Posted on January 5, 2017 by Sue Puckeridge

Councillor Misconduct – Reporting Requirements under the Code of Conduct

Section 440F of the Local Government Act 1993 (LG Act) identifies several matters which constitute misconduct of a councillor, one of which is a failure by a councillor to comply with a Council’s Code of Conduct.  Although the LG Act has recently been amended, this provision remains unchanged.

The NSW Civil and Administrative Tribunal (NCAT) has recently considered whether the Mayor of Hurstville Council (prior to its amalgamation) breached paragraphs 8.11 and 8.12 of the Council’s Code of Conduct (Code) by failing to report an allegation of sexual harassment made by an employee of Council against the then General Manager to the Council’s complaints coordinator.

Background

On 5 May 2015, Councillor Hindi met with a female employee of Council (Ms X) who raised allegations that she had experienced sexual harassment from the General Manager for a period of about three years. Clr Hindi subsequently arranged for a meeting with another councillor at which Ms X stated that she did not wish to pursue the matter.

About 8 days later, Clr Hindi again met with Ms X at which she signed a statement which included a reference that she would only speak with an external investigator.

At a meeting of the Council on 20 May 2015, the Council resolved itself into a closed session of the committee of the whole to discuss a staff matter. A redacted copy of the signed statement was provided to councillors at this time, together with an anonymous email sent in January 2014, which also contained allegations of sexual harassment by the General Manager.

A motion was passed that the General Manager be suspended on full pay while the allegations of sexual harassment were investigated.  The Mayor and the Deputy Mayor were authorised to contact the Office of Local Government (OLG) in order to seek advice as to who should undertake the investigation.

Subsequently a rescission motion was lodged and an extraordinary meeting of the Council was called for 25 May 2015. On that day, the OLG informed the Council that, in accordance with ‘Procedures For The Administration Of The Model Code Of Conduct‘ (Procedures) the matter should be referred to Council’s complaints coordinator by 4pm on 26 May 2015 for immediate referral to a conduct reviewer.

The extraordinary meeting commenced and Council immediately moved into a closed session of the committee of the whole to debate the rescission motion.  Council’s legal advice, legal advice from Ms X’s solicitor and an unredacted copy of Ms X’s statement, were distributed to the councillors.

The complaint was referred to Council’s alternate complaints manager on 26 May 2015.

Code of Conduct

Part 8 of the Code deals with “Maintaining the Integrity of the Code” and contains the following clauses concerning disclosure of information:

• 8.11 You must report breaches of this code in accordance with the reporting requirements under this code.
• 8.12 You must not make allegations of suspected breaches of this code at council meetings or in other public forums.

Clause 5.25 of the Procedures, requires the mayor to refer all code of conduct complaints  about the general manager to the complaints coordinator other than those specified in cl 5.21 or resolved under cl 5.23.  Clause 5.23 gives the mayor the discretion to resolve complaints by alternative means other than referral to the complaints coordinator.

Breach of Clause 8.11

The OLG argued that Clr Hindi had failed to comply with clause 5.25 of the Procedures, which was a breach of the Code amounting to misconduct because the requirement to refer the complaint was a “reporting requirement” within the terms of cl 8.11 of the Code and the reference to ‘breaches’ in clause 8.11 includes a reference to ‘alleged breaches’.

The parties did not dispute that Ms X  had conveyed a ‘complaint’ under the Code to Clr Hindi prior to the meeting of 20 May 2015 or that the reference in cl 8.11 to the reporting requirements ‘under this code‘ includes a reference to such requirements under the Procedures.

NCAT held that in ordinary language, the word ‘breaches‘ in clause 8.11, does not include ‘alleged breaches‘ and nothing in the Code suggested that the meaning of the word should be extended in that manner, particularly when clause 8.12 expressly refers to ‘allegations of suspected breaches‘.

Secondly, although the reporting requirements in cl 8.11 are unclear, the phrase does not cover the referral step envisaged by cl 5.25 of the Procedures because on the facts, the matter was a long way from being a breach and because there is a distinction between ‘reporting’ a complaint and ‘referring’ a complaint as one step in a process.  Such an interpretation was considered appropriate given that cl 10.1  of the Procedures specifically provides that a failure to comply with the Procedures does not constitute a breach of the Code except as provided for under the Code.

Breach of Clause 8.12

NCAT held that Clr Hindi did not breach cl 8.12 for two reasons.

First, he did no more than inform of an allegation made by another person.

Secondly, the allegations were disclosed in closed meetings of the committee of the whole on 20 and 25 May 2015.  These meetings were not ‘council meetings‘ for the purposes of cl 8.12.  Cl 8.12 was concerned with council meetings as provided for under the LG Act and the Regulations but not closed committee of the whole meetings.  A committee of the whole is not a council meeting as it is not a decision making forum.  Nor, if it is closed, is it a public forum.

Such an interpretation was consistent with the purpose of the LG Act and the mischief which Part 8 is intended to avoid – i.e. broadcasting allegations of breaches of the Code.

Contravention of s439 of the LGA Act – negligence

Section 439 requires a councillor to act honestly and to exercise a reasonable degree of care and diligence in carrying out his or her functions as a councillor.

The OLG argued that Clr Hindi was negligent because:

1. he failed to turn his mind to the applicability of clauses 8.11 and 8.12,
2. failing to turn his mind to the potential application of the Code and Procedures to the circumstances he was confronted with when informed by Ms X of sexual harassment.

NCAT was not satisfied that negligence was established.

What does this case demonstrate?

The decision demonstrates that the Code and Procedures are documents which need to be carefully considered and applied by those who are subject to it.  However, at least in this case,  NCAT has adopted a common sense approach to its interpretation.