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Resolutions
That Council
1. Agrees that the decisions to be made are not significant under the
criteria contained in Council’s adopted policy on significance and that
Council can exercise its discretion under Sections 79(1)(a) and 82(3) of the
Local Government Act 2002 and make decisions on this issue without conferring
directly with the community and persons likely to be affected by or to have
an interest in the decision due to the nature and
significance of the issue to be considered and decided.
2. Receives the ‘Code of Conduct Complaint Response Process’
report.
3. Adopts the following ‘Complaint Investigation and
Determination Process’.
4. Adopts the updated Code of Conduct, amended by appending the Complaint
Investigation and Determination Process agreed today, 30 July 2014.
Wilson/Dick
CARRIED
5. Agrees
to resolve the complaint received on 12 June 2014 using the process following.
Wilson/Dick
CARRIED
Complaint
Investigation and Determination Process
1.
This process is at all times to follow the
principles of natural justice. The fundamental principles are that each
party:
1.1.
Has the right to know what the
investigation/determination process is, and what the potential outcomes may
be
1.2.
Is given due notice and is provided with an
opportunity to be involved in the process
1.3.
Has a right to be heard
1.4.
Has the right to seek appropriate advice and
counsel and to be represented
1.5.
Has their privacy respected as appropriate
throughout the process.
2.
On receipt of a written complaint, the
Chairman or Deputy Chairman will undertake an initial inquiry to determine
whether the subject matter of the complaint is appropriately dealt with under
the Code of Conduct.
2.1.
Note: in the event of a complaint concerning
the Chairman, the Deputy Chairman will undertake the initial inquiry.
2.2.
A positive answer to the following questions
would serve as an indicator that there may be a case to answer.
2.2.1. Is the complaint about an elected member?
2.2.2. If the allegations specified in the complaint were proven could
they amount to a breach of the code?
2.3.
If in doubt and there isn’t another
statutory or other process that applies, the matter should continue at this
stage.
2.4.
If the complaint doesn’t fit within the
Code then it should be redirected in an appropriate fashion or simply
declined and the complainant advised.
3.
The complainant will, within 5 working
days, be advised in writing:
3.1.
That the complaint has been received
3.2.
That the Chairman or Deputy Chairman will
undertake an initial investigation and that if the complaint does not fit
within the Code, then it may be redirected or even declined
3.3.
Of the process that will be used to address
the complaint
3.4.
The timeframe within which they can expect a
response
3.5.
A contact person who they can get in touch
with to find out about the process
3.6.
The complainant may also be asked for more
information so that the Council and the respondent can understand the complaint
sufficiently to be able to respond.
4.
The respondent will be:
4.1.
Provided a copy of the written complaint
within 5 working days (unless more detail is required and then
within 3 working days after receipt of the details requested)
4.2.
Advised in writing:
4.2.1. of the process to be used to address the complaint
4.2.2. requested to provide a written response to the Chairman or Deputy
Chairman within 14 days of receipt of the complaint
4.2.3. that they may like to seek advice and/or counsel.
5.
Chairman or Deputy Chairman assess both the
written complaint and the response. If the assessment is that there is no
case to answer the Chairman or Deputy Chairman will write to the complainant
and respondent and advise them of that outcome.
5.1.
That letter may be used as an opportunity to
recommend action, which could include:
5.1.1. Provision of information and/or education for the complainant or
the respondent
5.1.2. A change in process, practice or policy to remedy the problem.
6.
If the assessment is that there may be a case
to answer, the Chairman or Deputy Chairman is to commission a full
investigation.
6.1.
The Chairman or Deputy Chairman will appoint
an independent person to undertake the investigation.
6.2.
Terms of reference will be developed to
provide guidance for those undertaking the investigation.
6.3.
The respondent will be advised in writing
that:
6.3.1. It has been assessed that there may be a case to answer
6.3.2. The process that will be followed in a full investigation
6.3.3. If a breach of the Code is substantiated what options the Council
has available to it.
7.
The investigator will report directly to the
Chairman or Deputy Chairman.
8.
The investigator may recommend that the matter
may be more appropriately resolved by mediation.
9.
If the matter is resolved by mediation then an
agreement shall be prepared that is signed by all the parties and will be
subsequently provided to Council.
10.
Council shall consider the outcome of the
mediation and, if considered appropriate, move to give effect to the terms of
agreement reached in the mediation.
11.
If mediation is not appropriate or not
successful then a ‘findings’ document shall be prepared which
will include a summary of agreed and disputed facts that relate to the
complaint and the recommendations of the investigation. The findings will be
presented to the Chairman or Deputy Chairman for their review and then to the
Council.
12.
Council will make a decision:
12.1. The Council will consider the report in open meeting of Council,
except where the alleged breach relates to the misuse of confidential
information or could impinge on the privacy of an elected member, member of
staff or of the general public.
12.2. The Councillor complained about and the Complainant shall not be a
part of the Council decision making process and shall not be present during
deliberations.
12.3. Prior to making a decision, the Chairman or Deputy Chairman will
first send a copy of the findings document to both the complainant and the
respondent with a letter asking them whether they wish to avail themselves of
a final opportunity for written submissions before a Council decision is
made.
12.4. Council meets and if the findings and recommendations of the
investigation are accepted by the complainant and the respondent then they
shall be applied accordingly.
12.5. If either party does not agree with the findings and
recommendations of the investigation then all information will be placed
before Council who will decide if a breach has occurred and agree on actions
to be taken as a consequence.
12.6. In exceptional circumstances Council may call for the complainant
or respondent or any witnesses to give oral evidence in person. This may be
especially useful in situations where the evidence is contradictory and the
credibility of the parties or a witness is an issue.
12.7. The Council, after considering the findings document, written
submissions and hearing any further evidence (if appropriate) will then
decide whether a breach has occurred.
12.8. If a breach of the Code is found to have occurred the Council will
determine the penalty to be imposed and confirm that penalty by resolution of
Council. Where there are no statutory provisions, the Council may take the
following action:
12.8.1. censure
12.8.2. removal of the elected member from Council committees and/or other
representative type bodies
12.8.3. dismissal of the elected member from a position as Deputy Chairman
or Chairman of a committee.
12.9. The respondent will be informed of the Council’s
determination, in writing.
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