Toodyay Herald

It caught some councillors by surprise after their 5-4 decision in March “to not offer Mr Scott a new contract of employment”.

A government inquiry based on ‘reasonable suspicion’ local government laws and regulations were breached during Mr Scott’s current and previous contract as shire CEO was announced last December.

It followed 10 months’ official monitoring and a warning that the shire had shown “not only a lack of understanding of the provisions of (Freedom of Information) legislation but also a propensity to misinterpret other legalities and procedures”.

Three Perth investigators were reported last month to be continuing their interviews with local ratepayers while gathering evidence for a report to WA Local Government Department Director General Duncan Ord and State Local Government Minister David Templeman.

A spokesperson for the department said that the Shire of Toodyay remained one of five WA councils subject to an “authorised inquiry” ordered by the State under Section 8.3 of the Local Government Act.

The inquiry was “still underway and a report will be prepared in due course” the spokesperson said.

In a separate development, Mr Scott and Shire President Brian Rayner were found last year to have breached the Shire Code of Conduct by publishing derogatory statements in the ratepayer-funded April 2018 Toodyay Community Newsletter.

Both have refused to apologise and told last month’s council meeting that it had no power to order them to apologise.

The shire also failed to “meet expectations” or had “not done” what was required in eight out of 11 areas examined in a highly critical WA Auditor General’s report on record keeping at four WA local government authorities tabled in State Parliament in April.

A motion by Cr Judy Dow to re-employ Mr Scott as interim CEO for a further 12 months next month did not appear in last month’s published council meeting agenda.

Ratepayers in the public gallery were ordered to leave the chamber for two items of ‘confidential business’, including ‘recruiting process and options for appointment of new CEO’.

The first item – a notice of motion by Cr Bill Manning that Mr Scott and President Brian Rayner apologise for breaching the Shire Code of Conduct last year – was excluded from the agenda by Mr Scott and President Rayner.
Cr Manning, seconded by Cr Ben Bell, moved a dissent motion against the exclusion.

It resulted in a 4-4 deadlock, with Crs Manning, Bell, Rob Welburn and Eric Twine voting to reinstate the item, and President Rayner, Deputy Shire President Therese Chitty and Crs Judy Dow and Paula Greenway against.

President Rayner then used his casting vote to defeat the motion 5-4.

Mr Scott left the chamber when the second item – a confidential report by People and Projects Manager Tina Phillips about hiring a new interim CEO – was moved by Cr Rob Welburn and seconded by Cr Eric Twine.

It was lost 6-2 with only Crs Manning and Bell in favour after Cr Dow foreshadowed an alternative motion to offer Mr Scott another 12 months in the job.

President Rayner adjourned the meeting while he and Deputy President Chitty left the chamber to call WA Local Government Association (WALGA) compliance manager Tony Brown in Perth for advice.

Ratepayers waiting outside the shire building saw the pair through a window talking to Mr Scott in a side room about a confidential shire report marked in red that had not been given to the public gallery.

When the meeting behind closed doors resumed with Mr Scott still out of the chamber, Cr Dow moved to revoke a 6-1 council decision carried in her absence on May 14 that the shire ask the Local Government Department and WALGA for a list of potential interim CEO candidates.

Cr Dow spoke from prepared notes and said she had already asked Mr Scott if he could stay for another 12 months.

She provided no prior notice to the council of her alternative motion before debate on it started behind closed doors.

Her motion to revoke the council’s May 14 decision was supported by Crs Greenway and Welburn, who were joined by President Rayner, Deputy President Chitty and Cr Twine to pass it 6-2, with Crs Manning and Bell against.

President Rayner accepted Cr Manning’s request that every councillor’s vote be recorded in the minutes.

Cr Dow then moved her alternative motion, seconded by Cr Welburn, to offer Mr Scott a “temporary” CEO job for 12 months when his contract ends on July 22.

It was again carried 6-2, with Crs Manning and Bell opposed, and Cr Manning again asked that every councillor’s vote be recorded.

President Rayner told The Herald he expected details of the CEO’s new temporary contract to be considered at the next ordinary council meeting at 4pm on Tuesday on June 25.

Mr Scott’s current contract includes a total financial package worth $222,791 a year – reviewable annually – unrestricted private use of a local government vehicle – including during annual, long service and other paid leave – for himself and a spouse, five weeks’ paid annual leave and all gazetted WA public holidays.

Recently the council voted not to renew the contract of their CEO Stan Scott when it ran out in July.

Now that is not overly unusual and it’s not necessarily a reflection on the CEO’s performance.

Sometimes councils and their CEOs just decide to go their own ways.

Nadia: But what’s unusual is that last night they suddenly changed their minds and gave him another 12-month contract.

Now this is for a job that is worth more than $200,000 a year and all of this while there is a departmental inquiry underway into the Shire of Toodyay investigating possible breaches of the Act and fresh elections are due in October.

So what’s going on here?

Let’s ask Brian Rayner – he’s the Toodyay Shire President – good morning to you.

President Rayner: Good morning Nadia.

Nadia: Now why did the council change its mind about the CEO’s contract?

President Rayner: No what actually happened was that council put out a council resolution last night that they would employ a temporary CEO and involve WALGA, the WA Local Government Association, to instigate the process.

It was $2000 for the actual process to go ahead and council voted that they shouldn’t pay $2000 to WALGA to instigate the program.

There was also an alternative motion flagged at the same time that if this officer’s resolution didn’t get up that the alternative motion could be heard.

Nadia: So you didn’t want to pay $2000 to WALGA to go through the process of a new CEO but you were happy to pay over $200,000 to bring back a CEO that the council had voted not to renew his contract?

President Rayner: Not quite right. We would still have had to pay up $200,000 for a temporary CEO whether we got it from WALGA or whether we re-employed the current CEO.

Russell: So it was to save the $2000 though you decided you would re-employ the current CEO.

President Rayner: Yeah, well that was more or less because we can do it in-house. We have the skills to draw up a contract for the current CEO provided the current CEO is of approval of their contract that’s drawn up.

Russell: Now as we said at the outset about the CEO – and this is not a comment about the CEO at all – but you as a council had decided that you wanted to move on from this CEO?

President Rayner: That was voted back in March not to renew his contract, yes, but in the interim because of the inquiry which is by the Department of Local Government and that started on the 6th of December and then also we’ve had a ward review to coincide with the election coming up in October and council voted that they get rid of the wards.

We have four wards. We have north, south, east and west, and nine councillors.

We put up a resolution to the Department of Local Government board advisory that we would abolish wards and retain nine councillors and that would come up in the October election and there will be five vacancies.

Russell: How does that reflect on the role of the CEO?

President Rayner: The CEO, the people that councillors have voted for back in March believed that a temporary CEO be employed for a period while the inquiry was on and also the new councillors in October if we employed a temporary CEO for six months.

Councillors in October that were newly elected or the current ones that re-sat would have a chance of employing a new CEO.

Nadia: But wouldn’t it be fairer to have a interim one given that there is an investigation underway as well?

President Rayner: There’s been no allegations or anything drawn against the shire by the inquiry so far.

Nadia: No, because the investigation is still going on.

President Rayner: Yes, it could be going like the City of Perth, go for two and a half years.

Nadia: Why is the investigation underway?

President Rayner: People outside the department and it is pushed by the paper and the Toodyay Progress Association that the Shire of Toodyay is not compliant with any of their rules and regulations and that’s why they the outside people have asked for an inquiry into the shire and because the inquiry is conducted by the Department of Local Government that is what the process is.

Russell: And so since the last election has there been a significant change to personnel in terms of shire councillors?

President Rayner: Yes.

Russell: And has that impacted on the vote? I don’t want to say in the confidence of the CEO but whether to employ him or not?

President Rayner: Yes, there has back in October 2017 we had four new councillors and one of them resigned after four months of employment as a councillor and then we had a long-standing councillor of 13 years due to her own personal reasons and health decided to resign so we had an extraordinary election in June last year and two new councillors were elected.

One of those councillors, one month after he was elected, applied for six months’ leave of absence to work in the eastern states so he was not more or less participating as a councillor.

He was just a figurehead as a councillor more or less so he didn’t attend meetings.

I think he attended one in December when he come back for Christmas and then he came back for the one in March when we voted to not renew the CEO’s contract.

Russell: So if I’ve got this right, the votes were originally 5-4 in favour of removing the CEO and then with the new stock at the chamber it was 6-2 in favour of retaining the CEO?

President Rayner: Yes that’s correct.

Nadia: Do you see how this just doesn’t quite seem right if you just look at this from a ratepayers’ point of view that demands transparency and accountability?

Surely you can see how people would be questioning why you don’t renew the contract of the CEO and then suddenly decide and – putting your $2000 aside – surely this can’t be the only reason that you then say ‘actually no, we will have him back?’

President Rayner: No, also in Toodyay at the moment we have four major projects in operation. The CEO has been across all those.

Nadia: Yes but it’s not hard for a new CEO to get across projects, I mean transition periods are pretty thorough these days. I understand what you are saying, I probably just don’t buy it.

President Rayner: OK well that was the view of the council, whether you buy it or not, that is the view of the council that because of the four big projects, which is the sport and recreation precinct project of about $14 million, we have a new Nunile-Coondle fire shed which is $450,000, we have a new re-roofing of the Newcastle Gaol with shingles on it which is a $300,000 project and we’ve also got a $300,000 project for renovations to the Morangup Community Centre.

So there’s some big projects happening just this year and the CEO has been across all those and the council believe that it was better to have a person across the board that knew exactly what was going on and they will be giving him a 12-month temporary CEO’s contract provided the CEO and council can agree with that contract.

If he doesn’t then we will go out to the open market again.

Russell: We really appreciate you explaining to us this morning – Brian Rayner is the Toodyay Shire President.

Toodyay sounds like it’s got a pretty proactive period of growth coming up and it would be exciting to be out there – there’s a lot going on.

Nadia: There’s an interesting text that has come through that says “listen to you Nadia, it sounds like you’ve got the horse in this race”.

Well I don’t but I don’t see any problem in asking questions when it comes to accountability and transparency.

Now I think this is rather odd when a council decides not to renew the contract of a CEO.

There are potential breaches being investigated – I’m not saying they may be related at all to the CEO – but an investigation is underway, and then you suddenly change your mind.

I think it is fair enough to ask some questions about that.

Russell: Yes and with people that had voted against the CEO now no longer in the council and supporters of the CEO – let’s say – come in, it’s worth looking, it’s worth talking about.

Nadia: They spend ratepayers’ money and I think that these questions need to be asked.

Mr Wood said the J R initials were used by colonial brick-maker John Riley, whose bricks have also been found in Culham.

He believed the bricks were made from local clay and baked in earth on the ground instead of fired in kilns.

Beth Frayne, from the Toodyay Historical Society, has written that J R bricks with a wide groove between the initials (left, above) were made before 1867, and those with a narrow groove (below) after 1869.

Mr Scott filed several official complaints to the WA Local Government Standards Panel, which found that Cr Bell had committed six “minor” breaches of local government regulations by making “improper use of his office” as an elected councillor.

A further complaint of a “minor breach” against Cr Bell by Cr Paula Greenway was also upheld, although the panel said on May 14 that the complaint was dismissed and didn’t correct its error until May 22.

Cr Bell said he could not stand in the council chamber and apologise because he had lodged an appeal against the findings with the State Administrative Tribunal (SAT).

“I can’t comment on matters currently before SAT,” Cr Bell said.

Mr Scott said he had checked with the SAT and Local Government Standards Panel and found “no information about an appeal”.

The appeal period has expired,” Mr Scott said.

However, a check of the SAT online public register by The Toodyay Herald two days later showed two appeals by Cr Bell.

The first lodged on May 20 – eight days before last month’s council meeting – contests all six panel findings against him.

The second – lodged on May 22 – challenges the shire’s decision to publish a ‘notice of public censure” in the shire’s ratepayer-funded Toodyay Community Newsletter.

Cr Bell said the panel had ordered its findings to be published only in The West Australian newspaper and The Toodyay Herald – nowhere else.

The council agenda paper showed that the panel had ordered Cr Bell to publicly apologise to Mr Scott for six breaches of local government regulations.

Each required Cr Bell to say “I should not have acted in such a manner towards the CEO and I apologise to the party concerned for having done so”.

The shire also recently twice published a “notice of public censure’ against Cr Bell in The West Australian, and one each in last month’s Toodyay Community Newsletter and on Page 7 of this month’s Toodyay Herald.

The Herald notice concerns Cr Bell’s May 2018 Facebook criticism (including an image pictured above) of Mr Scott’s decision to exclude 16 of Cr Bell’s 20 questions from being answered at a council meeting that month.

Cr Bell criticised Mr Scott’s performance, accused the shire of censorship, pointed to its lack of a communications policy and claimed a lack of shire openness and accountability.

Mr Scott complained to the Standards Panel that Cr Bell’s post generated a number community comments, “including several that were very uncomplimentary”.

“Cr Bell even acknowledged in his post that he was adversely reflecting on the CEO, and was unapologetic,” Mr Scott said.

“Even if the premise had been accurate, which it is not, discussion of the CEO’s performance does not belong in the public domain and certainly not on Facebook.

“Regardless of whether there is any merit in his observations, and there is none, this discussion has no place on Facebook or in the public arena.”

Mr Scott said Cr Bell’s Facebook posts had “dishonestly misrepresented the shire and a fellow councillor on a range of issues and created significant community angst and backlash”.

“As can be seen from some of the responses generated, there has been considerable actual damage to the reputation of the council and the CEO,” Mr Scott said.

Cr Bell joins a small group of other WA councillors – including outspoken Capel Shire Councillor Michael Southwell – who say local government rules are “anti-democratic” and are being used to “stifle debate” and “silence councillors”.

They say the same restrictions do not apply to elected members serving in State and Federal parliaments, and should not apply to those in local government.

President Rayner said he would inform the WA Local Government Standards Panel that Cr Bell had not followed its instruction to apologise.

I mean look, this is sincerely a bizarre proposition.

What we had was, we had a council – let’s go back a step, the Toodyay Progress Association doesn’t focus on personalities, it focuses on policies, processes and procedures.

Now we have a council that decided some time ago the process is it was going to go through to hire or look for new CEO or to see whether they would hire the old one again.

They went through that and they actually got that right.

That didn’t last one month.

They went through those processes and then they changed their mind, and since then it’s just been bouncing off both extremes of the nonsense, and I suspect that a lot of the councillors are putting their personal friendships and their personal interests ahead of the community interest, and that deeply concerns me.

Nadia: What concerns you about that, why does that matter?

Larry: Well because the Corruption and Crime Commission last year put out a report to all shire councillors and said this is one of the reasons that it is warning all shire councils that it needs to take action to ensure that shire councillors understand the need to have robust procedures and put the public interest ahead of personal interests.

Now when the top corruption watchdog warns every council about that and then I see it happening I get very, very concerned Nadia.

Nadia: And we have seen the impact of personality politics in local government and look at the City of Perth, because that is the classic example where personalities got in the way of the job that councillors are supposed to do and that entire council got suspended.

Larry: Rank amateurs in the City of Perth – that’s one of the things Toodyay does far better than the City of Perth I can tell you (laughs).

Look, this is the genuine issue.

We have a Shire President who was not elected under the dodgy old ward system that we oppposed and ultimately got rid of.

He was elected uncontested.

The rest of the councillors who were on there in this little cabal that is voting this way disruptively have between them 3 to 5 per cent of the vote of ratepayers in the Shire of Toodyay.

Now that is not democratic and it’s quite bizarre and they are accountable to nobody.

Now the power of CEOs is one of the fundamental matters that needs to be overhauled in the Local Government Act.

Nadia: On the flipside Larry Graham, a council is entitled to change its mind and so on reflection it could be that councillors have thought about it and said ‘actually no, let’s stick with it and we’ll save $2000 in the process’ and some might listen and go ‘and that’s fair enough’.

Russell: We’ve seen local governments where there is sometimes is a rusty cog in the machine, you know, and it might be that there is a councillor that was perhaps being irritable and that councillor is moved and will make for a smoother council?

Larry: Yep,Yep. Look, there is no doubt about that – all of those things happen in local government and councils are entitled to change their mind and I am really looking forward to hearing why our council changed its mind.

Now look you have to understand that the Shire of Toodyay – despite all the allegations that President Rayner made about who is doing what and how in the local newspaper and all of that nonsense – the Toodyay Progress Association put a series of matters before the Local Government Department and said these are concerning and need to be investigated.

The council was given the opportunity to refute all of those and could not do it, so the Government then launched an inquiry into the Shire of Toodyay.

This isn’t a case of the Shire of Toodyay being 100 per cent correct and everyone else wrong.

There has already been a preliminary investigation that has shown that there are enough matters there that warrant investigation and there has been three investigators working full time since of December.

This is not a trivial matter.

This is a serious matter and I make this point, our council since December, when the inquiry was announced, our council has still not met to discuss the implications of a formal inquiry into the Shire of Toodyay. Now that is bizarre behaviour.

Nadia: Hmm.

Larry: Yeah, it’s bizarre isn’t it?

They just haven’t met to discuss why they are being formally investigated and you heard President Rayner saying that he has spoken to WALGA (WA Local Government Association) and WALGA had offered this up.

WALGA is the Local Government Association, it is not the regulating department.

Nadia: No, that is the department and Larry there are a few people texting the program saying that if you are so concerned why don’t you, and you’re an experienced politician, why don’t you put up your hand for council?

Larry: Yep, that’s a fair call, fair call.

There is a reason for that – it is quite simple.

The history of Toodyay for 40 years has been people going onto council and rotating councillors and CEOs.

It’s got one of the highest turnovers of staff and councillors in the state and I made a judgment decision when I started the TPA that we could do better by being the voice of the community in the town and keeping the pressure on the council to deal with things professionally and properly.

As soon as you become a councillor you are controlled, restricted and you have different obligations placed on what you can and can’t do.

That’s a valid thing that people are putting forward but I am not going to do it.

We are going to run the Progress Association and we are going to keep pressure on the council to operate professionally.