IMPROPER DIRECTION & INFLUENCE
Improper direction and influence essentially means that councillors are not allowed to tell members of the administration what to do or try and influence them in any way outside of their role as decision makers in council meetings. This is particularly pertinent where an officer is exercising delegated powers.
This is outlined in Section 76E of the Local Government Act 1989 which clearly states that a councillor must not attempt to direct or influence a council officer while performing their duties as an elected member of local government.
DEFINING DIRECTION AND INFLUENCE
The legislation is quite clear that councillors, either as individuals or as a group, do not have the power to direct (improperly or otherwise) council officers.
It is sometimes less clear what improper influence means. This is because there can be a fine line between robust discussions and improper influence. As a general rule, any attempt by a councillor to influence the way a member of staff performs an important function, other than through formal council processes, is probably improper influence.
Attempts to improperly influence officers also suggest a lack of understanding of roles and responsibilities within a local government.
Councillors should understand that their challenge is to persuade sufficient numbers of their fellow councillors to support them in achieving a particular outcome rather than try to influence members of the administration (which is in breach of the Act).
PROTOCOLS CAN HELP
Councils should have protocols which help councillors and council staff understand who they can communicate with and what sort of communication is appropriate. This is the responsibility of the Chief Executive Officer.
Each council will have its own protocols around staff and councillor communication. Some require councillors to communicate only with the Chief Executive Officer and directors. Others allow for communication across multiple levels of the administration. This is often the case in smaller rural councils where there is likely to be more day-to-day contact between councillors and staff, in and outside of the local government.
PENALTIES FOR IMPROPER DIRECTION AND INFLUENCE
A councillor who improperly directs a member of staff may have to face misconduct or serious misconduct charges at a Councillor Conduct Panel or the Victorian Civil Administration Tribunal.
Under certain circumstances, improper direction of council staff is a criminal offence and a person found guilty in court may be convicted and fined. This includes giving direction when the officer id providing advice to the council or is acting under council delegation. However, a Councillor who improperly directs a member of staff and is facing misconduct, or serious misconduct, charges at a Councillor conduct panel, is not able to be penalised by both court and a panel for the same action.