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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-09-22 Daily Xml
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BURNSIDE CITY COUNCIL

The Hon. DAVID WINDERLICH (14:59): I seek leave to make a brief explanation before asking the Minister for State/Local Government Relations a question about Burnside council.

Leave granted.

The Hon. DAVID WINDERLICH: On 12 June 2009, Mr Neil Jacobs, the chief executive officer of the City of Burnside, handed his letter of resignation to Mayor Wendy Greiner. On 15 June, Mr Jacobs advised councillors in an email that he would stay in the position of chief executive officer until August. On 23 June, a majority of Burnside councillors voted to accept the request of Mr Jacobs to retract his resignation and re-appoint him as chief executive officer. However, this appears to be a breach of section 97(2) of the Local Government Act which provides:

A chief executive officer's appointment is terminated if the chief executive officer—

(a) resigns by notice in writing to the principal member of council; or

(b) completes a term of office and is not reappointed; or

(c) is sentenced to imprisonment for an offence.

The relevant paragraph there is (a). This interpretation has been supported by advice from Grope Hamilton Lawyers which, in effect, states that Mr Jacobs cannot withdraw his resignation and council has no choice, under the act, but to declare the position vacant and advertise for applicants.

Members will also be aware that the terms of reference of the current inquiry into Burnside specifically refer to investigation of the circumstances of the chief executive's resignation and reinstatement in June 2009. My questions are:

1. Has the minister received advice that, under section 97(2) of the Local Government Act, Burnside chief executive officer Neil Jacobs effectively gave notice of his resignation on 12 June 2009?

2. Has the minister been advised that the chief executive officer Neil Jacobs' term of employment concluded on 11 September and that, to comply with the act, council must appoint an acting chief executive officer while it undertakes a new appointment process?

3. Has the minister been advised that the validity of the actions taken after 11 September 2009 by chief executive officer Neil Jacobs are open to challenge?

4. Will the minister outline what steps she has taken to ensure that Burnside council complies with the Local Government Act in relation to the appointment and termination of the appointment of Mr Neil Jacobs?

5. If the minister has not taken any steps to date, can she advise whether she intends to write to Burnside council informing it of the need to terminate Mr Jacobs' employment to comply with the Local Government Act?

The Hon. G.E. GAGO (Minister for State/Local Government Relations, Minister for the Status of Women, Minister for Consumer Affairs, Minister for Government Enterprises, Minister Assisting the Minister for Transport, Infrastructure and Energy) (15:01): I thank the honourable member for his important questions. Indeed, we were concerned enough earlier on in the piece around the circumstances of the chief executive's resignation and reinstatement to make sure that it was explicitly included in the terms of reference for the investigation undertaken by Mr Ken McPherson, which is currently being undertaken. As yet, it has not been completed so, clearly, I do not want to pre-empt the outcome of the investigation.

Given the complaints I received, given the council's explanation in relation to that and the 'please explain' letter, and given council's response to that, I then determined that the council's explanations did not satisfy the concerns that had been raised with me and, therefore, I upheld my powers of investigation under the Local Government Act and appointed an investigator.

Since that investigation took place (and I do not have the dates with me), approximately a week or so ago, the investigator provided information that he had concerns around the appointment of the CEO Mr Jim Jacobs and—

Members interjecting:

The Hon. G.E. GAGO: Sorry; I beg your pardon. I will correct that. I meant to say the CEO, Mr Neil Jacobs. The investigator had concerns about the process of resignation and reappointment. The agency then wrote to the mayor and outlined the concerns that had been raised by the investigator.

The matter now rests with the council. The matter is under investigation and is included as a specific term of reference. Because we received concerns from the investigator, at that point I felt it was important that those concerns be passed directly to the council for its consideration. To the best of my knowledge at present it has not responded. The correspondence about this particular matter went to the council perhaps a week ago, maybe less.

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