Blue Mountains Council faces suspension

Minister Gabrielle Upton. Picture: Gene Ramirez.
Minister Gabrielle Upton. Picture: Gene Ramirez.

Local Government Minister Gabrielle Upton has moved to suspend Blue Mountains City Council for the second time following serious questions being raised about its apparently independent investigation into asbestos management.

Ms Upton today issued a notice of intention to suspend the council for three months and appoint an interim administrator after suggestions of a serious conflict of interest have emerged in relation to the council’s independent investigation.

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“In November last year the council commissioned independent investigations into asbestos management and staff recruitment practices after serious allegations were made against it,” Ms Upton said.

“It has now emerged that an independent investigator engaged to oversee the investigation into asbestos management appears to have had links to one of the council’s senior staff members subject to investigation.

It has now emerged that an independent investigator engaged to oversee the investigation into asbestos management appears to have had links to one of the council’s senior staff members subject to investigation

Local Government Minister Gabrielle Upton

“This independent investigation is critical to addressing the serious issues facing this council. However, it seems that the relationship between the independent investigator and the senior staff member was not just professional, they were friends.

“This relationship would be a serious conflict of interest and brings into question the council’s governance and due diligence practices.

“I have also been informed that the council has now ended its contract with the senior staff member.

“The council’s poor record on asbestos management, failure to protect its community and the serious questions on the broader operation of the council are deeply concerning.”

Under the Local Government Act the Minister is required to provide the council with the opportunity to make any submissions before making a final decision. The council now has seven days to respond to the notice.

Mayor, Councillor Mark Greenhill, in response, said: “I am at a loss to understand how it is that the actions of an independent solicitor, not engaged directly by the council, can lead to the suspension of democracy in the Blue Mountains.

I am at a loss to understand how it is that the actions of an independent solicitor, not engaged directly by the council, can lead to the suspension of democracy in the Blue Mountains

Mayor Mark Greenhill

“There has been an ongoing campaign against Blue Mountains City Council.

“The council has complied with everything asked of it by SafeWork NSW. I don’t believe this is justified.  We are reviewing our position.”

UPDATE: Statement from Michael Tooma, chief investigator.

Chief investigator Michael Tooma was approached for a comment by the Gazette after his “good friend” Director of Service Delivery Mark Mulligan was let go by the general manager Rosemary Dillon on Tuesday.

Mr Tooma, a partner in the global law firm Clyde and Co, claims his personal relationship with Mr Mulligan did not interfere into his investigation into asbestos management at Blue Mountains City Council.

He issued the following statement:  “I have been engaged to conduct an investigation in relation to very specific terms of reference. Those terms span conduct by the council over a 15 year period. I was first contacted in relation to that investigation on 9 November 2017 by McPhee Kelshaw.

“The incidents at the centre of my investigation occurred prior to November 2017; in some cases, some years prior. All my terms of reference relate to  matters which occurred prior to 1 November 2017. My investigation is limited to council conduct and not the conduct of third parties such as the numerous consultants engaged over the previous 15 years in relation to asbestos issues.

“Mr Mulligan was employed by council on 1 November 2017. My terms of reference do not and have never extended to his conduct.

“I note Mr Mulligan's recruitment both as a consultant and as an employee is the subject of a separate investigation by another firm. I have had no involvement in that investigation.

“I have conducted a thorough and detailed investigation in relation to the matters in my terms of reference. I have interviewed 42 witnesses and reviewed over 2,500 documents. That investigation has been conducted in a transparent manner with regular briefings to SafeWork NSW and the USU. No doubt some regard the investigation as too thorough which is why they have gone to such lengths to derail it.

“It would be a real shame if the affected workers are robbed of the opportunity to have the findings of this investigation as a result of inaccurate and misconceived allegations.”

“It would be a real shame if the affected workers are robbed of the opportunity to have the findings of this investigation as a result of inaccurate and misconceived allegations.”

Michael Tooma

Mr Tooma called Mr Mulligan a “good friend” in the foreword to one of his textbooks. He also gave him a glowing endorsement on a professional social networking service. The information was revealed by radio station 2GB. Mr Toomey did not respond to further requests by the Gazette to comment on the council suspension notice.

​A hotline has been set up to allow anyone with information or concerns about Blue Mountains City Council to report it directly to the Office of Local Government. Reports can be made anonymously.

The hotline number is 1800 291 051. Some residents were already flooding social media to complain calls were going unanswered due to demand.

Ms Dillon said the decision on Tuesday to cease the employment of the acting director was made “effective close of business today … as part of the review of the current and future needs” of the council. It was made “in consultation” with Mr Mulligan and Ms Dillon thanked him for his work.

Ms Dillon told staff “in light of current asbestos and safety issues I am also as a priority working on interim measures to improve alignment of buildings and parks – maintenance, asset management, customer liaison and planning”.

UPDATE from The Greens councillor Kerry Brown:

The Greens will continue to push for reform, good governance and transparency following the news that Blue Mountains Council has received its second suspension notice.

Blue Mountains Greens Councillor Kerry Brown said: “From day one the Greens’ concern has been to ensure council becomes a safe place to work and our community facilities are safe for everyone to use.

“Staff and local residents have repeatedly raised concerns about asbestos contamination and what have been some very poor council processes.

“I have always treated these concerns as worthy of support and investigation.  

“There’s a pretty clear lesson here for Labor’s Blue Mountains councillors, when an informed and passionate Greens councillor is raising real concerns about transparency and poor process, you should listen and act.

Greens Local Government spokesman David Shoebridge

“The ‘we have done nothing wrong’ attitude of a number of councillors has meant that Blue Mountains council has been caught in a reactive rather than proactive role.

“It not acceptable to have our waste facilities closed because they’re dangerous, staff put at risk when working and now to find out that the Katoomba Grandstand is structurally unsound.

“When you add in the latest debacle with the “independent” asbestos inquiry organised though council’s lawyers it really has been a sorry twelve months on the part of council.

“BM Greens councillors are committed to keeping council in local hands and, if the council is suspended, we will be working with our colleagues in State Parliament to get us back up and running as soon as possible,” Clr Brown said.

Greens MP and Spokesperson for Local Government David Shoebridge said: Labor can learn from this “lesson”

“It’s always a blow to lose a democratically elected council but the threat of suspension can’t be used to prevent transparency or to silence informed criticism of the council. 

“I have to declare how proud I am of the Blue Mountains Greens Councillors who nine months ago made the first clear demand for fundamental changes in the culture and accountability of the council.                                                       

'It was Greens Councillor Kerry Brown who first moved to adopt the highest standards of work health and safety as a policy of council. Unfortunately that was voted down by the majority Labor councillors.

“Kerry called for the asbestos investigations to be driven by a tri-partite group of councillors representing all political parties to ensure it wasn’t done behind closed doors. That too was voted down by the majority Labor councillors.

She repeatedly moved for terms of reference and  mayoral minutes related to the asbestos management to be in debated in open rather than closed session and was voted down.                                                 

“There’s a pretty clear lesson here for Labor’s Blue Mountains councillors, when an informed and passionate Greens councillor is raising real concerns about transparency and poor process, you should listen and act.

“If council is suspended then I will be urging the Minister for Local Government to keep the period of suspension as brief as possible to enable the elected representatives to resume control of a reformed council,” Mr Shoebridge said.

Extraordinary meeting at council on Tuesday

Council will gold an extraordinary meeting next Tuesday February 20. The purpose of the meeting is to make a submission in response to the Minister for Local Government’s notice of intended suspension of the elected councillors of Blue Mountains City Council.

The meeting will be held at 7.30pm in the council chambers, Civic Place, Katoomba.

The business paper will comprise a single Mayoral Minute. In accordance with Council’s Code of Meeting Practice, members of the public are unable to address the council on Mayoral Minutes, unless the council resolves otherwise. However, members of the public may speak on matters relating to the council report.

The business paper for the extraordinary council meeting will be available late Monday 19 January 2018 at www.bmcc.nsw.gov.au/yourcouncil/councilmeetings/2018meetings and printed copies will be available at the council meeting.