Last Moonee Valley Council meeting was, at times, an unedifying display of governance – largely because the meeting rule-book was being ignored, but also because there appeared to be an undercurrent of vindictive politics governing the play.
I know: not everyone shares my love of deftly employed meeting rules. When the rules are clear and everyone follows them, it’s like well-choreographed theatre. The rules also help to keep at bay the petty politics that otherwise bubble to the surface and make everyone look bad.
An absence of clearly implemented meeting rules is obvious to those watching, and a meeting can quickly descend into a farcical mess. Worse than this, power can be abused. Meeting rules are a check on power and political pettiness, and a framework for fairness and transparency.
The MVCC meeting of Feb 27 was, more often than not, a mess. Rules ignored. Claws out.
Here’s what went wrong (IMHO!!).
- Can a public question be related to a matter on the agenda?
People can lodge a question by 12pm to be asked at a Council meeting. The relevant guidelines used to say:
After a question was read at the Council meeting on Tuesday 27 Feb, a Councillor queried why it was being accepted as it related to a matter on the agenda. The CEO responded that exceptions were being made. He said the ‘Executive’ decided the leniency would be applied.
Interestingly, the Public Question Time guidelines on the Council’s website no longer contain the requirement 5 above – this requirement has been removed. The new form on the website was created on the morning of the meeting: i.e. Tuesday 27 February:
The previous restriction meant people could not question Councillors immediately prior to a vote on an issue. The change is welcome, but what are the rules on this going forward?
2. How are minutes confirmed?
Every meeting, the minutes of the previous meeting are confirmed. On Feb. 27, this usually procedural matter became controversial. The following exchange took place:
Moved Cr Marshall, Seconded Cr Byrne: “that the Minutes be accepted”.
Mayor put to vote.
Cr Lawrence asked to speak to the minutes – “You didn’t even request any other Crs to speak to the motion.”
Mayor put to vote again, without letting Cr Lawrence speak.
Listening to the meeting, it seemed a bit harsh not to allow a Councillor to speak on the minutes. The Mayor had forgotten to ask if anyone wished to speak, and Cr Lawrence was cut off unnecessarily – and (hopefully) unintentionally. It seemed mean-spirited.
In fact, the meeting procedures suggest that confirming the minutes has always been done incorrectly at Council meetings. The rules state that the Chairperson must ask if there is any opposition:
8. Confirmation of the Minutes of a Meeting
8.1 When confirming the minutes of a Meeting, the Chairperson must ask if any item in the minutes is opposed.
8.4 If no Councillor indicates opposition, the Chairperson must declare the minutes to be confirmed.
8.5 If any Councillor indicates opposition, he or she must specify the particular item or items in the minutes concerned and can, after asking any questions to clarify the matter, only move a motion to rectify the alleged error(s) in the record.
So, it appears the process for passing the minutes at this meeting was contrary to the meeting protocols, and that Cr Lawrence should have been allowed to express any opposition to an item – provided it was in line with 8.5.
3. Was there a conflict of interest?
Six Councillors declared themselves unable to vote on a planning matter concerning the Moonee Valley Racing Club as they had accepted hospitality worth more than $500 in the last five years (notably, last October). It was indicated that they had previously been told the event they attended would be considered “reasonable hospitality”, but this advice had since changed.
There are a few points worth noting with respect to this unsatisfactory position:
- unless advice is legal advice, it’s not water-tight; and
- on December 12 last year, the state government proposed a new regime (yet to be passed by parliament) which does away with the notion of “reasonable hospitality”. Instead, a material conflict of interest arises when a Councillor has received a gift over $500 from a person affected by a Council decision (ie MVRC in this case). This may be one of the reasons the advice has changed.
Councillors did not mention the changing context. Even though the new laws have not yet been passed or implemented, clearly the emerging view is that gifts over $500 give rise to an outright conflict. Instead of explaining the changing context, there was a snarky verbal-rally between Councillors about criticising staff. Again, unedifying.
Conflict of interest rules have changed frequently. The 2009 changes are probably about to change again – to two broad categories instead of seven (or is it nine?) very specific categories.
In any case, a perception of conflict is often enough to taint involvement in a decision – which is effectively what the draft new provision of ‘General conflict of interest’ captures. Under this provision, the test is whether “an impartial, fair-minded person would consider that the person’s private interests” create a conflict with their public duty.
4. Can Councillors speak to items en bloc?
Three items in the meeting were moved en bloc (together). One Councillor spoke to one of the items. She was then told by an officer that Councillors could only speak to the question of whether the items should be moved en bloc.
In fact, the meeting procedures provide that:
16.5 A Councillor has the right to speak on any item they have not yet spoken on, even where the Meeting may be considering to deal with a number of items on the agenda, en bloc.
So the Councillor should have been allowed to speak on the matter.
5. Amending amendments and transparency
Finally, there was a Notice of Motion on the agenda related to improving Council’s transparency. It was a long item, and elicited a long, and controversial, debate. There are three things worth noting:
a) Improvements to transparency are a good thing – and this is reflected in the Draft Exposure Bill for the new Local Government Act that makes it mandatory for Councils to have a new ‘Public Transparency Policy’.
If the new legislation is passed, all Councils will need to provide more information on their website – including many of the things listed in the Notice of Motion. It might have been useful to put the debate and discussion in this context to guide Councillors towards the emerging state-wide considerations on ‘best practice’ transparency.
b) Secondly, there was much debate about whether Councillors should declare their properties, in and outside of the municipality, and their memberships of sporting, community and political groups. Again, it might have helped to put this discussion in the context of the current and changing legislative framework.
Currently, Councillors must complete a Register of Interests, but this can only be viewed on application to the CEO. There is a strange section (s.81) in the current Act that reads:
So the information on the register can be published – but only if it is accurate and fair. A strangely obvious qualifier.
The new draft Act instead provides that Councillors need to register the information prescribed by the regulations (not sure exactly what regulations are proposed), and that a summary of this information must be published on the Council’s website:
AND that any publication of matters on the register that is otherwise confidential, must be kept confidential (like the exact address of a property).
Again, it might have been helpful for Councillors to be guided by, or at least referred to, the new proposals. It’s not clear whether the regulations will specify memberships of groups and political parties, or whether these will be specifically excluded.
But Councillors could perhaps have formed more considered positions on these ‘interests’ with a bit more context about proposed legislative changes – about which there have been ongoing discussions since 2015.
c) Thirdly, an amendment was moved to the motion, seconded – and then amended again (by the mover), and seconded, – and then amended again. The meeting rules state that:
10.17 Once a motion is seconded it cannot be withdrawn or altered, except with the leave of the Chairperson or in accordance with this clause (which outlines the amendment procedures).
The Chairperson did not explicitly give leave for the amendment to be altered – although it’s best to conclude that’s what happened. It wasn’t clear how the rules for amending amendments were being applied.
More importantly, the minutes of the meeting don’t document any of the amendments, except the final form on which there was eventually a vote.
There is no clear rule about what should be in the minutes, but the minutes should be an accurate record of motions moved, including formal amendments, and resolutions of Council.
By omitting various amendments there is no record of the fact that Councillors debated whether or not to make transparent their ownership of properties and their membership of sporting and community groups.
In the final vote, the majority of Councillors voted not to disclose their political affiliations – having already argued against disclosing their property ownership as well as their membership of community and sporting groups.
Of course, we can look forward to continuing debate on this, including debates in the Victorian Parliament about the new draft Bill and the relevant Regulations. A new legislative context, will most probably mandate more clearly which Councillors’ interests need to be published on the website. It’s likely this will include property ownership per section 174 (2) (a) above.
All in all, the meeting made this stickler for rules a bit frustrated. Rules of procedure and governance are complex – but if they’re worth having, they’re worth getting right.