The Pub Test: was key information knowingly withheld from Councillors or innocently omitted

The public are allowed to raise Code of Conduct complaints against Council staff or Councillors if they consider that the accused have done something wrong and act outside of the Local Government Act, Council policies or procedures. The complaint is then dealt with by an Independent reviewer, much like an umpire who knows and reviews the rules. That reviewer is paid by Council to review the complaint and to write a report that details any consequence if there has been wrong doing. Up until recently we, the public, were able to disclose the result of these complaints. But then they decided it best to keep such matters secret. So much so that the Office of Local Government said "If you disclose the outcome of a complaint then you will never be told of any future outcome to any complaint you might raise in the future". So, if a Councillor breaches the Model Code of Conduct, if staff breach the Local Government Act policy or guideline we, the community, are not allowed to know the outcome or penalty. Procedures for the Administration of The Model Code of Conduct for Local Councils in NSW 2018 state: 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. A recent example of comes to mind of the Code of Conduct complaint raised by The Beagle against the General Manager when it was discovered that a key correspondence from the Office of Local Government was not passed on to Councillors prior to their voting to commit to a $70 million tender for the Mackay Park project. In raising the complaint The Beagle knew that it would not be given any further information because it had published the details of previous Code of Conduct complaints that had Councillors having to undertake revision sessions around their roles and obligations as a councillor, specifically when it comes to what they say in person and on social media, and for staff how they incorrectly interpreted the Local Government Act and Council policies. In the report (PSR20/015) that was provided to councillors at the ESC meeting of 28 July 2020 failed to advise our councillors and our community of some of the important advice and comments that were contained in a letter from the Office of Local Government (OLG), dated 13 July 2020. Some background to the rules: In July 2011, OLG issued Circular No. 11-14 under section 23A of the LG Act concerning a range of issues and requirements relating to the employment arrangements for council General Managers. Amongst other things, that circular spells out (in Part C.1) the ‘key duties of all general managers’. Those key duties include the specification that a general manager

“is responsible for ensuring that councillors are provided with information and the advice they require in order to make informed decisions” and

“should ensure that the council meeting business papers are sufficient to enable the council to make informed decisions”.

That part of the OLG circular also emphasises that councillors

“have a right to sufficient information to make informed decisions”. In an Office of Local Government (OLG) letter that was emailed to the ESC’s General Manager on 13 July 2020 they said (in part):

The General Manager, under a FOI request, confirmed that the Councillors did not see this letter. Unknowingly all they saw was an extract of the letter that appeared in a report on July 28th (15 days later) that quoted the first paragraph above but not the more concerning second. Our councillors were about to vote to commit $19 million of ratepayers money but were unaware of the OLG concerns around Council's capacity to finance the ongoing operations of the facility that are shared by many in the community. A Code of Conduct complaint was raised by The Beagle once the omission was discovered that the General Manager (or staff delegated under her authority) had determined that the councillors did not need to read the OLG letter as, in the opinion of the GM (or staff delegated), the councillors already had sufficient information to make informed decisions. The ethical and professional standards applicable to council general managers and other staff are provided in considerable detail in the NSW Ombudsman’s ‘Good Conduct and Administrative Practice – Guidelines for state and local government’. In it you will find the following: Advice given by public officials should be accurate, impartial, complete and timely.”

“Public officials should provide advice and reports to decision-makers …. that are materially accurate (and) cover all the issues relevant to the matter”.

“Written advice on proposals should cover such things as …

· reference to all the considerations which should reasonably be taken into account

· sufficient information to enable any decision-maker to understand the relevant issues”. Note that these are guidelines and not rules. Given that the General Manager “is responsible for ensuring that councillors are provided with information and the advice they require in order to make informed decisions” a Code of Conduct complaint was raised. The outcome of that complaint is meant to remain a secret under the new rules set down by the Office of Local Government ,and supported unanimously by our councillors. Fortunately we can reveal the findings; It will be of no surprise to Beagle readers to learn that the Independent reviewer handling this Code of Conduct complaint considered that the General Manager had done no wrong in not passing on the letter to councillors written on July 13th 2020 by the Office of Local Government that voiced their concerns to Councillors. The Independent reviewer determined that: "If considered in isolation, we can see how the selection of element of the OLG letter, as compared to the provision of the whole letter, could be perceived as providing incomplete information to Councillors. However, when viewed in the context of the publicly available information over the life of the project and noting the previous reports, briefings and information provided to Councillors and that many of these were detailed in the Agenda for the Ordinary council Meeting of 28 July 2020 to vote on the motion, the selection of information provided to Councillors is not considered to be an omission material to informed decision making. "We assess that it is reasonable for reports and briefings provided to Councillors to be focussed on the decision being made, rather then re-providing voluminous amounts of information that Council has previously considered during the life of this project. "We also consider it to be a prudent and professional approach for Council’s staff to select the salient information and provide summaries, rather than to simply pass on every piece of correspondence that Council receives. "Pursuant to Clause 6.13 of the Procedures, being satisfied that much of the information that is alleged to have been omitted from the information provided prior to Council voting on motion PSR20/015 for the approval of the construction tender is publicly available through Council’s website.

Above: The letter from the OLG sitting side by side with Council's July 28th 2020 report.

Above: a redacted copy of the independent review with Editor's notes in red.

Irrespective of the determination of the independent assessor the community (and some councillors) consider that the above findings places questions around the previous "nothing to see here" outcomes of previous complaints. Does the outcome of "nothing to see here" pass your pub test?

Image: Jacob Dyer