The Beagle Editor, WHAT’S THE POINT OF REPORTING CODE OF CONDUCT BREACHES?
The Office of Local Government(OLG) is responsible for ensuring legislative compliance by councils and council officials. This includes dealing with Code of Conduct complaints against Conduct Reviewers.
Awareness of conduct violations is reliant upon reports/complaints submitted by either community members or other council officials.
It is therefore most disturbing to discover the apparent disdain with which these reports are managed and responded to.
It is particularly galling when responses fail to address, or even refer to, the issues reported or the legislation cited by complainants.
I would like to share with Beagle readers a Code of Conduct complaint I submitted to the General Manager, 26 Oct, regarding ESC’s “preferred” Conduct Reviewer, Ms T.
It was forwarded to the OLG on 9 Nov, 2018 and I received their response on 4 Dec, 2018 (below).
My complaint resulted from Council denying my request for an alternative Conduct Reviewer, other than Ms T, to deal with my C of C complaint regarding the Mayor’s appalling behaviour at the Aug 28th council meeting.
I believe Ms T should have excused herself from dealing with my complaint on the basis of perceived bias, as explained in legislated procedures.
Readers, please note:
In the OLG’s opening paragraph, it states, “ I understand you are dissatisfied with Ms T’s determination.”
Well, no! That ‘understanding’ is wrong!
It is a Code of Conduct complaint. Perhaps this is an avoidance tactic. Who knows?
No acknowledgement or reference was made to the Ombudsman’s discussion paper regarding bias, or Ms T’s failure to consider ALL the ‘assessment criteria’ in the legislated Procedure.
In fact, the response makes me wonder - did the OLG actually read my correspondence properly? Or did they deliberately ignore that which proves Ms T’s bias?
I wish to lodge a Code of Conduct Complaint against Eurobodalla Shire Council’s conduct reviewer, Ms T.
I believe Ms T has failed to comply with the ‘Procedures for the Administration of the Model Code of Conduct for Local Councils in NSW’ section 6.4(b):
“A conduct reviewer must not accept the referral of a code of conduct complaint where a reasonable apprehension of bias arises in relation to their consideration of the matter,” with s 6.6 clarifying that “a reasonable apprehension of bias arises where a fair-minded observer might reasonably apprehend that the conduct reviewer might not bring an impartial and unprejudiced mind to the matter.”
I believe Ms T should not have accepted my code of conduct complaint, dated 7 Sept (attached), for the following reasons:
1. My request for an alternative conduct reviewer, other than Ms T, was written in my letter of complaint. The implication of this being distrust of her judgement, which would thereby evoke a level of bias on Ms T’s part, against me/my concerns.
2. My letter of complaint regarding Ms T, submitted in 2015, would also contribute to her impartiality when considering a complaint from me.
3. As Ms T appears to be the only conduct reviewer used by ESC for the past several years, she is investigating the same councillor or council officer time and again. It would be well nigh impossible to bring an impartial, unbiased mind to the matter in these circumstances. This issue of bias has been recognised by the Ombudsman’s Office in a discussion paper.
I also believe Ms T failed to consider all the ‘assessment criteria’ prescribed under 6.27 of the Procedure, specifically:
i) whether there were mitigating circumstances giving rise to the conduct.
There were no mitigating circumstances or any provocation in this instance.
j) the seriousness of the alleged conduct.
The Act, associated regulations and Council policies/codes were contravened by a vehement verbal public attack on the Deputy Mayor, defamatory remarks made about Dep Mayor, committing an act of disorder, inflaming disorder and inciting an act of disorder by deliberately making derogatory comments in a volatile situation.
k) the significance of the conduct or the impact of the conduct ....
The conduct is significant as it was that of the Mayor, acting as Chair, at a packed council meeting that was webcast.
The conduct was an abuse of power and showed the utmost disrespect towards the public, fellow councillors, the chamber and the mayoral position. The Deputy Mayor has since lost his position. The extent of the damage to his reputation is unknown. The effect, of the unjustified derogatory remarks about the Greens, on the controversial council decision cannot be quantified. And of course, such behaviour has a negative impact on the integrity of local government.
I believe Ms T has been remiss in her duty by failing to consider the implications and consequences of the conduct complained of.
In her determination(attached), Ms T decided that that the proffered ‘apologies’ were an adequate means of redress for such appalling conduct, and that they “appeared sincere and genuinely remorseful.”
However, Ms T failed to acknowledge that, if the misconduct had been recognised as such and genuine remorse was felt, a sincere apology should have been forthcoming well before the lunch break. In this instance, it appears that the apology was the result of advice given, not remorse felt.
As a conduct reviewer, it would be expected that Ms T was aware of and familiar with the Ombudsman’s guidelines, “Apologies – a practical guide,” in order to properly inform her decisions regarding apologies. This document clearly outlines the details required for an apology to be deemed sincere and genuine.
Consequently, Ms T failed to consider that the apologies in question:
* did not include a description and recognition of the wrong that was done or an acknowledgement of the harm caused.
* tried to avoid responsibility by providing an excuse rather than an explanation.
* were conditional – “apologies that question whether the recipient was harmed eg ‘if you were offended.....”(p13)
Ms T’s acceptance of the apologies states, “noting that her apologies were unconditional.” This is incorrect.
Both apologies were qualified with “if” – “If I offended”.
There was no ‘if’ about it. The Deputy Mayor was bullied and berated, for no reason, loudly and in public. The conduct incited and inflamed disorder, as did arguments with the gallery and the derogatory remarks made about the Greens. The conduct was beyond offensive.
I believe Ms T’s bias is reflected in her reasoning and her determination of the complaint. Her assumptions and explanations appear to be selective and adapted to fit a preconceived outcome. This leaves her conclusions and findings being unsupported, unsubstantiated and failing to reflect the severity of the misconduct.
The shortcomings of Ms T’s review bring into question her professional integrity.
In closing, I think it pertinent to add, when ESC denied my initial request for an alternative Conduct Reviewer other than Ms T, I provided the reasons for my request(attached) based on the ‘reasonable apprehension of bias’ as explained in the Procedure.
Council’s response(attached) failed to even acknowledge the issue of bias, let alone address it.
It is my view that:
* Ms T should be replaced as a conduct reviewer for ESC(and any other council)
* ESC should advertise for, select and approve a new Conduct Review panel, as required by legislation.
* ESC’s practice of employing the same conduct reviewer for every code of conduct complaint for the last 4 years, at least, be investigated on the grounds of conflict of interest and in the interest of the public.
* My original Code of Conduct complaint should be reassigned to another conduct reviewer