Layers and layers of secrecy
A member of the community is allowed to lodge a complaint if they consider the conduct on the part of a council official acting in their official capacity, if proven, would constitute a breach of the standards of conduct prescribed under the council's code of conduct. That seems fair. You write to the Council and describe your complaint and it is then sent to an independent investigator. If you believe that the code of conduct has been breached by a councillor, member of staff (excluding the General Manager) or delegate of Council, the complaint should be reported to the #1 the General Manager in writing.
If you believe that the General Manager has breached the code of conduct, it should be reported to the #2 Mayor in writing. By the rules of the Office of Local Government no-one in Council with the exception of #1 General Manager or #2 Mayor and the Public Officer can see the Code of Conduct Complaint and they are NOT allowed to discuss it with anyone. Eurobodalla Shire Council adopted the new Model Code of Conduct and Procedures at its Council Meeting on 9 April 2019 as its code of conduct, The newly endorsed 2018 Model Code of Conduct and Procedures now applies so all of our Councillors need to be mindful of the new rules. What sort of breaches might see a complaint lodged? Under the section "What conduct is expected of a councillor? (Clauses 3.1 – 3.14) You must not conduct yourself in a way that: will bring the council into disrepute is contrary to law and council policies is improper, unethical or an abuse of power involves misuse of your position for personal benefit constitutes harassment or bullying or is unlawfully discriminatory, or is intimidating or verbally abusive. If you look at 'misuse of your position for personal benefit ' as an example it is described clearly for Councillors as: Pecuniary interest You will have a pecuniary interest in a matter you are dealing with where there is a reasonable likelihood or expectation that you or a related person (eg a relative such as a brother), your employer or business partner or a company you hold shares in) will gain or lose financially appreciably as a result of any decision made in relation to the matter. How do I manage pecuniary conflicts of interest that I have in matters I am dealing with? (Clauses 4.28 and 4.29) Where you have a pecuniary interest in a matter being dealt with at a meeting, you must: disclose the nature of the interest, and leave the chamber while the matter is being considered and voted on. That is pretty straight forward. If you were voting on a planning matter that would allow a property you own (or owned in partnership with a brother for example) you might seriously consider advising that you have a pecuniary interest. The option would be to consider declaring a significant non-pecuniary conflict of interest in a matter being dealt with? (Clause 5.9) . Under the Model Code guidelines for Councillors it states: Non-pecuniary conflict of interest: You will have a significant non-pecuniary conflict of interest in a matter you are dealing with where you have a: close relationship (including a business relationship) with a person who will be affected by any decision made in relation to the matter strong affiliation with an organisation that will be affected by any decision made in relation to the matter, or financial interest in the matter that is not a pecuniary interest, or you otherwise stand to gain or lose a personal benefit as a result of a decision made in relation to that matter. You will also have a significant non-pecuniary conflict of interest in a matter where you are member of the board or management committee of an organisation as the council’s representative and the interests of the council and the organisation are potentially in conflict in relation to the matter under consideration. This is what is known as a “conflict of duties”. So let us imagine if we were to discover that a councillor (or family member) might gain or lose financially appreciably or will be affected by any decision made in relation to the matter An example could well be the recent adopting of the Draft Rural Lands Strategy document provided to NSW Planning. Just as is required with pecuniary conflicts of interest a Councillor must also manage significant non-pecuniary conflicts of interest they have in matters being dealt with at meetings which OLG offer clear advice: You must: disclose the nature of the interest, and leave the chamber while the matter is being considered and voted on. If for example a councillor was to vote to ignore the clear advice, on submission, of a State Agency knowing that such advice, if accepted would impact on a property owned by that Councillor causing it to gain or lose financially appreciably then that might be considered a Pecuniary Conflict of Interest. If the Councillor was to vote on the above knowing that, if accepted, the decision would impact on a property owned by a relative of that Councillor causing it to gain or lose financially appreciably then that would be a non-pecuniary conflict that also must be disclosed. If a member of the community you may feel that one of these has been breached they can raise a code of conduct for an independent assessor to look at the matter. Should it be found to be a breach the Office of Local Government is then advised. The Eurobodalla Council have just approved a new panel of Code of Conduct investigators. It is at the discretion of Council's Public Officer which panel member is selected for each Code of Conduct raised. The conduct reviewer is required to undertake a preliminary assessment to determine how the matter should be dealt with. Most matters will be resolved informally by means such as explanation, counselling, training, mediation, informal discussion, negotiation, a voluntary apology or an undertaking not to repeat the offending behaviour. Only the more serious matters are formally investigated. Investigations must follow strict rules that are designed to ensure that matters are dealt with fairly, confidentially and with rigour. In the past Council came under fire for continually using the same investigator. Most often the findings were that there was no further action required. Was that a good thing or a bad thing? The jury is still out. Before moving ahead it is important to reiterate that it is a new Confidentiality requirement around Codes of Conduct that ensures the public have no idea of complaints raised or of the outcomes. And if you reveal the Code of Conduct details or the findings you will wear the consequences as described below: 12.1 Information about code of conduct complaints and the management and investigation of code of conduct complaints is to be treated as confidential and is not to be publicly disclosed except as may be otherwise specifically required or permitted under these procedures. 12.2 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, determine that the complainant is to receive no further information about their complaint and any future code of conduct complaint they make or purport to make. So what if, for example a Code of Conduct complaint was raised against a Councillor for comments said publicly in social media that were considered intimidating or verbally abusive. The complaint would go to an Investigator/reviewer and most likely would result in an finding such as recommending that a particular Councillor is counselled to ensure that statements of political campaigning remain separate from decisions and actions in their capacity as a councillor, which must not unlawfully discriminate. Another favoured action might be that Council provides media awareness training for all Councillors as the 2020 elections approach, to ensure that political campaigning statements are appropriately identified to avoid confusion with statements made in official capacities and provide clarity for Councillors and members of the public in relation to social media engagement. By the above the member of the community might feel that something was done. However, what if another community member just two months later also raised a Code of Conduct complaint about a comment made by a councillor on social media. What if that complaint went to another reviewer? By the very nature of the secrecy around Codes of Conduct complaints one investigator does not know of the determinations of another. In fact the only person who knows of all determinations for all parties is Council's Public Officer. So what happens if a second social media related Code of Conduct complaint is made and given to a new reviewer? Most likely it will be considered a first offence and meet with a response such as: It is my view after considering all the material available to me, that while the conduct is proven, I do not believe that the conduct is sufficiently serious to warrant investigation. The Councillor has conceding that they need to be careful with their words when interacting on social media. Beyond this, I have determined that the complaint is best resolved by alternative and appropriate informal action. This will include directing the Councillor to guidance materials, specifically appendix 5 of the Councillor Handbook 2017 about dealing with the media and social media, the Council’s Media Policy, as well as offering media and social media training more broadly.
The Code of Conduct process is good. It is put in place to ensure Councillors comply with policies and legislative requirements and that they conduct themselves as per the Local Government Act and other Guidelines. When that review system fails (or appears to fail) the next step up is the Office of Local Government and beyond that the Ombudsman's Office. Unfortunately these 'watchdog' bodies have seen their funding savaged and their resources stripped. The watchdogs have all but become toothless. The newly established secrecy contrivance initiated by the Office of Local Government (and endorsed by our councillors) is set in place to ensure all of the Codes of Conduct details and findings remain secreted away from public knowledge. It makes a mockery of the open and transparent democracy expected by ratepayers and taxpayers. If a Councillor is found in breach of the Act we will never know. If it happens time and time again we will not know. They can step down for 'family reasons' and we will never know the truth. Fortunately in the Eurobodalla there is a growing core of well informed ratepayers now looking very closely at the Council and the actions of councillors bringing them to task for their possible breaches. Though they are not allowed to exchange details or findings about any Codes of Conduct against councillors it doesn't stop any 'hyperthetical' discussion around cafe tables. The newly appointed Code of Conduct Panel will no doubt have their work cut out over the next ten months as we approach the September 2020 elections.