A former senior council employee last week issued legal proceedings against two Edward River Council senior managers and all of its councillors.
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Greg Briscoe-Hough, council’s former senior governance advisor, launched proceedings with the Land and Environment Court over what he claims was a breach of the Local Government Act 1993.
It relates specifically to leave taken by chief executive officer Phil Stone, when no formal resolution of council had been made to appoint a staff member to act in his absence.
Mr Briscoe-Hough claims this omission left council under the charge of an “illicit acting general manager”.
In bringing the case, Mr Briscoe-Hough also alleges his employment was terminated on January 6 by the same “illicit acting general manager” as a result of his raising the breach.
However, as Mr Stone had resumed duties on the same day as the initial hearing last week, the vacancy of office issue was ‘resolved’ earlier than his intended January 29 return and before service of the summons and reconsideration by the court, Mr Briscoe-Hough withdrew his case moments after proceedings began Friday morning.
But Mr Briscoe-Hough said the steps leading to this legal action must still be addressed.
Legal documents relating to the case have been provided to the Pastoral Times.
Among them is an email from Mr Stone to all council staff stating “I have delegated the role of acting CEO to Shelley Jones. Jock Perrett will step up to be acting director corporate services during this time”.
The Local Government Act 1993 states:
(1) If a position (including a senior staff position) within the organisation structure of the council is vacant or the holder of such a position is suspended from duty, sick or absent--
(a) the council, in the case of the general manager's position, or
(b) the general manager, in the case of any other position,
may appoint a person to the position temporarily.
Mayor Peta Betts was listed as the first defendant in the court documents, followed by Mr Stone, Ms Jones and then the remaining eight councillors for a total of 11 defendants.
In his sworn affidavit, Mr Briscoe-Hough said he had been attempting to have council rectify the situation since before Christmas and Mr Stone’s official leave dates of January 9 to 29.
“On Wednesday, December 21, 2022 I was made aware of a potential (and now actual) breach of the Local Government Act by an email from the council's general manager Mr Phil Stone to all staff advising that he would be on leave from the close of business that day, leaving council without an acting general manager for council's shutdown period and that he had illicitly 'delegated' the director for the period of his leave from January 9 until his return on January 29,” the legal document reads.
“I raised this issue with my immediate supervisor, the director of corporate services Ms Shelley Jones (the beneficiary of the illicit action) in the context of a discussion in respect of another breach of procedure in relation to a resolution of council, noting that this was not the first time I had raised said concerns in respect of the legalities of appointing an acting general manager.
“In the context of this sede vacante situation, on Thursday, December 22, 2022 I emailed and subsequently visited the general manager (who was on leave) at his residence, where I discussed the situation and the implications it had for council and my lawful fulfilment of my duties as the senior governance officer, and that it effectively left me in a position of forced professional compromise and that I could not, in good conscience, continue to meet the obligations of the position because of the position I had been placed in by his and Ms Jones’ refusal to comply with the required legislative and approved delegations granted by council.
“I also provided this advice to the mayor and advised the Office of Local Government of my resignation, noting that at that point in time there was no person in that role (the general manager being on leave and no appointee ratified by council in his absence, and so any resignation could not be tendered, accepted or acted on).
“As other councillors were aware of the legal situation, and in the absence of any general manager, I advised those councillors that contacted me that they had options to rectify the situation, but, in the event that they could or would not, then I would be compelled to take action, in the public interest, and notified all councillors by email that I would be lodging papers by today (January 17).”
In his subsequent correspondence with the Pastoral Times, Mr Briscoe-Hough said councillors are now left with the issue of the breach and the implications for council’s executive.
He said he believed it was up to the councillors to decide if they are going to accept what he described as “a lack of professionalism” or take appropriate action.
Mr Briscoe-Hough added that he believed the Office of Local Government also had failed in its oversight of this and other issues at council.
Edward River Council CEO Phil Stone told the Pastoral Times he has received legal advice which assures him he had not acted unlawfully in his approach in appointing an acting CEO.
“Council has responded to a summons issued to attend the Land & Environment Court on Friday, January 20.
“The summons, served by the plaintiff, a former Edward River Council employee, listed eleven defendants made up of council staff and councillors seeking an injunction for ‘mandatory performance to remedy breach of act and restrain further breaches’.
“Council has received legal advice as to the appropriateness of the actions undertaken. Having considered that advice, I believe my actions were lawful.
“In our view, the proceedings were unnecessary and should not have been brought.
“It was withdrawn by the plaintiff shortly after the proceeding commenced and was ultimately a waste of time and money which resulted in undue stress on the individuals involved.
“Our aim is not to give this matter any further time or attention and, instead, focus our efforts and resources back to where they should be - serving our community.”
Mr Stone also denied claims that Mr Briscoe-Hough has been dismissed.
“The staff member resigned prior to Christmas, prior to any proceedings being initiated, and it is inappropriate for me to provide any further comment around staffing matters,” he said.
Mr Stone said he has become aware of anonymous documents being “slipped under the door of various Deniliquin offices”, and took aim at the danger of “rumours and conjecture”.
“I am aware of the anonymous document and will not comment except to say that we pride ourselves on our transparency and accountability,” he said.
“Rumours and conjecture do not serve our community - they damage it and create division.
“If any member of the community has an issue, question, or concern about any aspect of council business, we welcome these concerns being raised with council, me directly, or through an elected representative; or lodge a request for information under the GIPA Act.”
Senior journalist