On declaring Conflicts of Interest.
Under the new rules for Public Forum you have now received a written copy of my presentation delivered to you yesterday after noon.
I would expect, out of respect and by your civic duty, you have read it and have questions at the ready.
Rather than read my presentation out, word for word for the next seven minutes I will offer a brief overview.
In your role as councillors the Local Government Act makes it clear that councillors are individually accountable to the local community for the performance of the council.
Under the Local Government Act 1993, councillors are obliged to take an oath or affirmation of office. Councillors are accountable to the community who expect the highest standards of conduct of those they elect.
Failure to comply with these standards undermines community confidence and erodes community trust.
An example of failure might be if a conflict of interest exists where a reasonable and informed person WOULD perceive that a councillor COULD be influenced by a private interest when carrying out their public duty
Pecuniary conflicts of interest arise where councillors, or certain persons or entities that are associated with a councillor, are reasonably likely to make or lose money because of a decision the council might make.
Non-pecuniary conflicts of interest commonly arise out of family or personal relationships, through an association with a councillor, or someone close to them.
In either case the Act requires the councillor to declare the interest and withdraw from the meeting while the matter is being debated and voted on.
Councillors, as you recognise, each and every word of the above is directly quoted from your Councillors Handbook.
On your Council website under Ethical decision making and conflicts it states that it is “Important to consider public perceptions of whether you have a conflict of interest.”
Basically, does it pass the pub test?
What disclosures MUST be made by a councillor?
Under the Local Government Act 1993 section 444 states that a councillor:
(a) must prepare and submit written returns of interests in accordance with section 449
(b) MUST disclose pecuniary interests in accordance with section 451. Section 451. states that a councillor or a member of a council committee who has a pecuniary interest in any matter with which the council IS concerned and who IS present at a meeting of the council or committee at which the matter is being considered MUST disclose the interest to the meeting as soon as practicable.
The councillor or member MUST not take part in the consideration or discussion of the matter and the councillor or member MUST not vote on any question relating to the matter.
Under Section 448 of the Local Government Act, the following interests do not have to be disclosed:
an interest in a proposal relating to the making, amending, altering or repeal of an environmental planning instrument,
an instrument that effects a change of the permissible uses of:
(a) land in which the person has a pecuniary interest;
(b) land adjoining, or adjacent to, land referred to in paragraph (a);or
(c) other land in proximity to land referred to in paragraph (a),
if the change in uses would affect the value of the land referred to in paragraph (a).
An example of the above need for declaration might arise in a situation such as the recent debate and voting on the Draft Eurobodalla Rural Lands Planning Proposal (RLPP) amendments to the Eurobodalla Local Environment Plan
As Councillors are fully aware, in regards to the Draft Eurobodalla Rural Lands Planning Proposal (RLPP) amendments to the Eurobodalla Local Environment Plan, there was a possibility of the adoption by councillors of the OEH recommendation to remove grazing as exempt development from E2 zoned land.
Councillors, as you know a NSW State Agency strongly recommended, and continues to strongly recommend an amendment, that alters or repeals the conditions of use on E2 land.
Remembering that, IF a Councillor DOES have a pecuniary interest they MUST not take part in the consideration or discussion of the matter and the councillor or member must not vote on any question relating to the matter.
To take part and not declare a pecuniary interest WOULD be in breach of the Local Government Act.
Might I remind you now of ICAC advice that there are four elements to consider when determining whether a conflict of interest exists.
Does the official have a personal interest?
(In this EXAMPLE, one might ask “does any Councillor have E2 affected land where cattle could be grazed?” )
Does the official have a public duty?
Is there a connection between the personal interest and the public duty?
Could a reasonable person perceive that the personal interest might be favoured?
Is there the opportunity for a person to improperly influence others to favour a personal interest?
In the above hypothetical EXAMPLE, if a councillor owned land that was affected by the OEH and DPI recommendations and if that councillor was aware that the adoption of those recommendations WOULD affect the value of the land or constrain it with a requirement for consent then a reasonable person WOULD expect that councillor to publicly declare a pecuniary conflict of interest as they MUST disclose the interest to the meeting as soon as practicable.
If that Councillor was also aware that family members, for example, also owned adjacent, affected, E2 land then a reasonable person WOULD also expect that they would need to PUBLICLY declare a non-pecuniary conflict of interest as well.
For the many Council meetings where the Draft Eurobodalla Rural Lands Planning Proposal (RLPP) was discussed it WOULD be expected that any Councillor with E2 land that would be affected by the proposed change SHOULD have declared a pecuniary conflict of interest and withdrawn from debate.
NO pecuniary or non-pecuniary conflict of interests have been declared by any councillor during the Council meetings regarding the Draft LEP nor during the committee meetings of the Rural Lands Advisory committee.
Without making such declarations it would be possible for a councillor, in a position of influence, to participate in closed door briefings and discussions and possibly ‘improperly’ persuade fellow councillors.
Meanwhile the public remain reliant on the requirements of the Local Government Act and ICAC to see all matters of pecuniary interests declared.
Just some of the E2 parcels of land (coloured brown) across the shire that raised concerns with OEH and DPI, along with the Nature Coast Alliance and the local Clyde oyster farmers who supported grazing of cattle only with consent.