Local Government Minister Gabrielle Upton has moved to suspend Blue Mountains Council for the second time in two months following questions about a conflict of interest in council’s independent investigation into asbestos management.
Council is set to have an extraordinary meeting on Tuesday night [February 20] to finalise a response to the Minister’s notice to suspend council for three months and appoint an interim administrator.
Council commissioned the independent investigations into asbestos management and staff recruitment practices in November last year after serious allegations were made against it, including concerns about asbestos in a Mountains pre-school.
In a statement Ms Upton said: “It has now emerged that an independent investigator engaged to oversee the investigation appears to have had links to one of the council’s senior staff members subject to investigation.
“This independent investigation is critical to addressing serious issues facing council. However, it seems that the relationship … was not just professional, they were friends.”
Her comments relate to chief investigator Michael Tooma, a partner in the global law firm Clyde and Co, and his friendship with acting Director of Service Delivery, Mark Mulligan.
Mr Tooma called Mr Mulligan a “good friend” in the foreword to one of his textbooks and also gave him a glowing endorsement on a professional social networking service. The information was revealed by radio station 2GB last week.
Mark Mulligan was let go by the general manager Rosemary Dillon last Tuesday. The status of the Tooma investigation is now under review and council is seeking advice from the Office of Local Government about how to best proceed.
Ms Upton said the relationship was “a serious conflict of interest and brings into question the council’s governance and due diligence practices”.
But Mayor Mark Greenhill can not understand “how the actions of an independent solicitor, not engaged directly by the council, can lead to the suspension of democracy in the Blue Mountains”.
"Council did its due diligence with him in writing through the law firm that engaged him. They communicated formally about conflicts of interest and relationships before the appointment. This relationship with Mark Mulligan was not declared.
“Mr Tooma would have formed the view, in good faith, that it wasn't an issue. But the point is, we asked the right questions and did everything right. So it looks like the elected council is being punished for something we didn't know about, even though we had a robust process in place. How can we be responsible for an answer we never received?"
Mayor Greenhill claimed there was “an ongoing campaign” against council who had “complied with everything asked of it by SafeWork NSW”.
Mr Tooma told the Gazette last week he had “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 … 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.”
Mr Tooma said he had interviewed 42 witnesses and reviewed more than 2,500 documents, with regular briefings to SafeWork NSW and the USU.
He added: “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.”
A hotline [1800 291 051] has been set up to allow anyone with information or concerns about council to report it directly to the Office of Local Government. Reports can be made anonymously.
General manager Rosemary Dillon said in a message to staff the decision to cease the employment of the acting director was made “as part of the review of the current and future needs” of council “in consultation” with Mr Mulligan”. She thanked him for his work.
Meanwhile Greens councillor Kerry Brown will raise an urgency motion at the extraordinary council meeting asking the general manager to clarify the scope of the investigation by Mr Tooma and whether or not it includes the many council contractors. It also asks for a copy of Mr Tooma's declarations about his connections with council members, the costs of the investigation and related legal fees and the general manager's plans for a future investigation.
'I think the public and councillors need to know the facts of this independent investigation into council's asbestos management and whether it is undermined as is alleged by a conflict of interest caused by Mr Tooma's prior connections with staff or councillors.'
A council spokeswoman gave the following statement to Gazette questions about the matter.
“Mark Mulligan’s employment with BMCC was terminated on mutual terms on Monday 12 February 2018.
“Mark Mulligan’s employment ceased prior to the allegation made on 2GB regarding a potential conflict of interest relating to the Tooma investigation, which aired on Wednesday 14 February.
“Both the mayor and general manager were shocked to hear the revelation that the past professional association between the independent investigator, Michael Tooma who was appointed to conduct the investigation into asbestos management by BMCC, with Mark Mulligan, former Acting Director Service Delivery.
“It is not been a matter that has been raised with either the general manager, mayor or councillors before hearing it on the Ray Hadley Morning Show on Wednesday 14 February.
“The status of the Tooma investigation is currently under review and we are seeking advice from the Office of Local Government about how to best proceed.
“The cost of council’s response to asbestos management, including legal fees, are yet to be determined as there is ongoing work required to remediate the Katoomba Waste Management Facility and the former Blackheath landfill, and consideration of further expansion of councils asbestos management program to address illegal dumping; asbestos management operations – including asbestos response team staffing, and asbestos and hazardous material capital works.
“Council currently has eight ongoing Improvement Notices or Prohibition Orders issued by SafeWork as follows. All works relating the Notices are in progress and in consultation and agreement with SafeWork”
The results of the notices, the sites and the actions are:
1.
Improvement Notice
Lawson Mechanics Institute
Ongoing health monitoring
2.
Improvement Notice
Katoomba Waste Management Facility
Ongoing health monitoring
3.
Improvement Notice
Lawson Stockpile Site
Health Monitoring
4.
Improvement Notice
BMCC
Implementation of Asbestos Management Plan and Training
5.
Prohibition Notice
Springwood Depot - Amenities Building
Remediation works to commence in February
6.
Prohibition Notice
Springwood Depot - Waste Services Office
Remediation works to commence in February
7.
Prohibition Notice
Katoomba Waste Management Facility – Building
Clean-up work underway
8.
Prohibition Notice
Katoomba Waste Management Facility - Platform
Clean-up work underway
