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REPORT of the PANEL of INQUIRY INTO the CITY of CANNING May 2014

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REPORT of the PANEL of INQUIRY INTO the CITY of CANNING May 2014 REPORT OF THE PANEL OF INQUIRY INTO THE CITY OF CANNING INTO OF INQUIRY OF THE PANEL REPORT WESTERN AUSTRALIA REPORT OF THE PANEL OF INQUIRY INTO THE CITY OF CANNING AN INQUIRY UNDER DIVISION 2, PART 8 LOCAL GOVERNMENT ACT 1995 May 2014 May May 2014 WESTERN AUSTRALIA REPORT OF THE PANEL OF INQUIRY INTO THE CITY OF CANNING AN INQUIRY UNDER DIVISION 2, PART 8 LOCAL GOVERNMENT ACT 1995 Dr Christopher N. Kendall Inquirer May 2014 TABLE OF CONTENTS Chapter One – Appointment of Inquirer and Terms of Reference 1 Publication of Department of Local Government’s Authorised Inquiry Report 3 Suspension of Council and Appointment of an Inquiry Panel 5 This Inquiry’s Terms of Reference 6 Royal Commissions Act 1968 8 Counsel Assisting 9 Inquiry Staff 10 Chapter Two – The Meaning of “Good Government” 11 Introduction 13 Good Governance 15 The Local Government Act 1995 and Good Government 20 Conclusions 27 Chapter Three – The City of Canning and the Authorised Inquiry Report 29 The City of Canning 31 The Authorised Inquiry Report 37 Chapter Four – Procedure and Natural Justice 41 Introduction 43 Public Hearings 45 Hearing Transcripts 47 Leave to Appear 47 Witnesses Summoned to Appear before the Inquiry 50 Investigative, Not Judicial 52 Procedural Fairness and Natural Justice: General Comments 54 Burden of Proof 55 Evidence before the Inquiry 55 Allegations Raised that Natural Justice Not Provided by Counsel Assisting 65 What do Natural Justice and Procedural Fairness Require in Relation to these Allegations? 67 Was procedural fairness provided such that I may rely on evidence not raised during the course of public hearings but cited in Counsel Assisting’s Written Closing Submissions? 70 Specific Written Submissions in Reply in Relation to Procedural Fairness Concerns 73 Evidence relied on by me when writing this Report. 79 Conclusions 80 i Chapter Five – The Council’s Relationship with CEO Mark Dacombe 83 Introduction 85 Performance Review for 2009/2010 Period 85 CEO Salary Increase 86 The Refocus Program 87 Councillors’ Differing Understanding of Refocus 88 The Cancellation of Refocus 93 o Councillor Mason’s Notice of Motion 93 o Mark Dacombe’s Email Expressing Concern over Motion 94 o Ordinary Council Meeting 13 December 2011 96 Appointment to Selection Panel 97 Mark Dacombe’s Relationship with Mike Richardson 98 Performance Review for 2010/2011 Period 99 CEO Mark Dacombe Separates from the City 101 o Meeting of 12 January 2012 101 o Mark Dacombe Surrenders position as CEO: January 2012 101 o Special Council Meeting 23 January 2012 102 o Mayor Delle Donne has Audio Device Switched Off 103 o Motion to Finalise CEO’s Departure 104 o Allion Legal Advice 25 and 27 January 2012 104 o Mr Dacombe Suspended on Full Pay – 30 January 2012 105 Analysis 105 o Councillor Mason’s Motions 105 o Issues in Relation to Mr Mike Richardson 111 o CEO Performance Reviews and Departure from the City of Canning 113 o Mayor Delle Donne’s Failure to Inform Council and Mr Dacombe of CEO Suspected Misconduct 121 Conclusions 122 Chapter Six – The Nicholson and Bannister Road Project 127 The Project 129 Scope of the Works 129 State and Commonwealth Government Funding 130 Funding from the City of Gosnells 130 City of Canning Council Involvement in Funding Process 130 Involvement by the City of Gosnells 131 o Garden Street, Yale Road and Nicholson Road Upgrade 131 o Main Roads Presentation: 6 September 2011 131 o Council Delays Project for First Time: 13 September 2011 132 ii o Letter from City of Gosnells dated 10 October 2011 132 o City of Gosnells Meeting with City of Canning: 22 November 2011 133 o The City of Canning Council Delays Project a Second Time : 13 December 2011 134 o Gosnells Examiner Article: 23 February 2012 134 The City of Canning Council Considers Project a Third Time: 13 March 2012 135 Construction Workforce 136 City of Canning Internal Workforce 136 The Decision to Outsource 136 Analysis 138 Conclusions 144 Chapter Seven – Centenary Avenue and Manning Road Project 149 Background 151 Scope of the Works 152 Special Council Meeting of 11 August 2011 153 Ordinary Council Meeting of 13 December 2011 153 Councillor Mason’s Motion 154 City of South Perth letter to City of Canning dated 13 January 2012 154 City of Canning Officers Recommend City of South Perth Undertake Works 155 Clause 3.14 of the Standing Orders 156 Analysis 156 o A failure by Councillors to Understand the Issues Before Them 156 o Clause 3.14 of the Standing Orders 159 Conclusions 165 Chapter Eight – Refuse Truck Purchase 169 Background 171 Ordinary Council Meeting 22 November 2011 171 Councillor Barry’s Recommendation 172 Analysis 172 Conclusions 175 Chapter Nine – The Southern Metropolitan Regional Council 177 Background 179 Loan Liability 179 Odour Complaints 180 Alternative Waste Management Options 180 Ability to Withdraw and Potential Consequences 181 iii Withdrawal from SMRC 181 Withdrawal from RRRC Project 181 Mayor to Seek Second Legal Opinion 182 Second Legal Opinion from Hardy Bowen Lawyers 182 Enforcement Action against RRRC 183 Decision to Withdraw 183 Response to Council’s Decision to Withdraw 185 Jandakot Airport Eastern Road Link 185 Request from SMRC for Temporary Closure of Bannister Road 186 Closure of Johnston, Lothian and Govan Roads 186 Objections to Proposed Road Closures 186 Analysis 187 Conclusions 194 Chapter Ten – Legal Services Tender 195 Background 197 Appointing a Legal Services Provider 197 Mayor’s and Deputy Mayor’s Lunch 201 Analysis 203 Conclusions 210 Chapter Eleven – Willetton Childcare Centre 213 Background 215 Ordinary Council Meeting 14 September 2010 216 Council Forum 25 November 2010 217 Follow up Email from Fiona Armstrong 217 Ordinary Council Meeting 18 January 2011 218 Section 3.58 of the Local Government Act 1995 220 Lotterywest Grant Approved 221 Advice Sought from External Sources 221 o Legal Advice from McLeods 221 o Advice from Landgate 221 Council Forum 29 June 2011 223 Ordinary Council Meeting 12 July 2011 223 Dealings with Lindsay Holland 224 Public Question Time 224 Review of Community Use Buildings: Ordinary Council Meeting of 13 September 2011 226 WCCCC Becomes a Part of Community Asset Review: 13 December 2011 226 iv Ordinary Council Meeting 24 January 2012 227 Ordinary Council Meeting 27 March 2012. 228 Involvement of the Department for Communities 228 Email of 28 March 2012 Updating Parties on Council’s Decision 230 April 2012 Meeting 230 Ordinary Council Meeting 26 June 2012 230 Analysis 233 Conclusions 245 Chapter Twelve – Engineering Consultancy Services Tender Executive Engineering and Technical Service 249 Facts 251 Engineering and Consultancy Services Tender 251 o Council Considers Tender 251 o Review of Original Tender 253 o Blanchard Consultancy Given another Opportunity 253 o Council Considers Tender for the Second Time 254 o Recommendation to Appoint a Panel 254 o Council’s Amendment to the Recommendation 255 o Consequences of Council’s Amendment 256 o Notification of Unsuccessful Tenderers 256 o Legal Advice from McLeods 256 o Mark Dacombe Destroys Copies of McLeods Advice 257 o Advice sought from WALGA 257 Recruitment, Executive Engineering and Technical Services 258 o Temporary Appointment of Kevin Jefferies 258 o Councillor Mason’s Motion to Halt Recruitment 258 o Administration Seeks Approval to Review Engineering and Technical Services Division 259 o Councillor Mason’s Motion 259 o Mark Dacombe Informs Mayor and Councillor Mason of Headhunting 260 o Mark Dacombe’s Concerns in Relation to Mayor Delle Donne and Councillor Mason Sitting on the Selection Panel 261 o Email of 9 December 2011 from Mark Dacombe to the Mayor and Councillor Mason 261 o Council Votes to Appoint Mayor and Councillor Mason to Selection Panel – 13 December 2011 261 o Interviews for Executive Engineering and Technical Services Position 261 o Applicants Shortlisted for Position 262 o Mayor Concerned Due Process not adhered to 262 v o Outcome of Interviews 262 o Mark Dacombe Suspended as CEO 262 Second Attempt – Recruitment, Executive Engineering and Technical Services 263 o Preferred Candidate Determined 264 o Councillor Barry’s 13 Questions 264 o Officer Recommendation 265 o Councillor Mason Withdraws from Chambers 265 o Motion Moved to Adopt Recommendation 265 o Recommendation Rejected 265 Analysis 268 o Issues of “Undue Influence” – the Mayor’s Relationship with Terry Blanchard 268 o Engineering Consultancy Services Tender 271 o Recruitment, Executive Engineering and Technical Services 278 o Recruitment, Executive Engineering and Technical Services Second Attempt 279 Conclusions 280 Chapter Thirteen – Willetton Sports Club 285 Background 287 Lease Agreement 287 2009-2010 Period 287 President John Tidman 288 New Business Plan 288 Formal Request for Support 288 Andrew Sharpe Resigns from WSC Board 289 Deputation to Council 289 Advice Provided by Andrew Sharpe 289 Council’s Decision 290 Analysis 290 Conclusions 291 Chapter Fourteen – Regulatory Services 293 Review of the City’s Regulatory Services 295 Lack of Confidence 296 Analysis 296 Conclusions 297 vi Chapter Fifteen – Governance 299 Attendance at Council Forums 301 Induction Training 302 Continuing Education Post Induction 304 New South Wales Elected Member Skill Set 306 WALGA Elected Member Training Program 307 Remuneration for Councillors 311 Public Question Time 314 Minutes and Agendas 315 The City of Canning’s Standing Orders 318 “Secret Votes”
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