[Note from the webmaster: Kangaroo Island Councillor Ken Liu has been tenacious in questioning the misuse and abuse of “legal advice” as well as the increasingly high expenses indulged in for generally trivial or unnecessary such “advice”. Readers will easily notice that the “answers” provided are rather convoluted…

See also :
Councillor Liu asks the CEO to explain his allegations re who’s responsible for legal expenses — QoN 2011.11.09; Council decides to keep its reply secret
and
Councillor Liu’s questions re Council legal expenses for investigating alleged Code of Conduct breaches by elected members, 2011.05.04 ]

Questions on Notice

Elected Member Legal Expenses

11 April 2012 Council Meeting

My questions below are related to Item 8.1.8 of March ordinary council meeting agenda, in which I was wrongly blamed for incurring an expenditure of $1,224 the costs for seeking full copies of the legal advice at the January (in-confidence) meeting.

Question 1

Why were my request for retraction of the untrue statement contained in the report and Mayor’s apology not recordedin the minutes of the March meeting

Answer 1

The CEO withdrew the report as he was not able at the time to provide the evidence that the information had been requested by Cr Liu and as a result could not prove the veracity of the report and, rather than debate this, chose to withdraw the report. Cr Chirgwin raised the issue of an apology being made in the minutes at the time and the Mayor explained that as the report was withdrawn there was no need to make and record an apology.

Question 2

Whatever the intention of the addendum report (Item 8.1.8 of March meeting) was, given the Mayor’s admission to the inaccuracy of the report and her undertaking to withdraw the item:-

(a)  Why does this addendum report still appear on Council’s website as at 27^th March 2012 (almost 2 weeks later)?

(b)  Why have there been no instructions issued by either the Mayor or the CEO to have the hard copies of the report distributed during and prior to the meeting returned? and

(c)  Why have the recipients of this report via email to date not been advised to delete this document from their PC?

Answer 2

The report was a “for information” report stating that the work around this item was now complete and available for viewing. As is practice where expense is incurred in completing requests we are highlighting this in the interests of transparency and openness.

As reported above, the CEO withdrew the report as he was not able to provide the evidence at the time that Cr Liu had requested the information – the Mayor could not admit inaccuracy or otherwise as she was not the author of the report and she did not need to undertake to withdraw the report as the CEO had already stated that he would withdraw the report and resubmit at a later meeting.

(a) Agendas – amending Agenda items has not been the practice in the past – Agendas have been left in their original state with the minutes recording the amendment of the Agenda accordingly. To clarify this position the CEO has taken advice that explains that this process meets the needs of the State Records Act. The advice in full is as follows:

• the agenda is the formal record to identify the order of business for the Council meeting;
• once the item is included in the Agenda and is made public, the agenda remains unchanged;
• this is because an agenda is a historical record and also an official record for the purposes of the State Records Act, which means it must not be altered or interfered with (including any reports that supported the agenda);
• the minutes of the meeting is the appropriate document to record what actually occurred at the meeting.

The Minutes reflect the withdrawal of the report and are therefore correct. As the report was withdrawn there is no need to record any request to remove or discussion around this item in much the same way as discussion around any item is not recorded only the decision. In this case the decision was to withdraw the report.

(b) As the majority of hard copy Agendas are held by Elected Members and Staff and given that all were present at the meeting and understood that the report was withdrawn (as were two other reports later in the meeting – 17.1 and 17.2). As explained in a) above this is the correct process.

(c) The only people to receive the report electronically are the Elected Members and Staff – as per the answer to b) above – all were at the meeting and all were aware that the report had been withdrawn. Again as per advice in a) above the original Agendas are correct.

Question 3

Why was the reply to my ‘questions on notice’ under Item 21.3 of January 2012 Report – Elected Member Legal Expenses, previously resolved as an in-camera matter under Section 90(3)(a)&(h) of the Local Government Act 1999, whereas now the same subject is allowed to be made public without a formal resolution of Council?

Answer 3

The CEO produced a report by direction of Council for the 12 October Council Meeting. This was a high level report and, whilst presented in confidence by the CEO, was moved out of confidence by decision of Council at that meeting. This report prompted a subsequent Question on Notice from Cr Liu in the 9 November 2011 and this report contained detail that would be inappropriate to have in the public realm. Council chose to accept the report and maintain the report in confidence.

The report presented and subsequently withdrawn in the April meeting did not contain any information that could be determined to be confidential in nature at all and therefore was treated as a report for information only.

Question 4

Who authorized the expenditure of $1,224 for full copies of the legal advice and please explain as to why it was so costly for the collating and copying of information which Council already held?

Answer 4

At the 9 November Meeting of Council (item 10.3) the CEO raised the issue of the likely time and resource requirements to address a request for legal information from Cr Walkom and, in the absence of perceived value to Council / Community and Administration, this request was deemed to hold a low priority for internal time and resource allocation and would be unlikely to happen in a suitable timeframe. As we are obliged to attend to any Elected Member request (without question), cost is not determined to be a factor to consider and therefore to comply with the request, external resources would be taken on to provide the information. The simplest way for the information to be collated was to contact the legal firms who supplied the advice in each instance and ask them for copies of the advice supplied.

Following is a revision of the report that was withdrawn during the March Meeting. As it is linked to the original Question on Notice and subsequent reports and this Question on Notice we have determined it appropriate to be provided under this item.

Further to the answers given to the QON in the January Meeting of Council In confidence item 21.3), Cr Liu emailed the CEO on the evening before the January meeting of Council with the following request:

From: Ken Liu [mailto:ken.liu@bigpond.com] Sent: Tuesday, 17 January 2012 9:18 PM To: Andrew Boardman Subject: Item 21.1.3 of 18/1/12 Meeting Re QON Elected Member Legal Expenses

Dear Mr Boardman,

I would appreciate it if you would provide me with a copy of all legal advice referred to in the report for my perusal before the meeting.

Thank you. Cr Ken Liu

The CEO responded:

From: Andrew Boardman Sent: Wednesday, 18 January 2012 6:39 AM To: ‘Ken Liu’ Cc: ‘Jayne’ Subject: RE: Item 21.1.3 of 18/1/12 Meeting Re QON Elected Member Legal Expenses

Ken – morning

Thank you for your email. I have forwarded your request to Jayne and copied you in on it – hopefully she will pick this up before leaving the house this morning and bring it with her.

regards…………..Andy

Cr Liu did not approach the Mayor for review of this information at this time (or indeed subsequent to this). During a review process to ensure that all information was accounted for and present it became clear that some of the advice was not in the files already compiled by the Mayor to meet the needs of Cr Walkom (it is noted that much (but not all) of the advice Cr Liu wished to review crossed over with the information request by Cr Walkom). This advice pertained to matters other than that required by Cr Walkom and therefore required collating and, given some of being sensitive in nature, it was determined that the provisions already existing for the material to be made available for viewing through the Mayor be followed and the collated material be held by the Mayor in a specific file. In line with the advice given at the November Meeting that collation of this material did not attract a priority for staff, the collation was outsourced to the providers of advice. This incurred the additional charges reported as being $1,224. Had the request not been made specifically by Cr Liu then we would not have collated the additional materials that failed to cross over with the information requested by Cr Walkom, it is therefore pertinent that the cost of collation be attributed to Cr Liu in line with the reasoning for the original report, requested by Council and delivered in October 2011.

At the time of writing no Councillor has made arrangement with the Mayor to review the legal advice, collated on request, which was referenced within the report generated on Legal Expenses, received in the public arena at the October Council Meeting (item 20.3) and then expanded upon in confidence in the January Meeting. It is to be noted that substantial time has been put into this collation by the Mayor (and latterly the CEO) to meet these requests.

End of answer 4

*************

Thank you for your attention.

King regards

Cr Ken Liu
Kangaroo Island Council
P O Box 80, KINGSCOTE  SA  5223
Ph: (08) 8553 2823   Mobile: 0428 322 005