Presentation to Council meeting April 9th 2019 by Lei Parker Model Code of Conduct CCS19/011 The 2018 Model Code of Conduct and Procedures includes changes to address the issues of the lack of recourse against members of the public who “inappropriately disclose information about complaints they have made under a council’s code of conduct”. The OLG now wants to add: ‘Where a complainant publicly discloses information on one or more occasions about a code of conduct complaint they have made or purported to make, the General Manager, or their delegate may, with the consent of the Office of Local Government (OLG) determine that the complainant is to receive no further information about their complaint and any further code of conduct complaint they make or purport to make’ In the report before you Council staff have added “When council receives a Code of Conduct complaint the complainant will be advised of the confidentiality requirement of the Code.” Councillors, imagine this: A member of the public has cause to raise a Code of Conduct under the Model Code against a councillor or member of staff possibly citing - untoward conduct that is likely to bring the council disrepute, - actions contrary to statutory requirements, - breaches of the council’s administrative requirements or policies - or is improper or unethical A Code of Conduct under the Model Code might be raised:
- out of concerns of an abuse of power, - harassment or bullying behavior, - is unlawfully discriminatory or causes, comprises or involves intimidation or verbal abuse. - over misuse of a position to obtain a private benefit - over suspicion of improper conduct. Maybe the Code of Conduct is around a breach of pecuniary interest. Any finding in the above, by way of a Code of Conduct, would be of considerable concern and interest to the community. However this Council, and the OLG, wish to close down any possibility that the community is informed of any such finding. Councilors, before you is a report advising: “When council receives a Code of Conduct complaint the complainant will be advised of the confidentiality requirement of the Code.” What will happen if that member of the public says, when advised, “I do not agree to such a confidentiality agreement. I wish to lodge a Code of Conduct as is my right and if it is proven I will tell whoever I wish”. Knowing the outcome will not be confidential .. will Council proceed with the complaint and not advise the complainant? Or will they have to abide by the direction that requires evidence ‘Where a complainant publicly discloses information …“ The word Where requires evidence and not intent. Next “The General Manager or their delegate may, with the consent of the Office of Local Government…” The who? They no longer exist. So maybe it will just be the General Manager or her delegate that determines that the complainant is to receive no further information about their complaint and any further code of conduct complaint they make, or purport to make. Will that be an operational matter that won’t require advising councilors? Irrespective of what the General Manager determines Clause 12.6 of the Model Code does not override any entitlement a person may have to access council information under the GIPA Act or to receive information under the Public Interest Disclosures Act. Under GIPA, the Code of Conduct determination can be requested from Council’s Freedom of Information Officer. This Officer will then need to independently determine if the request is in the Public Interest. An Information officer dealing with such a GIPA request must consider public interest considerations, including Code of Conduct outcomes, in favour of disclosure. The Freedom of Information Officer cannot be influenced by anyone including a supervisor, the GM or councillors. To do so is a serious breach of the Act. The following are examples of public interest considerations in favour of disclosure of information:
- It could reasonably be expected to promote open discussion of public affairs.
- It could reasonably be expected to inform the public.
- It could reasonably be expected to reveal or substantiate misconduct or negligent, improper or unlawful conduct. A Code of Conduct that establishes such disclosures IS in the public interest.
To intentionally bury it under confidentiality with the threat of recourse is shameful. Your endorsement to do so is equally shameful.