Councillor David Quince  raised concerns over the issue following Mayor Owen Hasler’s Mayoral Minute which recommended council pay the costs for Crs Hans Allgayer and Steve Smith.

Cr Hasler asked council to endorse the payment of more than $3000.

Crs Smith and Allgayer were suspended over their “failure to declare a non-pecuniary conflict of interest” which relates to a council vote in February, 2009, on a proposed $12.5 million devolitalisation plant in Gunnedah Shire.

At the time Cr Smith was directly employed by Whitehaven Coal while Cr Allgayer was employed by Narrabri Coal Operations, a subsidiary company of  Whitehaven.

The Blackjack Carbon Coal Devolitalisation plant was to be a joint venture between Whitehaven and Modderriver Minerals.

The project never eventuated.

Last night Cr Quince initially questioned the suitability of council’s legal adviser, Gerry Holmes who had given council direction on the issue.

Cr Quince said his inquiries had revealed Mr Holmes was not registered with the NSW Bar Association as either a solicitor or barrister.

“I have consulted a barrister over the matter and now have serious concerns with council’s decision to accept advice from Mr Holmes,” Cr Quince said.

Mayor Hasler said he had also conducted inquiries into Mr Holmes’ credentials and pointed out that to appear at the appeal before the Tribunal (over the suspension) did not require a barrister or solicitor to be registered with the relevant association.

Cr Quince questioned why an extraordinary meeting of council was not called to discuss the matter.

Cr Hasler said appropriate advice on the issue was needed quickly given time restraints regarding the lodging of an appeal and the time frame allowed, particularly in relation to the Christmas/New Year holiday period.

“The time issue for lodging an appeal made such a meeting extremely difficult and the matter was dealt with by myself, Deputy Mayor Gae Swain and Director Community and Corporate Services, Eric Groth and Gerry Holmes,” Cr Hasler said.

Cr Quince went onto the issue of the legal bill of $3059.10 for the appeal, made under Councillors and Mayor-Payment of Expenses and Provision of Facilities policy, adopted by council in October last year. 

Mayor Hasler said the decision to pay the initial costs of the appeal was made under Sections 5.3.8 and 5.3.10 of the policy,

Section 5.3.8 states: “Council will pay legal expenses incurred in relation to proceedings arising out of the performance by a councillor of his or her functions under the Local Government Act 1993, including reasonable costs for an inquiry, investigation or hearing into a councillor’s conduct by an appropriate investigative or review body, for a formal investigation or review, with the exception of legal proceedings initiated by the Mayor and/or councillors in any circumstances”.

Section 5.3.10 goes on to say; “A councillor wishing to claim legal expenses should ensure approval is granted by the General Manager and Mayor, or Deputy Mayor in case of the Mayor, prior to legal expenses being incurred”.

Cr Quince questioned why Section 5.3.9 was not applicable.

“Legal costs will not be provided where the investigative or review body makes a finding that is substantially unfavourable to the councillor under Section 5.3.9,” Cr Quince added.

“One interpretation could be that the decision taken by the councillors made by council on Gerry Holmes’ advice regarding whether or not Crs Smith and Allgayer had failed to declare a non-significant pecuniary interest, was reviewed by the Division of Local Government which said ‘no, the two councillors did have a non-pecuniary interest’. 

“That ruling could be perceived as a ‘substantially unfavourable finding’ to the councillor or councillors.”

Cr Tim Duddy said he fully supported council’s decision to support Crs Allgayer and Smith with the payment of initial legal costs, but suggested that if their appeal was unsuccessful council should not be required to wear those original costs.

“If a matter was before the Supreme Court and costs were being paid by a third party, those costs would not be paid until after the appeal was heard,” Cr Duddy pointed out.

Director Community and Corporate Services, Eric Groth, said that if the finding was substantially unfavourable at the Tribunal’s appeals hearing, council would need to recover the $1500 from each councillor.

The Tribunal will consider the appeal next month.