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Council Meeting 10 March 2020
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Minutes of Ordinary Council Meeting held on 10 March 2020 at Ashfield Service Centre
Meeting commenced at 6.30pm
Present: |
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Darcy Byrne Vittoria Raciti Marghanita Da Cruz Lucille McKenna OAM Colin Hesse Sam Iskandar Pauline Lockie Victor Macri Julie Passas Rochelle Porteous John Stamolis Louise Steer Anna York Elizabeth Richardson |
Mayor Deputy Mayor Councillor Councillor Councillor Councillor Councillor Councillor Councillor Councillor (6.36pm) Councillor Councillor Councillor Chief Executive Officer Chief Operating Officer, Director Development and Recreation |
Cathy Edwards-Davis Harin Perera Sasha Sutarov |
Director Infrastructure Chief Information Officer ICT Infrastructure Manager |
Ian Naylor |
Manager Governance |
Katherine Paixao |
Governance Coordinator |
APOLOGIES:
Motion: (Hesse/Steer)
THAT apologies from Councillors Drury and Kiat be accepted.
Motion Carried
For Motion: Crs Byrne, Da Cruz, Hesse, Iskandar, Lockie, Macri, McKenna OAM, Passas, Raciti, Stamolis, Steer and York
Against Motion: Nil
DISCLOSURES OF INTERESTS:
Clr Steer declared a non-significant, non-pecuniary in item 8 as her husband works for Optus.
Motion: (Hesse/Raciti)
THAT Council note the Disclosure of Interest.
Motion Carried
For Motion: Crs Byrne, Da Cruz, Hesse, Iskandar, Lockie, Macri, McKenna OAM, Passas, Raciti, Stamolis, Steer and York
Against Motion: Nil
CONFIRMATION OF MINUTES
THAT the Minutes of the Council Meeting held on Tuesday, 25 February 2020 and Extraordinary Council Meeting held on Tuesday, 3 March 2020 be confirmed.
Motion Carried For Motion: Crs Byrne, Da Cruz, Hesse, Iskandar, Lockie, Macri, McKenna OAM, Raciti, Stamolis, Steer and York Against Motion: Cr Passas |
Councillor Porteous entered the Meeting at 6:36 pm.
Confidential Session
The Mayor, Councillor Byrne, asked the Chief Executive Officer if any representations had been received from the public on any of the items Council will be discussing in Closed Session as per the Agenda.
The Chief Executive Officer replied that no representations had been received to talk to the items in Closed Session.
The Mayor, Councillor Byrne, asked if there were any members of the public gallery who would like to speak on the reasons Council proposes to consider the items in Closed Session.
There were none.
Members of the Public were asked to leave the Chamber.
Motion: (Byrne/McKenna OAM)
THAT Council enter into Confidential session.
Motion Carried
For Motion: Crs Byrne, Da Cruz, Hesse, Iskandar, Lockie, Macri, McKenna OAM, Passas, Porteous, Raciti, Stamolis, Steer and York
Against Motion: Nil
That in accordance with Section 10A(1) of the Local Government Act 1993, the following matters be considered in Closed Session of Council for the reasons provided:
C0320(2) Item 7 Cooks River Parklands - HJ Mahoney Reserve – Tender Recommendation (Section 10A(2)(c) of the Local Government Act 1993) that would, if disclosed, confer a commercial advantage on a person with whom the council is conducting (or proposes to conduct) business; and commercial information of a confidential nature
(Section 10A(2)(d)(ii) of the Local Government Act 1993) that would, if disclosed confer a commercial advantage on a competitor of the Council.
C0320(2) Item 8 RFQ 51-19 WAN, Internet and associated Services (Section 10A(2)(d)(ii) of the Local Government Act 1993) that would, if disclosed confer a commercial advantage on a competitor of the Council.
C0320(2) Item 9 SSROC Tender for Clean up processing (Section 10A(2)(d)(i) of the Local Government Act 1993) that would, if disclosed prejudice the commercial position of the person who supplied it; and commercial information of a confidential nature (Section 10A(2)(d)(ii) of the Local Government Act 1993) that would, if disclosed confer a commercial advantage on a competitor of the council; and commercial information of a confidential nature (Section 10A(2)(d)(iii) of the Local Government Act 1993) that would, if disclosed reveal a trade secret. (Commercial in confidence information)
C0320(2) Item 10 Lease to Transport for NSW - Land in Camdenville Park and Campbell Street St Peters (Section 10A(2)(d)(i) of the Local Government Act 1993) that would, if disclosed prejudice the commercial position of the person who supplied it; and commercial information of a confidential nature (Section 10A(2)(d)(ii) of the Local Government Act 1993) that would, if disclosed confer a commercial advantage on a competitor of the council; and commercial information of a confidential nature (Section 10A(2)(d)(iii) of the Local Government Act 1993) that would, if disclosed reveal a trade secret.
Motion: (Byrne/McKenna OAM)
THAT Council move back into the Open Session of the Council Meeting.
Motion Carried
For Motion: Crs Byrne, Da Cruz, Hesse, Iskandar, Lockie, Macri, McKenna OAM, Passas, Porteous, Raciti, Stamolis, Steer and York
Against Motion: Nil
Reports with Confidential Information
THAT:
1. Council accepts the tender from Bingo-Industries for the receival and processing of Clean Up material with an approximate contract value of $1,681,250 +GST per year.; and
2. The Chief Executive Officer be delegated the authority to sign the contract.
Motion Carried For Motion: Crs Byrne, Hesse, Iskandar, Lockie, Macri, McKenna OAM, Porteous, Raciti, Stamolis, Steer and York Against Motion: Crs Da Cruz and Passas
Foreshadowed Motion (Da Cruz/Passas)
THAT this item be deferred pending the Councillor Briefing next week.
This Foreshadowed Motion lapsed. |
Councillor Passas left the Meeting at 7:39 pm.
Councillor Passas returned to the Meeting at 7:42 pm.
Confidential Session
The Mayor, Councillor Byrne, asked the Chief Executive Officer if any representations had been received from the public on any of the items Council will be discussing in Closed Session as per the Agenda.
The Chief Executive Officer replied that no representations had been received to talk to the items in Closed Session.
The Mayor, Councillor Byrne, asked if there were any members of the public gallery who would like to speak on the reasons Council proposes to consider the items in Closed Session.
There were none.
Members of the Public were asked to leave the Chamber.
Motion: (Byrne/McKenna OAM)
THAT Council enter into Confidential session.
Motion Carried
For Motion: Crs Byrne, Da Cruz, Hesse, Iskandar, Lockie, Macri, McKenna OAM, Passas, Porteous, Raciti, Stamolis, Steer and York
Against Motion: Nil
C0320(2) Item 11 Code of Conduct Complaint Investigation contains alleged contraventions of any code of conduct requirements applicable under section 440.
Motion: (McKenna OAM/York)
THAT Council move back into the Open Session of the Council Meeting.
Motion Carried
For Motion: Crs Da Cruz, Hesse, Iskandar, Macri, McKenna OAM, Passas, Porteous, Raciti, Stamolis, Steer and York
Against Motion: Nil
Absent: Crs Byrne and Lockie
Report with Confidential Information
Councillor Lockie retired from the Meeting at 8:07 pm.
Councillor Byrne retired from the Meeting at 8:09 pm.
The Deputy Mayor, Clr Raciti assumed the chair.
THAT Council publish the finding and recommendations of the conduct reviewer’s report in the minutes of this meeting.
Motion Carried For Motion: Crs Da Cruz, Hesse, Iskandar, Macri, McKenna OAM, Passas, Porteous, Raciti, Stamolis, Steer and York Against Motion: Nil Absent: Crs Byrne and Lockie
Motion (York/Passas)
THAT Council make minor amendments to the Social Media Policy for Councillors as recommended in the final investigation report.
Motion Lost For Motion: Crs Iskandar, Macri, McKenna OAM, Raciti and York Against Motion: Crs Da Cruz, Hesse, Passas, Porteous, Stamolis and Steer Absent: Crs Byrne and Lockie |
Meeting closed at 8.28pm.
Findings and Recommendation for the Code of Conduct Report Item 11.
Respondent: Councillor Darcy Byrne
Complainant: Councillor Pauline Lockie
This section of the report sets out the findings in respect of each potential breach of the Code. These findings are based on the considerations set out in section 4 of this report.
That the Respondent was carrying out a ‘function’ for the purposes of the Local Government Act 1993 and Council’s Code of Conduct in relation to his posts concerning the apology issued to him by the Complainant.
That the Respondent breached the provisions of Council’s Social Media Policy for Councillors in that he made comments about another Councillor which a reasonable person would consider humiliating, and which included aligning motives of personal advancement to the Complainant and accusing her of being unprofessional, disrespectful and having bad manners.
That the Respondent breached clause 3.1(a) of the Code of Conduct, in that his social media posts and comments relating to an apology made to him by the Complainant was conduct which was likely to bring Council and a council officer (the Complainant) into disrepute.
That the Respondent breached the provisions of clause 3.1(b) of the of the Code of Conduct by failing to appropriately manage comments made to his posts and which was contrary to his obligations under the Council’s Social Media Policy for Councillors.
That the Respondent breached clause 3.2 of the Code of Conduct (Section 439 of the Local Government Act 1993), in that he did not apply a reasonable degree of care and diligence, in ensuring his comments on his social media platforms complied with his obligations under the Council’s Code of Conduct and Social Media Policy for Councillors.
That the Respondent breached clause 3.2 of the Code of Conduct (Section 439 of the Local Government Act 1993) in that he did not apply a reasonable degree of care and diligence, in ensuring the removal of material from his social media accounts which did not comply with his obligations under the Code of Conduct and Social Media Policy for Councillors.
Council Meeting
10 March 2020 |
The following recommendations have been amended to comply with the judgement of the Supreme Court, and advice of the OLG in that regard.
The following recommendation has been made, having considered the options available following the Supreme Court’s judgement in Cornish v Secretary, Department of Planning, Industry & Environment [2019] NSWSC 1134 & the subsequent issue of an advising on that judgement by the Office of Local Government through Circular 19-25/2. The judgement has restricted the remedies available under clause 7.59 of the Procedures for the Administration of the Model Code of Conduct to those relating to censure (Clause 7.59(h) and reporting of the conduct to the Office for consideration under the misconduct provisions of the LGA1993 (Clause 7.59(i). It was determined that the conduct did not rise to the level of seriousness to warrant that action. However, the judgement and subsequent advice of the OLG provides that it is still open to Council to make the findings of this report public under the provisions of clause 7.59(f) of the Procedures. Accordingly, and having considered particularly the public nature of the conduct, it is recommended that Council make the conduct public under clause 7.59(f) of the Procedures.
That the findings and determinations set out in this report are published in the minutes of the meeting at which Council considers this matter and as provided for under clause 7.59(f) of the Procedures for the Administration of the Model Code of Conduct.
The judgement of the Supreme Court in Cornish v Secretary, Department of Planning, Industry & Environment [2019] NSWSC 1134, did not affect the ability of Council to amend any policy arising out of a Code of Conduct Investigation. It is strongly recommended that Council revise its Social Media Policy for Councillors, and other related instruments if considered appropriate following this investigation and recent Court judgements. It is recommended that:
§ The Policy is currently written more as a guideline than a Policy. It is recommended that to ensure Councillor obligations are clear that Council considers amending the Policy to include clear ‘must’ and ‘must not’ do requirements.
§ That the relationship between a Councillor’s functions and use of social media are more clearly defined, and particularly where social media is used to promote Council functions and/or the work and activities of Councillors outside of Council’s administration. It is suggested that this might be achieved through a memorandum to Councillors, or through ongoing training provisions. Emphasis should be made in respect of the obligation of Councillors to administer comments on their social media accounts and to remove material which might bring them into conflict with the provisions of the Act, the Code and other instruments such as the Defamation Act 2005. Similarly, emphasis should be placed on the correlation between Social Media accounts (not administered by Council) used by Councillors to inform the community of activities and initiatives but which at the same time comply with the requirements of Council’s Policy and consider the risk of litigation under instruments such as the Defamation Act 2005.
The Minutes of the Ordinary Meeting of Council held on the 10th day of March, 2020 were confirmed as a correct record on this 21st day of April, 2020.
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CHAIRPERSON