SUMMARY OF ISSUE:
– The new Model Code of Conduct has substantially changed the way conduct issues involving councillors are dealt with.
– Our initial experience as Conduct Reviewers in a number of preliminary assessments conducted on behalf of Councils has shown the new processes result in a much quicker turnaround in complaints than under the previous process
– Code of Conduct matters involving staff appear to be facilitated by the new Procedures, especially the 3 month limit in 4.3
With the new Model Code of Conduct and accompanying Procedures now operating in Councils across NSW since 1 March, 2013, O’Connell felt it timely to look back over the first 6 months of its operation to see if lessons could be learnt or problems identified.
Understanding of nature of preliminary assessments
As appointed conduct reviewers to a numbers of Councils and ROCs, O’Connell Workplace Relations have been appointed to conduct a number of preliminary assessments for different councils. These have dealt with various complaints against councillors.
Our experience over the first 6 months of operation of the process show that Councils seem to understand the way the new preliminary assessment process differs from the process under the previous code of conduct.
This includes the fact that preliminary assessments are meant to:
Process for initiating preliminary assessments
It appears that the requirement to refer such matters onto conduct reviewers within the 21 days as specified by 6.1 of the Procedures is being complied with without problems – the matters referred to O’Connell were received no later than 10 days after the respective complaints were received by Council’s complaint’s coordinator.
Pecuniary conflict of interest matters
One of the complaints provided to O’Connell to undertake a preliminary assessment involved allegations from a ratepayer of a conflict of interest in a matter involving a councillor.
Analysis of this complaint revealed that a potential pecuniary conflict of interest may have been involved and this situation was confirmed, to the required standard, upon the further consideration of provided documentation.
According, O’Connell referred the matter back to Council with a recommendation consistent with 6.14 of the Procedures for the matter to be referred to the Division under 5.16 and 5.21 dealing with complaints concerning a potential pecuniary conflict of interest.
Time limit on complaints having an impact
The three month time limit set out at 4.3 and 4.4 of the Procedures appears to be having a positive impact on the receipt of staff complaints. Our experience has been that many previous complaints by staff against other colleagues have caused serious procedural unfairness due to the extended time taken to lodge them. However, these “aged” complaints are now being subject to more positive action outside the Code of Conduct such as performance management and ADR.
TO STAY ON TOP OF THIS ISSUE YOU WILL NEED TO:
– ensure complaint coordinators take action to ensure that matters allocated to conduct reviewers do not involve conflict of interest or bias issues
– deal effectively with ‘aged’ complaints that are impacted on by the 3 month limit specified at 4.3 + 4.
Avoiding conflict of interest + bias claims
While the appointment process for conduct reviewers required them to certify that they had no known conflicts of interest with Council, the issues referred to them for a preliminary assessment could potentially contain matters that involve conflicts of interest.
This is especially so if the conduct reviewer is from the immediate Council locality.
To ensure that 6.4 is fully complied with, it is suggested that the terms of reference provided by the complaints coordinator to the selected conduct reviewer, along with other documentation required for the preliminary assessment, should be amended.
They should require the conduct reviewer to:
– certify that after consideration of the documentation provided by Council, they have no conflict of interest in the matter referred to them; and
– certify that on the same documentation, a reasonable apprehension of bias arising from their involvement in the preliminary assessment would not arise.
Dealing effectively with ‘aged’ complaints from staff
One of the key changes to the new Procedures is the limit of 3 months placed on the receipt of complaints under 4.3 + 4.4. These clauses were the result of the negative procedural fairness impacts on staff trying to defend allegations against them that went back in some instances for over 10 years.
The new definition of a code of conduct complaint in Part 4 provides Councils with the opportunity to divert these ‘aged’ complaints away from potentially lengthy and contested investigations and into more positive streams of resolving conflict.