Council Procedure - cityofpae.sa.gov.au · This Procedure sets out Council's process for handling...

Procedures CS.PRO.05 - Complaint Handling Procedure under the Code of Conduct of Elected Members (ECM Common Number 10572265 ) Before using a printed copy, ensure you are using the current version from ECM.

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Name Complaint Handling Procedure Under the Code of Conduct for Council Members

Document Number CS.PRO.05

Responsible Section Corporate Services

Responsible Department Governance

Date Last Adopted 12 June 2018

Date of Next Review December 2022

Applicable Legislation Local Government Act 1999 Local Government (General) Variation Regulations 2013 Independent Commissioner Against Corruption Act 2012

Related Governance Documents

Fraud and Corruption Prevention Policy Whistleblower Protection Policy Code of Conduct for Council Members Directions and Guidelines issued by ICAC

City Plan Theme Leadership - A City confident in its leaders

1. PurposeThis Procedure sets out Council's process for handling alleged breaches under Part 2 of the Code of Conduct for Council Members (Behavioural) and the process for action in relation to Part 3 of the Code of Conduct for Council Members (Misconduct, Corruption or Maladministration including criminal matters).

2. Scope2.1. When the Procedure AppliesWhen a complaint is received against a Council Member under the Code of Conduct

for Council Members. A copy of the Code is provided as Appendix 2 to this Procedure.

2.2. General process around the management of a complaintAny person who believes the behaviour of a Council Member is contrary to the Code,

may bring details to the attention of the Principal Member or CEO.

A complaint concerning behaviour contrary to the Code must be made in writing

(including in electronic format). Anonymous complaints should be treated as

Whistleblower complaints and dealt with in accordance with Council Whistleblower

Complaints Policy.

Council Procedure


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For the purpose of procedural fairness and natural justice, complaints will be managed as quickly as possible whilst adhering to the requirements of this Procedure.

While processing a complaint, it is Councils intention to manage matters confidentially, and information will only be disclosed to another person for the purpose of resolving the complaint, or where required by legislation. For this reason, the Council Member who is the subject of a complaint will be notified of the identity of the complainant to ensure they are able to participate in the resolution of the matter appropriately

If legal advice or the opinion of the CEO or external investigator is that a failure to disclose the identity of a complainant may compromise the integrity of the investigation, the CEO will seek the permission of the complainant to disclose their identity. If the complainant does not agree, the investigation will not proceed and the complainant will be advised that the complaint cannot be investigated in the absence of this information being provided to the elected member complained about.

Where a Council Member is found to have breached the Code of Conduct, Council is required to consider a report about that finding and to make a decision whether any sanctions should be applied to the Council Member who has breached the Code. This report will be made public to ensure transparency in decision making, appropriate oversite of public officer behaviours and accountability. The complainant’s identity may be disclosed in the Council report.

Records associated with the management of the complaint will be handled securely within Councils records management system. Access to information relating to a matter managed under this Procedure may be required under other legislative processes.

Complainants may decide to lodge a complaint with the Ombudsman or the Office of Public Integrity (OPI) rather than with Council. From time to time, the Ombudsman or OPI may refer the matter to the CEO or Principal Member in order to manage the matter in accordance with this Procedure.

2.3. Responsibilities

The Presiding Member is responsible for implementing this Procedure in relation to complaints received by the Council under the Code. The CEO will provide professional advice, expertise and administrative support to the Presiding Member under this Procedure. Neither the Presiding Member nor the CEO will investigate any complaints but may conduct an assessment in order to determine the most appropriate path to resolving the matter.

Where a complaint relates to Part 2 of the Code, the CEO or the Presiding Member will receive the complaint and must acknowledge receipt within five (5) days to the complainant. Where the CEO receives the complaint, the CEO will immediately pass the matter on to the Presiding Member.

Complaints in relation to the Mayor’s behaviour will be referred to the Deputy Mayor. In the case of a complaint against both the Mayor and the Deputy Mayor (or in circumstances where the Deputy Mayor is unable to accept the referral of the matter, for example where he/she considers that they have an interest in the matter), the CEO


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will refer the complaint to an external agency for initial assessment. Complaints should be raised in as timely a fashion as possible and be promptly acted upon in accordance with the steps outlined below.

The CEO may provide assistance or arrange for legal advice or other external support to Council Members in order to deal with matters under this policy.

Where the complaint relates to Part 3 of the Code, the CEO or Principal Member (whoever receives the complaint) has obligations under other legislation to contemplate before acting such as the Ombudsmans Act 1972, ICAC Act 2012 or Whistleblowers Protection Act 1993 and must consider these before taking action in line with the procedure.

3. Background

The Code of Conduct for Council Members is made by Regulation. The Code of Conduct applies to all Council Members across the SA Local Government sector and may be the subject of a Council investigation (which may or may not include assessment by the Local Government Governance Panel or other external provider), Ombudsman investigation, or , depending on the nature of the issue, Office of Public Integrity or Independent Commissioner Against Corruption investigation.. The Code of Conduct also contains sanctions which may be imposed by Council on a Council Member where the Code is found to have been breached.

4. Definitions

'Principal Member' means the 'Mayor' or the Deputy Mayor. 'Deputy Mayor' means the Elected Member appointed to deputise for the Principal Member. 'Elected Member' is a person appointed or elected as a Councillor/Elected Member of a Council, including the Principal Member. 'Council' means the City of Port Adelaide Enfield. 'CEO' means the Chief Executive Officer of the Council and includes any person acting in that role. 'ICAC Act' means the Independent Commissioner Against Corruption Act. 'Code' means the Code of Conduct for Council Members. ‘Trivial’ means minor in nature or of little value or importance or significance, . ‘Vexatious’ means to raise or bring a matter which intends to be troublesome, a waste of time and has no sufficient grounds or chance of being true. At times this may be for the purpose of causing harassment or annoyance. This may occur when a person has had a matter investigated, has received and answer, but continues to ask the same questions again hoping for a different answer.

‘Frivolous’ means to bring a matter that has no serious purpose or sense.


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5. Operating Procedure

5.1 Alleged Breach

Where an alleged breach occurs the complainant should report the allegation, in writing, to the Council, addressed to the CEO. The allegation should:

• be specific • provide as much supporting evidence as possible to assist an investigation • provide the name of the Member who has allegedly breached the Code.

The CEO will be responsible for receiving and managing the referral of a complaint and will advise the Principal Member (or if it relates to the Principal Member, his/her deputy) of the receipt of the complaint. The Principal Member (or Deputy) will conduct an initial assessment in order to determine the seriousness of the matter. To do so, they will first consider whether the complaint relates to:

• behaviour which falls under Part 2 of the Code • misconduct which triggers action under Part 3 of the Code or • criminal or corrupt behaviour

Complaints relating to serious or systemic misconduct, corruption, maladministration or criminal behaviour must be referred to the appropriate authorities immediately - refer clauses 5.7 and 5.8 below. Council maintains jurisdiction where the complaint alleges conduct that falls into Part 2 of the Code. Part 2 deals with conduct that reflects reasonable community expectations of how Council Members should conduct themselves. Robust debate within Council which is conducted in a respectful manner is not a breach of this Part. Having regard to the seriousness of the allegation and information provided, the Principal Member may:

a) seek to resolve the matter internally – refer 5.3 of this Procedure. b) refer the complaint to an external agency – the Local Government Governance

Panel, another external provider, the Office of the Ombudsman or the Office of Public Integrity

c) dismiss the allegation, with reasons, if it is considered to be trivial, vexatious or frivolous – refer 5.2 of this Procedure.

Within five (5) days of receipt of a complaint , the Member who is the subject of the complaint will be advised by the Principal Member of the complaint, the complainant and the substance of the complaint. The Council Member will also be advised of the manner in which the Principal Member intends to deal with the complaint. The flowchart provided (refer appendix 1) gives an overview of the complaint handling procedure under the Code of Conduct for Council Members. Within five (5) days of receipt of the complaint, the CEO will determine an appropriate staff member to assist the Principal Member to prepare and send a written acknowledgement to the complainant. The acknowledgement must outline the


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processes available to ensure the complainant is aware of what to expect, their rights, their responsibilities in the process and their options to refer the matter to the Ombudsman or OPI, or withdraw the matter at any time.

5.2 Dismissal of a Matter

After making an initial assessment of the matter, the Principal Member may determine that a complaint is trivial, frivolous or vexatious and dismiss the complaint. This means no further investigation shall be conducted. The Principal Member will provide, in writing, his or her reasoning for this decision, to the complainant. The Principal Member must also provide advice to the complainant about their options to have this matter considered by another agency (such as lodging a complaint with Ombudsman or OPI). In the case of the matter being about both the Mayor and the Deputy Mayor, the matter will have already been referred externally to the Local Government Governance Panel or other external provider and it will be the external agency that determines if the matter is trivial, vexatious or frivolous and will provide notification and reasoning to the complainant and the options for the complainant to take the matter to another agency. All parties to a complaint are required to cooperate with and assist the Council with the management and investigation of the complaint. The Principal Member may determine not to progress the handling of a complaint if the complainant unreasonably fails to cooperate or assist the Council in the management of the complaint.

5.3 Alleged Breach of Part 2 - Internal Response

After making the initial assessment of the seriousness of the matter, the Principal Member may determine that the matter is minor in nature and is suitable to be handled internally. In making this determination, the Principal Member will seek advice from the CEO. The Principal Member must then write to the Council Member involved within five (5) days of the receipt of the complaint and seek their written response to the complaint. The Council Member must submit this within ten (10) days of receipt (unless otherwise agreed to by the Principal Member). Upon receipt of the Council Member’s written response, the Principal Member with advice from the CEO will determine if both the complaint and the response gives rise to a matter which continues to be suitable to be managed internally. The Principal Member will provide an explanation to both parties in writing, outlining the reasons why the Principal Member has determined the matter to be minor in nature and to be managed under this part of the Procedure.

NB – In order for the internal management of a minor matter to be suitable, the matter will need to be of such a nature that discussion, mediation or conciliation could resolve it. If the matter is not of this nature, then it must be referred externally.

When a minor matter is managed internally, the Principal Member will, firstly, require a ‘desktop assessment’ of the matter. The CEO will appoint a suitable person to conduct the ‘desktop assessment’. A ‘desktop assessment’ will involve:

• the assessment of the complaint


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• an assessment of the response • a search of Council systems for records relating to the matter (if relevant) and • the creation of a summary and findings report with recommendations.

Upon receiving the summary report and recommendations, the Principal Member will consider the next steps. The Principal Member may determine that the ‘desktop assessment’ has given reason to move to an External Investigation and will request that the CEO take action under 5.4 of this Procedure. This may be because additional information has determined it to be a more serious matter, or for some reason the available steps under this part of the Procedure could not, or would not be likely to resolve the matter. The Principal Member may determine that the matter remains minor in nature and can be managed through discussion between both parties (either face to face or via telephone, via emails or via Council staff as appointed by the CEO), mediation or conciliation. The Principal Member will notify the parties of the intention to manage the matter via discussion, mediation and conciliation. If one party does not agree, the matter must be handled via an External Investigation under 5.4 of this Procedure, or the complainant may wish to withdraw the complaint. If both parties agree, the Principal Member will seek to resolve the matter either through discussions or meetings with the complainant and the Council Member and may seek professional support to provide mediation and conciliation between the parties in an attempt to resolve the matter to the satisfaction of all parties. This may be appropriate, for example, where the complainant is also a Council Member or when the matter is a result of a misunderstanding between a Council Member and a community member. The Principal Member must ensure that the principles of natural justice and procedural fairness are observed during any discussion, mediation or conciliation meetings, including but not limited to;

• A hearing appropriate with the circumstances (that each person be told the

information relating to the matter in advance and given the chance to reply); • The meeting to be facilitated by a professional mediation or conciliation service or

by another person, subject to the agreement of both parties • Opportunity for each party to bring a support person • Opportunity for each person to speak • Opportunity for each person to have access to an interpreter service if needed • A lack of bias in approach; • Evidence to support a decision; • Inquiry into matters in dispute • Reasons for decisions.

To meet the procedural fairness requirements, it may be necessary to hold several discussions or meetings of the parties. For the Principal Member to meet these responsibilities, the Principal Member should be present as an observer, or if the matter is resolved through discussions (which can


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include emails, telephone conversations or via a Council staff member) be kept informed of the progress by a CEO appointed Council staff member. Where the matter is resolved between the parties to the satisfaction of the parties under this section of the Procedure, the Principal Member will determine that the matter will be closed and no further investigation will be undertaken. The Principal Member will send written notification to all parties confirming that the matter has been resolved and seek their confirmation within thirty (30) days. If within thirty (30) days, the Principal Member has not received communication from both parties to confirm or reject the outcome, the Principal Member will close the matter by confirmation to the CEO. No further investigation will occur. If both parties agree the matter will be closed and will not be the subject of a report to Council. The occurrence of a matter under this Procedure will be recorded as a statistic only, in the quarterly complaints and investigations report to Council without any details of the matter. This approach is considered to ensure procedural fairness and equity for the parties involved. Where a party decides not to participate in 5.3 or denies that the matter is resolved after receiving the conclusion notice from the Principal Member, the CEO will be notified and must then make arrangements for the matter to be referred externally for further investigation. Refer to 5.4 of this Procedure. The complainant may withdraw a complaint at any time in this process which will cause the process to cease. The matter will, therefore, not be determined.

5.4 Alleged Breach of Part 2 - External Response Where there has been an allegation that a Council Member has breached Part 2 of the Code and it is a matter which cannot be managed and/or resolved under 5.3 of this Procedure or is of a serious nature, the complaint will be referred for external investigation and recommendation. Referral to external investigation may also occur when the complaint is about both the Mayor and the Deputy Mayor. The external agency may be the Local Government Governance Panel but other options may arise and the CEO may exercise discretion as to the external referral of the matter. If the matter is referred to the Local Government Governance Panel its procedures for processing a matter are available on the Governance Panel webpage on the LGA’s website under Rules of Engagement. [www.lga.sa.gov.au] Complaints referred for external investigation and recommendation will specify the ground/s of the complaint, set out the circumstances of the complaint and be accompanied by any other material that is available to support the complaint. In some cases the referral of the complaint will be as a result of the Principal Member’s assessment, or that the complaint relates to both the Mayor and the Deputy Mayor. It will be submitted in its original form (direct referral). When a complaint cannot be resolved under 5.3 of this Procedure, the external referral will also include the desktop assessment to assist the external investigator (indirect referral). The matter will be assessed by the external investigator. It may be dismissed if it is considered to be frivolous, vexatious, misconceived or lacking in substance. Where the external investigator makes such determination, reasons will be provided in


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support of the determination. The Principal Member will be advised accordingly, and if he/she accepts that finding, the matter will be closed. There is no requirement to report this outcome to Council. If the Presiding Member does not accept this finding, the Presiding Member may refer the matter to another external agency for a second opinion. Where a complaint progresses to an external investigation, a report will be prepared by the external investigator and be provided to the CEO to present to the Principal Member (if the matter does not pertain to the Principal Member). Regardless of the findings, the Principal Member or CEO will contact both the Council Member and the complainant involved within five (5) days of receipt of the external report and provide them with a copy of the report. If the external finding is that there has not been a breach of the Code, the Principal Member will determine that the matter is closed and notify both parties, including information on any further rights of referral to another agency. Where the external investigator has made a finding that there has not been a breach of the Code, the matter is closed and will not be separately reported to Council. The occurrence of a matter under this Procedure will then be recorded as a statistic only in the quarterly complaints and investigations report to Council without any details of the matter. If the finding is that there has been a breach of the Code, the Principal Member will also outline the procedure that will follow (without prescribing the outcome). If there is a finding of a breach of the Code, the external investigation report may recommend to the Council appropriate action in relation to the matter, including the imposition of any of the sanctions available under clause 2.25 of the Code (see below). In accordance with clause 2.24 of the Code, the CEO will ensure that a report of the finding of breach (and any recommended sanction(s) is presented to a public Council meeting and the Council has determined that this report will be presented within two (2) ordinary meetings of the Council following receipt of the external investigation report. The Council may, by resolution, take any of the following actions:

• Take no action; • Pass a censure motion in respect of the Council Member; • Request a public apology, whether written or verbal; • Request the Council Member to attend training on the specific topic found to

have been breached; • Resolve to remove or suspend the Council Member from a position within the

Council (not including the Member’s elected position on Council) • Request the member to repay monies to the Council.

5.6 Appeals

Council will not enter into any process for internal appeal in relation to Part 2 of the Code. This does not prevent a complainant from seeking their external appeal rights of review.


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5.7 Part 3 - Mandatory Code (Misconduct) Any person may report an alleged breach of Part 3 of the Code to the Council, the Ombudsman or the OPI. Alleged breaches of this Part made to Council will be referred by the CEO to the Ombudsman or the OPI for investigation. Where the complaint about a breach of Part 3 of the Code is identified by a public officer, the officer must report the breach to the CEO and to the OPI. A failure of a public officer to report a breach of Part 3 of the Code may be a breach of the ICAC Act 2012. Where a Council Member is the complainant, a failure to report an alleged or suspected breach of Part 3 of the Code is in itself a breach under Part 2 of the Code and may be a breach of the ICAC Act 2012. A failure of a Council Member to co-operate with the Council’s process for handling alleged breaches of Part 2 of the Code may be considered to also be a breach of the Code and may be referred for investigation under Part 3. A failure of a Council Member to comply with a finding of an investigation under Part 2 of the Code, adopted by the Council, may be considered to also be a breach of the Code and may be referred for investigation under Part 3. Repeated or sustained breaches of Part 2 of the Code by the same Council Member may be referred, by resolution of the Council, to the relevant authority as a breach of Part 3. 5.8 Criminal Matters – Appendix to the Code of Conduct

The matters within the Appendix to the Code are matters for which a criminal penalty attaches. These matters must be reported to the OPI. In addition, allegations of a breach of any of the offence provisions in the Local Government Act 1999 must also be reported to the OPI. (See Council’s Fraud and Corruption Prevention Policy for further information on reporting requirements or the Directions and Guidelines issued by the Independent Commissioner Against Corruption).

In compliance with the ICAC Act 2012, referral of such complaints to the OPI will remain confidential.

6. Review

In accordance with the Code of Conduct for Council Members this Procedure will be reviewed within 12 months of a general Local Government election.

7. Attachments

Appendix 1 - Flowchart of Procedure Appendix 2 - Code of Conduct for Council Members


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Appendix 1


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Appendix 2


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