During the first ninety days of the new council, Labor councillors will seek the support of a majority of the councillors to either implement, or begin steps towards, the following reforms to the way our council is governed.  These reforms are intended to bring our council’s practices into line with basic acceptable standards of transparency, accountability, honesty and integrity.

Contents

(1)   Webcasting of Public Forums

(2)   Content and standard of Staff Reports

(3)   Advice to councillors regarding government guidelines

(4)   Some council meetings to be held away from Moruya

(5)   Mobile phone usage by councillors during meetings

(6)   Granting councillors leave of absence

(7)   Councillors’ right to question Public Forum presenters

(8)   Retention of webcast recordings

(9)   Mayoral Minutes

(10) Choosing conduct complaint reviewers

(11) Conduct complaints about the General Manager

(12) Provision of information to conduct complainants

(13) Legal advisors to base their advice on the public interest

(14) Independent ‘freedom of information’ expertise to be available

(15) Recruitment processes for the General Manager position

(16) General Manager’s ‘key performance indicators’

(17) Council’s delegation of powers to the General Manager

(18) General Manager contract renewal process

(19) Council’s record-keeping procedures

(20) Council to rejoin the NSW Local Government Association

(21) Staff training on governance and integrity matters

MEETING PRACTICES 

(1)  Webcasting of Public Forums 

What we will do

Eurobodalla Labor will propose an amendment to the ESC’s Meeting Code to provide for the webcasting of Public Forums and to make them officially part of the council meetings for councillor attendance requirements.

Background/Comments

A resumption of webcasting of the ESC’s Public Forums would be simple to implement and should be a priority matter for determination by the next group of elected councillors.  (It should not, and does not need to, await the full review of the meeting code that has to occur within the first twelve months of the term of each new council.)

A survey of the practices of many other councils suggests that the ESC’s decision in 2019 to no longer webcast its Public Forums puts our council out of step with the overwhelming majority of councils in NSW, including all the surrounding councils in south-east NSW.

The ESC’s decision was stated to have been prompted by the level of criticism of council officials that was often being made by presenters during those forums.  Characteristically, the ESC’s solution to that problem was not to seek to reduce the incidence of the behaviours and activities of council officials that were generating the criticisms but instead to reduce the opportunity for members of the general community to hear those criticisms.

(2)  Content and standard of Staff Reports 

What we will do

Eurobodalla Labor will propose an amendment to the ESC’s Meeting Code to require that Staff Reports must reasonably cover all the important ‘for’ and ‘against’ issues associated with any agenda item requiring a decision by the councillors.

Background/Comments 

It is not at all unusual for Staff Reports in this council to cover only the arguments and facts that support the case for adopting the recommendations contained in those reports.

This practice, of providing less than optimum advice to councillors, is contrary to the plethora of statutory, policy, contractual and professional commitments that a General Manager has to the community’s elected decision-makers.  It seriously undermines the efficacy of this council’s decision-making processes and should be rectified by the new councillors as a matter of urgency.

(3)  Advice to be provided in Staff Reports about relevant government guidelines

What we will do

Eurobodalla Labor will propose amendments to the ESC’s Meeting Code to require 

(1) that reasonable steps are taken by the General Manager to ensure that the Staff Reports (a) advise councillors of the existence of any relevant guidelines, issued by NSW government agencies, that relate to matters that are on the agenda for decision, (b) identify any of the recommendations in those Staff Reports that are inconsistent with such guidelines and (c) provide an explanation or justification for any such inconsistencies, and 

(2) that, in the case of the ‘mandatory’ guidelines that have been issued by OLG under the Local Government Act, the Meeting Code should be amended to require the General Manager to include copies of (or links to) those guidelines in all relevant Staff Reports. 

Background/Comments

These proposed changes are supported by the NSW Ombudsman’s Guidelines which state as follows. 

“While there is usually no legally enforceable obligation to comply with government circulars, memoranda or generally accepted codes of practice, decision-makers should usually have regard to them and comply with their terms in the interests of fairness, equity and consistency.  Decisions not to comply with circulars, memoranda and other similar codes should be justifiable, and reasons for taking another course of action should usually be documented.” (The underlining has been added.)

Incredibly, even in the case of the ‘mandatory’ guidelines issued by OLG under section 23A and 10B(5) of the LG Act, the GM almost always fails to bring the attention of councillors to them.  (Guidelines issued by OLG under those sections of the Act are ones that councillors are legally required to take into consideration before making decisions on certain types of matters.)

(4)  Conduct of council meetings away from Moruya

What we will do

Eurobodalla Labor will propose that consideration be given by Councillors to amending the ESC’s Meeting Code to provide that a minimum number of ordinary meetings should be held each year at other locations – for example, at Batemans Bay and Narooma. 

Background/Comments

A number of other councils in rural/regional areas of NSW conduct some meetings away from the location of their council chambers.  There is no obvious reason why this should not also occur in this shire in order to allow for a broader section of the community to have an opportunity to observe, first hand, that level of government that is closest to the community.  It would also provide an additional opportunity for informal contact between community members and council officials.

(5)  Mobile phone usage by councillors during council meetings

What we will do

Eurobodalla Labor will propose an amendment to the Meeting Code that would impose restrictions on the use of electronic devices by councillors during council meetings (for other than specific approved purposes).

Background/Comments

At least one example of texting between councillors during formal council meetings has been identified during the term of the current council and two particular councillors appeared to regularly and intentionally focus on their phones during Public Forums in, what created the appearance of, a deliberate act of disrespect towards presenters with whom they might have disagreed with or disapproved of.

It is noted that a Senate committee has recently recommended banning such activities by elected members during sittings of the federal parliament.  It is difficult to see that there would not be an even stronger case for such a ban to apply to councillors during the presentations that are being made by members of our local community to their elected representatives at council meetings.

(6)  Granting councillors leave of absence from meetings

What we will do

Eurobodalla Labor will propose an amendment to the Meeting Code that would require the production of a good reason before leave of absence will be considered and granted to any councillors who advise that they will not be in attendance at a council meeting.

Background/Comments

Contrary to OLG’s meetings guidelines, our council appears to invariably grant leave of absence to any councillor who simply tenders an apology, regardless of any evidence of the existence of an acceptable explanation (eg illness, caring responsibilities, etc.) for their absence.  An extreme example of this ESC practice occurred in 2017 when one of our councillors was granted a leave of absence for some months purely for the purpose of a vacation overseas.

As stated in OLG’s guidelines, there should be “good reasons” underpinning any decision by a council to grant a formal leave of absence to a councillor and, of course, in the case of paid public office, those reasons need to be “good” in the context of the public interest, not the personal interest of the councillor.

(7)  Councillors’ right to question Public Forum/Access presenters

What we will do

Eurobodalla Labor will propose amendments to the ESC’s Meeting Code that 

(i)  will state the entitlement of councillors to ask questions of persons making presentations during Public Forum and Public Access sessions, and 

(ii)  if the new councillors decide, in the circumstances of persons purporting to be representing community groups or other organisations, that such persons should be required to provide reasonable evidence of their entitlement or authority to represent their organisation, the council’s code should be amended (a) to specifically stipulate that requirement and (b) to require council staff to take appropriate steps to ensure that the community is made aware of that requirement.

Background/Comments

In recent times during some Public Forum and Public Access sessions, the General Manager has occasionally (and inconsistently) advised the mayor and councillors that it is not permissable for them to question presenters who purport to be representing organisations or groups.  On each of those occasions, the GM failed to offer any justification or authority for her direction.  Subsequent inquiries have established that no such authority exists.  (The fact is that the ESC’s current Code of Meeting Practice clearly states (in Appendix A) that councillors have an unqualified right to ask questions of Public Forum presenters.)

The next council also needs to direct the current General Manager to desist, in future, from making any similar statements during council meetings unless the GM is able to immediately provide, or refer to, an appropriate authority.  Behaviour like this must no longer be tolerated and should be treated as possible misconduct within the meaning of the ESC’s ‘Code of Conduct’.

(8)  Retention of recordings of meeting webcasts

What we will do

Eurobodalla Labor will propose that the new councillors formally instruct the General Manager that webcasts of ESC meetings should be retained indefinitely and this requirement should be reflected in the ESC’s Meeting Code as soon as possible.

Background/Comments 

Under the terms of the current ESC Meeting Code, webcasts of council meetings are required to be retained by the council for seven years.

Like the earlier (now deleted) audio recordings, these webcast recordings are sometimes able to provide important clarifications and details about past debates and decisions – details that are often not available from an examination of the official minutes of those meetings.  The recordings have also been known to subsequently reveal instances of where the minutes had seriously misrepresented what had actually been discussed and decided at council meetings.

A direction to council staff to permanently retain these webcast recordings would not raise any obvious and genuine storage issues for the council.

(9)  Appropriate use of the ‘Mayoral Minute’ facility

What we will do

Eurobodalla Labor will propose an amendment to the ESC Meeting Code to require that, if a Mayor Minute is presented at a council meeting without the normal minimum notice period having been provided, an explanation must be given by the Mayor for the lack of appropriate notice.

Background/Comments

The Local Government regulations provide a discretion for a mayor to put a motion on the agenda without satisfying some of the normal constraints that apply to other council motions, including the normal minimum notice period.  Such motions are referred to as ‘Mayoral Minutes’.  However, the relevant OLG guidelines suggest that this option should not be misused by a Mayor and that the usual minimum period of notice should still apply, particularly where the subject matter –

“is not urgent,

would need time for research by the councillors, or

would need a lot of consideration by the councillors.”

Although these considerations are alluded to in cl. 8.9 of the ESC’s Meeting Code, it has not been without precedent in this Shire for OLG’s advice not to be complied with – hence this proposal to require the Mayor to provide a clear explanation in any Mayoral Minute for how none of the above factors would be relevant to the contents of that Minute.

It is fundamental to the transparency and efficacy of our local government processes that, in every possible situation, our community members and all of our elected representatives should be given an opportunity and sufficient time to examine, consider, discuss and comment on any matter that is to be presented to our councillors for a decision.  Nothing else should be acceptable or tolerated within this council.

THE ESC’S CODE OF CONDUCT

(10)  Improved processes for choosing complaint reviewers

What we will do

Eurobodalla Labor will propose amendments to the ESC’s Code of Conduct procedures that, as far as possible, will reduce the potential for actual or perceived conflicts of interest in connection with the selection of persons to undertake the reviews of conduct complaints.

Background/Comments

The NSW local government sector has a prescribed code of conduct and a prescribed set of associated procedures for the handling, by councils, of any misconduct complaints they receive about their councillors and general managers.  These procedures require each council to select a conduct reviewer either from its own panel of independent conduct reviewers or from another panel approved by OLG.

Under the ESC’s current arrangements, a designated council staff member decides which panel member will be chosen each time a complaint is received.  Particularly in the case of any complaints against the General Manager, this situation obviously raises the real likelihood of an actual or perceived conflict of interest for that staff member.  This council has had a reputation (for which there is documentary evidence) for favouritism towards, and inappropriate dealings with, certain panel members.

In order to restore some degree of community trust in the impartiality of this council’s ‘code of conduct’ processes, Eurobodalla Labor will be proposing arrangements that will be taking the choice of conduct reviewers out of the control of council staff members.

(11)  Complaints about the General Manager to be handled by an ‘external’ complaints coordinator

What we will do

Eurobodalla Labor will propose that the councillors advise the General Manager that, in the case of any misconduct complaints against the General Manager, there would be a very high expectation that the GM would exercise the discretion, that is available under the prescribed procedures, to appoint a person from outside the council to perform the role of the complaints coordinator for such complaints.

Background

OLG’s prescribed procedures authorise General Managers to appoint someone as the ESC’s complaints coordinator.  A council’s complaints coordinator is the person who both (a) chooses which panel member will be appointed to investigate a particular complaint and (b) decides what relevant information and documents will be provided to that investigator.

In this shire, the complaints coordinator role has been assigned to one of the council staff members (a person who is therefore subordinate to the GM) for all complaints.  When a complaint is about the conduct of the General Manager, this situation obviously has the potential to create the likelihood of an actual or perceived conflict of interest for the ESC’s complaints coordinator

However, under OLG’s ‘Procedures for the Administration of the Model Code of Conduct’, the General Manager does have a discretion to appoint someone, who is not an official of the council, as an alternate to the council’s usual complaint coordinator.  In the interest of the community’s trust in the integrity of this council’s Code of Conduct complaint processes, this option should be adopted in respect of any complaints that are received about our council’s General Manager.

(12)  All information and documents that are sent to the complaint reviewer to be also copied to the complainant

What we will do

Eurobodalla Labor will propose amendments to the ESC’s Code of Conduct procedures that will require that all the information and documents, that are sent to the independent reviewer by the ESC, must also be copied to the complainant. 

Background/Comments

The prescribed procedures require the council’s complaint coordinator to provide a copy of the complaint and any other relevant information to the independent complaint reviewer.

It is quite apparent, from the experiences of a number of complainants, that the information provided to reviewers has very likely been inaccurate, incomplete and/or misleading on many occasions.  To ensure the integrity and transparency of the complaint process, the ESC’s Code of Conduct arrangements should therefore be modified to require that, subject to any genuine privacy and confidentiality considerations, all the documents and information (including oral information) that is provided to the reviewer by the council’s complaint coordinator must also to be provided to the complainant.

THE ESC’s LEGAL ADVICE ARRANGEMENTS

(13)  External legal advisors to be required to base their advice on the ‘public interest’

What we will do

Eurobodalla Labor will propose that the councillors require the General manager to comply with the NSW Ombudsman’s direction that a council’s private sector lawyers should be made explicitly aware of the requirement for their legal advice to the council to be always based on the public interest – and not be in the nature of an ‘opinion of convenience’. 

Background/Comments

This direction is contained in Module 17 of the Ombudsman’s ‘Good Conduct and Administrative Practice’ guidelines for local government.  However, the outcome of a particular FOI application to the ESC by a local community group some years ago, established that the ESC had never issued this instruction to its legal services panel members (despite the requirement having earlier been brought to the council’s attention by that community group).

Instead of complying with this fundamental public sector principle, council staff continue to seek, receive and act on legal advice that is in the nature of ‘opinions of convenience’ rather than advice that is formulated in the context of the public interest.

(14)  An appropriate independent ‘Freedom of Information’ specialist to be added to the council’s legal services panel

What we will do

Eurobodalla Labor will propose that the General Manager is instructed by the councillors 

(i) to ensure that there is appropriate independent FOI expertise available to the council from at least one member of the ESC’s legal services panel, and 

(ii)  prior to council staff taking (or recommending) any decision to restrict the public release of information on the basis of considerations such as ‘commercial-in-confidence’ and ‘legal priviledge’, that the proposed decision is confirmed by that legal advisor as being soundly based (a) within the terms and objectives of the Government Information (Public Access) Act 2009 and (b) within the terms of any guidelines issued by relevant State Government agencies.

Background/Comments

Senior ESC staff are well recognised throughout the Shire (and beyond) as having a particularly negative attitude to the concept of transparency.  The ESC also has a record of going to considerable effort and cost to prevent community access to information and documents – even in circumstances that should obviously have been recognised by the council as being likely not to justify its position.

This situation is completely at odds with both the objectives of the Government Information (Public Access) Act 2009 and the principles expressed in the (then) Premier’s ‘second reading’ speech to the NSW Parliament in connection with the passing of that legislation in 2009.  In that speech, the Premier made the following observations.

“Members of the public should be able to have access to the widest possible range of information to give them confidence in Government decision making.” 

“The public’s right to know must come first.” 

“Our public sector must embrace openness and transparency and governments must forever relinquish their habitual instinct to control information.”

Similarly, the NSW Ombudsman’s strongly expressed public view is that

“the people of NSW have a right to know what has been or is being done or contemplated by the government (both state and local), unless there is good and lawful reasons not to”, and 

“unless the public knows what government is up to, citizens are not in a position to challenge, criticise, correct or otherwise hold their government to account.  Conversely, experience has shown that a climate of secrecy is conducive to corruption, incompetence, inefficiency and maladministration.”

Eurobodalla Labor’s position is that, until such time as the councillors are satisfied that there has been an appropriate change in the culture and practices of senior ESC staff with regard to transparency and the release of council information to the community, this arrangement for accessing competent independent FOI advice should remain in place.

RECRUITMENT AND MANAGEMENT OF THE GENERAL MANAGER

(15)  Selection criteria for the General Manager recruitment process to be modified to recognise the essentiality of a commitment to the issues of transparency, accountability, honesty and integrity

What we will do

Eurobodalla Labor will propose that the new council should develop additional recruitment selection criteria for the position of General Manager that will ensure that any appointee to the position has an appropriate understanding of, and demonstrated commitment to, the fundamental public sector values and concepts of transparency, accountability, honesty and integrity.

Background/Comments

It is important in the planning for any effective recruitment process that the selection criteria for the position are carefully considered.  Eurobodalla Labor believes that, in the case of any future filling of a senior public sector position, such as a council general manager, the selection criteria to be used must recognise the essentiality of the successful appointee having an appropriate understanding of, and demonstrated commitment to, the fundamental public sector values and concepts of transparency, accountability, honesty and integrity.  A failure to satisfactorily meet any of those criteria must render an applicant unsuitable for appointment – regardless of any other relevant strengths that the person might possess.

(16)  Establish appropriate key performance indicators (KPIs) for measuring the performance  of the GM and the Executive Leadership Team in the areas of transparency, accountability, honesty and integrity

What we will do

Eurobodalla Labor will propose that appropriate key performance indicators (KPIs) should be developed that will measure whether a General Manager is maintaining an appropriate level of performance and leadership in the areas of transparency, accountability, honesty and integrity.  The General Manager should also be asked to put in place similar arrangements for the council’s other senior staff members.

Background/Comments

The KPIs need to reflect, and measure compliance with, important local government guidance material such as the NSW Ombudsman’s “Good Conduct and Administrative Practice – Guidelines for state and local government’.  Those guidelines were developed by the Ombudsman’s Office, in conjunction with other key agencies such as the NSW ICAC and the NSW Audit Office, and set out the basic standards of good conduct and administrative practice that (to quote former NSW Ombudsman, Bruce Barbour)

“the people of NSW are entitled to expect” of “all State and local government officials”.

(17)  A comprehensive review of all delegations given to the General Manager

What we will do

Eurobodalla Labor will propose that, during the first six months of the term of the next council, 

(i) there should be a comprehensive review of the powers and responsibilities that have been formally delegated to the General Manager by the previous council and 

(ii) there should also be a review of the range of other important decisions that are regularly taken by the GM (on what the GM might describe as “operational matters”) but are not specifically covered by the current delegations document.

Background/Comments

The LG Act requires each new council to approve the delegations within the first twelve months of its term.  However, it is not obvious that any serious examination of the existing delegations has taken place in this shire in a very long time.  The usual practice seems to have been to simply present the new councillors with the existing set of delegations for re-approval.

Importantly, in conjunction with this review of the existing delegations, there should also be a review of the range of other important decisions which are regularly taken by the GM.  Just one example of an “operational matter” is the decisions that are taken by the GM from time to time on whether the council will waive ‘legal privilege’ in relation to legal advice that the council has received from its legal advisors.  Despite the NSW Ombudsman’s clear advice to the contrary, this council’s stated view, and consistent practice for many years, has been to refuse all community requests for the release of such documents.

In the future, decisions by the GM and staff on any (so called) “operational matters” should be taken in a manner that is consistent with any guidelines and limitations laid down from time to time by the community’s elected councillors.

(18)  ESC policy statement to be developed regarding the consideration of contract renewal requests from the General Manager

What we will do

Eurobodalla Labor will propose the adoption by the councillors of a documented policy containing the principles that should underpin future decisions on any requests made by an ESC General Manager for a renewal of his or her employment contract.  That policy document should include (i) a clear statement of the options that are available to the councillors regarding the advertising of the position and (ii) what the primary considerations should be in reaching an appropriate decision on that matter. 

Background/Comments 

Consistent with long-standing fundamental concepts and conventions regarding employment decisions in Australia’s public sector, employment opportunities are normally expected to be advertised to the general public and then to be filled on the basis of an objective assessment of which applicant has the strongest claims for the position.

In the case of the NSW local government sector, these principles are reflected in the relevant provisions of the Local Government Act (the LG Act).  However, that Act does allow an exception to the usual advertising requirement in the situation of a decision to re-appoint an existing General Manager at the expiry of that person’s current contract.  That is, if a council decides to offer re-appointment to its existing General Manager, the council is permitted to do so without necessarily having first called for applications.  (However, it is very important to understand that the LG Act does not specify that a re-appointment of an existing General Manager must occur without advertising, it simply provides councillors with that option if they were to decide that this would be appropriate.)

But, of course, like every other duty and discretion that councillors have under the LG Act, they are obliged to exercise this particular discretion (to advertise or not) only where they have concluded that that course of action would be in the best interest of their community.

A situation in which the external employment market had not been tested by a council for some time, might properly be a situation in which it would be likely to be in the public interest to advertise before finalising any decision to re-appoint an existing General Manager.

As the position of General Manager is obviously crucial to the operations of any council, it behoves our council to have an appropriate policy statement and associated guidelines in place in future to guide councillors in this matter and to ensure that fully informed decisions are made in the public interest.  That policy statement and guidelines should encompass the fundamental issues discussed above.

MISCELLANEOUS

(19)  The GM to ensure full compliance by staff with accepted public sector record-keeping standards

What we will do

Eurobodalla Labor will propose that the councillors adopt a policy that would require the General Manager to ensure that the council’s record-keeping procedures comply with minimum public sector standards.

Background/Comments

It has been disturbingly common (including in response to formal ‘freedom of information’ requests) to be advised by the ESC that there is no file record of important oral communications that staff had claimed had taken place with the officials of other organisations, including government agencies such as OLG.  Such behaviour is a serious breach of basic standards of public administration and it is also contrary to the GM’s (and her staff’s) statutory and ‘Code of Conduct’ obligations regarding diligence in the performance of their official duties.

As pointed out in the Ombudsman’s guidelines regarding basic minimum standards of public administration –

“public officials must make and keep full and accurate records of their official activities.  Good recordkeeping assist in improving accountability and provides for transparent decision-making.”

“The importance of transparency mechanisms such as public access to records, the giving of reasons, and practices that support this, like good recordkeeping and rights of review, cannot be overstated.”

The need to create and retain file records of important oral converstaions is also a requirement of the standards specified by the State Records Authority of NSW.

To put beyond any doubt what should be expected of the GM and staff, the appropriate practices should be included in a council policy.  This would ensure that any future failure to comply with those practices would clearly be misconduct within the meaning of clause 3.1(b) of the ESC’s Code of Conduct.

(20)  The ESC to rejoin the NSW Local Government Association

What we will do

Eurobodalla Labor will propose that Councillors should instruct the General Manager to apply for the ESC to rejoin the NSW Local Government Association (the NSWLGA).

Background/Comments

The ESC is one of only two of this State’s 128 councils that are not currently members of the NSWLGA.  The decision in 2018 to withdraw from the Association was taken for unconvincing and dubious reasons in controversial circumstances.  The consequences of that decision are that the ESC (i) does not now have a seat at the decision-making table of our State’s peak local government body, (ii) is not able to take advantage of a range of free services (eg legal advice and industrial representation) that is available to member councils, and (iii) is accepting, but making no contribution towards the associated costs of, the various benefits gained for our local communities by the efforts of the 126 other NSWLGA member councils.

(21)  Staff training on governance and integrity matters

What we will do

Eurobodalla Labor will propose that Councillors request an audit of the training needs of ESC staff in respect of public sector ‘governance’ matters and, where necessary, explore the possibility of arranging for the delivery of workplace training in Moruya for relevant staff members, including members of the council’s Executive Leadership Team.   

Background/Comments

It has been apparent to many members of the community for some time that more than a few key staff members seem to have an inadequate understanding of the accepted fundamental principles that necessarily underpin good conduct and administration within Australia’s public sector.

It seems quite possible that at least part of the explanation for this might lie in the cost and time that would have been associated with sending staff to Sydney to attend the relevant training courses that are on offer there from time to time.  However, agencies such as the NSW Ombudsman’s Office and the Information and Privacy Commission do offer on-site workplace training programs and these need to be seriously considered as a financially viable option for addressing the skill deficit within the ESC.