Posted on May 15, 2012 by

Proposed changes to the Model Code of Conduct for Councils

The Division of Local Government (DLG) has released a consultation draft of proposed amendments to the Model Code of Conduct for Local Councils in NSW (Model Code), Local Government Act 1993 (LGA) and Local Government (General) Regulation 2005.

The most signficant of the proposed changes is the separation of the Model Code into two documents. The prescribed standards of conduct for councillors and council staff will continue to be set out in the Model Code, but its administration will now be governed by a separate document, the Procedures for the Administration of the Model Code (Code Procedures).

The proposed changes aim to tighten loopholes that exist under the current rules and provide greater clarity as to the required standards of conduct.

Changes to the Model Code

The proposed changes will affect the prescribed standards of conduct for both councillors and council staff.

In the case of councillors, the proposed changes will:

• prohibit binding caucus votes whereby councillors arrange to vote as a group, although the discussion of business ahead of meetings will still be permitted
• require councillors to report a non-pecuniary conflict of interests in matters involving a major political donor, where the councillor received a reportable political donation from the donor that benefitted their election campaign
• permit councillors to contact external auditors or the Chair of council’s audit committee and discuss with the general manager his or her performance
• permit councillors to apply for an exemption from the non-pecuniary conflict of interests provisions where there is a loss of quorum due to compliance with the rules and the matter cannot be delegated
• prohibit councillors from using council resources for election purposes unless they are available for public use and a fee is paid, and restrict the use of council letterhead, crests or other material for campaigns or non-official uses.

The changes affecting council staff are:

• a prohibition on council staff accepting ‘cash-like’ gifts
• a prohibition on council staff participating in political activities that interfere with their duty to serve council in a politically neutral manner.

In addition, new provisions will require councillors and council staff to conduct themselves in a way that does not undermine confidence in the integrity of the Model Code.

The Code Procedures

The proposed Code Procedures set out in detail the processes for dealing with complaints and investigations in relation to alleged breaches of the Model Code. The processes differ in important respects from those that currently apply.

The most significant changes are:

• code of conduct complaints must be made within three months of the alleged conduct occurring, or the complainant becoming aware of the alleged conduct
• there is an expanded role for conduct reviewers in relation to complaints about councillors, committee members and the general manager. Reviewers will be responsible for the preliminary assessment of such complaints and will make the final determinations about whether or not breaches of the Model Code have occurred
• councils can establish their own panels of conduct reviewers, or select conduct reviewers from a regional panel, or a panel established by a prescribed organisation
• councils must appoint a ‘complaints coordinator’, being a ‘senior and suitably qualified member of staff of the council’ to coordinate the management of complaints, and provide administrative support to a conduct reviewer
• the procedural fairness requirements relating to an investigation are more clearly prescribed. In particular, following investigation a conduct reviewer will prepare a draft investigation report, a copy of which will be provided to the subject of the investigation and any other person about whom adverse comments are made, with an invitation to make a written submission in response
• the conduct reviewer will then prepare a final investigation report. The minimum requirements for this report are listed in the Code Procedures
• where a more severe sanction is recommended the report will be considered by council in a closed meeting
• the council will only be able to impose a sanction that is recommended in the final investigation report. However, the council can decide not to adopt the recommendations of the final investigation report, with reasons.
• even if no breaches of the Code are found, the conduct reviewer may still recommend that the council revise its policies and procedures or that a person should undertake training or education
• a person who has been sanctioned may request a review by the DLG within 28 days of the sanction being imposed. The review is limited and will not be a full merits review of the decision.

Amendments to the LGA

A number of amendments to the LGA are also proposed:

• the term ‘misbehaviour’ will be changed to ‘misconduct’
• section 10A of the LGA will be amended in order to permit councils to consider a final investigation report in private
• the DLG will be given more options to deal with misconduct of councillors, rather than just the power to suspend. The new options will include, counselling, reprimanding, making public findings of misconduct, requiring an apology or other action, or suspension of the councillor’s right to a fee or other remuneration
• the Director-General’s powers will be strengthened to include the power to suspend a councillor for a period of up to three months
• the Director-General will have the power to ‘call-in’ matters to be dealt with under the misconduct provisions rather than under the code of conduct
• a councillor who is disciplined will have a right to appeal within 28 days to the  Pecuniary Interest and Disciplinary Tribunal (Tribunal). The Tribunal may confirm, quash or amend the decision.
• the powers of the Tribunal will be strengthened to include the power to disqualify a councillor from holding civic office for a period not exceeding five years
• the Tribunal will also be permitted to take into account previous incidents of misconduct by the councillor when determining what action is appropriate.

Submissions

Any person wishing to comment on the proposed changes can do so in writing by no later than 26 June 2012. Submissions may be posted to:

Division of Local Government

Department of Premier and Cabinet

Locked Bag 3015

NOWRA NSW 2541

Alternatively, submissions may be emailed to dlg@dlg.nsw.gov.au.