Presentation – Lei Parker CCS19/069 CODE OF CONDUCT COMPLAINTS STATISTICS REPORT The agenda papers for today’s council meeting provide councillors and the public with a report that contains statistical information on Code of Conduct complaints relating to councillors and the General Manager from 1 September 2018 to 31 August 2019.
The Model Code of Conduct, that applies to all NSW councils and sets the minimum standards of conduct for council officials, is prescribed by regulation for the stated purpose of assisting council officials to: · understand and comply with the standards of conduct that are expected of them
· enable them to fulfil their statutory duty to act honestly and exercise a reasonable degree of care and diligence
· act in a way that enhances public confidence in local government.
The statistical report that is before you today indicates that there were thirteen complaints received in the period form September 2018 to August 2019 - one more than in the previous year.
The summary report before Councillors simply contains the mandatory minimum statistical details required by OLG for its state-wide reporting purposes. The report offers no details of which officials were the subject of the Code of Conduct complaints, the nature of the complaints nor the outcomes.
All that the councillors (and the public) therefore have before them is that, of the thirteen complaints, two resulted in a requirement for “the subject person undertaking training or education relevant to the conduct giving rise to the breach” and that one of the thirteen was required to “apologise to any person or organisation affected by the breach”.
In an era in which public trust in all levels of government is at an all time low, it is clearly important that our community knows, at least in general terms, what inappropriate behaviour has occurred and what steps have been taken to rectify the situation.
In all, ten out of thirteen Code of Conduct complaints resulted in the reviewer deciding, following the completion of the preliminary assessment stage, “to take no action”.
Some might be tempted to argue that such an outcome in ten out of thirteen complaints might reflect poorly on those who complain, suggesting that the complaints must have been petty or vexatious.
The complaints in question were well researched, clearly articulated and fully supported by evidence of breaches.
However this type of ‘take no action’ outcome does not necessarily mean that the reviewer had concluded that a breach had not occurred.
This can be because, in some situations, there can be technical and practical reasons why the matter is unable to be taken any further under the statutory framework that surrounds these Code of Conduct processes such as OLG guidance notes using non-mandatory terms such as SHOULD instead of MUST.
The most unfortunate fact around all of these Code of Conduct complaints arrangements is that the council is not required to let the community know anything outside the limited information that is contained in this annual report card. Even Councillors are not required to be advised of the details. There is a cone of silence over all Codes of Conduct complaints, even those where a councillor has been found in breach.
What are breaches under the Code?
A Councillor must not conduct themselves in a manner that:
a) is likely to bring the council or other council officials into disrepute b) is contrary to statutory requirements or the council’s policies c) is improper or unethical d) is an abuse of power e) causes, comprises or involves intimidation or verbal abuse f) involves the misuse of your position to obtain a private benefit g) constitutes harassment or bullying behaviour under this code, or is unlawfully discriminatory.
The Executive and staff are also required to comply with Acts, Policies and Guidelines and, if they breach them, they too can be subject to a Code of Conduct complaint.
Any breach to the above, witnessed by a reasonable and fair member of the community could, and should, give rise to a Code of Conduct complaint so that an independent reviewer can consider if there is a breach.
Instead of openness, on April 9th 2019, this Council formally adopted OLG’s new mandatory Code of Conduct arrangements. These mandatory procedures included the following clause. “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.”
In a letter received from the ESC on December 6th, 2019 in connection with information that had been published in The Beagle on 18th November, as editor, I have been advised by Council’s Public Officer that:
“It is Council's intention to seek the Office of Local Government's consent to receive no future code of conduct complaints made by yourself, the Beagle Weekly and or any of your associated organisations/businesses.” giving me 28 days to make a submission on why Council should not proceed with the next steps.
This is way beyond the adopted repercussions of “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”.
This newly created consequence to receive no future code of conduct complaints that has been authored by the General Manager and the Council’s Public Officer has NOT been formally endorsed by this Council, nor by the community, and is outside the Procedures for the Administration of The Model Code of Conduct for Local Councils in NSW.
Does this draconian and illegitimate impost to ensure that no other Code of Conduct complaint can be lodged warrant a Code of Conduct complaint be made against the General Manager and the Public Officer for conducting themselves in a manner that:
is contrary to statutory requirements or the council’s administrative requirements or policies , is improper or unethical ,
is an abuse of power ,
causes, comprises or involves intimidation or verbal abuse ,
constitutes harassment or bullying behaviour under this code,
is unlawfully discriminatory
and is likely to bring the council or other council officials into disrepute.
Will an official Code of Conduct complaint be raised? And if so would we ever hear of the outcome if any breach and consequence is determined?
I couldn’t possibly say