An update for those Beagle readers following the Code of Conduct complaint raised against the General Manager and then mayor Lindsay Brown for taking a Mayoral Minute to purchase the Batemans Bay Bowling Club site into a Confidential Session of the April 26th, 2016 council meeting. The Code of Conduct was raised for their failing to advise the public that they were going to consider a Mayoral Minute in a closed session and for failing to advise the public that they had done so after coming back into chambers; and failing to advise the community in the subsequent minutes that they had done so contrary to the requirements of the local Government Act might be interested in the determination below. For those who are time poor (and for our Councillors who can only deal with Executive Summaries) in essence the commendable and very thorough investigation carried out concluded that: The reviewer is satisfied, on balance, that the conduct of the General Manager and the former Mayor was not dishonest or disrespectful and it in fact appeared to be in the best interests of the community; since it protected Council’s commercial position during negotiations for the purchase of the bowling club. Whilst there was technically a failure to comply with Council’s Code of Meeting Practice and the Local Government Act in relation to notice requirements, the reviewer does not consider that this was likely to bring Council or the holders of public office into disrepute in the circumstances. The reviewer is therefore not satisfied that the conduct gives rise to a prima facia breach of clause 3.1 (a) of Council’s Code of Conduct. Whilst the reviewer accepts that the Minutes did not properly identify the decision made by Council at its meeting in closed session on 26 April 2016, such a practice was consistent with Council’s procedures at that time and how clause 12.10 of the Code of Meeting Practice (and Regulation 253) was interpreted by Council for possibly 20 years. It is common ground that such a practice has now ceased, following advice from the OLG in July 2017 that Council’s interpretation was incorrect. The reviewer does not consider that it is appropriate or necessary to remedy the procedural discrepancies that occurred in relation to the Council Meeting on 26 April 2016, beyond acknowledging that certain practices around it were flawed. This is consistent with the approach taken by the OLG and the Minister for Local Government, who are both aware of the circumstances of the 26 April 2016 meeting. It is of interest that the advice from the OLG in July 2017 that Council’s interpretation was incorrect referred to above was in regards to the General Manager taking two items into a Confidential Session of Council that specifically related to her performance review and reappointment. She was strongly advised by three speakers that what she was doing was not permissible under the Local Government Act however she advised Councillors that it was correct practice and took the matters into Confidential and then failed to advise the details of the matters in the minutes that followed. The reviewer is aware that advice from the OLG received by Council on 24 July 2017 has indicated that the practice of keeping 2 sets of Minutes was incorrect and that the full resolution adopted by Council in the closed session must be recorded in the Minutes. In other instances, it may be possible to publish Council’s resolution in full after the need to observe confidentiality has passed, meaning that the notification will have been made “as soon as practicable” as required by clause 12.10 (1). In the reviewer’s opinion, such an approach could possibly have been taken with the confidential resolution made at the Council Meeting on 26 April 2016. It is the recollection of the General Manager and the former Mayor, that they intended to advise that the motion had been carried during the closed session and they claim that their failure to do so at the Meeting must have been an administrative error (since the item had not been included on the agenda). While Council had already been wrapped over the knuckles by the Office of Local Government for the way the General Managers two "Personal Items" were dealt with the determination below regarding the actions around the April 26th 2016 meeting indicates that there may have been "alternate interpretations" of the Local Government Act by Council for some time. NOTICE OF DETERMINATION AND REASONS: Threshold Issue: 1.1 Clause 4.3 of the Procedures provides that Code of Conduct complaints must be made “within 3 months of the alleged conduct occurring or within 3 months of the Complainant become aware of the alleged conduct.” Whilst there are circumstances outlined in clause 4.4 of the Procedures that, if satisfied, will allow the acceptance of complaints outside this period, the threshold issue for determination is whether the complaints in question have been lodged within time. 1.2 The complaints arise from the alleged conduct of the General Manager and the former Mayor at an Ordinary Meeting of Council held on Tuesday 26 April 2016. This date is obviously outside the 3-month time frame, so the issue is whether the date the Complainants became aware of the alleged conduct is within the 3-month period. 1.3 It is common ground that the Minutes, published shortly after the Ordinary Council Meeting held on 26 April 2016, disclosed that a recommendation considered in closed session, identified as “CON16/009 property matter,” was adopted by Council. The media release published on 29 April 2016 advised that the Bowling Club had been purchased by Council for $2.7 million dollars and referred to “a confidential meeting earlier this week” where Council authorised the General Manager to negotiate on Council’s behalf up to an agreed price. 1.4 There is no dispute that the Complainants had knowledge of both Council’s Minutes of its Ordinary Meeting on 26 April 2016 and the Media Release published on 29 April 2016. Therefore, it could be argued, that they had constructive notice that the resolution had been passed and could have made the enquires at that time that were made with Council recently and if they had, they would have been aware of the circumstances surrounding item CON16/009. However, the Complainants maintain that they did not make the connection between “CON16/009 property matter” identified in the Meeting Minutes and the “confidential meeting” referred to in the Media Release. 1.5 The reviewer considers that this was not an unreasonable position, since advice of the resolution pertaining to CON16/009 contained in the Minutes was not drafted so that the decision made by Council could be properly identified; nor did the Media Release specify the nature of the “confidential meeting,” aside from advising that it taken place earlier that week. It is also observed from an email exchange between the Complainants, they appeared to be under the impression that the “confidential meeting” may have been conducted between the Councillors over the telephone. 1.6 The reviewer accepts that the Complainants became aware in around February 2018 that the “property matter” referred to as CON16/009 in the Minutes was in fact the Council resolution authorising the General Manager to negotiate to purchase the Bowling Club at a specific price. The reviewer accepts that this was only evident to the Complainants after reviewing the (redacted) Confidential Mayoral Report, which had been provided by Council under an informal information request. The General Manager had also confirmed that it was the resolution pertaining to the bowling club purchase that had not been read out at the Meeting on 26 April 2016. 1.7 On this basis, the reviewer is satisfied that the Complainants became aware of the alleged breach (namely, the alleged discrepancies pertaining to the 26 April 2016 Meeting) within 3 months of the alleged conduct occurring. Discussion of the Complaints: 1.8 It is acknowledged that the confidential report to purchase Batemans Bay Bowling Club was tabled as a confidential Mayoral Minute to Council at its Ordinary Meeting on 26 April 2018. The reviewer accepts that such a practice was consistent with clause 5.7 of Council’s Code of Meeting Practice (which is in identical terms to regulation 243 of the Local Government (General) Regulation 2005) since the subject matter of the Minute was both within the jurisdiction of Council and was a matter which Council had official knowledge. 1.9 Further, as there is no requirement in clause 5.7 (or regulation 243) that prior notice be given of a Mayoral Minute, it was not necessary for the item to appear on the Meeting Agenda. Whilst it could be argued that this resulted in the process not being as open and transparent as some members of the public would have liked, the reviewer considers that the process adopted was both necessary and in the public interest, as it was essential to ensure that confidentiality was maintained around the potential purchase in order to protect the commercial interests of both Council and the vendor. The issue of confidentiality is discussed in more detail below. 1.10 The reviewer is satisfied that there is no evidence to suggest that the General Manager and the former Mayor acted with dishonesty or the intention to deceive the public by tabling the item as a Mayoral Minute; nor could the conduct be regarded as being disrespectful to the community. Whilst such a process meant there was no notification prior to the meeting, it cannot be said to have been rushed through at the last minute, since the potential purchase was well known throughout the community and had been the subject of discussions for some years with at least 7 Council reports and briefings to Council from 2013 to 2016. 1.11 The reviewer considers that it was entirely appropriate for the Mayoral Minute to be tabled and discussed in a confidential session of Council, since the subject matter fell squarely within clause 12.1 of Council’s Code of Meeting Practice (being section 10A 2 (d) (i) and (ii) Local Government Act). 1.12 In the Mayoral Minute it was proposed that the General Manager be given delegated authority to enter into negotiations with the vendor of the bowling club. The recommendation included details of the proposed purchase price and other commercial property requirements. This was clearly a commercial matter, which if discussed in public would have significantly weakened Council’s negotiating position. Public disclosure would also have placed the vendor at considerable disadvantage had negotiations with Council proven unsuccessful, since it could have weakened any future negotiations with other potential purchasers in the marketplace. NOTICE OF DETERMINATION AND REASONS: 1.13 It is conceded that because the Council’s intention to discuss the Mayoral Minute had not been disclosed in the Meeting Agenda, the public was denied the opportunity to make submissions on the issue as to whether the matter should be debated in a private session. However, it is clear from the wording of section 10A (4) that the decision to allow members of the public to make representations as to whether meetings should be closed is entirely at Council’s discretion. 1.14 Accordingly, the reviewer is satisfied that the decision to debate the Mayoral Minute in a closed session without giving the public the opportunity to make representations (on whether it should be closed) was appropriate in the circumstances. Notwithstanding, it is considered that Council should have announced the fact that a confidential Mayoral Minute was to be debated. However, this is a procedural matter only and it is acknowledged that if this had been done, no specific details could have been disclosed anyway (such as identifying the price, the property and the vendor) to ensure that commercial interests were adequately protected. 1.15 Note also that there appears to be no evidence to suggest that the proposed motion was not properly debated and voted on by the Councillors and the Confidential Minutes show that after debate, the motion was carried by majority, with 3 Councillors recorded as voting against the motion. It is worth stating that had there been issues with the procedures conducted behind closed doors, one would expect that one or more of the Councillors would have made issue with this, such as by lodging a Code of Conduct complaint at that time. This was not done. 1.16 Clause 12.10 (1) of Council’s Code of Meeting Practice (and regulation 253) provides that resolutions made during a closed session must be made public “as soon as practicable after the meeting.” The reviewer considers that the wording used here is significant, noting that had it been intended that public notification be made immediately or as soon as possible, this is how the clause would have been drafted. 1.17 So, whilst it is common ground that the General Manager and the Mayor did not make the resolution public at the meeting, on its face, the reviewer does not consider that this is contrary to clause 12.10 (1) (or regulation 253) since the obligation is to advise the public “as soon as practicable after the meeting.” The reviewer considers that in light of the confidential nature of the motion, it was not practicable for the public to be advised until after commercial negotiations were completed 3 days later. 1.18 This is essentially what happened when Council published a media release on 29 April 2016 on Council’s website and on the front page of the local newspaper. It could be argued that the media release, when read in conjunction with the (non-confidential) Minutes, effectively advised what decision had been made by Council at its Meeting on 26 April 2016. However, this would require an understanding that the “confidential meeting” referred to in the media release of 29 April 2016 was part of the Council Meeting of 26 April 2016. 1.19 Notwithstanding, the reviewer considers that by this stage, Council could have possibly published the motion in full (since the issues around confidentiality were no longer applicable) and there would have been full compliance with both 12.10 (1) and (2) of Council’s Code of Meeting Practice. 1.20 It is the recollection of the General Manager and the former Mayor, that they intended to advise that the motion had been carried during the closed session and they claim that their failure to do so at the Meeting must have been an administrative error (since the item had not been included on the agenda). However, they also maintain that had notification been provided by them at the meeting, they would not have disclosed any detailed information due to the confidential subject matter. They also say that this was consistent with Council’s approach at that time. 1.21 The reviewer accepts that this was indeed Council’s past practice, but this can only be regarded, at best, as being within the spirit of clause 12.10 (2) of Council’s Code of Meeting Practice, which requires that confidential information should not be revealed to the public. 1.22 It is common ground that it was the practice of Council over many years to prepare 2 sets of Minutes to reflect open and closed sessions of Council. The Minutes of 26 April 2016 were drafted in line with those practices. It is acknowledged that the (nonconfidential version) Minutes advised that a recommendation in relation to a “property matter” had been considered in a closed session and adopted, which again whilst consistent with Council’s practices of the day, could only be regarded as complying with the spirit of clause 12.10 (2) of Council’s Code of Meeting Practice. 1.23 The reviewer is aware that advice from the OLG received by Council on 24 July 2017 has indicated that the practice of keeping 2 sets of Minutes was incorrect and that the full resolution adopted by Council in the closed session must be recorded in the Minutes. However, the OLG advice specified that “when framing the motion, Council needs to be careful to ensure that the wording does not disclose any confidential information. However, the resolution should be sufficiently clearly framed to enable the public to identify the decision that has been made by the Council.” It is noted that to give effect to this advice, Council passed a resolution on 25 July 2017. 1.24 The reviewer considers that whilst it may be inappropriate to have 2 sets of Minutes, the practice adopted by Council on 25 July 2017 (to give effect to the OLG advice) could essentially be to the same effect in some circumstances. This is because, the resolution of July 2017 recognises that to protect the confidentiality provisions as outlined in section 10A and general privacy laws, it may be necessary, in practice, to redact identifying words from some confidential resolutions that are carried. This effectively means that the unredacted version would be kept separately in the same manner that the confidential Minutes had been in the past. 1.25 In other instances, it may be possible to publish Council’s resolution in full after the need to observe confidentiality has passed, meaning that the notification will have been made “as soon as practicable” as required by clause 12.10 (1). In the reviewer’s opinion, such an approach could possibly have been taken with the confidential resolution made at the Council Meeting on 26 April 2016. NOTICE OF DETERMINATION AND REASONS: Conclusions: 1.26 The reviewer is satisfied, on balance, that the conduct of the General Manager and the former Mayor was not dishonest or disrespectful and it in fact appeared to be in the best interests of the community; since it protected Council’s commercial position during negotiations for the purchase of the bowling club. It is therefore not considered that there is evidence of a prima facie breach of clauses 3.2 and 3.2 of Council’s Code of Conduct. 1.27 Whilst there was technically a failure to comply with Council’s Code of Meeting Practice and the Local Government Act in relation to notice requirements, the reviewer does not consider that this was likely to bring Council or the holders of public office into disrepute in the circumstances. The reviewer is therefore not satisfied that the conduct gives rise to a prima facia breach of clause 3.1 (a) of Council’s Code of Conduct. 1.28 Whilst the reviewer accepts that the Minutes did not properly identify the decision made by Council at its meeting in closed session on 26 April 2016, such a practice was consistent with Council’s procedures at that time and how clause 12.10 of the Code of Meeting Practice (and Regulation 253) was interpreted by Council for possibly 20 years. It is common ground that such a practice has now ceased, following advice from the OLG in July 2017 that Council’s interpretation was incorrect. 1.29 The reviewer does not consider that it is appropriate or necessary to remedy the procedural discrepancies that occurred in relation to the Council Meeting on 26 April 2016, beyond acknowledging that certain practices around it were flawed. This is consistent with the approach taken by the OLG and the Minister for Local Government, who are both aware of the circumstances of the 26 April 2016 meeting. 1.30 With this is mind and after consideration of the complaint assessment criteria, the reviewer considers that no further action is warranted in respect of the two complaints, pursuant to clause 6.10 (a) of the Procedures. Further, and despite the requirement in clause 6.16 of the Procedures that only the Complainants be provided with the reviewer’s notice of determination and reasons, in the circumstances it is considered that the determination and reasons should also be furnished to the General Manager and the former Mayor in this instance 1.31 In addition to the Council documentation pertaining to the complaints, the reviewer had regard to submissions from the Complainants, the General Manger and the former Mayor when making this decision. This week also sees another matter bought to the attention of the OLG resulting in a letter to Council indicating they might like to review their decision. Meanwhile the class Code of Conduct on the Mayoral Minute recently raised is still being processed.
