Presentation: Jim Bright Apr 9th 2019
Mayor and Councillors
In the Staff Report for today's meeting relating to the new conduct codes, it has been recommended that you should reject all proposals that were received by the ESC during the community consultation process. In the table on pages 17 to 19, council staff have identified 6 suggested changes to the publicly exhibited codes (that were accepted by you for that purpose at the ESC meeting of 20 February). Those exhibited codes reflected exactly the new model codes that had been issued by OLG in December 2018.
Suggestions 3 and 4 (on page 18) relate to one of the supplementary provisions that has been proposed by the ALP's Eurobodalla Local Government Committee (the ALP LGC) to be included in the ESC's new code. In brief, the Labor LGC has proposed the addition of provisions for an arrangement in which any conduct complaints that are received by the council would be allocated in turn to each member of the ESC's panel of conduct complaint reviewers. For many years, unknown to the community until recent times, council staff have apparently referred all complaints to just one reviewer. Although this arrangement has not been technically unlawful, it is highly dubious as an appropriate and ethical long-term practice and has become a major cause of consternation within the local community. It is also one of the factors that appears to underpin a high level of mistrust of certain council officials in the shire.
In relation to the question of any proposals for a council to supplement (in its adopted codes) the provisions contained in OLG's model codes, it is very important to note that the relevant circular from OLG to all councils included the following statement.
"In adopting a new code of conduct and procedures, councils may include provisions that are supplementary to those contain in the Model Code of Conduct and Procedures. Councils may also impose more onerous requirements under their adopted codes of conduct than those prescribed under the Model Code of Conduct. However, councils must not dilute the standards prescribed under the Model Code of Conduct in their adopted codes of conduct." (The highlighting is mine.)
(I would point out that no mention of the above-mentioned highlighted sentence is contained in the relevant Staff Report.)
The Staff Report is a little vague and/or confusing about the exact reasons for rejecting this particular proposed arrangement for the way in which conduct complaints should be allocated, but the report seems to be implying that the terms of the proposed changes that are contained in submission from the ALP LGC (dated 19 March) would somehow weaken or remove some of the standards under the prescribed Model Code.
I do not accept that council staff had adequately made that case but, so as to take any such argument out of the equation, I have attached a revised set of changes to the prescribed procedures. This revised set of proposed changes ensures that all the relevant standards in the Model Procedures are effectively retained within the procedures that would be adopted by the ESC. The attached revised set of supplementary changes (that are designed to facilitate the complaint allocation arrangements) now clearly do not remove or weaken any of the prescribed standards. (If anyone attempts to challenge that assertion, you should require them to make their argument publicly available in writing.)
With the resolution of that potential impediment to the adoption of the fairer, more transparent and therefore more acceptable complaint allocation arrangement that are proposed by the ALP LGC, I trust that the approval of councillors will be forthcoming. (What possible acceptable and rational argument could there be to the contrary?)
I should also point out that there is no requirement within the time-frame presently available to the council for a final decision to be taken by you today. If you believe that further information and/or clarifications might be needed for you to be in the position of being adequately informed, there is nothing to prevent that happening before the final decision. REVISED PROPOSAL FOR THE ADDITION OF SUPPLEMENTARY PROVISIONS TO THE MODEL PROCEDURES Proposed additional provisions to be included in the 'Procedures for the Administration of the Code of Conduct' (1) Add the following to clause 3.9 “After a panel of reviewers is established, a list of names of those panel members will be compiled for the purposes of clause 6.3. The order of names will be drawn by lot.” (2) Delete clause 6.2 and substitute the following “6.2 For the purposes of clause 6.1, the complaints coordinator shall select the reviewer whose name appears next on the list of panel members after the name of the reviewer who was most recently selected to conduct a review.” (3) Delete clause 6.3 and substitute the following “6.3 If, in the opinion of the complaints coordinator, the reviewer who is entitled to be selected under clause 6.2 is not suitable having regard to that reviewer's qualifications and experience, the complaints coordinator must notify the reviewer of that opinion and the reasons for it. If the reviewer disagrees with that decision, reviewer is entitled, within three business days of being notified, to request the complaints coordinator to reconsider the decision. If, after reconsidering the decision, the complaints coordinator maintains the original decision of unsuitability, the next reviewer on the list of panel members shall be selected. Where the conduct reviewer selected by the complaints reviewer is an incorporated or other entity, the complaints coordinator must ensure that the person assigned to receive the referral on behalf of the entity meets the selection and eligibility criteria for conduct reviewers prescribed under Part 3 of these procedures.” (4) Insert a new clause 6.4 as follows “In circumstances where there is no member of the council's panel either (i) suitable for selection due to the provisions of clause 6.2 or (ii) available for selection due to the provisions of clause 6.5, the complaints coordinator may select a reviewer from a panel of conduct reviewers established by an organisation approved by the Chief Executive of the Office.” (5) Appropriately renumber all subsequent clauses in Part 6. That is, renumber existing clause 6.4 as 6.5, clause 6.5 as 6.6, etcetera. (6) Renumber, as necessary, all cross referenced clauses in Part 6. Eurobodalla Local Government Committee Australian Labor Party