From the Newsroom

Councillors caught up in a ‘court’ of confusion

Geoff Helisma

At last Friday’s December 3 extraordinary Clarence Valley Council (CVC) meeting, the five retiring councillors – Simmons, Baker, Kingsley, Lysaught and Williamson – combined to knockout the hopes of the rest – Toms, Clancy, Novak and Ellem – to lift an Unreasonable Customer Complainant (UCC) ban on three Yamba residents. The meeting was called by councillors Toms and Novak.

Deputy mayor Jason Kingsley chaired the meeting, due to mayor Jim Simmons suffering discomfort from a recent eye operation – acting general manager Laura Black sat in the meeting and provided advice to councillors.

It was clear from the outset that the five retiring councillors were having none of the outcome the other four desired.

Information-wise, each councillor’s business papers included Cr Toms’ formal request for an extraordinary meeting, staff’s appraisal and report, and four “confidential” documents.

Cr Kingsley challenged the “procedure” that Cr Toms had followed, offering an “opportunity to amend” the motion.

Cr Tom’s stated in the report to council that she “received advice from general manager Mr Lindsay “advising me this is the course of action that must be taken”.

Cr Toms asked acting general manager Laura Black for clarification.

“I don’t have the advice that the GM sent in front of me,” she said, “I recall that the GM said to do something that required a resolution of council, or words to that effect.”

Cr Lysaught objected to the words “include an apology for departing from UCC procedures” in Cr Toms’ motion, saying he was “not aware of any officer departing from policy”.

Cr Kingsley: “I believe you are probably correct.”

Cr Toms referred to a letter, from NSW Ombudsman investigator Michael Conaty, to Mrs and Mr Cairns, which was quoted in last week’s Independent.

According to Cr Toms’ part of the report to council, Mr Conaty, had “spoken to Mr Lindsay and told him it was his view [that] council had departed from its UCC procedure, which states: ‘Unless a complainant’s conduct poses a substantial risk to health and safety of staff or other third parties, the Director of Corporate and Governance [acting general manager Laura Black] will provide them with a written warning letter about their conduct in the first instance.’

Next, there were arguments about what was able to be said at the meeting, in relation to what was in (or not in) the “confidential” documents, and whether or not to go into a confidential session.

Cr Toms asked if she could “go to the letter”; however, Cr Williamson said he didn’t have a copy.

Cr Toms, “Here it is.”

Cr Williamson, “Then we have a problem.”

Speaking against going into a confidential session, Cr Toms said the “fact is [we have] a copy and now [you are] trying to keep a secret”.

Cr Simmons said, “I’m a bit confused at the moment, I got a letter from the ombudsman in the confidential papers addressed to … no, I withdraw.”

After one hour and 15 minutes of semantic arguments – about what should or shouldn’t be confidential, whether or not to have a five-minute confidential session (they did), and subsequently splitting Cr Tom’s motion into two sub-motions that meant considering lifting the UCC or issuing an apology could not happen if the first part was lost – debate began.

But before debate, answering a Cr Kingsley question about what happens if the first sub-motion is lost, Cr Williamson said, “Knock them both out so we can go home.”

Cr Simmons said he was “absolutely confused”; Cr Kingsley said, “too late, we’re in debate.”

Much like Groundhog Day, the story, ‘How a crack became a rift’, published in the Independent on October 6, was a virtual pro forma for the outcome and attitudes.

 

 

Court of confusion: what councillors said

 

Cr Toms said she hoped the outcome would be “fair and reasonable” and said there was “nothing wrong” with a ratepayer being “persistent”.

She said that CVC had not provided a warning letter to Shane Powell and Mrs and Mr Cairns before placing them on the UCC list – CVC’s UCC procedures policy states; “Unless a complainant’s conduct poses a substantial risk to the health and safety of staff or other third parties, the Director Corporate & Governance will provide them with a written warning about their conduct in the first instance.”

She said the ratepayers were “just cut off” without warning.

“Where are the incident reports that are supposed to be written within 24 hours … they have been named and shamed”.

Cr Lysaught said it was “incredible” that “we received in excess of 3,000 emails … if that’s not excessive, I don’t know what is … to me that borders on obsession”.

Cr Lysaught, however, did not mention that the email totals reported to council included “important caveats” according to the report to council, “first, the whole numbers do not represent examples of individual emails, rather, they are computed from emails being sent to another email address (thus, the one email can have multiple recipients—e.g., multiple staff members) and (ii) each email with a Council address (i.e., @Clarence.nsw.gov.au—i.e., for councillors and staff) is replicated for a ‘journal entry’.”

In other words, if an email is sent once, but is disseminated to other email addresses – councillors, staff, etcetera – the sum total of the received emails are counted as separate emails.

Cr Simmons also focussed on the volume of emails and said he “would be stressed” if he received that many emails and that it would have been at a “very high [financial] cost to council”.

Cr Ellem said the “very thick file” was “beside the point” and CVC “should have enacted the letter and, in this case, failing to write a warning letter constitutes not affording procedural fairness”.

Cr Baker said that councillors had unanimously adopted the UCC policy, and that related decisions made by senior staff were off limits.

“That’s the end of councillors’ role in controlling events,” he said.

He said it would be more appropriate “on the failure to act on one component” of UCC procedure – the warning letter – to review the policy.

“I certainly won’t reach paws into the operational component of council, as we are trying to do here,” he said.

Cr Clancy said, “What people think about this [issue being debated] will reflect badly on councillors … show some compassion … we need to do that so we can be seen as a fair and just council.”

Cr Williamson argued that neither he nor CVC were responsible for “naming and shaming” the ratepayers.

“So, I make no judgement on the folks in the report today,” he said.

“…Everyone in this room voted for the policy and now, when enacted, we seem to be a little bit jittery.

“If the motion today was to review policy, that is our job, we [councillors] are not in the workings of the council, nor should we be, this is shonky, this meeting is a joke.”

Cr Ellem called a point of order, “I think those statements are in danger of bringing the council into disrepute … Cr Toms has gone through all of the correct channels to bring this here today.”

Cr Kingsley to Cr Williamson: “Maybe your choice of words was a little strong”

Cr Williamson said, “We are entitled to an opinion … in a democracy … and [to] say what we think, [but] I take your point.”

Cr Ellem: “What’s your ruling?”

Cr Kingsley ruled that Cr Williamson’s words were “a little strong”.

Cr Novak said there was “no evidence that staff were put at risk” in her business papers.

Cr Simmons said the volume of emails received by staff “may well amount to mental stress, so I don’t think it’s fair to say no one’s [wellbeing] was endangered”.

Cr Toms called a point of order, saying, “There is no evidence, no incident reports [about staff] injured or hurt at work.”

Cr Simmons repeated that he would be “stressed if I received that many emails”.

Cr Toms called another point of order.

“The amount of emails has a caveat,” she said, “you need to understand how the email numbers [are so high].”

Cr Kingsley: “Cr Simmons did not refer to a number of emails, he said a ‘large volume of emails’.

Cr Simmons: “To see the volume of emails, I just threw my arms in the air – it’s difficult to come up with any other conclusion.”

In her right of reply, Cr Toms said, “It’s all well to say we have a policy and procedure; but we need to follow it, not do it different for different people.

“The emails are not accurate … if we were in a court they [the ratepayers] would get a far better hearing, there’s no democracy here.

“[The Information Privacy Commissioner] came back with a ruling they were entitled to the information [they wanted], they are open access documents.

“…This report is so biased that it demonises these people.

“The general manager took 97 days to get back to them … no wonder they were so persistent.

“They had every right to be persistent because the information they wanted was their legal right.

“This is a sad day when a report is written to make them [the ratepayers] look really bad.

“There is no balance at all [in the report] … it’s all against them.

Cr Toms maintained that CVC had “named and shamed” the ratepayers to “CVC’s 472 [fulltime equivalent] staff” by placing them on the UCC list – the ratepayers’ removal from the list is due for review on February 1, 2022.

During the more-than-two-hours it took to make a decision, there were several more points of order and dissent motions called – too many to relay here.

Cr Williamson’s declaration that the meeting was a “shambles’ rung true, however, that would depend on which side of the proverbial fence a citizen stands.

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