Local Government Magazine
Features

Sound! Lights! Action! Lawyers?

codes of conduct

Jane Arnott, Director of The Ethics Conversation, says it’s time potentially inadvertent errors of judgement are accounted for without recourse to lawyers and litigation.

We live in an age when individual, professional and business behaviour comes, increasingly, under close and constant scrutiny.

As far-reaching sensitivity to a wide range of issues becomes more intense, so too does society become jittery around behaviours that fail to meet ethical expectations. 

But, we are all vulnerable to making a mistake or a lapse in judgement. These occur regardless of age, gender, ethnicity, position, status or any other variable that might apply. 

It’s called being human. Just as in childhood we are taught to share our toys, to not steal, to be honest, we know as adults – or should know – that when mistakes are made honesty is the best policy. Except that the new ‘best policy’ appears to be call in the lawyers (and watch the fees tick over). This course of action seems, disturbingly, to have become a staple of local government, arguably at the expense of honesty and integrity.

In this respect, local government can and must do better. New Zealand can ill afford for its critical conduit to community, environmental and economic well-being to continue down this rabbit hole.

At issue is the fact that fronting up and being honest requires courage, and a willingness (or at least an acceptance) of being held accountable. But it seems such age-old virtues just don’t cut the mustard like they used to.

It’s especially not okay to be honest if there is a public liability policy languishing in a bottom drawer, waiting to be dusted off and actioned. And it’s also not okay to be honest and admit a mistake, even with an immediate apology if a whiff of legal remedy is puffed. 

The stakes have become high, as too the costs – financial, emotional, reputational, societal, personal. 

This pattern is emerging simultaneously with conduct risk only just starting to mist the lens of many risk managers – previously focused on operational and financial risk alone. 

But, it’s hard not to conclude that effective leadership is also missing when lawyers, not leaders, are turned to for answers.

In one example, during a small town council meeting, a relatively senior councillor made a slip-of-the-tongue and used an old saying that, these days, contains an ethnic slur for which they made an immediate apology. This was deemed insufficient. The situation apparently required an external lawyer in relation to Code of Conduct proceedings. Nothing less would do. The cost? A mere $12,726.00 (excluding GST). 

That’s 20 hours of work at $600 (excluding GST) per hour to undertake Code of Conduct proceedings. Unsurprisingly the verdict was that there had been a breach of the Code of Conduct – as already acknowledged by virtue of the apology by the councillor involved.

Of course, resorting to a lawyer may reinforce how serious the matter was. What’s more, my perspective is that of a white observer and, in fairness, it is not necessarily my perspective that counts. 

Given it was an ethnic slur, other opinions would hopefully have been sought prior to side-stepping the internal legal team or ethics committee (which every council should have) in favour of external capability. 

So, the critical question is: was this the best use of ratepayer money? Could there have been another less expensive means to convey the seriousness of the offending that related to woodpiles and a common phrase from the late 19th and early 20th centuries. The answer is almost certainly yes!

The involvement of lawyers is reflected in the case of another Council where $9,000 was spent on legal fees after an apparently unrepentant councillor directed demeaning comments to a female colleague. This time the comment related to witches and broomsticks – the protagonist not being known for his reading of Harry Potter.

If every slip-of-the-tongue or inappropriate comment necessitated legal engagement – at the going rate of between $9,000 and $12,000 a pop, it is not unreasonable that watchful ratepayers demand that council managers dramatically improve both their discretionary decision-making and leadership. So too, processes around induction, training and development and code related ethics and compliance, all of which appear under-valued and under-utilised.  

At the polar opposite to a verbal offence is the example of alleged mismanagement in regards to issuing a resource consent for a subdivision and residential homes to be built in a known overland flood path.

A young couple secure in the knowledge that all the relevant council consents were in place then experienced, with devastating effect, a one-in-two-year flood. Their new home became awash not with new paint but detritus and dismay. 

Between the Regional Council, District Council, building company, property developer and original geotech engineer – who all sang from the same green light subdivide song sheet – they have all but had their lives destroyed.

The response from local government? To pull down the shutters and to talk only through lawyers. 

In an open letter the family wrote to the council concerned and noted: Trust comes from open communication, listening and understanding. Instead, there is a void. We are making every effort to achieve a resolution that justly allows the family to move on with their lives. Yet not once have the Council’s senior leadership, or Councillors themselves, been respectful enough to meet to discuss this issue on site, although invited.

I can’t disagree with the sentiments expressed. At the very least, getting together with the affected party to discuss the issue costs nothing. But, what it would have done is demonstrate leadership and the quality of being a leader.

This is just a snapshot. There will be more to it but obviously now that it is in the hands of lawyers it remains out of bounds. 

However, let’s assume that many of the couples’ allegations appear proven given the Council concerned supplied their property file complete with all the original markings and notes (read: warnings and red flags) in highlighter pen and various diagrams identifying the obvious.  

It’s puzzling why the full force of the law now needs to be applied against the young couple in question. Their brokenness will now be dragged through the mud and destruction they have already had to face, not to mention the expense of a full legal team.

Given the detail of the suggested evidence contained in the property file it’s hard not to believe that a simpler, less adversarial opportunity may have served better. The emphasis being on ‘served’ and ‘service’ – qualities that the public sector subscribes to.

If anything Codes of Conduct should not only be written in good faith but applied and understood in good faith. 

But, when leadership and duty of care slips away legal process fills the void. And, even more scrutiny around behaviour is needed. Many must be wondering whether local government has misplaced its social licence to operate and now simply drives roughshod and reckless with money to burn. Ratepayers’ money.

Mistakes have consequences, sure. But the pursuit of legal remedy when an apology might suffice or honesty might be wise is a rabbit hole that has become attractive not just to Alice but to too many in the C-suite as we witness local government tumble beneath the field of ethical expectations. We need to call, enough! Honesty, integrity, fairness, an apology, and a commitment to put things right. No longer will anything less suffice.

Jane Arnott, MNZM, is the director of The Ethics Conversation. She was the first offshore Associate and Country Representative for the UK-based Institute of Business Ethics (IBE), a position she held for over 10 years. Her appointment followed the completion of her post graduate study in Professional Ethics and further study undertaken in London. She is the co-author of the IBE publication ‘Setting the Tone: A New Zealand Perspective on Ethical Business Leadership’. She was also appointed a Member of the New Zealand Order of Merit in the 2021 Queens Birthday Honours.

Subscribe to Local Government Magazine >>


Related posts

Hand in hand: two plans – one story

LG Magazine

LEAP OF FAITH

LG Magazine

UP THERE WITH THE BEST: WHY KIWI ASSET MANAGERS ARE HOT

LG Magazine