Posted on April 28, 2022 by Sue Puckeridge and Lindsay Taylor 15

OLG releases Model Social Media and Model Councillor and Staff Interaction policies

On 7 April 2022, the Office of Local Government released the following two new model policies for local councils in New South Wales:

• Model Councillor and Staff Interaction Policy (CSI Policy)
• Model Social Media Policy (Social Media Policy)

These two policies are intended to represent best practice on governance in these areas, although their adoption by a council is not compulsory. Instead, they are designed to be used and adapted by councils as they see fit and to supplement a council’s adopted code of conduct.

Importantly, if adopted, any breaches of these policies will give rise to a breach of the council’s adopted code of conduct. This is because the code of conduct requires council officials to conduct themselves in a manner that is not contrary to council policies (see clause 3.1(b) of the Model Code of Conduct (Code)). Consequently, breaching an adopted policy will expose council officials and staff to disciplinary action under the Code and the Local Government Act 1993.

Social Media Policy

We have previously analysed a consultation draft of the Model Social Media Policy in detail (see here). The finalised version includes several notable changes:

• A new section in the introduction about the potential for corruption risks to arise when using social media;
• Clarification that record keeping obligations under a council’s records management policy apply to social media records and must be complied with, and expanded records management requirements, including a prohibition on destroying, altering, or removing social media content and a requirement that councillors have records of their social media content created during their term(s) of office managed or transferred by the council’s records manager and general manager or social media coordinator (Part 7);
• The removal of the requirement for:
  • the general manager or social media coordinator to ensure that councillors’ social media platforms are included on councillor profile pages on the council’s website;
  • councillors to consult the general manager prior to uploading publicly available council information onto their social media platforms;
• A clear note to warn councillors and council officials that they may be considered publishers of material posted to the social media pages that they administer, together with provisions that expressly refer to the ability and the manner of ‘hiding’ content on social media, as opposed to removing it (Part 5);
• A new Part 9 ‘Concerns or complaints‘, discussed further below.

Importantly, the Social Media Policy no longer requires a councillor who uses social media for private purposes to maintain a separate social media accounts for those purposes, nor are they prevented from identifying themselves as council officials on their private social media accounts.

Model Councillor Staff Interaction Policy 

The Code envisages a policy on the interaction of councillors and staff (cl 7.2 of the Code). The CSI Policy would be such a policy for this purpose.

The CSI Policy is divided into 9 Parts, and essentially sets out the ‘dos‘ and ‘don’ts‘ of council and staff interaction. Importantly, the policy reinforces the statutory role of a councillor as being to set the strategic direction for the council, and the role of the staff being to advise the governing body, implement Council’s decisions and to oversee service delivery under the leadership of the general manager.

The objectives of the policy include facilitating a positive working relationship between councillors and council staff, ensuring adequate and timely access to information to enable the performance of a councillor’s civic duty, providing guidance on interactions between councillors and staff, and ensuring the reputation of a Council is enhanced by professional and positive interactions.

Parts of the CSI Policy may be of assistance in achieving the identified objectives.  These include the principles guiding councillor and staff interactions (Part 4.6), the procedures for councillors to follow when making requests for information relevant to the exercise of their civic functions and staff obligations in dealing with those requests (Part 5), and the circumstances and the manner of accessing council staff (Part 6).

However, several parts of the CSI Policy seem to unnecessarily repeat provisions in the Code.

For example, Part 7 of the Code already deals with inappropriate interactions between councillors and staff. Part 8 of the CSI Policy sets out examples of appropriate and inappropriate interactions. The inappropriate interactions are largely a repeat of cl 7.6 of the Code.

Consequently, if adopted, a councillor who breaches a provision which is in both the Code and the CSI Policy will, by virtue of clause 3.1(b) of the Code, breach two provisions of the Code. It is difficult to see why this is necessary.

Dealing with complaints under the policies

Both the Social Media Policy and the CSI Policy make the general manager the person to whom complaints about councillors and staff should be made, and the mayor the person to whom complaints about the general manager should be made. This is the same as for lodging a complaint that the Code has been breached (see the Procedures for the Administration of the Model Code of Conduct for Local Councils in NSW (Procedures)).

By reason of cl 4.10 of the Procedures, the general manager will need to determine if a complaint under the Social Media Policy or the CSI Policy should be treated as a complaint under the Code.

Unlike the Code, neither the CSI Policy nor the Social Media Policy impose a time limit on making a complaint. Nor does a complaint need to be in writing. This may have the advantage of allowing a complaint under the Social Media Policy or the CSI Policy to be dealt with less formally. However, if adopted, there is potential for confusion and uncertainty as to the proper procedures to be followed because if the complaint is in writing and within the 3 month period specified by the Code, it may be more appropriate for a complaint to be dealt with as a Code complaint.

If councils are minded to adopt the Social Media Policy or the CSI Policy, they should give careful consideration to whether the policies are adopted in their entirety or with changes.

The OLG has foreshadowed that it will be issuing a Model Media Policy and Model Councillor Lobbying Policy. We will blog about these policies when they are released in due course.

You can access The Model Councillor and Staff Interaction Policy here and The Model Social Media Policy here.

If you have any questions about this blog post, please leave a comment below or contact Sue Puckeridge on 02 8235 9072 or Dr Lindsay Taylor on 02 8235 9701.