not the function of the mayor or aldermen to be involved in staff issues under the Act. Board comment: the Draft Report has been amended to include the general manager’s explanation of the delegation, but after consideration of the other information provided by the general manager, the Board has retained the text of its Draft Report. 269 27. The general manager stated that his legal advice on the matter of speaking on behalf of the council confirmed that as general manager he could ‘correct incorrect information’. Board comment: the Board has considered the general manager’s response and after deliberation and consideration of the evidence it has seen and heard has retained the text of the Draft Report. 28. The general manager stated that he disagreed with the Board’s evaluation of the proceedings of part of the meeting of 15 March 2016 and alleged that the mayor had breached ‘regulation (sic) and the Local Govt Act 1993’. Board comment: the Board has considered the general manager’s response and after deliberation and consideration of the evidence it has seen and heard has retained the text of the Draft Report. The Board notes that in his response the general manager referred twice to the mayor’s adjourning the meeting. The mayor did not adjourn the meeting and the Draft Report states only that the mayor halted debate and disallowed the motion. Response to section 3.A.2: Assessment of the general manager’s performance by the General Manager Performance Review Committee 29. The general manager reiterated the process of setting the general manager’s KPIs. Board comment: the Board has considered the general manager’s response and after deliberation and consideration of the evidence it has seen and heard has retained the text of the Draft Report. 30. The general manager stated that the terms of reference for the GMPRC were amended by a decision of council on 24 November 2014, and that the terms of reference for all committees had been reviewed to reflect changes and council decisions. In the case of GMPRC, this statement conflicts with the minutes of the GMPRC meeting (29 July 2016), and with evidence provided to the Board by the chairman of GMPRC at his hearing on 5 September 2016. Board comment: the Board has considered the general manager’s response and after deliberation and consideration of the evidence it has seen and heard has retained the text of the Draft Report. 31. The general manager stated that part of the advice provided by Abetz Curtis Lawyers regarding the role of the DCG&GC as minute secretary and legal adviser to the GMPRC described ‘precisely the role taken by the DCG&GC during the GMPRC’. Board comment: the Board has considered the general manager’s response and the similar statements he has recorded in his response to section 3.2.2.1, and after deliberation and consideration of the evidence it has seen and heard has retained the text of the Draft Report. 270 32. The general manager stated that there was ‘no need to provide the full advice (from Abetz Curtis) as each GMPRC meeting included the statement regarding the attendance as part of all minutes/agendas’. Board comment: the Board has considered the general manager’s response and after deliberation has retained the text of the Draft Report. 33. The general manager stated that drafting the Work Plan (of the GMPRC) ‘is an administrative task combined with understanding the CoE of the GM so an understanding of the legal requirements to be followed by the GMPRC’. Board comment: the Board has considered the general manager’s response and after deliberation has retained the text of the Draft Report. 34. The Board has considered the general manager’s statements regarding his attendance at GMPRC meetings and after deliberation has retained the text of the Draft Report. 35. The Board has considered the general manager’s statements regarding the setting of his annual KPIs and after deliberation has retained the text of the Draft Report. The Board does not dispute the general manager’s statement that recommendations from the GMPRC have been taken to council for approval. 36. The Board has amended the date in the footnote under 3.A.2.2.4 of the report to read 31 January 2017. 37. The general manager stated that ‘it is misguiding to suggest (in the Draft Report) that the GMPRC considered the GM’s CoE insinuating something underhanded occurred when in fact the GMPRC followed correct process’. Board response: the text of the Draft Report (3.A.2.3) has been amended to take account of the general manager’s statement. 38. The general manager stated that the Board ‘insinuated’ that the GMPRC made a decision about the general manager’s contract of employment. Board comment: the Board has considered the general manager’s response and after deliberation and consideration of the evidence it has seen and heard has retained the text of the Draft Report. 39. The Board has considered the general manager’s statements regarding the proposed revisions to his contract of employment and the additional information he provided in his response to the Draft Report and after deliberation and consideration of the evidence it has seen and heard has retained the text of the Draft Report. 40. The Board notes the general manager’s statements regarding recommendations from the GMPRC to council and does not dispute that the committee took recommendations to council for approval. The statements in the Draft Report refer to the setting of the KPIs and assessment methodology by full council rather than by the committee. After deliberation 271 and consideration of the evidence it has seen and heard the Board has retained the text of the Draft Report. 41. The Board notes the general manager’s statement that as the GMPRC has no delegated authority, this means that ‘the GMPRC does not have the delegation to make decisions’. Board comment: the Board has considered the general manager’s statement and after deliberation and consideration has retained the text of the Draft Report. 42. The general manager stated that in the matter of the mayor’s report on the performance of the general manager to the chairman of the GMPRC, he understood that ‘there was written communication between the mayor and the chairman of the GMPRC’. Board comment: the Board has relied on the minutes of the meeting of the committee, and has retained the text of the Draft Report. 43. The Board has considered the general manager’s statements regarding ‘interpretation of the KPIs’ as opposed to changes to the assessment methodology employed by the GMPRC. After deliberation and consideration of the evidence it has seen and heard the Board has retained the text of the Draft Report. 44. The general manager stated that ‘I confirm circumstances leading up to the BOI were extremely difficult and did consume vast amounts of my time in trying to manage the issues and situation and once the BOI was announced there were many matters that had to be managed…’ Board comment: the Board has deleted the statement regarding the effect of the Board of Inquiry from section 3.A.2.5.2 of the Report. 45. The Board notes the statement made by the general manager regarding the forthcoming review period and has changed the date in the text from 2 January 2017 to 2 January 2018 (3.A.2.5.3). 46. The general manager cited clauses 5.3 (c), (d), and (e) of his contract of employment to support his contention that the chairman of the GMPRC acted appropriately in informing the general manager of the outcome of his performance review. Board comment: the Board has considered the general manager’s response and after deliberation and consideration of the evidence it has seen and heard has retained the text of the Draft Report. 47. The Board has considered the general manager’s statement regarding the refusal of the chairman of the GMPRC to call a committee meeting for a period of five months following the council meeting of 15 March 2016. After deliberation and consideration of the evidence it has seen and heard the Board has retained the text of the Draft Report. 272 Response to section 3.A.3: Relationship between the mayor and the general manager 48. The Draft Report stated that ‘the Board made an observation to the general manager at his second hearing on 6 September 2016 that it appeared the Mayor has no greater privilege than any other alderman. Mr. Brooks said this was correct.’ In his response the general manager stated ‘my comment at the hearing was in relation to voting around the table. I was comparing State & Federal Premiers and the Prime Minister who are able to appoint their own ministers and cabinets’. Board comment: the Board has reconsidered the record of hearing on 6 September 2016 and the context of his remarks, and considered the general manager’s response in light of that record. After deliberation the Board has retained the text of the Draft Report. 49. The Draft Report stated that ‘the Board heard evidence that …….. meetings between the mayor and the general manager were rare at GCC; although meetings were held, they were a source of frustration and annoyance rather than a collaborative exchange of information.’ The general manager stated that he disagreed with this statement. Board comment: the Board has reconsidered the general manager’s record of hearing on 6 September 2016 and the context of the statements in the Draft Report, and considered the general manager’s response in light of that record and the text of the Draft Report. After deliberation the Board has retained the text of the Draft Report. 50. The Board noted further response from the general manager regarding the duration and regularity of his meetings with the mayor. These allegations were put to the general manager by the Board on 4 July 2016, in an invitation to respond to allegations against him. The general manager did not respond to the mayor’s allegations regarding their meetings. The Board has considered these responses from the general manager and after deliberation has retained the text of the Draft Report. 51. The Draft Report stated that The council implemented audio recordings of meetings in July 2016, but the general manager initially refused to provide copies of the audio recordings to the mayor when she requested them so she could check the accuracy of the minutes. Board comment: the text of the Draft Report (3.A.3.3) has been changed to record that the request was for the minutes of the closed session of council. 52. The Draft Report (3.A.3.4.2) stated that the matter raised in the QoN (Item 17.3, 13 April 2016) referred to an issue which had led to the general manager’s refusal to consult with the mayor on meeting agendas. The Board considers that this does not constitute a personal matter. The general manager responded that the above statement by the BOI is incorrect – this QoN was not the reason for me as general manager to discontinue consulting with the mayor on agendas and minutes – as stated above - It should be noted that I did have a process in place for working with the mayor prior to the finalisation of the agenda as well as a process in relation to discussing and viewing the draft minutes of council meetings from November 2014 until April 2016. The actions of the mayor in releasing information to the BOI (see my response later in my submission as to why) before other aldermen had seen both the agendas and minutes breached the trust between us and therefore I discontinued the process as I had concerns regarding the mayor releasing confidential information. 273 Board comment: the Board has considered the general manager’s response and after deliberation and consideration of the evidence it has seen and heard has expanded the text of the Draft Report to provide clarification. 53. The general manager requested the provision of further information to allow him to respond to questions regarding the withholding of matters he determined were ‘operational’. Board comment: the Board has reconsidered the general manager’s record of hearing on 3 February 2016 and considered the general manager’s response in light of that record and the text of the Draft Report. After deliberation the Board has retained the text of the Draft Report. 54. The Draft Report stated (3.A.3.4.3) that the general manager regarded the CTMG Report as ‘operational’, and therefore considered that there was no requirement to provide it to the mayor when she asked for it prior to the council meeting on 5 February 2015. The general manager stated in response that his reason for withholding the Report was not that it was operational, but rather that it contained confidential material. Board comment: The Board has considered the general manager’s response and has added a footnote to the Report to include his assertion (3.A.3.4.3). In light of evidence provided by the mayor and Ald. Branch-Allen and King, and cited in the Draft Report, and after deliberation, the Board has made some changes to the text, but retained other related text in the Draft Report. 55. With reference to his circulation of potentially contentious emails to all aldermen and the DCG&GC, the general manager stated that I still advise that the council is made up of 10 aldermen including the mayor and deputy mayor and it is important that information is shared by all unless confidential. I also applied this to emails received from other aldermen. Board comment: the Board has considered the general manager’s response and after deliberation and consideration of the evidence it has seen and heard has retained the text of the Draft Report. 56. With reference to an email exchange between the mayor and the general manager on 3-4 February 2015, the general manager stated in his response that I do not see any rebuke in my email response – merely a factual response to the mayor who had herself sent an email to all aldermen without copying me in when the email related to me. Board comment: the Board has considered the general manager’s response and after deliberation and consideration of the evidence it has seen and heard has retained the text of the Draft Report. 57. The Draft Report included reference to an email exchange between the mayor and the general manager in August 2015. The general manager stated in his response that before this exchange there was an email from himself to the mayor which should have been referenced in the footnote. 274 Board comment: the Board has considered the general manager’s response and after deliberation and consideration of the point it is making in that section of the Report, has retained the text of the Draft Report. 58. The general manager’s response stated that he did not consider that he had severely criticised the mayor’s message in the 2016 Council Annual Report in an email on 11 October 2016. Board comment: the Board has considered the general manager’s response and after deliberation and consideration of the evidence it has seen and heard has retained the text of the Draft Report. 59. The Draft Report included commentary on the council’s induction processes for new aldermen. In response the general manager stated that GCC does have an induction process and new aldermen were provided with an induction by staff. I received favourable (sic) comments and had not heard any dissatisfaction with the process. Board comment: at the 2014 elections only two new aldermen were elected for the first time, Ald. Dunsby and Quick. The Board has considered comments made by Ald. Dunsby and has relied on accumulated evidence of the conduct of meetings and the governance practices at the council in drawing its conclusions regarding the quality of the council’s induction procedures. After deliberation the Board has retained the text of the Draft Report. 60. The general manager stated in his response that he considered that examples provided in the Draft Report did not support the Board’s contention that on occasion his approach was insufficiently impartial when dealing with differences of opinion between aldermanic factions. Board comment: the Board has considered the general manager’s response and after deliberation and consideration of the evidence it has seen and heard has retained the text of the Draft Report. 61. The Board has considered the general manager’s response regarding mayoral access to council facilities and after deliberation and consideration of the evidence it has seen and heard has retained the text of the Draft Report. 62. The Board has considered the general manager’s response regarding the Board’s contention that on at least two significant occasions he failed to provide appropriate advice which would have supported the mayor. The Board is of the opinion that the general manager is obliged to provide appropriate advice in a council meeting should it be apparent that aldermen are unaware of council policies and practices. After deliberation and consideration of the evidence it has seen and heard the Board has retained the text of the Draft Report. 63. The general manager stated that he had no recollection of failing to provide a relevant report to the mayor prior to her attendance at a Southern Councils Feasibility Study meeting in July 2016. Board comment: a footnote has been added to the text of the Draft Report (3.A.3.7.3) to include the general manager’s statement. 275 64. The Draft Report stated that from June 2015 the mayor no longer had direct contact with the council’s communications officer, and all media statements and interview appointments were managed by either the general manager or the DCG&GC. The general manager noted that no evidence was cited in footnotes. Board comment: a footnote citing evidence has been added to the text (3.A.3.7.4). 65. The Draft Report stated that in October 2015, when the mayor made a reasonable request for copies of risk management reports, the general manager told the mayor during the lengthy delay in providing them, that none of the other aldermen and none of his management team had requested copies of the reports. The general manager stated in his response that the footnote in the Draft Report did not relate to the item or statement made. Board comment: the reference in the relevant footnote has been corrected. Response to section 3.A.4: Code of Conduct 66. The Draft Report stated that three of the four members of the GMPRC publicly declared (through motions in open council) their full support for the general manager and his performance, prior to undertaking any of the relevant assessment tasks of the committee. The general manager stated in response that he did not believe that this indicated that those aldermen had a conflict of interest in the matter. Board comment: the Draft Report does not state that the Board considers that those aldermen had a conflict of interest in the general manager’s performance. The reference is to Objective Decision Making. The Board has retained the text of the Draft Report. Response to section 3.A.5: Management Restructure, February 2015 67. The Draft Report includes the finding that council was negligent in failing to be specific in its resolution and in failing to make a determination where a choice was provided in the CTMG Report, as it is not possible to know from the minutes of 16 March 2015 what council actually approved. The general manager stated that the finding had no evidence to support it. Board comment: the Board has considered the general manager’s response and after deliberation and consideration of the evidence it has seen and heard has retained the text of the Draft Report. 68. The Draft Report stated that a number of aldermen did not realise that there was a strong possibility that a significant number of the (then) current management team would be made redundant. In his response the general manager detailed the process adopted prior to the adoption of the recommendations by council on 16 March 2015. Board comment: the Board has considered the general manager’s response and after deliberation and consideration of the evidence it has seen and heard has amended the text of the Draft Report. 276 Response to section 3.A.6: Council Policies and By-laws 69. The Draft Report stated that at the meeting of 13 April 2015 a successful NoM (Item 15.3) required the general manager to produce an up-to-date Policy Register. The responding officer’s comments from the general manager revealed that council needed to establish a Register of Policies, a Register of Gifts, a Register of Compliance, and an improved Register of Interests. And it is the responsibility of the general manager to maintain a current Register of Interests, and the Board considers that the admitted failure to ensure that these important accountability and compliance tools had been maintained indicates poor governance procedures by both management and council. In response the general manager provided a detailed account of work undertaken to update council’s policies, and stated that he had not ‘admitted failure’ in his report to council. Board comment: none of the information provided contradicted the statements in the Draft Report. After deliberation the Board has retained the text of the Draft Report. 70. The Draft Report stated that in a workshop in May 2015 the DCG&GC revealed that council had at that time 156 policies, only four of which were current. The general manager stated in his response that there are/were a number of policies – It is noted that unless otherwise provided for under the relevant legislation, a Council policy remains valid despite having passed its review date and not espoused by many and the media – policies are current until amended by Council or rescinded by Council. Board comment: the text of the Draft Report (3.A.6) has been amended to remove the word ‘current’. 71. The Draft Report stated that council’s current Grievance Policy would make it difficult and complex for any action to be taken against staff, particularly senior management. The general manager responded that Council used an external legal company to develop the draft – the draft policy was presented to WorkSafe Tasmania & agreed & signed off by them before being adopted by full council – what concerns do the BOI have? Board comment: the Draft Report provides further information later in the text. After consideration of the general manager’s response the Board has retained the text of the Draft Report. 72. The general manager stated that the BOI fails to state that at each of the meetings where Alderman Stevenson asked the question (regarding council’s compliance with its Code for Tenders and Contracts) I advised that I had complied and provided answers – the other aldermen seemed to be happy with this. Why do the BOI state that because 1 alderman has concerns that he is correct and the other aldermen incorrect? Board comment: the Board has considered the general manager’s response and after deliberation and consideration of the evidence it has seen and heard has retained the text of the Draft Report. 277 73. The general manager provided information about the advice received from Mr. Bruce McTaggart S.C. Board comment: the Board has considered the general manager’s response and after deliberation and consideration of the evidence it has seen and heard has retained the text of the Draft Report. 74. The general manager asked please could the BOI provide evidence that the new adopted Code for Tenders and Contracts (adopted 13th April 2016 breaches s 333B (2) (c) of the Act. Board comment: the Board has considered the general manager’s response and after deliberation has retained the text of the Draft Report, as it considers the answer is contained therein. 75. In reference to the Draft Report’s statements regarding the special council meeting on 1 December 2014, to elect aldermen to committees, the general manager stated the BOI’s statement is clearly incorrect – no ballots were conducted before any council meeting. The BOI’s attachments - Package A40 provide the spreadsheet as attached to the agenda. The BOI’s attachments Package A2 (minutes from the council meeting on 24th November 2014) states that the mayor adjourned items 10 and 14 from the agenda of the 24th November 2014 to a special council meeting on 1st December to consider. Board comment: the Draft Report quotes from the information provided by the general manager in the agenda of the meeting, viz., Expressions of interest received are as detailed in the attached document (attachments to the agenda). The areas marked YELLOW indicate a ballot is required and ballot papers were distributed with the Council Agenda on Thursday 27th November 2014 – Aldermen were requested to provide the General Manager with their ballot votes before the Council meeting on 1st December 2014. The areas marked RED indicate insufficient nominations have been received and Council will have to consider the matter in its meeting of 24th November 2014. (sic). The Board considers that the text in the Draft Report, taken from council documents, clearly indicates that ballots were conducted before the meeting on 1 December 2014, and reiterates that the reference is to the meeting of 1 December, not the meeting of 24 November 2014. After deliberation the Board has retained the text of the Draft Report. 76. The Draft Report stated that in the process of election of aldermen to committees immediately after the October 2014 elections, there were insufficient nominations to fill vacancies on seven external bodies or committees. The agenda states that these vacancies had to be considered at the meeting on 1 December 2014. The minutes do not record how these vacancies were filled. The Board notes that the meeting, which included two planning items, lasted only 35 minutes. In response the general manager stated that I have all the paperwork in relation to this issue – it clearly demonstrates that the BOI are incorrect in this “supporting evidence”. Board comment: the Board has relied on evidence provided in council agendas and minutes. The Board has considered the general manager’s response and after deliberation has retained the text of the Draft Report. 278 77. The Draft Report stated that Council’s policy for Nominations and Appointments to Committees required that for appointments to an outside body, the general manager had to send a memo to all aldermen seeking expressions of interest and detailing the requirements of the position. Should a ballot be required it was to be conducted under the policy directions. The Draft Report refers to the election of an aldermen to an external committee, when at the council meeting of 26 October 2015 (Item 23), council made an appointment to the Southern Tasmanian Councils Authority’s working group to implement the transfer of functions of the Southern Waste Strategy Authority to the Southern Tasmanian Councils Authority. The Draft Report then stated that there is no record that expressions of interest were called for by the general manager in accordance with the policy, nor the result of that call for expressions of interest. There is no record of a vote having been taken in council. Board comment: the Board has considered the general manager’s response and after deliberation and consideration of the evidence it has seen and heard has retained the text of the Draft Report. 78. The Draft Report stated that the Board neither heard nor saw any change in council’s approach to reporting committee activities to council before 26 September 2016, and notes with concern that there is now no obligation on aldermen to report on their committees at all since passing the resolution to adopt the amended policy on 26 September 2016. In response the general manager stated that there has been a review process underway – including workshop with aldermen – the tabling of committee minutes, I believe still should be actioned – the problem has been in getting amendments to the software that staff use to prepare the council agendas and minutes this is still an action to be implemented. Board comment: the Board has considered the general manager’s response and after deliberation and consideration of the evidence it has seen and heard has retained the text of the Draft Report. 79. The Draft Report stated that the Board considers that the process whereby the DCG&GC provides advice to the GMPRC on the informality or formality of a complaint against the general manager is undesirable. It states further that the DCG&GC is a direct report to the general manager and her performance assessment is undertaken by the general manager; thus there is a natural conflict of interest if she has to provide advice or make judgement calls in relation to matters concerning him. While ‘in-house’ lawyers may be exposed to such conflicts from time-to-time, they should be avoided where possible. In response the general manager stated that the draft policy was presented to WorkSafe Tasmania & agreed & signed off by them before being adopted by council – what concerns do the BOI have? Board comment: the Board has considered the general manager’s response and after deliberation and consideration of the evidence it has seen has retained the text of the Draft Report. 279 80. The Draft Report stated that the Board noted that council’s Grievance Policy gives the determination of the severity of complaints against the general manager, and the determination of such complaints, to the GMPRC. The Draft Report then stated that in the Board’s view, the committee’s behaviour has demonstrated that it does not have the necessary objectivity to handle such matters. The general manager described this view as ‘ridiculous in the extreme’. Board comment: the Board has considered the general manager’s response and after deliberation and consideration of the evidence it has seen and heard has retained the text of the Draft Report. 81. The Draft Report stated that under the policy the investigation of formal complaints against both the People and Safety Manager, or any director other than the DCG&GC, is undertaken by the DCG&GC. Investigation of formal complaints against the DCG&GC is undertaken by the general manager. The Board considers that complaints which cannot be dealt with by the People and Safety Manager should be dealt with by an external agency with the expertise and objectivity demanded by such situations. The general manager stated in response that to state that council’s DCG&GC does not have the expertise to deal with complaints is also incorrect. Board comment: the Draft Report does not make any comment on the DCG&GC’s expertise in this matter. The Board has considered the general manager’s response and after deliberation and consideration of the evidence it has seen and heard has retained the text of the Draft Report. Response to section 3.A.7: Council meetings and workshops 82. The Draft Report states that the Board is concerned that the aldermen who continued the adjourned meeting (on 5 February 2015) were inadequately acquainted with the Meeting Regulations, and did not question the inaccurate advice provided to them. Board comment: the Board has considered the general manager’s response and after deliberation and consideration of the evidence it has seen and heard has retained the text of the Draft Report. 83. The general manager stated that items for discussion are placed in closed council in accord with Local Government (Meeting Procedures) Regulations 2015 Regulation 15(2). Staff consider carefully if any parts of the report apply and act accordingly. Staff do not place items into closed council so as not to be accountable & transparent to the community. Board comment: the section of the Draft Report to which the general manager has responded deals with the aldermen’s compliance with the Meeting Regulations. The Board has considered the general manager’s response dealing with staff procedures and after deliberation and consideration of the evidence it has seen and heard has retained the text of the Draft Report. 280 84. The general manager made a number of comments regarding the examples provided by the Board of matters discussed in closed council which could have been dealt with in open council. Board comment: the Board has considered the general manager’s response and after deliberation and consideration of the evidence it has seen and heard has retained the text of the Draft Report. 85. The general manager made a number of observations under the Draft Report’s section 3.A.7.3, Supporting Evidence and Information, and subsequent sections of the Report dealing with council’s recorded minutes and the treatment of the minutes of its meetings. Board comment: the Board has considered the general manager’s responses and after deliberation and consideration of the evidence it has seen and heard has retained the text of the Draft Report. 86. Board comment: the Board has considered the general manager’s responses to the Draft Report section on Questions on Notice and Questions without Notice, including on the examples provided by the Board, and after deliberation and consideration of the evidence it has seen and heard has retained the text of the Draft Report. 87. The Draft Report stated in its commentary on a resolution in praise of the general manager’s performance (16 March 2015, Item 18.1) that no detail was provided regarding the achievements of the general manager to warrant this resolution. Three of the four members of the GMPRC, including the chairman of the committee, voted for the resolution. In response the general manager suggested a reason to support the passing of the resolution. Board comment: the Board has considered the general manager’s response and after deliberation and consideration of the evidence it has seen and heard has retained the text of the Draft Report. 88. The Draft Report stated that for some aldermen, praise for the general manager did not indicate bias, but requesting completion of the general manager’s review could indicate adverse prejudice. The Board considers this to be indicative of muddled thinking and a lack of understanding around the issue of bias. In response the general manager alleged that the alderman who had requested the completion of the general manager’s review is not …. complying with council policy & process – why have the BOI not raised this as an issue? He also stated that I believe that the Aldermen’s public support of me was a reaction to the Mayor making numerous public comments about her “lack of confidence in the GM”. Board comment: the Board has considered the general manager’s response and after deliberation and consideration of the evidence it has seen and heard has retained the text of the Draft Report. 89. The Board has considered the general manager’s comments regarding staff attendance at council meetings and after deliberation has retained the text of its Draft Report. 281 90. The Draft Report stated that the Board finds that the pre-planning for workshops has been ad hoc, with no calendar of topics, late provision of workshop material, little or no input from aldermen into workshop topics and little time allowed for aldermen to prepare. In response the general manager stated that workshops were not ad-hoc – there was a calendar of events that was prepared in consultation with staff and related to the annual plan timelines as much as possible – I kept a spreadsheet that was sent out to aldermen and senior staff. He also said that wherever possible attachments would be sent with workshop agendas – sometimes when this was not possible attachments were sent out before the weekend to allow aldermen time to review. Presentations by outside or 3rd parties to council were requested before the presentation but on many occasions they were not available. A debate in council also took place, some aldermen did NOT want the attachments before the workshops because in their words “aldermen kept looking through the handouts and not taking part in the workshop” Board comment: the Board has considered the general manager’s responses and after deliberation and consideration of the evidence it has seen and heard has retained the text of the Draft Report. Response to section 3.A.8: The general manager’s personal leave and return to work, January 2017 91. The Draft Report stated that on 16 January 2017 the mayor appointed an acting general manager while the general manager was on an extended period of personal leave. In response the general manager stated that Practice has always been that I have either verbally and/or via email advised Council of when I wished to take annual leave – I did so at short notice in December 2016 due to a family issue. In accord with section 62 of the Local Govt Act I appointed Acting General Managers during my annual leave. The family matter continued past the date of my annual leave and my Dr. provided me with a medical certificate which I provided to all Aldermen – this provided me personal leave from 9th January 2017 until 16th January 2017 – again I appointed an Acting General Manager. The family matter had not improved by 16th of January 2017 so I again saw my Dr. and received a medical certificate until 3rd February 2017 – a copy sent to all Aldermen & me again appointing an Acting General Manager as I have done so many times previously. The Mayor emailed all Aldermen advising that she was using section 61(6) to override my appointment of Acting GM and she appointed a different staff member. The general manager also stated that the mayor acted illegally by making the appointment, and that he had delegated authority on the council’s delegations register to appoint an acting general manager. The general manager stated that GCC’s external legal advice is that the Local Government Act s61 deals when there is a vacancy of the position of general manager NOT when the general manager is on leave, and that he had advice from council’s external legal advisors that confirmed his interpretation of the Act. The general manager also noted that two emails referenced in footnotes in this section were missing from the Draft Report materials. 282 Board comment: The Board notes that s 62 (1)(i) of the Act provides the general manager with the power to perform ‘any other function the council decides’. On 1 July 2011 the then mayor provided the general manager with the delegations, appointments and authorisations that have been approved by council in relation to your position. This included Delegation # 24, Delegation to GM to appoint acting General Managers under Section 61 of the Local Government Act 1993 for periods not exceeding 5 weeks (12 August 2003). The general manager commenced his leave on 17 December 2016. From that time until 3 February 2017 is a period of seven weeks. The general manager returned to work after an absence of five weeks and two days. The Board considers that the delegation given to the general manager in July 2011 did not contemplate allowing him to make several successive appointments for a continuous period of absence, and that therefore, his capacity to make another appointment under his delegation no longer existed in this circumstance. The Board notes that the mayor requested and received advice on her intention to appoint an acting general manager from the DDLG, and her response to the DDLG by email on 16 January 2017 stated in part, I concur with your view that I am able to appoint an Acting General Manager in the current circumstances until it is confirmed (or otherwise) by Council. After consideration of all the information received, and after deliberation, the Board has made some amendments to the text of the Draft Report and has added a recommendation. Footnotes have been amended as necessary (3.A.8). Response to section 3.B, Management and Operations: Draft Findings 92. The general manager repeated a number of comments from his response under section 3.A of the Draft Report. Where, as stated in the Draft Report, these matters were already included, the Board makes no further comment on the general manager’s response. Where evidence is provided later in the Report, the Board makes no response at this juncture. The Board has nevertheless considered all the statements made by the general manager in this section. Response to section 3.B.1: Compliance with council policies 93. Board comment: the footnote in section 3.A.6.1. has been amended to correctly refer to the mayor’s first submission to the Board. Response to section 3.B.2: Implementation of council plans 94. The Board has considered the general manager’s response under the Draft Findings text, and after deliberation has retained the text of the Draft Report. 95. Under ‘Supporting Evidence and Information’, the general manager stated in his response that there had been delays in project implementation but that council had been kept informed, and that some reviews have taken longer than planned but resourcing has been an issue. 283 Board comment: the Board has considered the general manager’s response and after deliberation and consideration of the evidence it has seen and heard has retained the text of the Draft Report. 96. With reference to the Berriedale Caravan Park Development (3.B.2.2.1), the general manager stated that the new planning scheme did not commence until 1st July 2015 – the issue of the attenuation zone was not raised until the DA from MONA was referred to TasWater – GCC staff were not aware of this at the time of preparing and seeking expressions of interest in 2014 /15 – 1 year before. The MONA museum is also within then attenuation zone now so at the time of preparing documents (EOI for Caravan Park) this issue was not known or the impact of the new planning scheme. Board comment: the EoI process was agreed by council on 11 May 2015 and the Glenorchy Interim Planning Scheme (GIPS) came into effect on 1 July 2015. The Board considers that it is highly unlikely that the council staff undertaking due diligence could have been unaware of the contents of the GIPS to the extent of a lack of awareness of a proposed attenuation zone around such a significant development as MONA, and such a significant area for proposed development. Even if this were the case, council staff under the direction of the general manager should have provided those companies asked to submit a development proposal with information regarding the changes to the planning scheme. The Board notes that the general manager twice states in his response that the EoI documentation was prepared in 2014. The Board is of the opinion that if this were the case, the documentation should have been properly revised before being released on 10 June 2015. The Board has considered the general manager’s statements and has amended the text of the Draft Report to add information which has come to light as a result of his submission. 97. The Board has considered the general manager’s statements regarding the text in the Draft Report regarding the Glenorchy CBD Strategic Framework, the Implementation of the Wilkinsons Point & Elwick Bay Precinct Master Plan, and the redevelopment of the council website, and after deliberation, has retained the text of the Draft Report. 98. The Board has considered the statements made by the general manager in response to the section on audio recording of council meetings, and after deliberation has retained the text of the Draft Report. 99. The Draft Report stated that the decision taken by council to accept the recommendations of the CTMG Report on 5 February 2015, after the council meeting had been lawfully adjourned by the mayor, was invalid at that time, and that the decision taken at this time was not a council decision as it was not taken at a council meeting. The Board considers that the general manager should have known this to be the case. The general manager in his response said that this was incorrect. He also stated that at a meeting on 6 February 2015, the Director (of Local Government) requested I provide him with information and advised that I should continue to act on the decisions of council meeting of 5th February 2015 until such time as he had concluded his investigation. 284 Board comment: the Board has considered the general manager’s response, and notes that there is no written record to support the general manager’s statement that the DLG provided the advice as stated. After deliberation the Board has retained the text of the Draft Report. 100. The Board has considered the statements made by the general manager in response to the Draft Report’s text regarding the appointment of Ms. Iskandarli as restructure coordinator, and after deliberation has retained the text of the Draft Report. Response to section 3.B.4: Management of the Operations of Council 101. The Draft Report referred to the operations of council’s CCTV system in the Glenorchy CBD. In response to the Board’s concerns regarding the operation of the CCTV system and the apparent lack of communication between Tasmania Police and the general manager, the general manager stated that Alderman Johnston at the time (February 2013) had requested reporting and protocols be set up but TasPolice took control of the monitoring etc. – a council report was prepared for council by then executive manager Narelle Calphy in response to the request by Alderman Johnston. The council did not have any monitoring or responsibility except for maintenance of GCC’s assets. We relied on the police to advise us of any maintenance issues and a contractor engaged by council dealt direct with TasPolice regarding this. Board comment: the Board has considered the general manager’s response and after deliberation and consideration of the evidence it has seen and heard, and consideration of the successful NoM passed at the council meeting on 12 February 2013 (Item 13.3) has retained the text of the Draft Report.467 102. The Board has considered the general manager’s comments regarding the cancellation of an international netball fixture at the DEC and a footnote has been added to the text of the Draft Report (3.B.4.2). 103. The Board has considered the general manager’s statements regarding the emergency management positions following the staff restructure in 2015, and after deliberation and consideration of the evidence provided by the general manager, has retained the text of its Draft Report. 104. The Draft Report cited the general manager’s failure to provide the agenda for the open and closed sections of the council meeting of 13 April 2016 as an example of the general manager’s failure to respond to the Board’s requests for information pertinent to its Inquiry. In response the general manager provided copies of emails between himself and the Board, and the deputy DLG and the general manager, as evidence that he had complied with the request under s 222 after he received written advice from the deputy DLG. 467 Minutes of the council meeting (12 February 2013). Ref. A.44. 285 Board comment: the Board has considered the general manager’s statements and has added a footnote to the text of the Draft Report (3.B.4.4.2), noting that the general manager denied having received the request under s 222, and therefore failed to provide the documents when requested. 105. The Board has considered the general manager’s remaining statements regarding the provision of information to the Board of Inquiry, and after deliberation and consideration of the evidence it has seen, has retained the text of its Draft Report. 106. In reference to the Draft Report which stated that The Board notes with concern there was no expression of interest process for filling the allied health tenancy, the general manager stated that the tenancy had been advertised. Board comment: the Board notes that the Board sent a s 222 Requirement to Produce Documents (20 January 2017) to council requesting any documentation relating to the Expression of Interest (EOI) process for the filling of the Allied Health Facility at the KGV complex. Ref. L. The Board received no evidence of an expression of interest process for the allied health tenancy with council’s response to this requirement. However, the current acting general manager (Mr. McMullen) provided a copy of a newspaper advertisement calling for expressions of interest in the tenancy and closing on 12 May 2012. The text of the Draft Report has now been amended (3.B.4.5.1). 107. The general manager stated that the Board is incorrect to state that he was not managing the KGV project. Board comment: the Board has considered the general manager’s response and after deliberation and consideration of the evidence it has seen, has retained the text of its Draft Report. 108. The Draft Report stated that the GDFC was concerned that the project control group did not meet regularly during construction, and as at July 2016, had not met for approximately 12 months. The general manager said that the GDFC attended weekly or fortnightly on site meetings with Council’s project manager and builders and contractors – they had far more input and discussion than there would have been at any PCG meeting would have allowed. Board comment: the Board has considered the general manager’s response and has added a footnote to the text of the Draft Report. 109. Board comment: the Board has considered the general manager’s response to the Draft Report’s section on the hydrotherapy pool, and after deliberation has retained the text of the Draft Report. 110. The Draft Report stated that the project was managed in-house by a council employee who was also working for part of the time on council’s Moonah Arts Centre development. The general manager stated in his response that this was not correct, and that the project manager position was advertised and that the successful candidate signed a contract with the council. 286 Board comment: the project manager was engaged as a temporary full time employee of the council on a two year contract to manage the project.468 In his hearing with the Board the project manager said that he had also worked on the Moonah Arts Centre development at the same time as he managed the KGV project. The Board does not dispute that the position was advertised externally. After deliberation, the Board has retained the text of the Draft Report. 111. The Draft Report stated that on 16 November 2016, the general manager sent the mayor a copy of the invitation he had prepared for the opening of the KGV site to be held on 5 December 2016. The Board heard that none of the tenants had been consulted on the proposed opening date and neither had the mayor, the federal department that provided the funding, nor Mr. Wilkie. The Board was told that without the mayor’s knowledge and in a notable breach of protocol, the general manager and DCG&GC had approached the Governor of Tasmania to open the facility. The Board is concerned to note that had the opening proceeded on these grounds, council would have failed to comply with the requirements of the grant deed. Ultimately, the general manager agreed to postpone the official opening. The general manager responded that the procedure prescribed for the opening in the grant deed was followed and I have many emails between staff and the federal government office regarding this. Board comment: since the release of the Draft Report and in response to the general manager’s comments the Board requested additional information from council regarding the proposed opening of the KGV facilities. An additional footnote has been added to section 3.B.4.5.4 to provide reference to the email exchanges between the DCG&GC and the contract manager for regional programmes within the Department of Infrastructure and Regional Development, and text has been added to the Report. All emails referred to in section 3.B.4.5.4 have been added to the reference materials package. 112. Board comment: the Board has considered all other responses from the general manager relating to the management of the KGV project and after deliberation has made no other changes to the text of the Draft Report. Response to section 3.B.5: Management of employees, including appointment, direction, and dismissal 113. Board comment: the Board has considered the general manager’s response regarding the Draft Report’s statements about the dismissal of the DCEDB, and after deliberation and consideration of the evidence it has seen and heard has retained the text of the Draft Report. Offer of temporary full time position to Mr. Glen Sheppard (12 December 2012) signed by the general manager. Ref. V.1 468 287 114. The Draft Report stated that one of the consultants qualified his recommendation to appoint Ms. Iskandarli (as the Director, Corporate Governance) and recommended that the general manager consider advertising the position externally. In his response the general manager stated that this is incorrect. Board comment: the consultant stated that you have to be absolutely guaranteed that you cannot find a director from external recruitment who can do a better job than Seva; and also, from the Hogan Personality Assessment she was found to have a significant issue with trust and with authority figures. She had a high Sceptical Score and this allowed her to manage well some of the political issues, but she can sometimes hold grudges and show some hostility. She also profiles as an impulsive person with overconfidence. The Board has amended the text of the Draft Report to reflect the general manager’s comments and the statements by the recruitment consultant (3.B.5.3). 115. The Draft Report stated that the Board observed in council meetings that there were occasions when the DCG&GC debated an issue or interjected commentary into the aldermen’s debate, rather than offered advice. In his response the general manager stated that the DCG&GC provided advice to Council – just because on occasions that advice was disputed by the mayor does not mean that the DCG&GC acted unprofessionally – I did raise the DCG&GC’s actions early on with her and she amended her behaviour from then on. Board comment: the Board has considered the general manager’s response and after deliberation and consideration of the evidence it has seen and heard has retained the text of its Draft Report. 116. The Draft Report stated that there are also occasions when contrary to good meeting practice and professional behaviour, the DCG&GC refused to leave meetings when asked to do so by the mayor. In response the general manager stated that this statement is the BOI’s opinion only and cannot be seen as evidence it is not for the mayor to direct a staff member – the full council can request that a staff member leave through the general manager if he/she is in attendance. Board comment: the Board has considered the general manager’s response and after deliberation and consideration of the evidence it has seen and heard has retained the text of its Draft Report. The Board considers that the chairperson of a council meeting does have the power under the Meeting Regulations (s 15 (7) (a)) to direct a member of staff to leave the closed session of a meeting; the Board has witnessed this occurrence frequently in its attendance at council meetings when members of staff have left the council meeting room. 117. Board comment: the Board has considered all other responses from the general manager relating to the performance of the DCG&GC under his management, and after deliberation has made no other changes to the text of the Draft Report. 288 118. The Draft Report stated that the Board notes that reg. 7 of the Meeting Regulations requires any such request (for a special meeting of council) from aldermen to be in writing and signed by the aldermen. No staff member has the power to request the mayor to convene a special council meeting on behalf of any aldermen. The general manager in his response stated that the DCG&GC was ‘acting on behalf of the chair’ of the GMPRC. Board comment: the Board has considered the general manager’s response and after deliberation and consideration of the evidence it has seen and heard has retained the text of its Draft Report. The Board considers that the email sent by the DCG&GC to the mayor with the request for a special council meeting does not comply with the requirements of the Meeting Regulations, which include the requirement that any such request be signed by a majority of aldermen (s 4 (7)). The Board considers that both the general manager and the DCG&GC should have been aware of this regulation. 119. The Draft Report stated that the mayor emailed the DCG&GC on 25 November 2016 requesting clarification of the decisions made at the GMPRC committee meeting on 21 November 2016, and asked for confirmation of the accuracy of the DCG&GC’s advice about the committee meeting. The Board considers that the DCG&GC’s response to this request was unnecessarily hostile and defiant and contained inaccurate information. In his response the general manager stated that he disagreed that the email was ‘hostile and defiant’, and asked for clarification of inaccuracy in the email. Board comment: the Board has considered the general manager’s response and after deliberation and consideration of the evidence it has seen and heard has retained the text of its Draft Report. Response to section 3.B.6: Provision of timely and accurate advice 120. Board comment: the Board has considered the general manager’s response to the Draft Report’s section on his annual leave, and after deliberation and consideration of the evidence it has seen has retained the text of the Draft Report. 121. Board comment: the Board has considered the general manager’s response to the Draft Report’s section regarding his criticism of an alderman in an email in March 2016, and after deliberation and consideration of the evidence it has seen has retained the text of the Draft Report. 122. Board comment: the Board has considered the general manager’s response to the Draft Report’s section regarding the amendment of the Financial Report 2014-15, and after deliberation and consideration of the evidence it has seen has retained the text of the Draft Report. 123. Board comment: the Board has considered the general manager’s response to the Draft Report’s section regarding the advice given to council about the 2.5% salary increase, and after deliberation and consideration of the evidence it has seen has retained the text of the Draft Report. 289 124. Board comment: the Board has considered the general manager’s response to the Draft Report’s section regarding the payment to an ex-employee, and after deliberation and consideration of the evidence it has seen has retained the text of the Draft Report. 125. Board comment: the Board has considered the general manager’s response to the Draft Report’s section regarding the adjournment of the council meeting on 5 February 2015, and after deliberation and consideration of the evidence it has seen has retained the text of the Draft Report. 126. The Draft Report stated that in an email dated 26 October 2015 to the general manager and all aldermen, the DCG&GC incorrectly advised the proper procedure for dealing with motions at council meetings. The DCG&GC stated that ‘if an alderman wants to move a new motion instead of what is included in the agenda for council’s consideration the proper procedure is as follows: (i) an alderman moves and another alderman seconds what is proposed in the agenda – it is discussed and voted and rejected; (ii) then the alderman may move a new motion during a meeting under Regulation 16. This is simply a new, not ‘alternative’ motion; (iii) if council will not follow this procedure it will result that an agenda item and the recommendation remains unresolved’ (sic). This advice was incorrect and the Board considers that it led to further confusion amongst aldermen about correct meeting procedure. In his response the general manager stated that most of the aldermen have been on council for many years so I find it hard to believe that it would cause confusion amongst aldermen. Board comment: the Board has considered the general manager’s response and after deliberation and consideration of the evidence it has seen and heard, has retained the text of the Draft Report. 127. Board comment: the Board has considered the general manager’s response regarding the DCG&GC’s email to the mayor on 16 March 2016, and after deliberation and consideration of the evidence it has seen and heard has retained the text of the Draft Report. 128. Board comment: the Board has considered the general manager’s response to the Draft Report’s section regarding inappropriate and inaccurate advice recorded in council minutes, and after deliberation and consideration of the evidence it has seen has retained the text of the Draft Report. 129. Board comment: the Board has noted the general manager’s statement regarding the footnote in the Draft Report and has amended the reference (3.B.6.10). Response to section 3.B.7: Provision of timely, relevant, and high quality reports to council 130. Board comment: the Board has considered the general manager’s response to the Draft Report’s section regarding the major projects and operational issues report, and after deliberation and consideration of the evidence it has seen has retained the text of the Draft Report. 290 Response to section 3.B.8: Timely assistance to council in the development of its Annual Report (including the Budget), Annual Plan, and assessment of its performance against these plans 131. The Draft Report stated that the Board notes with concern that a motion put by Ald. Stevenson at the council meeting of 4 July 2016 (Item 19.2), that the Audit Panel be requested to review, monitor and report to council regularly on the productivity dividend of $2.32m in the 2016-17 Budget, was defeated 3/5. The general manager responded that the full council receives a corporate indicators report each month that details, amongst other information, how GCC is performing in relation to achieving all budget items including the productivity dividend. Board comment: the Board has considered the general manager’s response and after deliberation and consideration of the evidence it has seen and heard has retained the text of its Draft Report. The Board notes that despite this response from the general manager, indicating that council was fully informed about achievement of the productivity dividend on a monthly basis, the general manager also quoted in his response to the Draft Report from his statements to the Board at his second hearing on 6 September 2016, viz., The Board asked how the aldermen monitored the PD. Mr Brooks referred to the corporate performance indicators and noted that this process is currently under review. The Board asked if the PD will be included in that report and Mr Brooks said it is not part of the indicators which are pitched at a higher level of reporting to council. They are now reviewing the reporting process on risk as well. He said information on tracking the PD will be provided either through a report or a workshop. He said council will need to decide how frequently they want to be updated. The Board considers that these statements in response contradict each other and after deliberation and consideration of both statements has retained the text of its Draft Report. 132. The Draft Report stated that Council adopted the Budget Estimates and the Annual Plan for 2016-17 without knowing any detail of council’s performance against the Budget and the Annual Plan for the year ended 30 June 2016. The last report council had received was for the period ended 31 December 2015. Management did not provide an estimate of council’s performance against Budget for the 2015-16 financial year to aldermen to analyse when considering the 2016-17 Budget assumptions. In his response the general manager stated that the Board was ‘confused’ and that the full council receives a corporate indicators report each month that details, amongst other information, how GCC is performing in relation to achieving all budget items including the productivity dividend. The statement above refers to the achievement of items in the annual plan. Board comment: the text of the Draft Report has been amended (3.B.8.1) to reflect the general manager’s statements regarding information provided to aldermen in the corporate indicators report and the reports against the Annual Plan. The Board notes that despite the general manager’s statement regarding reporting on achievement of the productivity dividend, the corporate indicators report for the month of November 2016, attached to the agenda for the council meeting of 23 January 2017, provided no information regarding achievement of the productivity dividend. 291 133. Board comment: the Board has considered all the general manager’s remaining responses to the Draft Report’s section regarding the budget process in 2016-17, and the monitoring of the productivity dividend, and his reporting against the Annual Plan, and after deliberation and consideration of the evidence it has seen has retained the text of the Draft Report. Response to section 3.B.9: Coordination of proposals for the development of objectives, policies, and programs for the consideration of council 134. Board comment: the text of the Draft Report has been amended to remove section 3.B.9 entirely. Subsequent sections have been renumbered. Response to section 3.B.10 (now 3.B.9): Management of council resources and assets 135. Board comment: the Board has considered the general manager’s response to the Draft Report’s section on the use of credit cards, and after deliberation and consideration of the evidence it has seen has retained the text of the Draft Report. 136. Board comment: the Board has considered the general manager’s response to the Draft Report’s section on the use of credit cards, and after deliberation and consideration of the evidence it has seen has retained the text of the Draft Report. Response to section 3.B.11 (now 3.B.10): Provision of advice and responses during meetings 137. Board comment: the Board has considered the general manager’s response to the Draft Report’s section regarding his responses to questions about the tendering of the CTMG projects, and after deliberation and consideration of the evidence it has seen has retained the text of the Draft Report. Response to section 3.B.12 (now 3.B.11): Maintenance of a co-operative relationship with GCC, based on an ethical foundation of mutual respect and trust 138. Board comment: the Board has considered all the responses the general manager has provided on the section regarding the proposed changes to his contract of employment, to be considered at a special council meeting on 5 December 2016. The Board reiterates that the resolution of council at its September meeting was to consider changes to clause 5 of the general manager’s contract; there was no intention, expressed or implied, which allowed for this resolution to be interpreted as a requirement for a full revision of the CoE. The general manager’s response to the Draft Report provides no explanation for his interpretation of the resolution of council. After deliberation and consideration of the evidence it has seen and heard, the Board has retained the text of the Draft Report. 292 139. Board comment: the Board has considered all the general manager’s responses to the Draft Report section regarding the Memorandum of Advice regarding CTMG contracts and tender compliance, and after deliberation and consideration of the evidence it has seen, has retained the text of the Draft Report. 293 D.13 Board consideration of Ms. Seva Iskandarli’s response to the Draft Report The Board received the response from the DCG&GC (Ms. Seva Iskandarli) through her legal representative on 25 September 2017. While the text of the response from the legal representative refers to Ms. Iskandarli in the third person, the Board considers that this is Ms. Iskandarli’s response to the Draft Report and refers only to Ms. Iskandarli in person or by her position (DCG&GC) throughout its commentary on her response. The Board has used the headings used by Ms. Iskandarli in its consideration and commentary. The Board has considered the DCG&GC’s responses and provides commentary as follows on matters raised therein. The Board makes no comment on matters raised by the DCG&GC in agreement with the Report, nor does it make comment on statements which repeat the contents of the Report. Where the DCG&GC has disagreed with an opinion of the Board, or a conclusion the Board has drawn from the evidence, without any statement other than that she disagrees, the Board has given full consideration to her comments, but unless noted, has made no change to the text of the Report. If the material provided by the DCG&GC has already been given to the Board in her submission or in hearings, it has already been considered in the findings and recommendations in the Draft Report. Response to the Draft Report Allegation about inaccurate and inappropriate advice on vetting procedure 1. In response to the Draft Report, the DCG&GC stated that in the Draft Report the Board discusses a Council meeting of 15 March 2016 and the particular conduct of Mrs. Iskandarli in relation to that meeting as an example of inappropriate or inaccurate advice on meeting procedure. The discussion in relation to this meeting has references to pp.38, 39, 94, 139 and 140 of the report. At p.39 the BOI alleges that Mrs. Iskandarli had “repeated intervention into the proceedings arguing against the Mayor’s ruling”. With respect, Mrs. Iskandarli did not intervene in to the proceedings. Mrs. Iskandarli was either invited by the Mayor or asked by the Aldermen to provide answers to the questions or questions which were directed to the General Manager by the Mayor and the General Manager requested that Mrs. Iskandarli provide the answer at the Council meeting. This was a process which applied to all staff members in attendance at the meeting and not solely to Mrs. Iskandarli. The DCG&GC specifically denied providing answers to questions of her own volition, and denied that she intervened in the proceedings of the meeting, as stated in the Draft Report. Board comment: the response refers to the minutes of Item 21.1 of the council meeting of 15 March 2016, and to Reg. 16(9) of the Meeting Regulations. The item to which the Draft Report refers is Item 20.1. The minute of that item does not state that any questions were asked of the DCG&GC prior to her questions of the mayor nor that the mayor asked the DCG&GC to respond to any questions. The minutes record that the mayor did provide her reasons for halting debate on the foreshadowed motion, by stating the reasons that 294 she considered the motion to be unlawful. A careful reading of Reg. 16(9) of the Meeting Regulations does not prevent the mayor from halting debate on a motion should that debate reveal that the intended action may be unlawful. After consideration of the DCG&GC’s response and consideration and deliberation of the evidence it has seen and heard, the Board has retained the text of the Draft Report. 2. The Draft Report stated that the DCG&GC demanded to know the sections of the Criminal Code the mayor considered may have been breached during debate on Item 20.1 at the council meeting of 15 March 2016. The DCG&GC stated in her response that there was no demand. Board comment: the DCG&GC was not responding to a request from the mayor to provide comment on the item under discussion, but rather, asking her own questions of the mayor. The Board was present at the meeting and considers that her questioning was demanding. After consideration of the DCG&GC’s response and consideration and deliberation of the evidence it has seen and heard, the Board has retained the text of the Draft Report. Allegation about inappropriate and inaccurate advice recorded in council minutes 3. In her response to the Draft Report, the DCG&GC stated that the advice given by the general manager relating to the matter of the attendance of the Board at the closed session of the council meeting of 15 March 2016 was consistent with the DCG&GC’s advice. Board comment: this advice was contrary to the view expressed by Chief Justice Blow in Branch-Allen v Easther [2016] TASSC 29, at [66]: Ms Mason and Mr. Tilley were at the meeting to discharge their duties in relation to the inquiry ordered by the Minister. Their presence was not necessary for the conduct of the meeting, but, unlike the general public, they were there because they had official duties to perform…It was reasonable for them to be there because of the terms of reference of the Board of Inquiry. 4. The Draft Report stated that during Item 20.1 the DCG&GC was the minute taker and as such was responsible for recording matters in the minutes of the meeting which the Board considered to be unnecessary and inappropriate. Board comment: After consideration of the DCG&GC’s response, the Board has amended the text of the Draft Report (3.B.6.9) to reflect that the minutes were not recorded by the DCG&GC in the meeting at the opening of the closed session, but were recorded by her during item 20. 5. The DCG&GC stated in her response that she did not attempt to persuade the deputy mayor to require members of the Board to leave the closed session of the meeting. Board comment: After consideration of the DCG&GC’s response, and consideration of matters which the Board witnessed, the Board has retained the text of the Draft Report. 295 Allegation as to the relationship between the mayor and the general manager and code of conduct 6. Board comment: the Board has considered all the statements made by the DCG&GC in this section of her response. Specifically, that Board considers that the email from the general manager to all aldermen and copied to the DCG&GC on 26 August 2015 stated that the general manager received advice from the DCG&GC regarding making a response to a media request for information.469 After consideration of all other statements in the response, and after consideration of matters which the Board has seen and heard, the Board has retained the text of the Draft Report. Allegation of dismissal of newly appointed director 7. The Draft Report stated that the Board was told that the DCG&GC had given direct instructions to the finance team (the former DCEDB’s area of oversight) to remove a note in the report about the redundancy disclosure. The DCG&GC had indicated to her that the Tasmanian Audit Office agreed to this. The former DCEDB said she had checked this with the Audit Office and was advised that the disclosure had to remain. The DCEDB said that the DCG&GC later denied directing the finance team to remove the note.470 In her response the DCG&GC denied that she had done this. The DCG&GC stated that she had suggested to a member of the finance department who had sought her legal advice regarding council’s obligation for disclosure in an annual report, and had given as her personal opinion, not legal advice, that the disclosure of the redundancy amounts for 2015/16 should be removed from Note 44 to the financial statements in the Annual Report, and instead be shown in Note 9 of that section. Subsequently, according to the DCG&GC’s response, she was asked to attend a meeting at the Tasmanian Audit Office. Advice provided by the TAO in an email to Ms. Amanda Sartori (the Finance Manager) indicated that including the redundancy payments in Note 9 was acceptable.471 Board comment: the Board has weighed the information provided by the DCG&GC against the information provided to the Board by other parties to this matter. The Board notes that there are two versions of these events which are contradictory. After deliberation the Board has added a footnote to 3.B.5.1 to provide information from Ms. Iskandarli’s response and has amended 3.B.5.1 of the Report. Grievance policy 8. Board comment: the Draft Report provided the Board’s considered opinion regarding the responsibilities under the policy assigned to both senior staff, including the DCG&GC, and the GMPRC. The Board has considered the response provided by the DCG&GC and after deliberation has retained the text of the Draft Report. Ref. Q.8 Refer notes of Ms. D. Hood’s hearing (15 December 2015). Ref. D.2 471 Email from the TAO to the Acting Manager Finance and Business Services (14 August 2015). Ref. Q.82 469 470 296 Deed of confidentiality – General Manager’s Performance Review Committee (sic) 9. The DCG&GC in her response stated that the draft deed of confidentiality was not drafted or prepared at the instigation or recommendation or pursuant to advice given by Mrs. Iskandarli. And, Mrs. Iskandarli accepts that there was no need for the draft deed and advised that there was no need for a deed but was given contrary instructions from her internal client, the General Manager and the chairman of the committee, and Mrs. Iskandarli was instructed to prepare the draft deed. Board comment: as stated in the Draft Report, at a hearing of the Board on 5 September 2016, the chairman of the GMPRC, Ald. Slade, was asked who requested the Deed, what advice was provided, and why it was necessary. The chairman responded that it was the DCG&GC’s idea to put the Deed in place; she explained it was another layer of confidentiality for a committee that deals with confidential information. He said that he had accepted that explanation.472 Further, at his hearing with the Board on 6 September 2016, the general manager stated that he had not requested a deed of confidentiality. Ald. Dunsby at her hearing on 5 September 2016 noted that the minutes of the GMPRC meetings don’t reflect that this was a request that came from the Committee.473 10. The DCG&GC stated in her response that advice was provided (by herself to the committee) that the members of the Committee, as elected members of the Council, had an obligation to keep information they received in their capacity as aldermen, which included as members of the Committee confidential and that there was no need for an additional document to be signed which related to the issue of confidentiality. Board comment: this is not recorded in the minutes of any GMPRC meeting. In addition, the minutes of the meeting of 29 July 2016 do not record that the DCG&GC spoke in support of Ald. Dunsby’s position when Ald. Dunsby stated (Item 5.2) that she would not sign the deed because she was already bound to keep matters confidential under the Act. The Board considered the DCG&GC’s statements and after deliberation and consideration of what it has heard and seen, has retained the text of the Draft Report, which reflected the conflicting evidence received by the Board regarding this issue. 11. Board comment: the Board has considered all other statements made by the DCG&GC in relation to the deed of confidentiality, and after consideration has retained the text of the Draft Report. 472 473 Ald. Slade’s second hearing (5 September 2016, Question 17). Ref. D.36 and D.37 Ald. Dunsby’s second hearing (5 September 2016, Question 1). Ref. D.32 297 E. General Manager’s KPIs for the period ending 2 January 2017 Objective KPIs 1 Strategic and Related Plans    Provide an annual opportunity for council to review the Strategic Planning Framework with amendment if required by council. Timeframe by 31st October 2016 Provide a complete Strategic Plan 2016-2026 for approval by council. Timeframe by 31st December 2016 Provide a new 4 year Annual Plan (Corporate Plan) for review and adoption by council. Timeframe by 31st December 2016 2 Financial, asset and operational planning and reporting    Provide a revised “rolling”10 year Long Term Financial Plan for council approval. Timeframe by 31st December2016 Provide a consolidated 10 year Asset Management Plan for review and adoption by council. Timeframe by 31st December 2016 Provide a quarterly report to council (a statement of financial performance against council’s approved budget and a progress report against the current year of the 4 year Annual Plan). Quarterly as at September, December, March and June 3 Work Health and Safety  Provide a WH&S Strategy for council review and adoption. Timeframe by 31st December 2016 4 Legal and Governance   Provide an updated Corporate Risk Register for review and adoption by council. Timeframe by 31st December 2016 Provide a report updating the Governance Strategy for adoption by council. Timeframe by 31st December 2016 The Subjective KPIs are assessed on the basis of the reviewer’s assessment of the general manager’s performance and are based on the quality of the performance: 5 Leadership indicators The General Manager exhibits leadership that: Demonstrates and promotes council’s high level plans and key objectives Builds a positive working relationship with council Aldermen Implements council decisions by delegating effectively to the Executive Team Builds a positive relationship with the Glenorchy community 298 The General Manager: - Reaches decisions in a timely manner - Encourages open communication - Judiciously participates in discussions of issues - Seeks internal/external advice when required 6 Builds external relationships The General Manager: Develops and maintains effective relationships with government, not-for-profit organisations and regulatory bodies Develops and maintains strong networks with other local government organisations and major businesses Presents a positive image of council at all times in respect to commercial dealings, community groups and other identified stakeholders 299 F. Relevant Excerpts of the Local Government Act 1993 20. Functions and powers (1) In addition to any functions of a council in this or any other Act, a council has the following functions: (a) to provide for the health, safety and welfare of the community; (b) to represent and promote the interests of the community; (c) to provide for the peace, order and good government of the municipal area. (2) In performing its functions, a council is to consult, involve and be accountable to the community. (3) A council may do anything necessary or convenient to perform its functions either within or outside its municipal area. (4) A council may transfer to a single authority or a joint authority – (a) any of its assets and liabilities on any condition it determines; or (b) any of its employees. (5) A council may – (a) acquire, hold, dispose of and otherwise deal with property; and (b) sue and be sued in its corporate name. 23. Council committees (1) A council may establish, on such terms as it thinks fit, council committees to assist it in carrying out its functions under this or any other Act. (2) A council committee consists of councillors appointed by the council and any councillor who fills a vacancy for a meeting at the request of the council committee. (3) A meeting of a council committee is to be conducted in accordance with prescribed procedures. 24. Special committees (1) A council may establish, on such terms and for such purposes as it thinks fit, special committees. (2) A special committee consists of such persons appointed by the council as the council thinks appropriate. (3) The council is to determine the procedures relating to meetings of a special committee. 26. Mayors and deputy mayors (1) The chairperson of a council is to be known as – (a) in the case of the Hobart City Council or its successor, the Lord Mayor; and (b) in the case of any other council, the mayor. 300 (2) The deputy chairperson of the council is to be known as – (a) in the case of the Hobart City Council or its successor, the Deputy Lord Mayor; and (b) in the case of any other council, the deputy mayor. 27. Functions of mayors and deputy mayors (1) The functions of a mayor are– (aa) to act as a leader of the community of the municipal area; and (a) to act as chairperson of the council; and (b) to act as the spokesperson of the council; and (ba) to liaise with the general manager on the activities of the council and the performance of its functions and exercise of its powers; and (c) to oversee the councillors in the performance of their functions and in the exercise of their powers. (1A) The mayor or deputy mayor is to represent accurately the policies and decisions of the council in performing the functions of mayor or deputy mayor. (2) The deputy mayor is to act in the position of mayor and exercise the powers and perform the functions of mayor if– (a) the mayor is absent; and (b) the mayor or the council, by notice in writing, appoints the deputy mayor to act in the position. (2A) The mayor, by notice in writing, may delegate for a specified period – (a) the function referred to in subsection (1)(b) to the deputy mayor, a councillor or the general manager; and (b) any other power or function of the mayor, other than the function referred to in subsection (1)(a) , to the deputy mayor. (3) An appointment under subsection (2) remains in force – (a) for the period specified in the notice; or (b) until sooner revoked. 28. Functions of councillors (1) A councillor, in the capacity of an individual councillor, has the following functions: (a) to represent the community; (b) to act in the best interests of the community; (c) to facilitate communication by the council with the community; (d) to participate in the activities of the council; (e) to undertake duties and responsibilities as authorised by the council. (2) The councillors of a council collectively have the following functions: (a) to develop and monitor the implementation of strategic plans and budgets; (b) to determine and monitor the application of policies, plans and programs for – 301 (i) the efficient and effective provision of services and facilities; and (ii) the efficient and effective management of assets; and (iii) the fair and equitable treatment of employees of the council; (c) to facilitate and encourage the planning and development of the municipal area in the best interests of the community; (d) to appoint and monitor the performance of the general manager; (e) to determine and review the council's resource allocation and expenditure activities; (f) to monitor the manner in which services are provided by the council. (3) In performing any function under this Act or any other Act, a councillor must not – (a) direct or attempt to direct an employee of the council in relation to the discharge of the employee's duties; or (b) perform any function of the mayor without the approval of the mayor. (4) A councillor is to represent accurately the policies and decisions of the council in performing the functions of councillor. 62. Functions and powers of general manager (1) The general manager has the following functions: (a) to implement the policies, plans and programs of the council; (b) to implement the decisions of the council; (c) to be responsible for the day-to-day operations and affairs of the council; (d) to provide advice and reports to the council on the exercise and performance of its powers and functions and any other matter requested by the council; (e) to assist the council in the preparation of the strategic plan, annual plan, annual report and assessment of the council's performance against the plans; (f) to coordinate proposals for the development of objectives, policies and programs for the consideration of the council; (g) to liaise with the mayor on the affairs of the council and the performance of its functions; (h) to manage the resources and assets of the council; (i) to perform any other function the council decides. (2) The general manager may do anything necessary or convenient to perform his or her functions under this or any other Act. 63. Employees (1) The general manager of a council may – (a) appoint persons as employees of the council; and (b) allocate duties to employees; and (c) control and direct employees; and (d) suspend or dismiss employees. 302 (2) The general manager is to develop human resource practices and procedures in accordance with policies of the council to ensure employees of the council receive fair and equitable treatment without discrimination. 303 G. Glossary AGM Annual General Meeting BoI (BOI) Board of Inquiry CBA Commonwealth Bank of Australia CCTV Closed Circuit Television CDS Committee Detail Sheet CEO Chief Executive Officer CoE Contract of Employment CTMG CT Management Group DCEDB Director, Community, Economic Development and Business DCG&GC Director Corporate Governance and General Counsel DCSI Director, City Services and Infrastructure DDLG Deputy-Director of Local Government DEC Derwent Entertainment Centre DLG Director Local Government DPP Director of Public Prosecutions EoI (EOI) Expression of Interest GCC Glenorchy City Council GDFC Glenorchy District Football Club GIPS Glenorchy Interim Planning Scheme GM General Manager GMC General Management Committee GMPRC General Managers Performance Review Committee GPA Glenorchy Planning Authority LVC LandVisionCivil Pty Ltd 304 LGAT Local Government Association of Tasmania KGV King George V Sports Complex KPI Key Performance Indicator MONA Museum of Old and New Art MoU (MOU) Memorandum of Understanding MRC Migrant Resource Centre NoM Notice of Motion PCG Project Control Group PQT Public Question Time RFP Request for Proposal RMPAT Resource Management and Planning Appeal Tribunal QoN Question on Notice QwN Question without Notice SC Senior Counsel STCA Southern Tasmanian Councils Association SWSA Southern Waste Strategy Authority The Act Local Government Act 1993 TEC Tasmanian Electoral Commission ToR (TOR) Terms of Reference 305 H. Glenorchy City Community and Council Profile Community Profile DEMOGRAPHY AND MUNICIPAL STATISTICS Glenorchy City Council (2015-16) Municipal area (km2) Council owned roads (km) Rateable properties Unemployment 121 Population (2015 estimate)i 45,827 Population density (per km2) 378.4 21,030 Unemployment rate (%) June 2016 ii 9.5 Glenorchy LGA - Labour Force and Unemployment 12.0 22,200 11.0 22,000 9.0 21,800 8.0 7.0 21,600 Labour Force Unemployment Rate (%) 10.0 6.0 21,400 5.0 4.0 21,200 Unemployment Rate 3.0 Labour Force 2.0 21,000 Dec-10 Jun-11 Dec-11 Jun-12 Dec-12 Jun-13 Dec-13 Jun-14 Dec-14 Jun-15 Dec-15 Jun-16 Department of Employment, LGA Data tables - Small Area Labour Markets - June quarter 2016 In June 2016, there were an estimated 2,064 people unemployed in Glenorchy City.iii 306 Community Profile Population Glenorchy age pyramid for 2020 (Medium Series projection, compared to 2012) Male 2020 Female 2020 85+ 80 - 84 75 - 79 70 - 74 65 - 69 60 - 64 55 - 59 50 - 54 Age 45 - 49 40 - 44 35 - 39 30 - 34 25 - 29 20 - 24 15 - 19 10 - 14 5-9 0-4 2 000 1 500 1 000 500 0 500 1 000 1 500 2 000 Number of persons Council Profile The following data is from the Tasmanian Auditor-General’s Report.iv Glenorchy City is classified as Urban Medium (UM) for comparison with other councils (see appendix A). REVENUE AND RATES Glenorchy City UM Ave State Ave Total revenue ($’000s) 204,574 253,100 60,866 Cash reserves ($’000s) 17,648 40,595 14,772 3,155 4,854 3,160 6.1 7.3 18.7 32,727 47,777 15,756 1,556 1,975 1,461 Indicator/Statistic (2015-16) Operating Government grants ($’000s) Operating grants to operating revenue (%) Rate revenue ($’000s) Average rates/charges per rateable valuation ($) 307 EXPENSES Indicator/Statistic (2015-16) 2015-16 UM Ave State Ave 59,083 75,206 26,876 Operating cost per rateable valuation ($) 2,490 3,043 2,547 Operating expense per capita ($) 1,143 1,446 1,421 Glenorchy City Glenorchy City Average (4,745) (9 year Ave) 3 (10 year Ave) Total expenditure ($’000s) FINANCIAL MANAGEMENT INDICATORS Indicator/Statistic (2015-16) Underlying surplus/deficit ($’000s)1 (527) Net financial liabilities ratio (%)2 (11) Benchmark >0 0 – (50) Glenorchy - Operating surplus ratio 5.0 - Number -5.0 -10.0 -15.0 -20.0 -25.0 2008 2009 2010 2011 2012 2013 2014 2015 2016 Year Glenorchy Benchmark Average UM 3 Council Profile ASSET MANAGEMENT Indicator/Statistic (2015-16) 2015-16 UM Ave Benchmark Non-current assets ($’000s) 878,061 1,072,353 n/a Capital expenditure ($’000s) 21,987 21,925 n/a Depreciation expenses ($’000s) Capital expenditure to depreciation ratio (%) 12,882 14,292 n/a 89 91 100 308 ASSET MANAGEMENT INDICATORS Indicator/Statistic (2015-16) 2015-16 Asset sustainability ratio (%)4 89 Asset renewal funding ratio (%)5 Asset consumption ratio (roads) (%)6 100 54 Glenorchy City Average 58 (10 year Ave) 95 (6 year Ave) 50 (10 year Ave) Benchmark 100 90-100 >40 GOVERNANCE AND HUMAN RESOURCE MANAGEMENT Glenorchy City UM Ave State Ave 10 11.2 9.1 Population per elected member 4,583 4,538 1,964 Full Time Equivalent (FTE) staff 232 332 113 FTE staff per 1,000 population 5.1 6.5 8.0 36.8 36.2 33.3 Indicator/Statistic (2015-16) Number of elected members Staff costs to operating expense (%) GLENORCHY CITY COUNCIL Commissioner Ms Sue Smith General Manager: Mr Peter Brooks Notes 1. 2. 3. 4. Numbers inside brackets are negative values. Net financial liabilities ratio – is the liquid assets less total liabilities divided by the total operating income. Operating surplus ratio - a positive result indicates a surplus, with the larger the surplus the stronger the assessment of sustainability. However, too strong a result could disadvantage ratepayers. A negative result indicates a deficit which cannot be sustained in the long-term. Asset sustainability ratio - provides a comparison of the rate of spending on existing infrastructure, property, plant and equipment through renewing, restoring and replacing existing assets, with depreciation. Ratios higher than 100 per cent indicate that spending on existing assets is greater than the depreciation rate. This is a long-term indicator, as capital expenditure can be deferred in the short-term if there are insufficient funds available from operations and borrowing is not an option. 309 5. 6. Asset renewal funding ratio – measures the capacity to fund asset replacement requirements. An inability to fund future requirements will result in revenue, expense or debt consequences, or a reduction in service levels. This is a useful measure relying on the existence of long-term financial and asset management plans. Asset consumption ratio – shows the depreciated replacement cost of an asset (e.g. roads, bridges, and infrastructure) divided by the current replacement cost. It therefore shows the average proportion of new condition left in the depreciable assets. Appendix 1 AUSTRALIAN CLASSIFICATION OF LOCAL GOVERNMENTS Rural Rural Rural Agricultural Agricultural Agricultural Urban Small Small and Large Very Large Medium Abbreviati RASM RAL RAVL US on Population of Population of Definition Population of Population of up to 5,000 5,000-10,000 10,000up to 30,000 at a density of at a density of 20,000 at a <30 per km2 <30 per km2 density of <30 per km2 Central Break O'Day Derwent Brighton Councils Highlands Valley Flinders Circular Head Huon Valley Burnie GlamorganDorset Meander Central Coast Spring Bay Valley King Island George Town Northern Devonport Midlands Tasman Kentish Sorell West Tamar West Coast Latrobe WaratahWynyard Southern Midlands Urban Medium UM Population of 30,000 – 70,000 Clarence Glenorchy Hobart Kingborough Launceston References i http://www.abs.gov.au/AUSSTATS/abs@.nsf/DetailsPage/3218.02014-15?OpenDocument ii https://docs.employment.gov.au/node/34693 iii http://docs.employment.gov.au/node/34693 iv www.audit.tas.gov.au/wp-content/uploads/AGR-Volume-3-Local-Government-Authorities-and-TasWater-2015-16-WebBook.pdf 310