Minutes of Special Council

Special Council Minutes Tuesday 14 June 2016

1. Opening

1.1 MEETING OPENING AND PRAYER

The Chief Executive Officer opened the meeting with a prayer at 6.00PM.

1.2 ACKNOWLEDGEMENT OF TRADITIONAL OWNERS STATEMENT

On behalf of the Whittlesea City Council I recognise the rich indigenous heritage of this country and acknowledge the Wurundjeri Willam Clan as the traditional custodians of this place.

1.3 Present

Members:

Cr Stevan Kozmevski Mayor (South West Ward)

Cr Kris Pavlidis Councillor (South West Ward)

Cr Darryl Sinclair Councillor (South West Ward)

Cr Norm Kelly Deputy Mayor (South East Ward)

Cr Sam Alessi Councillor (South East Ward)

Cr Mary Lalios Councillor (South East Ward)

Cr Ricky Kirkham Councillor (North Ward)

Cr Christine Stow Councillor (North Ward)

Officers:

Mr Michael Wootten Chief Executive Officer

Mr Steve O'Brien Director Planning and Major Projects

Mr Russell Hopkins Director Community Services

Mr Nick Mann Director City Transport & Presentation

Mr Michael Tonta Acting Director Corporate Services

Mr Sean McManus Acting Director Partnerships & Engagement

Mr Angelo Mamatis Team Leader Governance

2. Apologies

Apology

Apologies were received on behalf of Cr Griffin, Cr Harris and Cr Spinelli who requested that leave be granted for this meeting.

Council Resolution

Moved: Cr Stow

Seconded: Cr Kirkham

THAT the apologies from Cr Griffin, Cr Harris and Cr Spinelli be received and leave be granted.

Carried

3. Declarations of Interest

NIL

Special Council Minutes Tuesday 14 June 2016

4. Officers’ Reports

4.1 Corporate Services

4.1.1 COUNCILLORS CODE OF CONDUCT 2016

File No: 163964

Attachments: 1 Draft Councillors Code of Conduct 2016

2 Councillors Code of Conduct 2016 adopted by Council

Responsible Officer: Acting Director Corporate Services

Author: Team Leader Governance

Report

Summary

It is a legislated requirement that Council amend and adopt the Councillors Code of Conduct (‘the Code’) by 4 July 2016 at a Special Council meeting held specifically to consider the amended Code.

The Code specifies the agreed standard of Councillor behaviour required for the ethical and professional performance of Councillors duties under Section 76C of the Local Government Act 1989.

The amended Code reflects the amendments contained in the Local Government Amendment (Improved Governance) Act 2015 (‘the Act’). (Refer to Attachment 1).

Background

The main change to the current Code relates to the mandatory requirement for an Internal Dispute Resolution Procedure and the appointment of a Principal Conduct Officer.

In addition, a number of new provisions have been included in the Code taken from the Model Councillor Code of Conduct prepared by the Municipal Association of Victoria aimed at promoting good governance.

The new hierarchy for management of Councillor conduct issues introduced by the Act is designed to reinforce the responsibility and authority of Council to manage breaches of agreed conduct through a mandatory internal resolution procedure. It also provides for allegations of misconduct and serious misconduct to be referred to a Councillor Conduct Panel only after Council has tried to resolve the matter internally.

The Chief Executive Officer is required to appoint a senior officer to the position of Principal Conduct Officer to assist with the implementation of the Code including the conduct of the internal resolution procedure.

Proposal

Mandatory changes to the Code

The revised Code is designed to ensure that Council makes every effort to resolve disputes and complaints internally before they are referred to a Councillor Conduct Panel.

In this regard, the Code must contain an internal resolution procedure for addressing alleged breaches and for the selection of an arbiter who is suitably independent and able to carry out the role of arbiter fairly.

The role of the arbiter will include considering applications alleging breaches of the Code and making findings in regard to such applications.

The Code must also provide processes to ensure that affected parties have a right to be heard and that the principles of natural justice and procedural fairness are applied.

The arbiter must provide Council with written reasons for any findings. If the arbiter finds that a Councillor has contravened the Code, Council may direct that certain sanctions apply to the Councillor.

The Code also makes reference to section 76E of the Act which prohibits a Councillor from improperly directing or improperly influencing a member of Council staff.

Discretionary changes to the Code

New provisions have been added to the Code to provide clarity on the functions of the Mayor and the role of Councillors and the functions of the Chief Executive Officer.

Definitions are included for ‘arbiter’, ‘misconduct’ and ‘principal conduct officer’. The Gift and Hospitality provisions make reference to the Councillors Gifts Benefits and Hospitality Register and note that the acceptance of gifts can give rise to an indirect conflict of interest.

Reference is made to the provisions in the Local Government Act on Misuse of Position as provisions contain examples of circumstances involving misuse which can provide a further context to assist in guiding Councillor behaviour.

The discretionary provisions provide guidance to Councillors on interpreting the Code and complying with its requirements.

Dispute Resolution Provisions

The Code provides for a phased approach to resolving disputes. Before commencing any formal dispute resolution process, the Councillors who are parties to a dispute are expected to use their best endeavours to resolve the matter in a courteous and respectful manner between themselves.

Where, after these endeavours have been exhausted, the matter still remains unresolved, the parties must participate in the three phases of the dispute resolution process.

Phase 1 - Direct Negotiation - Mayor

Where Councillors, who are in dispute, have not been able to resolve the dispute between them, either (or both) party (parties) may request the Mayor to convene a meeting of the parties.

The Mayor is to convene a meeting of the parties at the earliest available opportunity and, with the assistance of the Principle Conduct Officer. The role of the Mayor at the meeting is to provide guidance to Councillors about what is expected of a Councillor including in relation to the role of a Councillor under section 65 of the Act, and the observation of the Councillor Conduct Principles and the Code.

Phase 2 - External Mediation - Mediator

A Councillor or a group of Councillors may make an application for a dispute to be referred for external mediation provided that the dispute has been the subject of an application for ‘direct negotiation’.

The applicant is to submit a written application to the Principal Conduct Officer setting out the name of the Councillor and the details of the dispute. The Principal Conduct Officer must engage the services of an external mediator to conduct the mediation as soon as practicable.

The mediator is to document any agreement reached at the meeting. Copies of the agreement are to be provided to both parties. Where one party does not comply with the agreement, the other party has recourse to the internal resolution procedure where the matter relates to an alleged contravention of the Code.

Phase 3 - Internal Resolution Procedure – Arbiter

If the dispute continues to be unresolved after mediation, the third and final phase of the dispute resolution process is invoked. This phase is prescribed under the Act and involves the appointment of a suitably independent arbiter to fairly consider the alleged contravention and make findings in relation to the alleged contravention which the arbiter must give to Council.

The internal resolution procedure will supersede the Governance Committee procedure in the current Code.

Sanctions

If the arbiter finds that a Councillor has contravened the Code, Council may give any or all of the following directions to a Councillor:

· to make an apology;

· direct the Councillor not attend up to two Council Meetings;

· direct that, for a period of up to two months, the Councillor:

o be removed from any positions where they represent Council;

o not chair or attend any meeting specified in the direction including an advisory committee or assembly of Councillors.

Consultation

Councillors have been consulted on the draft Code and have provided feedback.

Critical Dates

Council must review and adopt the revised Code by 4 July 2016 and again within four months after general Council elections. This revised Code must be adopted at a Special Council Meeting called solely for the purpose of reviewing and adopting the Code.

Financial Implications

Legal costs associated with reviewing the Code will be met within existing budgets.

Policy strategy and legislation

Councillors are required to make a declaration that they will abide by the Code in the presence of the Chief Executive Officer within one month of the Code being adopted. A Councillor who does not make the declaration is disqualification from acting as a Councillor.

Links to the CoUNCIL Plan

FUTURE DIRECTION Good Governance

Theme Continuous improvements

Strategic Objective Council adopts best practice models of operation

The Code will promote good governance of the Council by specifying agreed standards of Councillor behaviour required for the ethical and professional performance of Councillors duties.

Declarations of Conflicts of Interest

Under section 80C of the Local Government Act 1989 officers providing advice to Council must disclose any interests, including the type of interest.

The Responsible Officer reviewing this report, having made enquiries with the relevant members of staff, reports that no disclosable interests have been raised in relation to this report.

Conclusion

The Code promotes good governance by setting out the standards of conduct expected of Councillors. It also endeavours to foster good working relations between Councillors to enable them to work constructively together in the best interests of the local community.

RECOMMENDATION

THAT Council resolve to adopt the Councillors Code of Conduct as attached to this report.

Council Resolution

Moved: Cr Kelly

Seconded: Cr Sinclair

THAT Council resolve to amend the Councillors Code of Conduct as follows and adopt the Councillors Code of Conduct as shown in attachment 2:-

1. Introduction – page 5 addition of the following sentence to paragraph 2:

Parties to a dispute will use their best endeavours to resolve any dispute within the timelines set out in the Code and otherwise in a reasonable time.

2. Dispute Resolution Phase 2 – page 13 amend as follows:

· The Principal Conduct Officer must engage the services of an external mediator to conduct the mediation as soon as practicable and not later than 10 working days after the parties agree to participate in external mediation.

· If the parties cannot resolve the dispute at the meeting, a further meeting may be convened with the consent of both parties within 7 working days. Where the dispute remains unresolved, the applicant may have recourse to the internal resolution procedure where the matter relates to an alleged contravention of the Code.

3. Dispute Resolution Phase 3 – page 14 amend as follows

· consider the grounds of any objection and appoint the proposed arbiter or identify another arbiter within 7 working days;

· after consultation with the arbiter, advise the applicant and the respondent of the time and place

· for the hearing which should be held within fifteen (15) working days of the appointment of the arbiter; and

Carried

Division

Immediately after the motion was voted on, Cr Lalios called for a division which resulted in the following votes being recorded.

For

Cr Sinclair

Cr Kozmevski

Cr Stow

Cr Kirkham