Presentation by Lei Parker to the ORDINARY MEETING OF EUROBODALLA SHIRE COUNCIL HELD ON TUESDAY 11 DECEMBER 2018 CCS18/061 CODE OF CONDUCT COMPLAINTS STATISTICS REPORT Councillors, As you have been advised in this report the Office of Local Government (OLG) requires Council to submit a Code of Conduct Complaints Statistics report by the 30 November each year. The report offers some background for further reading and consideration It explains that when a Code of Conduct complaint is lodged with a conduct reviewer they will conduct a preliminary assessment for the purpose of determining how the complaint is to be managed. It then advises that the conduct reviewer may determine to take no action, or to resolve the complaint by alternative and appropriate strategies such as counselling, training, mediation, informal discussion, negotiation or apology, or to refer the matter to another agency or body such as, the Independent Commission Against Corruption (ICAC), the NSW Ombudsman, the OLG or the Police If the conduct reviewer believes the complaint needs to be investigated, the conduct reviewer may make a recommendation that the Council revise any of its policies and procedures The reviewer might also recommend that the subject person undertake any training or other education relevant to conduct giving rise to the breach or be counselled for their or makes apology to any person or organisation affected by the breach. That reviewer, by rights, comes from a preselected panel. You might assume the reviewers are rotated. They are not. It is always the same reviewer. Before you today is a report that advises the total cost of dealing with code of conduct complaints relating to Councillors and the General Manager for the 2017-2018 period is $12,698.00 compared to the 2016-2017 period of $10,447.00. We learn that there were twelve complaints received within the period and nine complaints finalised. On average one might assume a cost of $1410 per complaint paid for by ratepayers, being the total cost of dealing with Code of Conduct complaints relating to councillors and the General Manager, including staff costs.
As Councillors you are not allowed to know the substance of these complaints and if you do you must not disclose information about the consideration of a matter under this code except for the purposes of seeking legal advice. Presently however if a member of the public raises a Code of Conduct then the findings can be made public under current rules that are soon to be changed resulting in “consequences”. The twelve complaints referred to in the statistics before you relate to complaints raised by the public and as such are known to the community as are their findings. The raising of a Code of Conduct is not a trifling matter. They are raised when, in the opinion of a person, there has been a breach of an Act, a policy or a formalised Guidance from a body such as the Office of Local Government. In the last twelve months this Council has had twelve. This is significant. They are, in the opinion of well informed community members who have sat down, looked over policies, the Acts and Guidelines and come to the opinion that an action, or failure of action, by a Council staff member or Councillor, a breach. Councillors, in the Legal section of the report before you the staff advise only that: The Model Code for Procedures for administration of the Model Code of Conduct states that a Code of Conduct Complaints Statistics report must be presented to Council within three months from the end of September each year. What they do not advise however is that: Under the current procedures (that have been prescribed by OLG under s.440AA of the LG Act) - "The council must by resolution establish a panel of reviewers" and that the panel can have a maximum term of four years.” And that Council's Code of Conduct panel expired in June 2016. Since then Council have been using the same reviewer, each and every time advising that at some point they will be covered by a new panel should one come to fruition in 2019. I remind you that under Clause 3.1 of the prescribed Procedures "The council must by resolution establish a panel of reviewers". Plural.
Over recent years it has been noted that Council does not rotate and complaints to members of a panel and prefers to direct them to a single investigator in all instances. On several occasions in the last year members of the community have specifically requested that their complaint be given to another investigator only to be refused by Council. As recently as November 7th Council stated in a letter to a member of the community raising a Code of Conduct that her “complaint will not be reallocated to another conduct reviewer offering by way of explanation that the reviewer was part of a NSW scheme of reviewers of Council Codes of Conduct complaints as approved by the OLG”. Not unlike the results published in preceding years, the statistics for this year suggest that our council officials have again been exonerated of any of the misdemeanor accusations that were levelled against them. From this report it appears that not one of the nine complaints that were finalised required the need for any type of corrective action at all.
Councillors, the continued referral of all Code of Conduct complaints to a single investigator raises alarm bells and the refusal of Council staff to abide by the specific request of complainants to refer it to another panel member also raises considerable concerns around the transparency and integrity of the process. The report card before you appears, in all innocence, to say there were twelve Codes of Conduct. No description, no indications of who. Just a number. Twelve. Is twelve a good number? It appears to be more than the previous year. Does twelve rest easy with you. Are you concerned? As Councillors you aren’t even allowed to know what the complaints were. Councillors, I can tell you of at least another ten Codes of Conduct that were not raised. The complaints were not raised however because the community no longer has any faith in this system, either at a local level or higher with the OLG. Those in the community who understand Local Government enough to recognise breaches and to raise Codes of Conduct complaints did so believing that these complaints would be respected and treated accordingly by those charged with ensuring compliance, acting for the community. What the community has seen instead is a system that hides itself behind confidentiality clauses, makes its own rules and all too often deliberates on the side of its own. This statistical report card before you is far more than numbers in boxes to “receive and note”. It should be an alarm to you that all is not as it should be and that, if not for exasperation and disbelief in a system that is meant to bring Council to account there would be twice as many Codes of Conduct in those boxes to post off to a government department that neither cares nor reacts. Councillors, no doubt you are aware that the Canberra Region Joint Organisation held their third meeting last Friday. An item on the agenda was in regards to the recommendation by the General Managers Advisory Committee moving that the CRJO call for an EOI for the establishment of its own conduct review panel and for member Councils who wish to participate; and the cost of preparation be shared amongst NSW participating Councils. That GMAC also moved to recommend to the Canberra Region Joint Organisation to nominate a panel of 3 representatives to review the EOIs recommend the composition of the panel, being representatives from Bega Valley Shire Council, Snowy Monaro Regional Council and Eurobodalla Shire Council. A letter to the chair of CJRO, sent on Friday however strongly requested that Eurobodalla Shire Council not be on the panel advising of the controversial and contentious circumstances within the Eurobodalla Shire regarding concerns in the ESC's behaviour around the administration of its 'code of conduct' complaints review processes. The Eurobodalla Council representatives advised the meeting on Friday they no longer wish to be on the panel of selectors. Editors Note: Councillor Nathan asked if there was any way to determine how Eurobodalla Council compared to other councils - the answer is YES.... via this link To fast track it for you though: Council complaint statistics 2017-18 - 12 Council complaint statistics 2016-17 - 6 Council complaint statistics 2015-16 - 20 - .... predominantly Council against Councillor Complaint Statistics 2014-15 - 26 ...... or Councillor against Councillor Complaint Statistics 2013-14 - 7