Paying the price

Many people advised me against having a say on how our Shire is being run, and putting forward my views.

‘Look out,’ they said. ‘They will find a way to stitch you up.’

‘Keep your head down, or it will get kicked,’ others warned.

I decided instead to go ahead and exercise my right to free speech, to run the risk of retribution, because I don’t want to live in a society like that (I didn’t think ours was a society like that), and I strongly believe a diversity of views is the essence of good government.

That didn’t make it any easier when the kick in the guts arrived this week.

The road pictured above is the road I live on, Blackwood Park Road. It is one of the oldest, and worst, roads in the district. It has two blind bends and one blind crest. It is narrow, parts are tree-lined with no shoulders, and is slippery and pot-holed in winter, corrugated and dusty in summer.

It is so notoriously bad the local taxi driver will not take the fare if the pick-up or destination is Blackwood Park Road.
But it is the road my wife and children must travel on at least twice a day, usually more.

In 2009 this 100 year-old road finally made it on to the tail end of the Council’s five year “Strategic Plan” to be sealed (in stages.)

In 2010 it was still on the plan, with the work due to begin in 2012/13 – this financial year.

In 2011, it was still on the plan, with the work due to commence this year, with stages 2 and 3 listed for the following two years.

My neighbours and I were looking forward to the workmen and machinery appearing any week now.

But behind closed doors Council recently decided there are now other priorities and Blackwood Park Road has been removed from the list of roads to be fixed this year.

Presentation I gave to Council meeting last week

Councillors, I want to make the point that Zinneker’s House is an important issue not only because of the Heritage considerations, but also because of the way the recent decision to demolish it came about.

This circumstances of this decision raise questions about the conduct of this Council and the advice it gets from officers.

What is at stake here is whether the citizens and ratepayers of this community can have confidence in this Council’s decisions and its decision making processes.

People are entitled to ask the simple question of how you, their representatives, went from a decision to retain the building and spend money fixing it up in December 2010, to voting unanimously that it should be demolished just 16 months later.

You cannot tell me that this represents good governance.

The CEO told Council in December 2010 that the issue had been coming before Council for nine years and it was time to make a final decision. I was on Council that night and I remember we had a long and robust debate, and in the end we rejected the CEO’s recommendation to get rid of the building and we resolved to retain it. 
 

So does give cause to wonder why the issue was brought back to Council at all.

And central to the question of how Council came to reverse its position in April is the issue of whether the existing resolution to retain the building should have been rescinded, or revoked, prior to considering the officer’s recommendation to demolish the building.

Let me try to explain why I think this rescission issue is so important. Lets think about why a special process for revoking decisions exists, why it is outlined in the Local Government Act and its regulations.

It is there essentially to prevent Councils from doing backflips, from contradicting themselves and from flip-flopping on issues.

It requires that a motion to change an existing position must be signed by at least a third of councillors before it can be moved and that such a motion must be passed by an absolute majority.

These special processes around rescinding or revoking an existing decision are going to ring an alarm bell, to flash an amber light, and ensure councillors realise they may be about to throw out what might have been a very carefully considered decision taken at a previous Council meeting.

I submit that if this had happened in April this year, there may have been some further investigation and consideration by councillors, perhaps some public consultation, and perhaps some debate about whether to reverse the previous decision and demolish Zinnecker’s House… and the outcome may have been different.

The CEO told you there was no need to rescind the motion in this case, and he says his view was endorsed by someone, who must remain nameless, in the Department.

But councillors I respectfully submit, that you should make up your own minds, based on the facts and your own judgement, whether a Council resolution to retain a building should be rescinded prior to considering one which says to demolish it.

The relevant Regulation under Local Government Act Section 5.25 (e) says rescission should apply where; “the effect of the change would be that the decision would be revoked or would become substantially different.”

I think its clear what happened between December 2010 and April this year falls squarely into that category.

And while I’m on the subject, it seems to me there is another fundamental reason why exising decisions should be rescinded or revoked before they are reversed.

The Local Government Act states that it is the role of the CEO to carry out and implement, all decisions of Council.

Obviously, it would put a CEO in a difficult and perhaps untenable position if he or she was required to carry out two contradictory instructions.

As it stands our CEO should currently be arranging repairs to Zinnecker’s House and arranging for its demotion at the same time.

The CEO, and someone in the Department, say there was no need to rescind the Decemeber 2010 resolution because it has been carried out by retaining the building until now. But item 2 of that resolution commits to spending $30,000 to repair the  building over three years. We are only just into the second year of that maintenance program, which has not commenced.

If the CEO does not arrange to spend $30,000 on fixing Zinnecker’s House, he, in my view, has failed to carry out his duty as specified in the Local Government Act.

In essence, I believe it is nonsense to say that the resolution to retain and fix the building need not be rescinded before you can pass one to demolish the building.

The author Aldous Huxley once said: Facts do not cease to exist because they are ignored…

No matter how many times the CEO says it was not necessary to rescind the existing motion and no matter how many times he quotes an anonymous person in the Department endorsing his view, I will not accept it, no reasonable person would accept it and nor should you.

Over here in the real world, where the people who put you into those chairs live, a change from retaining a building to demolishing it, is a reversal. It is the opposite, it is a backflip.

And in the real world, when someone takes a shortcut like that, when proper processes are not followed that is wrong.

I have sat in one of those chairs. I know it is difficult to make decisions when opinion is divided. The question of what to do with Zinnecker’s House is a tough one. No matter which way you go, people will disagree and be unhappy.

But if you follow a proper and open processes, if you observe the rules as they are plainly meant to be read, if you take into account community opinion and have a robust debate, nobody can question your right to vote as you see fit. 

To sum up…. In April, the decision-making process in relation to Zinnecker’s was flawed. But you councillors have the power to set things right. My humble suggestion, is that you simply revoke the decision to deconstruct Zinneckers House, allowing the Council resolution made in December 2010 to stand.

Thank You.

Physician, heal thyself!

Wow. Talk about disingenuous… the CEO leaves the President for dead.

In today’s Donnybrook-Bridgetown Mail he attacks me as being “incorrect” and failing to research matters. These are quite damning accusations, so let’s test them.

He refers to my complaint to the Department of Local Government (DLG) that Council failed to rescind its existing resolution to retain Zinnecker’s House before it passed one to demolish it.

He then suggests I have asserted his claim to have advice from DLG that rescission was not necessary was a major determinant in councillors deciding not to rescind.

“This is totally incorrect, and unfortunately demonstrates Mr Southwell has failed to research the matter,” Mr Clynch is quoted as saying. “Nowhere in my report to the April 2012 Standing Committee… did I mention anything about DLG…”

This is what is known as setting up a straw doll, then knocking it down.  I have not stated, nor was it part of my complaint, that Mr Clynch told the Standing Committee he had advice from the Department when he advised councillors it was not necessary to rescind the existing motion.

I know, because I have properly researched the issue and kept copies of everything that he only claimed to have advice from the Department backing his assertion that rescission was not required when he was asked a question about the matter at the July Council meeting.

Mr Clynch must be referring to my comments on the issue on this Blog. It’s good to know he is reading it, but he should do his research properly. This excerpt from a post below shows that I put the chronology clearly and never said he had mentioned DLG advice when assuring councillors they did not have to rescind. Rather, I said he mentioned it ‘when called to account publicly’.

I wrote on August 6:

IT would be an untenable situation if a Shire CEO had given councillors incorrect information causing them to breach proper procedures, then when called to account publicly he misled them (and the community) by falsely stating he had official advice that the information he had given was correct.

I’m not sure if this has happened, but consider the following;

-   -- At the April Council meeting, CEO Tim Clynch asked councillors to vote for a resolution to “de-construct” (demolish) historic Zinnekers House in Hampton Road. This motion contradicts a previous resolution by Council, passed in December 2010 that the house in question should be “retained”. Yet in written background information given to councillors, the CEO said there was no need to rescind the previous motion (which is required if a Council is going to reverse an existing position).

-      --   At the July Council Meeting, Mr Clynch told Council and the gallery: “ Advice received from the Department of Local Government was that the decision by Council a few years earlier had been acted upon therefore it did not require a rescission.”

   This is clearly a case of the pot calling the kettle black!

Lets be honest...

Shire President Brian Moore phoned in to ABC Radio’s South-West Morning show last Thursday to defend the CEO and the Shire in relation to the decision to demolish Zinnecker’s House.

He made three points;

-        It is not the CEO, but the councillors who made the decision

-        The Shire does not have a lot of money to spend on doing up buildings - $30,000 is the equivalent to a one per cent rate increase.

-        Of the people he has spoken to in the last few weeks only one complained about the decision to bowl over the house.

But I think he was being more than a little disingenuous. Let me ‘deconstruct’ these points…

True, the CEO does not make the decisions, but he makes recommendations to Council which these days are invariably followed.  In the case of Zinneckers House, the CEO recommended in 2009 and 2010 that the house be removed. In both cases, Council rejected his advice and DECIDED to retain the house.  Undeterred, the CEO brought the matter back again earlier this year with yet another recommendation to get rid of the house. This time, a compliant Council agreed, without even discussing the matter.

So the reality that is that the CEO effectively makes the decisions, due to the compliant mindset of the current councillors.

True, the Shire has only limited resources and spending an extra $30,000 requires a rate rise of one per cent. But what Mr Moore did not mention is that the Shire also has hundreds of thousands of dollars stashed away in “reserves” which are earmarked for such things as building improvements. And as he spoke last week about not being able to afford to fix  Zinnecker’s House, more than a million dollars of ratepayer’s funds (along with $2m of State taxpayer funds) was being spent on building a large “state of the art” library up the road.

So the reality is that Zinnecker’s House can be fixed without a rate increase being necessary, as the President suggested.

It may be true that only one person has approached Mr Moore to complain in person about demolishing Zinnecker’s House, but perhaps that is because the many hundreds who have signed a petition protesting the decision believe that by doing so they have already registered their objection and that Mr Moore and his collegues will pay heed to the petition.

So the reality is that many, many people have objected to the Council’s decision.

Hoist with his own petard

When Shire CEO Tim Clynch CEO prepared the agenda for a Council meeting in December 2010 he included a proposal for disposing of historic Zinnecker's House.

 In background for councillors, contained in the minutes he stated:

 “The future of Zinnecker’s House has been debated at length over the last ten years or so. Whatever decision Council arrives at this time should be considered final and implementation of that decision should proceed as soon as possible.”

But the CEO's proposal was rejected by Council, which voted instead to "retain" the building.

 Despite his commitment to honour "whatever" decision was made that night, in April this year (with two of the councillors who voted to save the house now off the Council) Mr Clynch brought the matter back, recommending again that the house be demolished. This time, he succeeded.