Extraordinary outcome - Hilltops Council acting general manager David Aber now has a valid contract

The Hilltops Council has now appointed David Aber to the role of acting general manager after a resolution was passed at an extraordinary meeting on Wednesday, May 30.

Valid contract: Hilltops Council acting general manager David Aber.

Valid contract: Hilltops Council acting general manager David Aber.

But, a Sydney lawyer said the council had made many mistakes leading up to the extraordinary meeting. 

Councillors raised questions at the last ordinary meeting about the validity of Mr Aber’s contract.

Mayor Brian Ingram said he was upset and disturbed at how the situation had been portrayed in the media.

“At no time was there any legal risk to the council or community,” he said. “We  sought further advice from the Office of Local Government New South Wales and we have been assured that at no point was David Aber acting without authority. There was a contract in place, and this contract provided him full delegation responsibilities.

“The mistake I made is that I did not put the approval I had from council to sign a contract with David Aber to continue in the role of acting general manager into a resolution and have it minuted. As soon as I was aware of the error I sought to have it rectified in an open council meeting when typically matters regarding the general manager’s contract are dealt with in closed council - I have nothing to hide.”

But Fairfax Media's legal counsel Larina Mullins said the council did not have any validly-appointed general manager from the day former GM Anthony McMahon went on leave until the resolution was passed on May 23. 

“The council was in breach of section 334 of the Local Government Act that requires ‘a council must appoint a person to be its general manager’.  In addition, all actions taken by Mr Aber as GM during that period were without the necessary power and were void,” she said.

When Mr McMahon went on leave:

“Section 377 provides that a council cannot delegate to the general manager the function of appointing another general manager.  That means the council could not delegate to Mr McMahon the function of appointing Mr Aber as his successor.  Mr McMahon's appointment of Mr Aber as Acting GM was invalid,” Ms Mullins said.

“In addition, section 351 provides that if the GM is absent, the council (and specifically not the GM) may appoint a person to the position temporarily.  That means only the council (not Mr McMahon) had the power to appoint Mr Aber as Acting GM for the period of Mr McMahon's annual leave.  The council did not do so.  

“As a result, Mr Aber was not validly appointed by Mr McMahon.”   

When Mr McMahon resigned:

“Section 336 requires that "the council must immediately appoint a person to the vacant position or appoint a person to act in the vacant position",” Ms Mullins said.

“It is the council that must appoint the new GM.  The mayor alone does not have that power. As a result, Mr Aber was not validly appointed by the contract with the mayor.”

When the resolution was passed on May 23:

“The council validly appointed Mr Aber as acting general manager. But, the resolution cannot work retrospectively to appoint Aber from a previous date (i.e. when he signed the contract with the mayor).”

Councillor Rita O’Conner said council must ensure at all times it acts transparently, ethically and is beyond reproach.