Carol Altmann – The Terrier

Just in: Sworn evidence by former Warrnambool City Councillor David Owen sheds some light on why he was one of the four councillors who voted to sack CEO Peter Schneider.

The five-page affidavit was received by the Supreme Court at 6.30pm last Friday 30 October, which was the revised deadline for the Warrnambool City Council to lodge any affidavits in defence of Mr Schneider’s claim that he was denied natural justice when he was sacked on 13 July.

Mr Owen claims in his affidavit that, among other things, Mr Schneider:

was slow to act on decisions of the council;

had failed to replace a key staff member who had resigned in September last year (former Manager Community Policy and Planning Lisa McLeod);

had stalled the building of a fishing pontoon on the Merri River after unfounded complaints from former councillor Peter Hulin;

and that Mr Schneider was “sidelining” the Warrnambool 2040 plan.

The affidavit also claims that a staff survey had revealed “poor morale amongst staff due to a lack of direction from the CEO” and that “workplace bullying was also an issue”.  Mr Owen also alleges that, after the credit card scandal, staff felt nervous to use their credit cards “around Mr Schneider because he repeatedly told them that he was going to investigate them all”.

Mr Owen rejected claims by Mr Schneider that his responses  to a “360 review” of Mr Schneider’s performance had been “vindictive” and “spiteful”, but instead “accurately indicated my perception of his level of performance”.

“I have worked with many CEOs in the photographic industry. I scored Mr Schneider on his merits in the 360 degree survey as I had previously done when assessing the performance of these other CEOs.

“Someone who is earning $1000 a day must deliver a level of performance that justifies that level of public expenditure,” the statement says.

Mr Owen said he also participated in the six and 12 month reviews of Mr Schneider’s performance on the basis that they were “intended to help Mr Schneider, who was new to the role of CEO, to find his feet”.

Mr Owen claims that he had approached Mr Schneider over a number of months asking that he replace Ms McLeod, who was a key driver of the Warrnambool 2040 plan which aimed to “address the effects of climate change and other challenges”, but Mr Schneider failed to do so.

“…it became clear to me that he (Mr Schneider) was sidelining the Warrnambool 2040 Plan,” the statement says.

“…Mr Schneider was very slow to act on anything and, consequently, a number of important projects like the Warrnambool 2040 Plan did not proceed as they should have or just stalled”.

Mr Owen said he considered that “Mr Schneider’s performance had been of  a standard which warranted the termination of his employment” and the four councillors acted upon the advice of the council lawyers, Maddocks, to terminate his contract without providing a reason.

“(I) deny that my actions have resulted in any damage to Mr Schneider’s reputation, alleged or at all,” the affidavit says.

Mr Owen also responds to claims made under oath by former Mayor Tony Herbert that the four councillors refused to mediate or negotiate with Mr Schneider just prior to his dismissal, and refused to answer questions from the other three councillors on the night of the sacking.

Mr Owen says that by 14 June, a month before the sacking, “Crs Gaston, Neoh, Cassidy and I were beyond discussion or mediation with Mr Schneider”.

He then goes on to say that all four councillors were “acting on legal advice, received from Maddocks, including the advice conveyed to us by Cr Neoh, that we should avoid discussing Mr Schneider’s performance.

“Accordingly, I did not respond to any of the questions put to us at the meeting on 13 July 2020, regarding Mr Schneider’s performance.

“During the meeting, I said “let’s get this done Tony, so we can all go home”. I did not say “when will the meeting be finished as I want to go home.”

Mr Owen also denied that at any time he spoke to Community Services Manager Vikki King about her becoming the Acting CEO.

The affidavit also claims the recruitment process for the CEO was flawed, as nine applications were later found to have gone missing. Access to Mr Schneider’s psychometric test – which was later leaked to Cr Sue Cassidy in the mail – would have also changed Mr Owen’s mind about Mr Schneider’s suitability for the job.

“…had the psychometric test results been submitted to councillors during the recruitment process, I would not have supported the appointment of Mr Schneider…the decision to employ Mr Schneider may not have been made”.

Mr Owen is, to date, the only councillor of the four who voted to dismiss Mr Schneider to submit sworn evidence. Acting CEO Vikki King also submitted an affidavit.

The case, in which Mr Schneider is seeking reinstatement, is due to be heard on 1 February next year.

Carol Altmann – The Terrier

Just in: The Supreme Court has just released an affidavit lodged late yesterday (30/10/20) by acting Warrnambool City Council CEO Vikki King in relation to the sacking of CEO Peter Schneider.

The five pages of sworn evidence responds to claims made by Mr Schneider and former Mayor Tony Herbert in their affidavits lodged last month.

The evidence does not shed any light on the motivation or justification for Mr Schneider’s sacking, but sets out Ms King’s working relationship with the councillors involved.

In particular, Ms King denies claims by Mr Herbert that she was privy to the move to sack Mr Schneider on 13 July and had been in discussions with Michael Neoh, Kylie Gaston, Sue Cassidy and David Owen about his removal.

This speculation that she “…had been involved in discussions with all or, one or other, of Councillors Gaston, Neoh, Cassidy or Owen” is entirely without any foundation,” the statement says.

“I had not been privy to any discussions about Mr Schneider’s position with any Councillor and had not been given any indication or been “sounded-out”, about acting as the CEO.”

Ms King also denied the inference in Mr Schneider’s affidavit “that I had, or presently have, any close, personal relationship with any of the Councillors and say that during my 11 years in local government, I have never socialised with any Councillors or staff on a personal level, let alone maintained any such friendship or other close personal relationship”.

Ms King said she had worked closely with Crs Neoh and Gaston during their times as Mayor and when she was previously acting CEO – just as Mr Herbert, as Mayor, had worked closely with Mr Schneider.

“Such a working relationship was “unremarkable and common place” in local councils, the statement says.

Ms King also denies any particularly close relationship between the former Manager of Governance and Risk, Anne-Marie Neal, and the four councillors, saying it would be “impossible” for anyone to perform this role “without working very closely with all the Councillors”.

“I, otherwise, say that Ms Neal’s conduct, to the best of my knowledge, gave me no reason to doubt that her interaction with all the Councillors was entirely professional,” the statement says.

Claims by Mr Herbert that Crs Gaston and Neoh were close to former CEO Bruce Anson are also denied:

“…my observation of the relationship between Mr Anson and Crs Gaston and Neoh, from August 2015 to late 2018 (when Mr Anson retired) was not as alleged by Cr Herbert but was entirely professional and consistent with the close working relationship which is both necessary, and unavoidable, between a CEO and mayors (and Councillors),” the statement says.

Ms King’s affidavit also includes a recollection from the night of Mr Schneider’s sacking, where she learned she would be Acting CEO:

“Cr Herbert telephoned me after the special council meeting on 13 July 2020 and, to the best of my recollection, said words to the effect that, “Council sacked Peter tonight and you’re CEO for now”.

“After a long sigh, Cr Herbert said words to the effect that, “I suppose we should meet in the morning” and he said, in response to my question, that the meeting would be at 9am. The call was extremely brief.”

“The Terrier” also makes a cameo appearance, with Ms King rejecting a claim by Mr Schneider that he only learned of the credit card scandal after reading The Terrier, and had not been previously briefed on the matter.

“…insofar as Mr Schneider appears to suggest that he did not know of the credit card issue until the publication of the material by “The Terrier”, Mr Schneider had been briefed by me about that issue, on 11 February 2019, in the course of the hand-over to him upon his commencement as the CEO.”

Ms King’s affidavit, to date, is the only sworn evidence that has been lodged with the Supreme Court in defence of Mr Schneider’s claim of being denied natural justice and seeking reinstatement.

No affidavits have been lodged by the four councillors.

The revised deadline for these affidavits was yesterday at 5pm, after lawyers representing the WCC requested more time.

A hearing has been scheduled for 1 February 2021, where a judge will make a decision based on the evidence provided – there will be no witnesses called.

The saga rolls on.

Carol Altmann – The Terrier

Update: The deadline for the Warrnambool City Council to lodge its sworn written evidence (affidavits) in defence of its sacking of former CEO Peter Schneider passed at 5pm tonight – and nothing has been lodged with the Supreme Court.

As far as I know, there has also been no request for a further extension.

What does this all mean? I am not a lawyer, but perhaps it means the matter will be settled out of court, or a judgment will be made purely on the sworn statements supplied so far by Mr Schneider and former Mayor Tony Herbert or….

The hearing date is set for 1 February 2021. A lot can and will happen between now and then, including, of course the election of a new Warrnambool City Council.

We shall wait to see how those final numbers fall, but word is that change is firmly in the air, if not an unprecedented number of new councillors being elected in one swoop.

The VEC website is now saying we should have results from as early as Monday.

Have a good weekend.

Carol Altmann – The Terrier

I have learned that one of the options for sacking former Warrnambool City Council chief Peter Schneider would have cost ratepayers around $30,000, instead of more than 10 times that amount – $365,709.

If getting rid of the CEO just 18 months into his contract was such a matter of urgency, why did the councillors involved have to rely on the most expensive option?

It turns out Mr Schneider’s contract contained a number of clauses for termination, including two for instant dismissal.

The first of these two – let’s call it the “CEO Stuffs Up Big Time” clause – sets out a number of specific grounds for instant dismissal that, if proven, result in a much smaller payout.

The thrust of these grounds is as follows:

is negligent in carrying out his duties (ie. the responsibilities, duties and functions set out in his contract);

commits an act of serious misconduct;

seriously or persistently breaches a term of the contract;

breaches the council’s policies that apply to the CEO including occupational health and safety, privacy, anti-discrimination, and use of council IT’s systems;

engages in conduct that may cause imminent and serious risk to the health and safety of another person;

is declared bankrupt;

fails to immediately notify the council that he has been charged with or found guilty of any criminal offence;

is charged with a crime, or found guilty of a crime, that brings the council into disrepute;

is unable to work in Australia.

Under this clause, the CEO would only be entitled to his salary, holiday pay, sick leave and long service leave up to the time he was sacked.

As of 13 July 2020, when Mr Schneider was dumped, this total came to around $30k.

As we know, the four councillors who voted to sack Mr Schneider didn’t – or couldn’t – use this clause and I can only speculate as to why, given it contains the sorts of grounds that most of us would expect behind a CEO getting the boot.

The councillors instead used another clause in the contract, which I will call the “Not Telling” option.

Under this option – as we now know –  the council could sack the CEO for “any reason or no reason”, which pretty much covers everything from leaving the hot tap running in the tearoom through to serious misconduct.

Not surprisingly, the payout for pulling the lever on this trapdoor is much higher: 12 months remuneration OR the remaining value of the contract, whichever is less.

With 30 months to go on Mr Schneider’s contract, the 12 month payout is what came to pass – $365,709.

The “Not Telling” option is the most expensive of all the options and, I can only assume, is used when the other “instant dismissal” option can’t be justified, or doesn’t apply.

All of this, I am afraid, only raises more questions and takes us further away from the answer that everyone is seeking about Mr Schneider’s rapid demise: why?

The full story will be slow in coming, if at all, as the dismissal heads to the Supreme Court in February.

Speaking of questions, one of I have left with the council today is whether it has acted on the recommendation of the Victorian Ombudsman to refer the misuse of a council credit card by former tourism manager, David McMahon, to police.

It is now 10 days since the Ombudsman’s eye-popping report on the ratepayer funded booze fest was made public, so I am sure an answer is imminent.

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Carol Altmann – The Terrier

Oh the battle over the sacking of the Warrnambool City Council boss Peter Schneider is turning into a dog fight.

If Mayor Tony Herbert’s sworn affidavit wasn’t enough to digest yesterday, today’s instalment is the four councillors behind the sacking threatening legal action against Cr Herbert.

The warning relates to a written media statement that was given to the local newspaper by Cr Herbert last month, but not published.

Cr Herbert prepared the 500-word statement with Councillors Peter Sycopoulis and Robert Anderson, setting out what they allege happened when their fellow councillors sought legal advice on the dumping of Mr Schneider.

Having learned of the statement, Crs Kylie Gaston, Mike Neoh, Sue Cassidy and David Owen shot an email to Crs Herbert, Sycopoulis and Anderson, describing the account as “misleading and false” and “a complete distortion of the truth”.

“We will seek legal action if there is any defamation of our characters or false information published anywhere,” the four councillors wrote.

I asked all four councillors yesterday for a comment on this legal threat and why they felt it was necessary.

“It is up to the media to decide what is inflammatory or not and if people are defamed it is their right to take recourse,” was the joint response.

It’s hard to believe that only a year ago, Cr Herbert was elected Mayor for a second term on the votes of Crs Neoh, Gaston and Owen.

At that time, it was Cr Cassidy shooting barbs across the room at Crs Gaston and Owen for switching sides.

What a poisoned pit the chamber has become since then.

The media statement by the three councillors has not seen the light of day, but it referred to an email that, in the name of public interest, you can download here.  (I have removed names irrelevant to the content.)

The email, which is not marked confidential, was sent by Cr Gaston to Cr Owen and cc-ed to all councillors on 12 July – the day before the council held its special meeting to sack Mr Schneider.

Under the ominous subject heading of “imprisonment and $100,000 fine”, Cr Gaston sets out a chronology of events around the seeking of legal advice leading up to the CEO’s dismissal.

In it, Cr Gaston seeks to allay concerns that the four councillors had done anything wrong in obtaining this legal advice which, Cr Gaston confirms, she instigated in February this year – 12 months after Mr Schneider started in the job.

Cr Gaston’s reassuring email was prompted by phone calls from Cr Herbert that seemingly put the heebies into Cr Owen.

Cr Herbert had warned Cr Owen that, according to separate legal advice, the four councillors could face five years jail and a $100,000 fine for alleged misuse of council funds.

That’s enough to cause a restless night.

Cr Gaston’s email dismissed such concerns:

“I cannot believe our documented actions could qualify us for a $100,000 fine – from whom I wonder? Nor that any of this would warrant five years imprisonment.

“We followed every step according to the advice we received and at no time did we think we were breaking any laws,” the email says.

The Local Government Inspectorate has since launched an official investigation into the circumstances surrounding the sacking of Mr Schneider.

This investigation includes the four councillors seeking legal advice without a formal resolution of the full council.

In the meantime, Cr Herbert alleged in his sworn affidavit that Cr Gaston attempted to pass a motion at the 13 July meeting that, if successful, would have seen the public pay for the legal advice.

I asked Cr Gaston yesterday for a comment on that allegation, but have not yet received a response.

The council recently confirmed an invoice was received from law firm Maddocks for the legal advice, but was later withdrawn.

As it sits, we have a Supreme Court challenge, a Local Government Inspectorate investigation, a legal threat, and a whole lot of confusion for the rest of us – outside the tent – who are still trying to piece together exactly what went on inside.

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