Policy and Legislation Committee 6 27 October 2021
7.1 ESTABLISHMENT OF BEHAVIOUR COMPLAINTS COMMITTEE
|
LEADERSHIP - A Council that connects with the community and is accountable in its decision making. |
|
|
STRATEGIC PRIORITY |
4.2 Deliver governance systems that facilitate open, ethical and transparent decision making. |
|
SUBJECT INDEX |
Code of Conduct |
|
BUSINESS UNIT |
Governance Services |
|
REPORTING OFFICER |
Governance Coordinator - Emma Heys |
|
AUTHORISING OFFICER |
Director Finance and Corporate Services - Tony Nottle |
|
NATURE OF DECISION |
Executive: Substantial direction setting, including adopting budgets, strategies, plans and policies (excluding local planning policies); funding, donations and sponsorships; reviewing committee recommendations |
|
VOTING REQUIREMENT |
Absolute Majority |
|
ATTACHMENTS |
Attachment a Proposed Delegation DA
11 - 03 Behaviour Complaints Committee⇩ Attachment b Proposed Terms of Reference - Behaviour
Complaints Committee⇩ Attachment c Amended Council policy: Management of
Complaints of Alleged Breaches of Behaviour⇩ Attachment d Current Council policy: Management of
Complaints of Alleged Breaches of Behaviour⇩ Attachment e Council Policy: Management of
Complaints of Alleged Breaches of Behaviour with Committee amendments⇩ |
Cr Henley foreshadowed an alternative to the officer recommendation. The alternative motion was moved and carried.
|
PL2110/430 Moved Councillor G Henley, seconded Councillor K Cox That the Council: 1. Establish a committee of Council to determine complaints called the Behaviour Complaints Committee. 2. Delegates power and authority to the Behaviour Complaints Committee to make findings and dismiss complaints in relation to clause 12(1), (4) and (7) and clause 13 of the Local Government (Model Code of Conduct) Regulations 2021, as per Attachment A. 3. Adopt the Terms of Reference for the Behaviour Complaints Committee as per Attachment B. 4. Appoints membership to the Behaviour Complaints Committee: i. 5 Members ii. 4 Deputy Members
5. Adopts the Council policy: Management of Complaints of Alleged Breaches of Behaviour inclusive of the Committee amendments (Attachment E), being the inclusion of an additional clause to provide the CEO the discretion to refer the Complaints Officer report, in extraordinary circumstances, to a Council Meeting for Council to make a finding in relation to a complaint of alleged breach of behaviour; and amendments to clauses of the Policy that refer to a meeting of the Committee to now include 'and Council'. CARRIED 5/0 BY ABSOLUTE MAJORITY Reasons: The Committee recommended the amendments to the Policy to provide the CEO with the discretion to refer a report of a complaint to a Council meeting for a finding to be made; and amendments to relevant clauses to refer to both meetings of the Behaviour Complaints Committee and Council. |
|
OFFICER RECOMMENDATION That the Council: 1. Establish a committee of Council to determine Complaints called the Behaviour Complaints Committee. 2. Delegates power and authority to the Behaviour Complaints Committee to make findings and dismiss complaints in relation to Clause 12(1), (4) and (7) and Clause 13 of the Local Government (Model Code of Conduct) Regulations 2021, as per Attachment A. 3. Adopt the Terms of Reference for the Behaviour Complaints Committee as per Attachment B. 4. Appoints membership to the Behaviour Complaints Committee: i. 5 Members ii. 4 Deputy Members 5. Adopts the amended Council policy: Management of Complaints of Alleged Breaches of Behaviour (Attachment C) (the Policy) to replace the current policy (Attachment D). |
This report seeks Council endorsement of the establishment of a Behaviour Complaints Committee (the Committee), under section 5.8 of the Local Government Act 1995, with the Committee to be delegated the power and authority to make findings or dismiss complaints in relation to alleged breaches of Part 3 of the City of Busselton Code of Conduct for Council Members, Committee Members and Candidates. Presented for Council adoption is the Committee Terms of Reference; under which the Council is asked to appoint membership to the Committee.
Council is also requested to adopt the amended Council policy: Management of Complaints of Alleged Breaches of Behaviour, to reflect the proposed changes to the complaints management process.
BACKGROUND
The Local Government (Model Code of Conduct) Regulations 2021 (the Regulations) came into effect on 3 February 2021. The Regulations replaced the Local Government (Rules of Conduct) Regulations 2007 (repealed) and prescribed a Model Code of Conduct for local government council members, committee members and candidates (Model Code).
At its 28 April 2021 meeting, Council, in accordance with s.5.104 of the Act, adopted the City’s Code of Conduct for Council Members, Committee Members and Candidates (the Code), and the form for making Complaints. Council also appointed the CEO as the Complaints Officer. The CEO has delegated this power to the Director Finance and Corporate Services.
At its meeting of 9 June 2021 Council adopted Council policy: Management of Complaints of Alleged Breaches of Behaviour. Whilst the policy was informed by several other local government council policies, the Western Australian Local Government Association (WALGA) template Complaints Management Process was released post formulation of our policy. The City’s complaints management process as adopted differs from the WALGA process in that, at the time, the City chose to have complaints managed by a third party investigation and findings by Council.
OFFICER COMMENT
Officers have had some time since commencement of the new requirements to reflect and further discuss with other local governments the best way to manage complaints when they arise, particularly in relation to interests that may arise. On reflection, officers believe it is prudent to revisit the City’s position in regards to complaints management.
The complaints management process in the current policy requires a complaint to be dealt with by the whole of Council. Putting aside the common law principles of apprehended bias, there is no provision in the Act that excuses a Councillor from the deliberative voting process in a Council meeting, outside of a financial or proximity interest. There would be no financial implication arising from a finding in relation to a complaint and therefore a Councillor who is the subject of a complaint would arguably be required to remain in the Council meeting during the determination of the complaint, after having declared an impartiality interest Similarly so would a maker of the complaint. This may cause a perception of bias and may negate the principles of natural justice.
In order to manage this issue, WALGA’s template policy and their approach is predicated on a committee being delegated the power from Council to deal with each complaint.
Officers are proposing that the City adopt this approach also and that the Council establish a committee of Council, the Behaviour Complaints Committee, to make findings and/or dismiss complaints received under Part 3 of the Code.
Officers have developed Terms of Reference (ToR) for the Committee which outline the proposed membership and delegated powers and conditions. The ToR are presented to Council for endorsement (Attachment B). Notably, the membership of the Committee, as outlined in the ToR, require the appointment of 5 Members and 4 Deputy Members, thereby allowing members who are the subject or maker of a complaint, to recuse themselves and for the meeting to continue with the attendance of a Deputy Member/s.
The proposed delegated powers to the Committee as detailed in the ToR and proposed Delegation DA 11 – 03 (Attachment A) (the Delegation) are:
a. the authority to make a finding as to whether an alleged breach the subject of a complaint has or has not occurred, based upon evidence from which it may be concluded that it is more likely that the breach occurred than it did not occur and determine reasons for any finding.
b. where a finding is made that a breach has occurred, the power to:
i. vary the proposed action plan; or
ii. consider the adoption of the action plan.
c. dismiss a complaint and determine the reasons for the dismissal.
The proposed delegate powers to the Committee will be subject to the following conditions:
a. the Committee will make decisions in accordance with Council Policy: Management of Complaints of Alleged Breaches of Behaviour and these Terms of Reference.
b. that part of a Committee meeting which deals with a Complaint will be held behind closed doors in accordance with s.5.23(2)(b) of the Act.
c. the Committee is prohibited from exercising its delegated power where a Committee Member in attendance at a Committee meeting is either the complainant or respondent to the complaint under consideration by the Committee.
Statutory Environment
Section 5.103 of the Local Government Act 1995 (the Act) [Model code of conduct for council members, committee members and candidates] provides that regulations must prescribe a Model Code of conduct for council members, committee members and candidates and must include:
(a) general principles to guide behaviour; and
(b) requirements relating to behaviour; and
(c) provisions specified to be rules of conduct;
and may include provisions about how to deal with alleged breaches of the behaviour requirements.
Section 5.104 of the Act provides that a local government must prepare and adopt by absolute majority a code of conduct to be observed by council members, committee members and candidates, and which incorporates the Model Code.
The Local Government (Model Code of Conduct) Regulations 2021 prescribe the Model Code of Conduct for Council Members, Committee Members and Candidates.
Relevant Plans and Policies
The officer recommendation aligns to the City’s Code of Conduct for Council Members, Committee Members and Candidates.
Financial Implications
There are no specific financial implications associated with the appointment of members to Committees/groups, as the costs associated with attendance at these Committees/groups have been allocated in the current budget.
Stakeholder Consultation
Officers consulted with the Western Australian Local Government Association (WALGA) and the documents and processes developed by the City of Rockingham have all formed part of the research undertaken by officers in preparing this report and the associated documents.
Risk Assessment
An assessment of the potential implications of implementing the officer recommendation has been undertaken using the City’s risk management framework, with risks assessed taking into account any controls already in place. The following risks have been identified. No risks of a medium or greater level have been identified.
Options
As an alternative to the proposed recommendation, the Council could choose not to establish a Behaviour Complaints Committee under section 5.8 of the Act. However, officers do not recommend this course of action, as leaving the complaints management process in its current form may result in the perception of bias with Council as a whole responsible for determining complaints of alleged breaches of behaviour.
CONCLUSION
Council are asked to endorse the establishment of a committee of Council, Behaviour Complaints Committee, in accordance with section 5.8 of the Act, to make findings and/or dismiss complaints of alleged breaches of Part 3 of the Code; adopt the Terms of Reference and Delegation of Authority as per attachments A and B; appoint membership to the Committee; and adopt the amended Council policy: Management of Complaints of Alleged Breaches of Behaviour.
TIMELINE FOR IMPLEMENTATION OF OFFICER RECOMMENDATION
The Behaviours Complaints Committee, membership of the committee and amended policy will be in effect immediately upon adoption of Council.
