An administrative oversight could be exposing hundreds of council decisions over the past two years to legal and financial risks, a former mayor has warned.
The Local Government Inspectorate - which monitors municipal governance - has said it is assessing a complaint into two alleged breaches of the local government act. The allegation suggests delegations of power were incorrectly administered or not done at all.
Local Government Victoria has said if the complaints are upheld all council decisions made during the affected time could be vulnerable to legal challenge.
John Barnes, who was the City of Ballarat mayor from 1998 to 2000, highlighted a failure to review powers delegated to the CEO. Under local government law, all delegations of power need to be reviewed within 12 months of a council election.
Decisions made at councils without proper authority risk being subject to legal challenge by those affected by those decisions. It's therefore up to each council to ensure their delegation processes are sound, to avoid these risksLocal Government Victoria
The last council election was in October 2016 but a review of the powers delegated to the current CEO Justine Linley has not taken place since.
It means decisions taken by Ms Linley and others delegated power by her could have been made without proper legal authority from November 2017 onward.
The CEO's powers may also never have been delegated correctly in the first place. If an elected council wishes to allow a CEO to take decisions on their behalf, the process is usually formalised with a resolution and a document known as an "instrument of delegation".
The current Ballarat City Council document is dated August 24, 2016 and cites a resolution made at an ordinary council meeting on August 10 of the same year.
However, records from that meeting suggest the resolution was deferred to the next council meeting. There are no minutes or agenda items from that subsequent date that suggest any formal council resolution on the matter.
Local Government Victoria - the organisation that provides policy advice and oversees local government legislation - confirmed there would be legal risks if the delegations were not carried out properly.
In an emailed statement to The Courier, a spokesperson wrote: "While there are no penalties for incorrect delegations, as with any organisation, decisions made at councils without proper authority risk being subject to legal challenge by those affected by those decisions.
"It's therefore up to each council to ensure their delegation processes are sound, to avoid these risks."
Mr Barnes lodged a complaint with details of both alleged breaches with the Local Government Inspectorate earlier this month.
For Mr Barnes, who used to be the chairman of Central Highlands Water, the competence of the council's governance is in question.
"It appears to me that the CEO and senior officers have been acting ultra vires (beyond their authority) for at least the last two years, and perhaps for the CEO's entire tenure," he said.
"The risks this exposes ratepayers and councillors to needs to be assessed urgently and independently. They could be considerable."
If his complaint is upheld, it is likely to mean the CEO has never had the legal authority to take decisions.
Ms Linley started in the role in May 2016. Shortly after her arrival, council was embroiled in a separate administrative controversy, with councillors threatened with dismissal as they had not signed a code of conduct in time.
SEE THE DELEGATION HERE
Mr Barnes uncovered this latest issue after querying a council director about recent service reviews.
As a long-term advocate for transparent governance, Mr Barnes said he wanted to make sure councillors had a chance to interrogate service reviews properly.
He noted reviews for immunisation services, recruitment, invoicing and the Ballarat Aquatic and Lifestyle Centre were mentioned in the latest annual report and wanted to check if council or a special committee had the chance to consider their outcome.
After requesting details from a City of Ballarat director, he became frustrated with what he calls a refusal to answer his questions directly.
There is too much secrecy with decision-making, too little attention by councillors on monitoring organisation performance at council meetings, and a lack of rigorous enquiry into the advice offered by officersEx mayor, John Barnes
He then decided to check the delegation documents - which need to be publicly available - to see if he could work out how the reviews were taking place. When he saw the date of the CEO delegation he realised immediately there was a breach.
He said: "There is too much secrecy with decision-making, too little attention by councillors on monitoring organisation performance at council meetings, and a lack of rigorous enquiry into the advice offered by officers."
The CEO's delegation of authority is on the agenda for next Wednesday's ordinary council meeting (November 20).
Meanwhile, a Local Government Inspectorate spokesperson confirmed receipt of a complaint relating to Ballarat City Council.
In an emailed statement, they wrote: "The Inspectorate deals with complaints or requests for investigation in strict confidence and does not provide comment on investigations that are yet to be finalised."
The state's local government minister Adem Somyurek also did not wish to comment.
In a statement the council said they were aware of the failure to review delegations. It said despite the administrative oversight, council's advice was delegations remained "valid and effective".
There was no reference to the alleged breach in the original delegation of August 2016.
- CLARIFICATION, November 18: A Local Government Inspectorate spokesperson has clarified that the complaint received was currently being "assessed" rather than "investigated". The article has been amended to reflect that.
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