With the Local Government Act’s (the Act) new CEO complaints provisions now having been used for the first time, the importance of councils ensuring their own complaints processes are robust and up-to-date has been thrown into sharp focus.
Weak internal complaints processes pose a significant risk to councils wishing to deal effectively with a CEO conduct complaint, undermining confidence a matter will be investigated properly, and ultimately drawing into question any findings that are made. This can have a significant adverse impact on morale, exacerbating existing tensions within the organisation and even leading to further complaints and accusations.
Given recent amendments to the Act, a failure to have proper processes in place may also increase the chance an external probity auditor will need to be appointed to oversight Council’s management of the complaint.
Under the amendments to the Act, a probity auditor may be appointed (but is not required to be appointed) to assist a Council “ensure probity” in dealing with a complaint against a CEO.
Readers will be aware that earlier this year the Secretary of the Department of Planning and Community Development appointed a probity auditor to oversee the Rural City of Wangaratta’s approach to addressing a dispute between the CEO and a Councillor.
The Councillor had alleged the CEO attempted to gag him and prevent him from performing his job properly. The allegation appears to centre on a claim by the Councillor the CEO had refused to allow him to use official Council letterhead.
As at the time of writing, the dispute remains under investigation.
The amendments to the Act were introduced into the Victorian Parliament in June 2012 and became law on 30 October 2012.
Under the new section 105 of the Act, a Council CEO must now advise the Mayor and Council as soon as he or she is aware that a complaint has been made against him or her by a Councillor, a member of Council staff or any other person the CEO deals with in the course of performing his or her role.
The appointment of a probity auditor is dealt with under sections 106-110 of the amended Act.
Under section 106, a probity auditor may be appointed by the Secretary of the Department of Planning and Community Development (the Secretary) if requested to do so by the CEO or the Mayor.
Assisting the Council to ensure probity in dealing with the complaint is described in the Act as the probity auditor’s “primary duty”. (Note that it is not their role to deal in any way with the substance of the complaint.) If appointed, a probity auditor is also required to provide a written report, at the conclusion of their audit, to the Council, Mayor, Chief Executive Officer and Secretary.
It is significant that the probity auditor (interestingly they are not referred to as a probity adviser) has broad powers under the new provisions, and can, for example, ask Councillors or Council officers to produce documents, provide information or give any other assistance the probity auditor considers necessary.
Any unreasonable failure to assist the probity auditor will be reported to the Council, the Mayor, the CEO and the Secretary.
Dealing with a CEO conduct complaint - some practical considerations
Under the new provisions, on becoming aware of a complaint, the CEO must advise a closed Council meeting about the complaint at the next meeting of the Council. Council may also be advised at a special meeting.
The Act (including the recent amendments) is silent on what, if any, on-going role Council has in respect to a complaint. It is also silent as to how Council discharges any responsibilities it might have once the complaints investigation process has concluded.
Councils should look to the principles of good governance, not black letter law, for guidance in relation to these issues.
The first thing to be done is for Councillors to satisfy themselves Council has in place a complaints process that is fair and transparent. (It is this very process that the probity auditor will be reviewing and ensuring was followed.)
That process should also specifically contemplate scenarios in which a complaint is made against the CEO - whether by a Councillor, an Officer or somebody else - and then detail the manner in which such a complaint is to be dealt with.
It is also vital the CEO is excluded from any role in respect of the investigation of the complaint. Indeed, the complaints process itself should remove the CEO from the process. Nevertheless, Councillors must satisfy themselves the investigation will be managed by someone who is impartial and who will be trusted by both parties.
In many instances another member of Council’s senior management team can appropriately manage the process. In some cases though, it may be more appropriate it is managed by a person external to Council.
Having the option to request the appointment of a probity auditor is, we think, a useful additional tool for Councils.
In certain circumstances, these provisions will be a very effective shield against, for example, accusations an investigation was not conducted impartially or was not sufficiently thorough, or against an accusation the correct procedure was not followed.
A tick from the probity auditor that the process was appropriate should also provide some comfort to the parties to the complaint, regardless of the outcome.
Nevertheless, the participation of a probity auditor will not always be necessary, particularly where a complaint is considered frivolous.
Having effective workplace policies and procedures in place may further obviate the need for a probity auditor or, at least, minimise the role they will be required to play.