Patrick Corish from Franks Ogilvie looks at the value of the local government Code of Conduct in the light of increased discussion in the media on councillor conduct and the impact this is having on council decision making.
Codes of conduct for local government members attempt to encapsulate values of good conscience and professionalism.
However, theory sometimes does not translate into practice. With little guidance on their applicability, codes have taken on a life of their own.
There has been a string of code of conduct complaints in local government across New Zealand. Our firm recently acted for a councillor in one such complaint. Our research revealed little is known about the efficacy of codes of conduct, their legal status, and what local governments are empowered to do.
Without a clear understanding of the role codes play in the local government constitutional structure, councils risk misapplying their codes. This can have a chilling effect on local democracy if left unchecked.
The Local Government Act 2002 requires local governments to have a code of conduct. Apart from referencing the requisite list of statutes and rule of law principles councillors must comply with, councils are given the freedom to prescribe the expected behaviour of elected officials towards one another, staff and the public. Although the Act requires all members to comply with their code, a breach of a code does not constitute an offence.
Descriptions of expected behaviour differ between councils. These provisions are commonly dressed in vague aspirational language, leaving it difficult to know when expectations are objectively met. Councillors can reasonably disagree on what constitutes abuse or fair comment, or what the lines are between governance and administration. In absence of clear bottom lines, this vague language can capture situations ratepayers could consider frivolous. The resulting complaint process can leave a council divided, embittered and holding a hefty bill.
Councils should take care not to treat codes as strict and inflexible edicts, nor attempt to use them to penalise councillors beyond what is allowed by law.
Penalties and limitations
The Act does not prescribe penalties for when a code is breached. That is left up to councils. However, this does not give councils carte-blanche to write in any penalty they want. Censure and removal from sub-committees are the most appropriate disciplinary actions. Councils can do little else. They cannot expel a democratically elected councillor from their seat.
Additionally, as a 2006 report by the Office of the Auditor-General stated, “councils do not have any power…to impose a monetary penalty like a fine or suspension of remuneration”.
In our experience, we would add this includes forced recuperation of the costs incurred through a complaint process. Disguised by the language of financial responsibility, this is still a penalty imposed on an elected representative.
The Auditor-General found lack of powerful sanctions was one of the biggest disappointments local governments reported having with codes: they have no teeth.
But principles of democracy justify this limitation on punishing elected representatives. A council cannot use a code to render a councillor politically silent. If it were possible, the fear of a serious punishment as a result of a complaint would have an enormous chilling effect on local democracy by deterring passionate members from speaking freely on important matters. No member would risk liability for a fine if found guilty of a breach.
With aspirational language setting a low threshold for potential non-compliance, councillors risk being muted by a small, but vocal minority
of their peers.
Councils should remember penalties for a breach of code are merely official acts of condemnation by one’s peers. Powerful sanctions are left up to the voters who decide whether a councillor should retain his or her seat in the next election.
Process of a complaint
While the Act is also silent on the process for handling code breaches, most councils have adopted some scheme to manage them. Despite adopting a quasi-judicial procedure, councils should be aware these schemes are not completely removed from politics.
Some codes give the mayor and the council’s chief executive control over the process. This can include joint powers to dismiss a claim and control the flow of information between parties and decision makers. This is more efficient than leaving the administration of a complaint process to a committee, but does not protect against bias in the case where the mayor or chief executive are directly or indirectly involved in a complaint.
Commonly, the analysis of the facts of an alleged breach is passed to an investigator. This is usually a member of the council’s legal team or an independent lawyer. But this gives no guarantee of good process or outcome. Strict application of the code or a failure to consider the broader factual context can end in recommendations that do not benefit the council or the wronged parties.
The underlying political nature of codes as self-policing mechanisms can sometimes be ignored by black-letter lawyers who value procedure over the substance of the complaint. Investigators can fail to see code complaints as potential weapons, and that they are unwitting mercenaries by participating.
Councils can easily fall victim to a fallacy of authority and accept a lawyer’s opinion without serious scrutiny.
Councils should be aware of the background facts of a complaint and the presence of politics in a complaint process. Councillors need to exercise their own judgment in determining whether the process has been conducted properly and whether they have been presented with all information needed to make a fair determination.
Cost to the ratepayer
Proper behaviour in councillors is to be encouraged and codes are an appropriate way for councillors to establish these standards amongst themselves. But the benefit of these codes should not be outweighed by the harm caused by their over-use or misapplication.
As an example, local media reported Dunedin City Council spent more than $55,000 of ratepayers’ money on code complaints since its 2019 election. It may be, as Dunedin Mayor Aaron Hawkins stated; “the cost of justice isn’t something you can argue against.” But ratepayers are right to be concerned whether they are funding frivolous or politically motivated code complaints.
The lack of oversight from central government or independent bodies leaves complaint processes open to abuse, with no safety valve other than the judgment of those empowered by a code to manage a complaint. Councils need to be aware these processes come with a price tag, and should consider whether ratepayers will appreciate the costly process in light of the few remedies available.
What can be done?
Greater oversight and guidance could ensure codes and their processes are faithfully applied. Public entities such as the Office of the Ombudsman and the Office of the Auditor-General could provide an objective perspective on whether a code complaint process is conducted properly if given the requisite authority and funding.
The Local Government Commission does not deal with conduct matters within councils, but the Commission is interested in the code regime. An expansion of the Commission’s role to allow it to review contentious complaint processes may protect councillors from the chilling effects of code misapplication, and the cost imposed on the ratepayer.
Most of all, councils must be aware codes are not a be-all and end-all solution to internal conflicts and are reserved for serious deviations of behaviour while weighing the cost to ratepayers with the limited menu of remedies.
The first line of defence against an abuse of a complaint process is a council’s firm understanding of the role and limitations of its code of conduct.
Councillors and staff must understand strong personalities are part of local politics and codes are not weapons to silence their fellows.
As the Auditor-General’s 2006 report states; “The credibility of codes will be undermined if they are trivialised or abused, or overly politicised.
“Participants in local government need to accept they are operating in a political environment…once the code is invoked, it is important for the matter to be addressed fairly, and free of political bias.”
This article was first published in the April 2021 issue of NZ Local Government Magazine.