The Beagle Editor,
I wish to share, with Beagle readers, my correspondence with the Office of Local Government (OLG) regarding ESC ban on a ratepayer from attending council meetings and presenting in public forum.
WILL COUNCIL REVIEW ITS BANISHMENT OF A RATEPAYER?
DID THE MAYOR GET IT WRONG?
1. LETTER TO OLG - 24TH MARCH 2018 ( this letter was published in Beagle)
OLG,
I write to express my considerable bewilderment and utter dismay that in a democracy such as ours, a member of the public can be banned indefinitely from attending public council meetings, as well as being denied any recourse in relation to this banishment.
I refer to Eurobodalla Shire Council (ESC) banning Mr Joe Potts from speaking in Public Forum, and attending Council Chambers for public council meetings.
I was unaware of this situation until Mr Potts(who was registered to speak) tried to speak at public forum at the 25 Nov ‘17 council meeting.
He was promptly told by the Chair, “to be allowed back into the chamber we need an apology.”
It seems that council alleges that Mr Potts committed an act of disorder during a council meeting on 23 July 2013.
Mr Potts tried to explain that:
- to apologise would be an admission of guilt, which he was not willing to do
- the ‘alleged’ incident did not occur during the council meeting, but after it was adjourned.
There was some discussion between the Chair and Mr Potts as to whether the alleged incident occurred during the meeting, with the Chair stating,
“I was actually in the chamber on that day and I don’t believe that the incident occurred after the adjournment.”
Then a few seconds later, the Chair states,
“I clearly remember that it happened during the meeting.”
As the Chair’s statements were rather contradictory and unconvincing, I thought the minutes would provide clarity.
They didn’t.
23 July ‘13 minutes, PF13/23 states:
At the conclusion of Mr Potts’ address to council, Clr Thomson stated that he wished to lodge a formal complaint against Mr Potts. Clr Thomson stated that after the presentation Mr Potts had accosted him by deliberately bumping him and said, “Any more smart comments from you and I will have you.” Clr Thomson asked that Mr Potts be banned from this Chamber and demanded a public apology from Mr Potts.
Instead they raised further questions, as there was no resolution to ban him and no discussion about the incident seemed to have taken place.
So I referred to Council’s Code of Meeting Practice to ascertain the correct procedure.
Section 5.10 (15) and (16) state:
(15) “....... the person engaging in such behaviour(disorder) will be ruled out of order by the Chairperson and may be expelled from the meeting.”
(16) “If a presenter is asked to withdraw and/or apologise for comments or behaviour and refuses to do so, the Chairperson may expel them from the meeting, and the presenter will not be able to address Council until an apology has been made. For a presenter to be allowed to present again they must first apologise at a Council meeting, however will not be able to present at that same meeting.”
This is all very straight forward and easy to understand.
It is evident from the minutes of the June ‘13 meeting that:
* Mr Potts was not ruled ‘out of order’ by the Chair, nor was he ‘expelled from the meeting.’
* Mr Potts was not asked to ‘withdraw and/or apologise’ for his comments or behaviour at the meeting in 2013, therefore he was not(and could not be) expelled by the Chair for not doing so.
Conclusion:
The ‘alleged’ incident did not occur during the Council Meeting.
Therefore the Code of Meeting Practice does not apply.
This being the case, it would have been up to Clr Thomson to pursue a personal apology.
Council has no right to ban Mr Potts from meetings or public forum
Council informs me that they,
“wrote to Mr Potts on 9 Sept ‘13(7 weeks later) requesting an apology to Council generally and Clr Fergus Thomson before he was allowed to speak at a Council meeting.”
The fact that Council had to write to Mr Potts to inform him of these ‘obligations’, also supports the conclusion that the alleged incident did not occur during the meeting.
It is also most troubling that:
* Mr Potts has never been given the opportunity to provide an explanation or tell his side of the story
* Council never investigated it
* no evidence or witnesses were ever sought or came forward in regard to it.
* no one knows what Clr Thomson may have said to Mr Potts to elicit the alleged response.
I would like to add that even councillors found guilty of misconduct are not expelled or suspended longer than 3 months(LGA section 440 (i). They are also given the opportunity to provide an explanation or submission regarding the incident.
It is most alarming that a member of the public can be banned from attending council meetings, due to an unsubstantiated allegation by a Councillor, that is upheld and acted upon without any investigation by staff, and no input sought from the accused.
Such an action is undemocratic, if not unlawful.
It needs investigating.
I wrote to ESC expressing my concerns in regard to this matter, seeking some evidence or justification for their actions.
This they did not, or could not provide, simply reiterating their original decision and ignoring the evidence I supplied.
All correspondence is attached in chronological order.
I found the final statement in ESC’s last email (23 Jan ‘18), to be the height of rudeness and hypocrisy. It stated,
“As a matter of courtesy I advise you that unless new information concerning the above matter is provided, any further correspondence will be read, filed but not responded to.”
For Council to say that they will not respond unless I provide new information, is a ‘slap in the face,’ as they have not shown me the courtesy of actually responding to the previous information I supplied.
I believe this warrants an apology.
2 RESPONSE received from Office of Local Government (OLG) – 24TH APRIL, 2018
3 Letter TO OLG REQUESTING FURTHER INFO
Thankyou for your response dated 23rd April re ESC’s banning of Joe Potts from Public Forum and Council meetings (ref: A586783).
In your response you stated,
“The Office of Local Government (OLG) holds information that tends to suggest that the alleged incident involving Mr Potts did occur at the meeting of 23 July 2013.”
I would be most grateful if you could provide me with any evidence that ‘suggests’ or proves that the alleged incident occurred during the meeting of 23 July 2013. I have been unable find any, and Council has been unable to provide me with any.
Also, can I expect OLG or Council, to inform me of the outcome of the review of the ban on Mr Potts?
4 RESPONSE FROM OLG – 14TH MAY – PHONE CALL
OLG stated:
* They could not provide me with the information/evidence as it would divulge the identity of the person who supplied it (an email apparently).
* I could submit a GIPA request for the info, but they would then have to consult with the person who provided the info.
* It is up to council as to whom they inform in regard to their review.
* They have told ESC that they cannot ban Mr Potts from attending council meetings, only from presenting at public forum.
It seems the Mayor did get it wrong, in Nov ‘17, when she insisted that Mr Potts leave the chamber.
SO............
If this information, held by OLG, “tends to suggest that the alleged incident” occurred during the meeting, it could only have been provided by one of the councillors sitting next to Clr Fergus Thomson, as no one else would be close enough to overhear.
So why all the secrecy? Why does this Councillor not want to be identified? Which councillors used to sit beside him?
OLG states, “it is unclear whether the procedural requirements” of Council’s code “have been correctly applied.”
I do not see how it can be “unclear” as the minutes of the meeting in question testify to the fact that Mr Potts was not:
* ruled out of order
* expelled from the meeting
* asked to withdraw or apologise for comments or behaviour
These are the procedural requirements for expulsion under Council’s Code of Meeting Practice.
OLG has asked Council “to review the ban” on Mr Potts.
Is “asked” a must do, or a should do?
Above: Letter from OLG dated 23rd April, 2018 - text has been underlined by Editor for clarity
I am concerned that this issue remains unresolved.
Are we ratepayers, particularly the ‘Usual Suspects,’ safe from banishment on the whim of a councillor, without the provision of evidence, with no regard for correct procedure, with no opportunity to refute allegations and no recourse other than those requiring financial expenditure.
Why are Eurobodalla ratepayers treated with such contempt by council?
And why is Council being allowed to get away with it?
Patricia Gardiner
Deua River Valley
