On June 30, the Lismore App wrote a story about a Lismore City Councillor having a case to answer for a code of conduct breach from December 2020 (LCC Councillor in breach of Code of Conduct).

We are now into the month of August, which was to have been the last formal LCC meeting before the September elections. As we know, the council elections have been postponed until December 4 because of the latest Delta variant COVID outbreak in Sydney.

Why does a code of conduct case take so long to come before councillors to review the case?

The basic answer is 'as long as it takes'. You cannot help but question the entire code of conduct process.

Why have an independent person, conduct a review of a potential breach, give their recommendation and two and a half months later nothing has been done?

Why is due process so slow? You can't help but think that cases are being swept under the rug for one reason or another or are subject to trivial punishments that render the process a toothless tiger.

The Lismore App spoke to three councillors to get their feelings about the code of conduct process. For obvious reasons, they wish to remain anonymous.

Councillor (Cr) 1 said that many councillors believe the time taken to investigate a complaint by an external conduct reviewer or the Office of Local Government (OLG) and have it resolved is far too long.

"For example, a serious complaint about an LCC councillor’s action in 2013 was not finally resolved by OLG until the middle of 2016."

"Once a complaint is resolved by an investigator, the report and recommendations are brought to Council for consideration. If council accepts the recommendations to censure it can also refer the councillor to OLG for further action under the misconduct provisions of the Act." 

"If council resolves not to accept the investigator’s recommendations to formally censure a councillor, it can resolve to suggest another course of action, for example, specific training on a relevant topic. However, if the councillor chooses not to take that suggested action, for example not attending the relevant training, there is no recourse for the council to take further action and no penalty to the councillor."

This was the case during this last term when the recommendation from councillors was for all to attend media training. Not only did the person in question not turn up, nor did eight other councillors, meaning that only three thought the process was worthwhile.

Cr 2 said councillors don't have the backbone to do anything about it.

"The process is not a toothless tiger, it comes down to the responsibility of councillors doing the right thing."

"In a closed session the councillor in question gets to plead their case if they want to, then there is a discussion among councillors about what form the censure should take like a warning letter, training or suspension."

"There is nothing wrong with the system, it is the fact that councillors refuse to censure guilty parties."

LCC councillors do preach that they should commit to work together for the good of the community. At the start of every council meeting, there is time given for councillors to reflect on their roles within the chamber to work together for the wellbeing of our whole community.

Is protecting one of your own, in the best interests of the community?

Cr 3 said the process has been used as a weapon in the last couple of years to control councillors.

"There is always poor behaviour. I would like to see the Mayor walk in and say you did wrong so pull your head in."

The part that councillors play is only part of the process. The other is with LCC staff and the OLG.

When the Lismore App asked the OLG some questions about the process, we received the following response from a spokesperson:

"If a reviewer conducts an independent investigation and determines a councillor has breached the code of conduct and recommends censure, the investigation report must be reported to a council meeting." 

"While the investigation report may be considered in a closed meeting in the absence of the public, the council’s decision must be published in the publicly available minutes of the meeting." 

"Where the council does not adopt the conduct reviewer’s recommendation, it is required to provide reasons in its resolution and these must be published in the minutes of the meeting." 

"The council is also required to notify the Office of Local Government of its decision."

We then asked what is the usual time frame for a case to be resolved and received this reply:

"Code of conduct complaints need to be managed in accordance with the Procedures for the Administration of the Model Code of Conduct for Local Councils in NSW."

"The Procedures provide that where a code of conduct investigator has determined that there has been a breach of the code of conduct and recommends disciplinary action, the investigator’s report should be to be reported to the next ordinary council meeting for the council’s consideration. Where the meeting is to be held in the 4 weeks before a council election, the report must be reported to the first ordinary council meeting following the election."

"A respondent to a code of conduct matter is entitled to seek a review by the Office of Local Government of the investigator’s consideration of the matter. Where the Office of Local Government undertakes a review, it may direct a council to defer taking further action in relation to the matter pending the completion of its review."

One can only assume that the councillor in this latest case has asked for a review because otherwise, it should have been on the agenda in one of the three June council meetings. Since then we have seen a July council meeting come and go with no sign of the case. The next opportunity is the August council meeting on Tuesday the 10th.

When the Lismore App has asked council and the OLG about a specific case, the reply we receive is "that is a confidential matter and it would not be appropriate to comment."

You can read that it takes far too long for a code of conduct case to reach an LCC meeting and then when it does, nothing is really done.

This comment from one of the councillors sums up the entire process, "The Model Code of Conduct does not have the ability to enforce a decision by council for an alternate course of action instead of censure. It then becomes a toothless tiger that uses up huge quantities of council administration time and money to little effect." 

The current code of conduct regulations are:

General conduct 3.1 You must not conduct yourself in a manner that:

a) is likely to bring the council or other council officials into disrepute

b) is contrary to statutory requirements or the council’s administrative requirements or policies

c) is improper or unethical

d) is an abuse of power

e) causes, comprises or involves intimidation or verbal abuse

f) involves the misuse of your position to obtain a private benefit

g) constitutes harassment or bullying behaviour under this code, or is unlawfully discriminatory

Code of Conduct policy, what is the point?