Readers of the Beagle and followers of Eurobodalla Council matters might like to read the following finding on the Code of Conduct raised against Eurobodalla Councillor Lindsay Brown. The Code of Conduct came about after it was revealed that Councillor Brown, in his capacity as a Board member of Local Government NSW (LGNSW), had resigned following a Code Of Conduct initiated by the Board found him in breach of their rules. With such a finding a local Code of Conduct was raised in an attempt to clarify if that determination had brought the good name of Eurobodalla Council into disrepute by association. What follows is the notice of determination and reasons as required under clause 6.16 of the Procedures by an independent assessor engaged by Eurobodalla Council to determine if Councillor Brown had breached Eurobodalla Council's own Model Code of Conduct being: General Conduct 3.1 You must not conduct yourself in carrying out your functions in a manner that is likely to bring the council or holders civic office into disrepute. Determination:
In reference to the code of conduct complaint dated 11 June 2018, which was referred to me for review in my capacity as reviewer. I am writing to advise that after considering the material gathered throughout my enquiry and the complaint assessment criteria prescribed under clause 6.27 of the Procedures, I have determined to resolve the matter by taking no action pursuant to clause 6.10 (a) of the Procedures. Note that I was obliged to do this under the Procedures as I formed the view that the complaint was not a “code of conduct complaint as defined (see clause 6.15 of the Procedures).
My more detailed reasons are as follows:
A “code of conduct complaint” is defined in clause 4.1 of the Procedures as “a complaint that alleges conduct on the part of a Council official acting in their official capacity that on its face, if proven, would constitute a breach of the standards of conduct prescribed under the Council’s Code of Conduct.” Further, clause 4.2 provides that “only code of conduct complaints are to be dealt with under these Procedures.”
Accordingly, the threshold issue for me is whether Councillor Brown was acting in his official capacity when the alleged conduct occurred. The issue is significant, because if I conclude that Councillor Brown was not acting in his official capacity as a Councillor of Eurobodalla Shire Council, the complaint cannot be a code of conduct complaint and there would be no jurisdiction to deal with the matter under the Procedures.
It is common ground that the conduct relates to Councillor Brown’s activities in his capacity as a Vice President of the LGNSW Board. Therefore, the question is whether Councillor Brown was acting as a Councillor of Eurobodalla Council and representing the Eurobodalla community in his role on the Board.
The objects of LGNSW are inter alia to encourage, promote, protect and foster the system of local government generally in NSW and to support and encourage local government consultation and cooperation between Councils and Local, State and Commonwealth governments. LGNSW also provides services (such as industrial relations) and policy advice to its members and represents LGNSW members and local government generally.
In my opinion, whilst Eurobodalla Shire Council may benefit as a result of LGNSW carrying out its objects, by virtue of it being a member Council; the LGNSW objects are different to those of Eurobodalla Shire Council. On this basis, when acting as a Vice President of the Board, Councillor Brown could be said to be fulfilling the objectives of LGNSW and not those of Council.
Further, whilst Councillor Brown, as Vice President, brings the perspective of rural and regional Councils to LGNSW, it cannot be said that he is on the Board to represent the views of Eurobodalla Shire Council or its community as such. Whilst it is a prerequisite for Board Members to be Councillors of any of the member Councils, Councillor Brown was not put forward for the role by Eurobodalla Shire Council and he nominated for the position in his own right. Councillor Brown was elected as one of the two Vice Presidents of LGNSW, following a vote of rural and regional members at an annual LGNSW Conference; he was not elected to the role by the Eurobodalla community.
Section 232 of the Local Government Act 1993 defines the role of a Councillor as follows:
(a) to be an active and contributing member of the governing body,
(b) to make considered and well-informed decisions as a member of the governing body,
(c) to participate in the development of the integrated planning and reporting framework,
(d) to represent the collective interests of residents, ratepayers and the local community,
(e) to facilitate communication between the local community and the governing body,
(f) to uphold and represent accurately the policies and decisions of the governing body,
(g) to make all reasonable efforts to acquire and maintain the skills necessary to perform the role of a Councillor.
In my opinion, none of the activities outlined in section 232 of the Local Government Act relate to the duties undertaken by Councillor Brown as a Vice President of the LGNSW Board. It is considered that this is because the role of Vice President of a Board is distinct and different to that of Councillor. It is therefore concluded that Councillor Brown was not acting in his official capacity when the alleged conduct occurred.
As I have formed the view that the first limb of the definition of “code of conduct complaint” has not been satisfied, it follows that there is no jurisdiction for me to determine the complaint and after considering the complaint assessment criteria, I consider that it is appropriate to take no action, noting that clause 6.15 of the Procedures provides that I “must determine to take no action on a complaint that is not a code of conduct complaint for the purposes of the Procedures.”
