Probe into $3m legal tender

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MORNINGTON Peninsula Shire councillors have given themselves the right to get legal advice from lawyers other than those recommended by council officers.

A $3 million legal services tender, which specifies six legal firms to be used by the shire for legal advice, was signed off on 6 March under delegation by council CEO Carl Cowie.

Councillors at their Tuesday 22 May meeting voted to be able to “obtain legal advice from any legal firm it chooses” outside of the Legal Services Panel Tender.

They also ordered “a formal and independent investigation” into the process that led to the appointment of the legal services panel.

“I asked for [the tender] to be considered by council, but officers chose to do it by delegation,” the mayor Cr Bryan Payne told The News after the 22 May council meeting.

“I was not very happy. My request was ignored.”

The announcement of the investigation comes on the eve of councillors’ decision whether to reappoint Mr Cowie or to advertise the CEO position with remuneration of about $400,000.

Mr Cowie’s current contract ends in November and council must let him know six months beforehand if the job will be advertised.

Cr Payne said council will make its decision on 12 June.

The investigation into the legal services tender by the shire’s Audit and Risk Committee covers:

  • If the signing off on the $3 million tender was appropriate.
  • To determine whether the tender evaluation panel was representative of council administration sufficient to evaluate submissions by legal firms for representation across all areas of council business.
  • Establish why a report was not brought to council to resolve the evaluation of the Legal Services Tender given a direction by the mayor for this to occur.
  • Develop a protocol for tender evaluations to be brought to council for consideration for matters that are “politically sensitive” or “called in” by council regardless of the delegated authority of the CEO.

The committee must report back to council by 30 June on the findings of its investigation and “on delegations from council to the CEO”.

Mr Cowie told The News it was “inappropriate to comment on any allegations” contained in the notice of motion adopted by council while the investigation was underway.

Cr Hugh Fraser, a barrister, said the management review of where council obtained its legal advice “did not go far enough”.

He said the review should have established a Governance and Legal Services Panel encompassing general legal services, litigated insurance claims, privacy and freedom of information and risk management consultants “along the lines recently established by the Melbourne City Council”.

“It’s really important that council have ready and appropriate access to reliable legal advice and, where necessary, independent of management’s instructions,” Cr Fraser said.

“It’s an essential check and balance in local government. The two recent council resolutions assert council’s authority and establish a process as to this.”

Cr Payne said the panel of legal firms chosen by council officers led by the shire’s in-house solicitor, David Carrington, “didn’t have people with local government experience”.

He said councillors had “felt left out of the process … We didn’t have any input”.

“This shouldn’t have happened at all … [coming to us] should have been part of the exercise.”

Cr Payne said the legal firms on the panel could be used by the shire’s administration, but councillors “want specialists in local government law for council’s purposes, [we’ll] choose out own [lawyers] for advice”.

“I raised the matter because it was a $3 million contract and council should be reviewing it.

“Under delegation rules, the CEO can OK any contract if it’s within the budget. That’s a bad policy and could be open to corruption.”

Cr Payne said the shire had never before tendered for legal services.

“The intention was very correct – to test the market. It’s such a large amount of money and should [achieve] some savings.”

First published in the Mornington News – 5 June 2018

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