New Model Code of Conduct to impact on investigations

The recently released Model Code of Conduct reflects the Government’s stated aims of improving the performance of councils, in part by improving the way below standard behaviour of councillors is dealt with.

The new Model Code, to be effective from 1 March, 2013, is a radical reworking of the previous Code and introduces a number of major changes to the way Councils need to approach Code of Conduct matters, especially those involving complaints against general managers or councillors.

The Code is now broken into two separate instruments – the Model Code detailing prescribed standards of conduct only and the Model Code Procedures, setting out the processes necessary to administer the Model Code.

The new Model Code has been modified in limited but important ways, including:

  • Removing Part 1 Context ie Introduction and Key Principles
  • Creating a new class of standards focused on maintaining the integrity of the Code itself

The new Model Code Procedures sets out more substantial change. Key changes relevant to those dealing with misconduct issues include:

  • defining what constitutes a “Code of Conduct complaint”
  • complaints must be made within 3 months of the alleged conduct (or becoming aware of the alleged conduct) unless compelling grounds exist
  • complaints must also be in writing (or confirmed in writing) and may nominate the complainant’s preference in how the matter is to be dealt with ie to be resolved by mediation or by other alternative means
  • removing the involvement of general manager or Mayors in the management of complaints about councillors or the general manager – beyond the initial receipt and referral to the Complaints Coordinator (unless informal settlement of the complaint is possible)
  • Councils to establish a new Complaints Co-ordinator position to co-ordinate the referral of complaints (other than a specified list of complaints) against councillors or the general manager to conduct reviewers and to provide annual complaints statistics to the Division of Local Government (the Division)
  • new processes for setting up panels of conduct reviewers
  • special complaints management arrangements for serial or like complainants
  • new provisions on the confidentiality of conduct complaints and PIDs
  • rights of review concerning the Procedures lie with the Division

It is important to note that general managers retain the responsibility for dealing with complaints against staff members (as well as delegates and committee members).

TO STAY ON TOP OF THIS ISSUE YOU WILL NEED TO:

  • take action to understand new and expanded role of Conduct Reviewers
  • identify potential Conduct Coordinators and sources of mediation and ADR services

Conduct reviewers have a greatly increased role under the new Procedures, especially concerning complaints against councillors or the general manager.

These include the undertaking of a preliminary assessment within 28 days of the complaint to determine how the complaint should be handled ie

  • decide to take no action;
  • refer matter to a conduct review committee;
  • refer matter to an outside agency ie ICAC, DLG;
  • refer matter to mediation or alternative resolution strategies; or
  • decide to undertake an investigation into the complaint.

If undertaking a subsequent investigation, the appointed Conduct Reviewer must do so in a manner set out in the extensive provisions of Part 8 of the Procedures.

Action required by investigators

The Division’s 19 December, 2012 Circular to Councils promised to send out more details in early 2013 to assist in the implementation of the new Code and Procedures. In the meantime, those involved in workplace investigations could prepare for the new conduct framework by:

  • Assisting their general manager identify the best people to appoint as Complaints Coordinator (consistent with requirements of 3.12 & 3.15 of the new Procedures) as well as any other alternatives (refer 3.13).
  • Reviewing the access Council has to mediation and other alternative dispute resolution resources;
  • Assessing the best way of attracting qualified conduct reviewers – either for Council alone or as part of a group of Councils.