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Co u n c i l M em b er Co d e o f Co n d u c t Co m p la in t

Ha n d l in g P r o ced u r e

Classification: Council Policy

Policy Name: Council Member Code of Conduct Complaint Handling Procedure

First Issued / Approved: November 2013

Last Reviewed: 5 May 2016

Next Review: July 2018

ECM Tracking No.: 2431229

Responsible Officer: General Manager, Corporate Services

Relevant Legislation: Local Government Act 1999 Independent Commissioner Against Corruption Act 2012

Related Policies and Procedures:

Code of Conduct for Council Members, as published in the South Australian Government Gazette 29 August 2013; Directions and Guidelines issued by ICAC Fraud and Corruption Prevention Policy, (Election) Caretaker Policy

1. INTRODUCTION

1.1 The Independent Commissioner Against Corruption Act 2012 (SA), amended section 63 of the Local Government Act, 1999 to provide that the Governor may, by regulation, prescribe a code of conduct to be observed by members of Council. A Mandatory Code of Conduct for Council Members has been prescribed in accordance with the Act (the Code). The Code was Gazetted and commenced operation on 1 September 2013. Council Members must observe the Code.

1.2 Capitalised terms appearing herein have the same meanings as those in the Code, unless otherwise expressed.

1.3 Part 2 of the Code deals with behavioural matters which the intention of the Code is that each Council will adopt a process for the handling of alleged breaches of Part 2. Clause 2.19 of the Code sets out that a Complaint may be investigated and resolved in any manner which the Council deems appropriate. This can include, but is not limited to referral to a mediator or conciliator, the Local Government Governance Panel, a regional governance panel, or an independent assessor.

1.4 This Council Member Code of Conduct Complaint Handling Procedure outlines the procedures to be observed by the Council for the purposes of addressing and processing any Complaints alleging a breach of the Code (the Procedure). The Procedure reflects Council’s commitment to ensuring the proper investigation of Complaints under the Code.

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1.5 This procedure applies when the Council receives a Complaint against a Council Member under the Code. A copy of the Code may be accessed on the Council’s website at www.burnside.sa.gov.au .

1.6 Breaches of the Code may relate to behaviour (in Part 2 of the Code) or misconduct (in Part 3 of the Code). Part 3 of the Code contains the mechanisms for the management of the alleged breach. This document contains Complaint handling procedures under Part 2 of the Code.

1.7 Criminal or corruption matters, which are subject to separate legislation, do not form part of the Code, but are referred to in the appendix of the Code.

2. DEFINITIONS

Act means the Local Government Act 2012 (SA).

Affected Person has the same meaning as that set out in paragraph 6.5.3. Appropriate Authorities refers to an authority that receives disclosure of public interest information, in particular:

(i) a Minister of the Crown;

(ii) a member of the police force - where the information relates to an illegal activity;

(iii) the Auditor-General – where the information relates to the irregular or unauthorised use of public money;

(iv) the Ombudsman – where the information relates to a public officer;

(v) the Office for Public Integrity;

(vi) the Independent Commissioner Against Corruption; or

(vii) any other person to whom, in the circumstances of the case, it is reasonable and appropriate to make the disclosure.

Business Day means a day that is not a Saturday, Sunday or public holiday in South Australia. Code refers to the Code of Conduct for Council Members as published in the South Australian Government Gazette 29 August 2013. Complaint can take the form of either a:

(i) Letter;

(ii) Email; or

(iii) duly completed (prescribed) form under the Complaints Handling procedure,

but must in every instance, be in writing. Complainant refers to the person who makes a Complaint. Conduct Reviewer refers to the legal practitioner chosen from a pre-approved list of legal practitioners responsible for the Preliminary Assessment of the Complaint.

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Corruption in public administration as defined by the ICAC Act means:

(i) An offence against Part 7 Division 4 (offences relating to public officers) of

the Criminal Law Consolidation Act 1935, which includes the following offences:

(a) bribery or corruption of public officers;

(b) threats or reprisals against public officers;

(c) abuse of public office;

(d) demanding or requiring benefit on basis of public office;

(e) offences relating to appointment to public office;

(f) any other offences (including an offence against Part 5 (Offences of dishonesty) of the Criminal Law Consolidation Act 1935) committed by a public officer while acting in his or her capacity as a public officer or by a former public officer and related to his or her former capacity as a public officer, or by a person before becoming a public officer and related to his or her capacity as a public officer, or an attempt to commit such an offence; or

(g) any of the following in relation to an offence referred to in a preceding paragraph:

(i) aiding, abetting, counselling or procuring the commission of the offence;

(ii) inducing, whether by threats or promises or otherwise, the commission of the offence;

(iii) being in any way, directly or indirectly, knowingly concerned in, or party to, the commission of the offence;

(iv) conspiring with others to effect the commission of the offence.

Council means the Corporation of the City of Burnside established pursuant to the Act.

Council Member means any of the current council members, which includes the Mayor, elected to the position at the City of Burnside.

Directions and Guidelines is a reference to the Directions and Guidelines issued pursuant to section 20 of the ICAC Act, which are available on the Commissioner’s website (www.icac.sa.gov.au)

Enterprise Content Management (ECM) refers to the records management software used by the Council. Employee refers to all the Council's employees and includes trainees, work experience students, volunteers, and contractors whether they are working in a full-time, part-time or casual capacity.

ICAC Act is the Independent Commissioner Against Corruption Act 2012 (SA) Independent Assessor refers to a legal practitioner who is from a different law firm to the Conduct Reviewer, and will be chosen from a pre-approved list of legal

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practitioners to assist the Council in undertaking the further investigation of a Complaint. The rationale underpinning this definition is to afford the greatest level of fairness and transparency of process to the parties involved in the Complaint.

Maladministration is defined by the ICAC Act in public administration to mean:

(i) conduct of a public officer, or a practice, policy or procedure of a public authority, that results in an irregular and unauthorised use of public money or substantial mismanagement of public resources; or

(ii) conduct of a public officer involving substantial mismanagement in or in

relation to the performance of official functions; and

(a) includes conduct resulting from impropriety, incompetence or negligence; and

(b) is to be assessed having regard to relevant statutory provisions and administrative instructions and directions.

Misconduct in public administration defined under Section 5 of the ICAC Act means:

(i) contravention of a code of conduct by a public officer while acting in his or

her capacity as a public officer that constitutes a ground for disciplinary action against the officer; or

(ii) other misconduct or a public officer while acting in his or her capacity as a public officer.

Notice of Investigation has the meaning given to it in paragraph 6.4.1. Office for Public Integrity (OPI) is the office established under the ICAC Act that has the function to:

(i) receive and assess complaints about public administration from members

of the public;

(ii) receive and assess reports about corruption, misconduct and maladministration in public administration from the Ombudsman, the Council and public officers;

(iii) make recommendations as to whether and by whom complaints and reports should be investigated;

(iv) perform other functions assigned to the Office by the Commissioner.

Ombudsman refers to the Office of the Ombudsman established pursuant to the Ombudsman Act 1972 (SA). Preliminary Assessment Report refers to the report produced by the Conduct Reviewer at the conclusion of the preliminary assessment. Public administration defined at section 4 of the ICAC Act means without limiting the acts that may comprise public administration, an administrative act within the meaning of the Ombudsman Act 1972 (SA) will be taken to be carried out in the course of public administration.

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Public Officer includes:

(i) an elected Member of the Council, including the Mayor;

(ii) an Independent member of the Council's Development Assessment Panel;

(iii) an Independent member of a Council Committee or a subsidiary of the Council, and

(iv) an Employee or Officer of the Council.

Subject Member is the Council Member (which definition includes the Mayor) whose conduct is the subject of investigation under the Code and may include more than one Council Member. Reference to the singular includes the plural.

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Complaint

Received Refer to legal practitioner from pre-approved

list of legal practitioners

Preliminary Assessment

Trivial, frivolous or vexatious

Behaviour under Part 3 of the Code

Criminal or Corrupt Conduct

Behaviour under Part 2 of the Code

Council considers Preliminary Assessment Report at next available Council Meeting and passes resolution on appropriate action

Refer to Ombudsman/OPI

Refer to Appropriate Authorities

Confirm receipt of complaint to Complainant in writing within 5 Business Days

Preliminary Assessment Report

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No action

Confirm in writing to Complainant and notify Subject Member

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COMPLAINTS HANDLING PROCEDURE FLOWCHART

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Formal mediation (subject to the willingness

of the Complainant and the Subject member)

Further investigation

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Further Investigation

Council resolves to appoint an Independent Assessor from a pre-approved list of legal practitioners

(must not be the same legal practitioner acting as the Conduct Reviewer)

Independent Assessor provides written Notice of Investigation to Subject Member and Complainant

Final Report

Independent Assessor considers submissions made by Subject Member and Complainant

Council considers Final Report at next available Council Meeting and makes a final determination

(the Subject Member may make an oral submission, then declare a conflict and does not participate)

Subject Member provides final submissions to Independent Assessor on Initial Investigation Report

Initial Investigation Report

Formal Mediation (subject to the willingness of the Complainant and the

Subject member)

Complaint Resolved via mediation without need for further action

(Outcome of mediation must be recorded in ECM)

Complaint not resolved by

mediation. Refer for further investigation

Council carries out recommendations and impose penalties (if any)

Subject Member or Complainant may refer the matter to the Ombudsman for review.

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3. PROCEDURE

3.1 For the purpose of these procedures, a Code of Conduct Complaint is a complaint that alleges conduct on the part of a Council Member acting in their official capacity that on its face, if proven, would constitute a breach of the standards of conduct prescribed under the Code.

3.2 There are four steps in the management of a Complaint under the Code:

3.2.1 Stage 1 - Receipt of Complaint

3.2.2 Stage 2 - Preliminary Assessment

3.2.3 Stage 3 - Mediation or Further Investigation

3.2.4 Stage 4 - Resolution

4. STAGE 1 – RECEIPT OF COMPLAINT

Form of the Complaint

4.1 The allegation must:

4.1.1 be in writing to comply with the definition of a Complaint;

4.1.2 be addressed to the CEO, the Mayor, or a Council Member;

4.1.3 be specific and provide as much detail as possible;

4.1.4 provide the name of the Council Member who has allegedly breached the Code;

4.1.5 identify the provisions of the Code which it alleges has been breached; and

4.1.6 provide as much supporting evidence as possible to assist the investigation.

Conduct Reviewer

4.2 Within 2 Business Days of receiving a Complaint, the CEO, the Mayor, or the Council Member who received the Complaint must, refer the Complaint to a Conduct Reviewer, which is chosen by the CEO, from the list of pre-approved legal practitioners.

4.3 In the event that the Complaint refers to, or concerns, the CEO, within 2 Business Days of receiving a Complaint, Council administration must refer the Complaint to a Conduct Reviewer, which is chosen by Council administration, from the list of pre-approved legal practitioners.

4.4 Complainants can, at any time, take the alternative option of lodging the Complaint with the OPI or the Ombudsman, either of whom will direct the Complaint in accordance with the ICAC Act.

4.5 The Conduct Reviewer will be responsible for:

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4.5.1 undertaking the Preliminary Assessment of the Complaint;

4.5.2 communicating with the parties on the status of the Complaint (subject to the Complaint not being related to misconduct under Part 3 of the Code, criminal or corrupt conduct) to both the Subject Member and the Complainant (where the Complainant is (or can be) publicly identified);

4.5.3 liaising with and provide administrative support to the Council when required; and

4.5.4 liaising with the Ombudsman, OPI or other Appropriate Authorities where applicable.

4.6 Should the Complaint not satisfy the requirements under paragraph 4.1, the Conduct Reviewer may request the Complainant to re-submit the Complaint so that it complies with paragraph 4.1.

Confirm Receipt of Complaint to Complainant

4.7 Within 5 Business Days of receiving the Complaint, the Conduct Reviewer must confirm receipt of the Complaint to the Complainant in writing.

Time Restraint

4.8 A Complaint must be made within three months of the alleged conduct occurring or within three months of the Complainant becoming aware of the alleged conduct.

4.9 A Complaint made after three months may only be accepted if the Conduct Reviewer is satisfied that there are compelling grounds for the matter to be dealt with under the Code pursuant to the Council’s Complaint Handling Procedure.

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5. STAGE 2 - PRELIMINARY ASSESSMENT

5.1 Within 5 Business Days of receipt of the Complaint the Conduct Reviewer must determine whether the Complaint:

5.1.1 is trivial, frivolous, vexatious or not made in good faith;

5.1.2 relates to behaviour which falls under Part 2 of the Code;

5.1.3 relates to misconduct or reasonable suspicion of corruption and/or systemic misconduct which triggers action under Part 3 of the Code; or

5.1.4 relates to criminal or corrupt behaviour.

5.2 The preliminary assessment by the Conduct Reviewer will be conducted in accordance with natural justice requirements. It will involve a thorough and balanced assessment of the evidence submitted regarding the alleged breach, the relevant circumstances prevailing at the time of the alleged breach and any other factors deemed relevant to making a fair and reasonable judgement about the matter.

Complaints Assessment Criteria

5.3 In undertaking the preliminary assessment of a Complaint, the Conduct Reviewer must take the following into consideration:

5.3.1 whether the Complaint discloses prima facie evidence of a breach of the Code;

5.3.2 whether the Complaint raises issues that would be more appropriately dealt with by another agency or body;

5.3.3 whether there is or was an alternative and satisfactory means of redress available to the complainant in relation to the conduct complained of, such as, but not limited to, explanation, counselling, training, mediation, informal discussion, negotiation or apology;

5.3.4 whether the issue(s) giving rise to the Complaint have previously been addressed or resolved;

5.3.5 whether the conduct complained of forms part of a pattern of conduct;

5.3.6 whether there were mitigating circumstances giving rise to the conduct complained of;

5.3.7 the seriousness of the alleged conduct;

5.3.8 the significance of the conduct or the impact of the conduct for the Council;

5.3.9 how much time has passed since the alleged conduct occurred; and

5.3.10 such other considerations that the Conduct Reviewer considers may be relevant to the preliminary assessment of the Complaint.

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Trivial, Frivolous, or Vexatious Complaints

5.4 Where the Conduct Reviewer determines a Complaint is trivial, frivolous, vexatious or not made in good faith, the Conduct Reviewer must provide the Council with a Preliminary Assessment Report (refer to paragraphs 5.8 to 5.12).

5.5 The Conduct Reviewer must, within 5 Business Days of making the determination, confirm in writing to the Complainant that the Council has decided not to enquire further into the matter and provide reasons for its decision.

5.6 The Conduct Reviewer must also, within 5 Business Days of making the determination, advise the Subject Member of the receipt of the trivial, frivolous, or vexatious complaint.

Behaviour under Part 2 of the Code

5.7 If the Conduct Reviewer determines that the Complaint relates to behaviour which falls under Part 2 of the Code, within 5 Business Days of receiving the Complaint, the Conduct Reviewer must:

5.7.1 advise the Subject Member, in writing, of the Complaint, and the allegation(s) made against him or her; and

5.7.2 in accordance with paragraph 4.7, notify the Complainant that the Complaint is receiving attention.

5.7.3 following notification outlined in paragraph 5.7.1 and 5.7.2, record the Complaint in ECM, including the following details:

5.7.3.1 the name of the Subject Member who has allegedly breached the Code;

5.7.3.2 law permitting, the name of the Complainant;

Preliminary Assessment Complaint is under Part

2 of the Code

Advise Subject Member and Complainant in

writing within 5 business days

Record the Complaint in ECM

Produce Preliminary Assessment Report

within 5 Business Days for Council's

consideration

Council passes resolution for the

appropriate course of action

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5.7.3.3 the provisions of the Code which the Complainant alleges have been breached; and

5.7.3.4 the category and, where applicable, the status of the Complaint.

Preliminary Assessment Report

5.8 Within 10 Business Days of receiving the Complaint, the Conduct Reviewer must provide the Council with a Preliminary Assessment Report in relation to a Complaint that is trivial, frivolous, or vexatious, or relating to behaviour which falls under Part 2 of the Code.

5.9 The Preliminary Assessment Report must contain the following information:

5.9.1 provide the allegations with as much detail and supporting evidence as possible;

5.9.2 provide the name of the Subject Member who has allegedly breached the Code;

5.9.3 provide the name of the Complainant;

5.9.4 identify the provisions of the Code which it alleges has been breached;

5.9.5 make a determination that the alleged conduct is:

5.9.5.1 trivial, frivolous or vexatious; or

5.9.5.2 constitutes a breach of the Code; or

5.9.5.3 does not constitute a breach of the Code;

5.9.6 provide reasons for the determination; and

5.9.7 provide recommendations to the Council for further action (if any).

5.10 The Conduct Reviewer may only make the following recommendations within the report:

5.10.1 Take no action (only if the Complaint is found to be trivial, frivolous or vexatious);

5.10.2 subject to the willingness of the Complainant and the Subject Member, to resolve the Complaint by alternative and appropriate strategies such as, but not limited to, explanation, counselling, training, mediation, informal discussion, negotiation or apology;

5.10.3 to refer the Complaint for further investigation; and/or

5.10.4 if applicable, to refer the Complaint to the relevant Appropriate Authorities under the Code.

5.11 Where one or both of the parties is unwilling to resolve the Complaint by alternative and appropriate strategies, the Conduct Reviewer must refer the Complaint to the Council for consideration for further investigation.

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5.12 The Council is not obliged to adopt the Conduct Reviewer’s recommendation(s) as set out in the Preliminary Assessment Report. Where the Council does not adopt the Conduct Reviewer’s recommendation(s), the Council must resolve not to adopt the recommendation and state in its resolution the reasons for its decision.

5.13 In the event that the Conduct Reviewer is unable to resolve the issue as between the parties, or both of the parties determine that they wish the matter to be subject to further investigation, then the Conduct Reviewer must prepare the brief for the Independent Assessor which will be limited to the Complaint and supporting documentation received. The Conduct Reviewer (or the Council) will not provide his/her findings, the Preliminary Assessment Report, nor any recommendations made or recorded in connection with the Preliminary Assessment to the Independent Assessor. This promotes fairness and transparency of process for all parties concerned.

Behaviour under Part 3 of the Code and/or Criminal or Corrupt Behaviour

5.14 Complaints relating to misconduct under Part 3 of the Code must and will be immediately referred to the Ombudsman or the OPI (or ICAC) in accordance with Part 3 of the Code.

5.15 Complaints relating to criminal or corrupt behaviour must be immediately referred to the relevant Appropriate Authorities.

5.16 Where the Complaint relates to misconduct under Part 3 and/or criminal or corrupt behaviour:

5.16.1 a Preliminary Assessment Report will not be produced for the Council’s consideration;

5.16.2 the Complaint and its substance will not be recorded in ECM if and until:

5.16.2.1 the Ombudsman has issued his final report which has been considered by Council;

5.16.2.2 the OPI or ICAC issues a public statement or gives permission for publication of its findings in relation to a matter within its jurisdiction to be made public.

5.16.3 the Subject Member must not be advised of the existence of the Complaint nor any allegations made against the Subject Member. This is to ensure that the investigations conducted by the relevant Appropriate Authorities will not be compromised.

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6. STAGE 3 – MEDIATION OR FURTHER INVESTIGATION

6.1 Mediation

* Or such other reasonable period agreed between the parties

6.1.1 Within 5 Business Days (or such other reasonable period agreed between the parties) of the Subject Member and the Complainant receiving the notice referred to in paragraph 5.7.1 and 5.7.2, the parties will meet to discuss and resolve the issue if mediation is amenable to both.

6.1.2 If the Complaint is not resolved at the first meeting under paragraph 6.1.1, the parties must attend a second meeting within a further 5 Business Days and attempt to resolve the Complaint.

6.1.3 If, within 10 Business Days (or such other reasonable period agreed between the parties) of the first meeting under paragraph 6.1.1 the Complaint is not resolved, the Conduct Reviewer will refer the matter to the Council for consideration for further investigation by an Independent Assessor.

6.1.4 If the Complaint is resolved to the satisfaction of all parties by alternative and appropriate strategies (e.g. mediation), the Conduct Reviewer will have the outcome recorded in ECM.

6.1.5 If the Complaint is resolved by virtue of the Subject Member admitting that there was a transgression on their part and an apology is adequate to address the issue, thereby resolving the complaint to the satisfaction of the Complainant, then the operation of paragraph 8 will not apply.

Notice of meeting

First Meeting held within 5

Business Days*

Resolved - end of process

Resolved - end of process

Resolve within 10 Business Days *of the first meeting

Second Meeting held within further 5 Business Days* of

the first meeting

Refer for further investigation

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6.2 Further Investigation

* Or such other reasonable period agreed between the parties

6.2.1 Where the Complaint is referred to the Council for consideration for further investigation, the Council must consider the Complaint in the next possible Council meeting.

6.2.2 During the Council meeting, the Council must appoint an Independent Assessor from the pre-approved list of legal practitioners to assist the Council in undertaking the further investigation of a Complaint.

6.3 Conduct of Investigations

6.3.1 Investigations are to be undertaken without undue delay.

6.3.2 Investigations are to be undertaken in the absence of the public and in confidence.

6.3.3 The Independent Assessor must make any such enquiries that may be reasonably necessary to establish the facts of the matter.

6.3.4 The Independent Assessor may seek such advice or expert guidance that may be reasonably necessary to assist them with their investigation or the conduct of their investigation.

6.3.5 The Independent Assessor will be provided with the information set out in paragraph 5.13 by the Conduct Reviewer.

Notice of Investigation provided to Subject

Member and Complainant within 5 Business Days

Request written submissions from Subject Member within 5 Business

Days* of receipt of the Notice of Investigation

Arrange separate meetings with Subject Member and

Complainant within 10 Business Days* of the Notice of Investigation

Produce Initial Investigation Report within

5 Business Days*

Provide Affected Person (if applicable) with relevant

extracts of Initial Investigation Report and

invite written submissions within 5 Business Days*

Final Investigation Report produced

Provide Subject Member with Final Investigation Report and invite final

written submissions within 5 Business Days*

Final Investigation Report and Subject Member's final written submissions

provided to the Council, the Conduct Reviewer, the Subject Member and

the Complainant

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6.4 Written Notice of Investigation

6.4.1 The Independent Assessor must at the outset of their investigation provide a written Notice of Investigation to the Subject Member and the Complainant within 5 Business Days of their appointment. The Notice of Investigation must:

6.4.1.1 Disclose the substance of the allegations against the Subject Member together with a copy of the complaint and any relevant supporting documentation;

6.4.1.2 Advise of the relevant provisions of the Code that apply to the alleged conduct;

6.4.1.3 Advise of the process to be followed in investigating the matter, together with an indicative timeline;

6.4.1.4 Request the Subject Member to provide written submissions within 5 Business Days of receipt of the Notice of Investigation from the Independent Assessor to assist the Independent Assessor to identify the substance of the allegation(s) subject to the operation of paragraph 6.4.2 below. An Independent Assessor will only be obliged to provide such information that the Independent Assessor considers reasonably necessary for the Subject Member to identify the substance of the allegation against them.

6.4.1.5 Invite the Subject Member and the Complainant to separately attend a meeting, in relation to the matter within 10 Business Days (or such other reasonable period specified by the Independent Assessor in the Notice of Investigation).

6.4.1.6 Must specify that the Subject Member and the Complainant are each entitled to bring a support person or legal advisor who will act in an advisory or support role only (Support Person). The Support Person must not speak on behalf of the Subject Member or Complainant otherwise interfere with or disrupt the meeting.

6.4.2 An Independent Assessor will allow an additional 5 Business Days if a request under paragraph 6.4.1.4 is acceded to and will duly notify the parties of the revised submission date in their amended notice of investigation.

6.5 Initial Investigation Report

6.5.1 The Independent Assessor must consider any written submissions received and produce an Initial Investigation Report within 5 Business Days of the meeting with either the Subject Member or the Complainant, whichever the latter.

6.5.2 The Independent Assessor may provide the Initial Investigation Report to the Subject Member and the Complainant. Both parties will be invited to make any further written submissions within 5 Business Days

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of receiving the Initial Investigation Report (or such other reasonable period specified by the Independent Assessor).

6.5.3 Where the Independent Assessor proposes to make adverse comment about any other person (Affected Person) in the Initial Investigation Report, they must also provide the Affected Person with relevant extracts of the Initial Investigation Report containing such comment and invite the Affected Person to make a written submission in relation to it within 5 Business Days of the production of the Initial Investigation Report (or such other reasonable period specified by the Independent Assessor).

6.5.4 Where the Subject Member, the Complainant or an Affected Person fails to make a written submission in relation to the Initial Investigation Report within the period specified by the Independent Assessor, the Independent Assessor may proceed to prepare and issue their Final Report without receiving such submissions.

6.5.5 Where an Independent Assessor identifies further separate possible breaches of the Code that are not related to or arise from the Complaint that has been referred to them, they are to report the matters separately in writing to the Conduct Reviewer.

6.5.6 The Independent Assessor may accept in only the most exceptional of circumstances, written submissions in connection with the Complaint outside the period specified by the Independent Assessor at any time prior to issuing their Final Investigation Report. The Independent Assessor’s reasons for acceptance of the late written submissions must be included in the Initial Investigation Report.

6.6 Final Investigation Report

6.6.1 The Independent Assessor will prepare a Final Investigation Report in relation to the matter after they have finalised their consideration of the matter in accordance with the requirements of these procedures.

6.6.2 The Independent Assessor may provide the Final Investigation Report to the Subject Member and invite the Subject Member to make any final written submissions within 5 Business Days (or such other reasonable period specified by the Independent Assessor) for the Council’s consideration prior to making a determination on the matter.

6.6.3 If no final written submissions are received within 5 Business Days (or such other reasonable period specified by the Independent Assessor), the Final Investigation Report must be provided to the Council for its consideration within 5 Business Days of paragraph 6.6.2.

6.6.4 If the Subject Member provides final written submissions, the Independent Assessor, after having considered the final written submissions, must provide the Council with the Final Investigation Report within 10 Business Days of paragraph 6.6.2.

6.6.5 The Final Investigation Report must:

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6.6.5.1 make findings of fact in relation to the matter investigated, and,

6.6.5.2 make a determination that the conduct investigated either,

(a) constitutes a breach of the Code, or

(b) does not constitute a breach of the Code, and

6.6.5.3 provide reasons for the determination;

6.6.5.4 provide recommendations in the event that paragraph 6.6.5.2(a) applies.

6.6.6 The Final Investigation Report provided to the Council must include the final written submissions provided by the Subject Member as specified in paragraph 6.6.2 as an appendix to the Final Investigation Report.

6.7 Recommendations

6.7.1 Where the Independent Assessor determines that the conduct investigated constitutes a breach of the Code, the Independent Assessor may make one or more of the following recommendations:

6.7.1.1 take no action;

6.7.1.2 pass a censure motion in respect of the Council Member;

6.7.1.3 request a public apology, whether written or verbal;

6.7.1.4 request the Subject Member to attend training on the specific topic found to have been breached;

6.7.1.5 resolve to remove or suspend the Subject Member from a position within the Council (not does not extend to the Subject Member’s elected position on Council);

6.7.1.6 request the member to repay monies to the Council; and

6.7.1.7 refer the matter to the relevant Appropriate Authorities for further investigation and/or action.

6.7.2 Where the Independent Assessor determines that the conduct investigated does not constitute a breach of the Code, the Independent Assessor may make one or more of the following recommendations:

6.7.2.1 that the Council takes no action;

6.7.2.2 that the Council revise any of its policies or procedures; or

6.7.2.3 that a person or persons undertakes any training or other education.

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6.7.3 In making a recommendation under paragraph 6.7.1 or 6.7.2, the Independent Assessor may have regard to the following:

6.7.3.1 the seriousness of the breach;

6.7.3.2 whether the breach can be easily remedied or rectified;

6.7.3.3 whether the Subject Member has remedied or rectified their conduct;

6.7.3.4 whether the Subject Member has expressed contrition;

6.7.3.5 whether there were any mitigating circumstances;

6.7.3.6 the age, physical or mental health or special infirmity of the Subject Member;

6.7.3.7 whether the breach is technical or trivial only;

6.7.3.8 any previous breaches;

6.7.3.9 whether the breach forms part of a pattern of conduct;

6.7.3.10 the degree of reckless intention or negligence of the Subject Member;

6.7.3.11 the extent to which the breach has affected other parties or the Council as a whole;

6.7.3.12 the harm or potential harm to the reputation of the Council or local government arising from the conduct;

6.7.3.13 whether the findings and recommendations can be justified in terms of the public interest and would withstand public scrutiny;

6.7.3.14 whether an educative approach would be more appropriate than a punitive one;

6.7.3.15 the relative costs and benefits of taking formal enforcement action as opposed to taking no action or taking informal action; and

6.7.3.16 what action or remedy would be in the public interest even where there are no adverse findings against the Subject Member but where training or other education may improve the quality of communications for the Subject Member in the future.

6.7.4 The Council must provide a copy of the Final Investigation Report to the Subject Member and the Complainant following the determination of the Final Investigation Report and the passing of the relevant resolution.

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7. STAGE 4 – RESOLUTION

Council’s Consideration of the Final Report

7.1 A breach of Part 2 of the Code must be the subject of a Final Investigation Report to a public meeting of the Council.

7.2 For the avoidance of doubt, when the Final Investigation Report is considered by the Council, the Subject Member (and, if applicable, the Complainant if the Complainant is a Council Member) will have a material conflict of interest in the matter pursuant to section 73 of the Local Government Act, 1999. Accordingly, the Subject Member and the Complainant must disclose the interest at the time the matter is to be discussed, leave the Chamber and not participate in the Council’s consideration of the matter.

7.3 The role of the Council in relation to a Final Investigation Report is to consider imposing the recommended sanction (if any) where the Independent Assessor determines that there has been a breach of the Code (or where training or education could benefit the Subject Member) and makes a recommendation in their Final Investigation Report, which the Council can resolve to adopt in its entirety.

7.4 The Council is not obliged to adopt the Independent Assessor’s recommendation(s) as set out in the Final Investigation Report. Where the Council does not adopt the Independent Assessor’s recommendation(s), the Council must resolve not to adopt the recommendation and state in its resolution the reasons for its decision.

Final Investigation Report received by

Council

Final Investigation Report considered at next available Council meeting

Subject Member gives oral

submission and both Subject Member and Complainant

declares interest and leaves the

Chamber

Council requests supplementary

report (if required)

Council considers Final Investigation

Report (and Supplementary

Report if applicable)

Council resolves to adopt

recommendations from the Final

Investigation Report OR resolves not to

adopt the Recommendations

and states reasons for its decision

Notify the Subject Member and the Complainant of

Council's decision in writing

Impose sanction (if any)

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7.5 If, following investigation by the Independent Assessor, a breach of Part 2 of the Code is found. The Council may resolve within a specified time, pursuant to clause 2.24 of the Code, take any of the following actions:

7.5.1 take no action;

7.5.2 pass a censure motion in respect of the Subject Member;

7.5.3 request a public apology, whether written or verbal;

7.5.4 request the Subject Member to attend training on the specific topic found to have been breached;

7.5.5 resolve to remove or suspend the Subject Member from a position within the Council (which does not extend to the Subject Member’s elected position on Council);

7.5.6 request the member to repay monies to the Council; and

7.5.7 refer the matter to the relevant Appropriate Authorities for further investigation and/or action.

7.6 If the Subject Member fails to comply with the sanctions imposed by the Council within a specified time, this will result in the Council elevating the issue to the Ombudsman under Part 3 of the Code.

7.7 The Council must not invite oral submissions from other persons for the purpose of seeking to rehear evidence previously considered by the Independent Assessor.

7.8 Prior to imposing a sanction (if any), the Council has the capacity to ask the Independent Assessor additional questions. The Council may, by resolution, request that the Independent Assessor make additional enquiries and/or provide additional information to it in the form of a Supplementary Report (Supplementary Report).

7.9 The Council may, by resolution, defer further consideration of the matter pending the receipt of a Supplementary Report from the Independent Assessor.

7.10 The Independent Assessor may make additional enquiries for the purpose of preparing a Supplementary Report.

7.11 Where the Independent Assessor prepares a Supplementary Report, they must provide copies to the Council.

7.12 The Independent Assessor is not obliged to notify or consult with any person prior to submitting the Supplementary Report to the Council.

7.13 Where the Council passes a resolution of its final determination in connection with the Final Investigation Report and the sanctions (if any) that will be imposed, the Council must notify the Subject Member and the Complainant of its decision in writing in accordance with paragraph 6.7.4.

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8. REIMBURSEMENT TO THE SUBJECT MEMBER WHO HAS INCURRED COSTS

8.1 The Subject Member may seek his/her own legal advice in relation to the Complaint.

Stage 2 Reimbursement

8.2 Upon consideration of the Preliminary Assessment Report, if the Council passes a resolution that the Complaint is:

8.2.1 trivial, frivolous or vexatious; or

8.2.2 no further action is required; or

8.2.3 the matter is resolved by formal mediation under Stage 3 of this Complaints Handling Procedure;

the Council may resolve to reimburse the Subject Member for the costs of obtaining legal advice in connection with the Complaint up to a maximum sum of $1,000 excluding GST.

Stage 3 Reimbursement

8.3 Where formal mediation did not resolve the Complaint, and further investigation was conducted, and the Council’s final determination is that the Subject Member was not in breach of the Code, the Council may reimburse the Subject Member for the costs of obtaining legal advice in connection with the Complaint up to a maximum sum of $5,000 excluding GST.

8.4 The sum that may be reimbursed will be paid by the Council’s Finance Department in accordance with this paragraph following:

8.4.1 the passing of a resolution of the Council;

8.4.2 the production of a receipt for the payment of a tax invoice to the Council from the Subject Member confirming payment of the Subject Member’s legal costs; and

8.4.3 that the receipted amount in paragraph 8.4.2 is equal to or in excess of the reimbursable amount.

9. RIGHTS OF REVIEW

9.1 In the event that the Subject Member or the Complainant disagrees with the final determination (resolution) of the Council, it is open to either party to refer the matter to the Ombudsman for review.

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10. ESTABLISHING A PRE-APPROVED LIST OF LEGAL PRACTITIONERS WHO ACT AS THE INDEPENDENT ASSESSOR APPOINTED ON A ROTATIONAL BASIS

10.1 The Council will establish a pre-approved list of legal practitioners to assist the Council in investigating the Complaint where the outcome of the Preliminary Assessment is that the matter warrants further investigation under Stage 3 – Mediation or Further Investigation.

10.2 Legal practitioners appointed to this pre-approved list will hold senior positions within their respective firms and will have specialised knowledge of the legislation applicable to Local Government.

10.3 The pre-approved list of legal practitioners will be established following an expression of interest process to seek a competitive rate for service.

10.4 Contractual agreements with the legal practitioners selected to be included in the pre-approved list of legal practitioners will be completed before the Stage 3 – Mediation or Further Investigation process formally begins.

10.5 Council may vary the members of the pre-approved list of legal practitioners at any time by resolution following its contracts and tendering process pursuant to s 49 of the Local Government Act 1999 (SA).

10.6 The Conduct Reviewer who undertook the Preliminary Assessment of the Complaint must not be involved in Stage 3 – Mediation or Further Investigation.

10.7 The Council will determine the appropriate Independent Assessor as and when the need arises.

11. AVAILABILITY AND REVIEW OF PROCEDURE

11.1 The procedure is available to be downloaded, free of charge, from Council’s website www.burnside.sa.gov.au. The legislation referred to in this Procedure can be obtained from the following website: http://www.austlii.edu.au/au/sa/

11.2 The Policy will be available for inspection without charge at the Civic Centre during ordinary business hours and a copy may be purchased at a fee as set annually by Council.

City of Burnside Civic Centre 401 Greenhill Road, Tusmore SA 5065 Telephone; 8366 4200 Fax: 8366 4299 Email: burnside@burnside.sa.gov.au

Office hours: Monday to Friday, 8.30am to 5.00pm (except public holidays)

11.3 The procedure will be reviewed within twelve months of each Council general election. The Council may otherwise, review and alter this procedure (or substitute a new procedure) at any time as is deems appropriate.

11.4

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Code o f Con duc t Com pla in t Fo rm Please note that ALL fields must be filled in. COMPLAINANT DETAILS Title:

Given Name:

Family name:

Street Address:

Postal Address: (if different to street address)

Contact Number:

Mobile Number:

Email Address:

COMPLAINT DETAILS *Please note that the complaint must be made in relation to the Conduct of a Council Officer

Council Member(s) name:

Please provide the section(s) of the Code of Conduct for Council Members which the complaint relates:

Details of the Complaint: (attach additional pages if required)

Date of the alleged incident:

Location of the alleged incident:

Other parties involved:

Potential witnesses who may be contacted to corroborate the Complaint:

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Details of the incident:

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List and provide a brief description of the supporting documentation attached to this Complaint: (Please attach any relevant supporting documentation to this application. The Conduct Reviewer needs adequate material to support the allegation and investigate the Complaint.)

Acknowledgement I __________________________ acknowledge that the information contained herein is true and correct. .............................................................................. Signature

.............................................................................. Date

Privacy Statement: Please note that the Corporation of the City of Burnside is committed to protecting your privacy and takes reasonable steps to comply with all relevant legislation. The information is collected by the Council for the purpose of processing your application. Your personal information will be stored in accordance with relevant legislation and will only be accessed by authorised Council Staff. If you do not provide information, Council may not be able to process your application.

Office Use Only Complaint Received by: Date received: Action taken or required: Date action completed: Signature:

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