ADDRESSING BREACHES OF CONDUCT
While most councillors behave appropriately and in accordance with their council’s code of conduct, some do not. Sections 81A to 81S of the Local Government Act 1989 describes misconduct, serious misconduct and gross misconduct. The Act also sets out processes for dealing with each level of misconduct and outlines the appropriate sanctions.
LEVELS OF MISCONDUCT
A Councillors is considered to have engaged in misconduct if he or she does not comply with the Council’s internal resolution procedure, or sanctions imposed by council for breaching the code or if he or she repeatedly contravenes the councillor conduct principles. Many councils will usually deal with instances of misconduct internally, using their dispute resolution procedures. However, sometimes a council (or individual councillors) may refer a breach to a Councillor Conduct Panel (CCP).
If a panel finds the councillor did engage in misconduct, it may apply a range of sanctions. These can include a reprimand, a public apology or a request that a councillor take leave of absence for up to two months. A panel may also direct a councillor to undertake training or counselling or determine that the Councillor be ineligible to hold the office of Mayor for a specified period.
Serious misconduct refers to behaviour that is more disruptive to good governance at a local level. It includes repeated misconduct or conduct that breaches specified laws relating to the proper functioning of a council including bullying of another Councillor or a member of staff, improper direction of a council staff and improper release of confidential information. It also includes failure to comply attend or provide requested information or to comply with a direction of a Councillor Conduct Panel or continued misconduct individual councillors can refer issues to or repeated misconduct, after an earlier finding of misconduct by a panel.
If a panel makes a finding of serious misconduct against a Councillor, that Councillor may become ineligible to hold the office of the Mayor for the remainder of the Council’s term. A panel may also apply a range of sanctions to a Councillor found to have engaged in serious misconduct. This includes a reprimand, a public apology, a direction that the Councillor takes leave of absence for up to two months, that the Councillor cannot chair a special committee for up to the remainder of the term of office or a suspension of the Councillor from office for a period of up to 6 months.
This is the most serious category. If a councillor is found guilty of gross misconduct it reflects very badly on their character and suitability to hold the office.
Gross misconduct includes breaches of the councillor conduct principles and certain sections of the Local Government Act. Gross misconduct demonstrates that a councillor is not of good character or is otherwise not a fit and proper person to hold the office of councillor.
Gross misconduct complaints are dealt with by the Victorian Civil and Administrative Tribunal (VCAT). The Chief Municipal Inspector is able to make an application to VCAT for a gross misconduct hearing. If VCAT finds that the allegation has been proven, it can disqualify a person from holding the office of Councillor in any Council for a period of up to eight years and order that his or her office is vacated.
Where a councillor breaches a section of the Local Government Act, or any other Act for which an offence is prescribed, the councillor may be charged with a criminal offence and prosecuted in court.
If a person is convicted of certain specified offences under the Local Government Act or a criminal offence with a maximum penalty of at least two years imprisonment, he or she will be disqualified from being a councillor for eight years following the conviction. If that person is a councillor at the time, he or she will cease that role immediately.
COUNCILLOR CONDUCT PANELS
A Councillor Conduct Panel can be called to address allegations that a Councillor is guilty of misconduct or gross misconduct. Misconduct relates to failing to comply with a Council’s internal resolution procedure, including failure to abide by any decision of Council in relation to a breach of the code and repeated breached of Councillor Conduct Principles. Serious misconduct involves failing to comply with panel processes, bullying, improperly directing staff, releasing confidential information and repeated misconduct. Gross misconduct issues are heard by VCAT.
A council, a Councillor or a group of Councillors may apply for a CCP. The Chief Municipal Inspector may also apply for a panel, but only in regard to serious misconduct. The Prinicpal Councillor Conduct Registra (PCCR) is responsible for the establishment and management of CCP’s.
All Council’s are required to have an internal resolution procedure within their Councillor Code of Conduct. The internal resolution procedure requires an arbiter to hear and determine on the alleged brief of the Councillor Code of Conduct. Council codes usually include other dispute resolution procedures including mediation. Attempting to resolve the matter between parties should always be the first step, when possible, to deal with disputes.
A council code may require the mayor or the Chief Executive Officer (CEO) to be involved in a mediatory role. In doing so, they should act with impartiality and use processes which are underpinned by natural justice. If a process is not seen to be fair, it will not be seen to produce fair outcomes.
A panel will not be appointed if the PCCR finds the application for the panel to be frivolous, vexatious or lacking in substance or if the Council’s internal processes have not been complied with
WHEN IS A DISPUTE ACTUALLY A BREACH?
It’s not always easy to determine the difference between a dispute and what may actually be a breach of a code of conduct.
A dispute can be mediated while an allegation of a code of conduct breach requires some level of investigation to determine if a breach actually occurred. Mediation and investigation processes can be quite different. It’s not always easy to work out, for instance, if an alleged failure to treat a fellow councillor with respect is a breach of a code of conduct or a dispute involving rudeness and bad manners. Getting as much clarity as possible in the code of conduct and any actions arising from it will help.
WHAT DOES THIS MEAN FOR GOOD GOVERNANCE?
Dealing with misconduct creates problems for councillors and CEOs who have to manage disputes and breaches while also promoting goodwill and good conduct, both of which are so necessary for good governance.
The negative impacts on good governance can be minimised when:
- councillors adhere to their codes of conduct because this makes governance work better and councils a better place to work
- disputes are handled internally as much as possible and with the good processes and goodwill which are necessary for good governance
- referrals to CCPs are not used as a political weapon – they are not intended for this purpose and it’s difficult to maintain good governance in a council while CCP processes are underway, especially if these have been politically motivated.