Leadership and Good Governance - Reports

6.

Ordinary Meeting - 14 December 2016

LEADERSHIP AND GOOD GOVERNANCE

6.1

ARBITER'S REPORT - 3 COMPLAINTS

Document Information
Author

Peter Davies, Manager, Executive Services

Responsible
Officer

Craig Niemann, Chief Executive Officer

Purpose
The purpose of this report is to advise the Council that an independent arbiter has heard
three complaints alleging contraventions of the Councillor Code of Conduct by one
current and two former councillors and has submitted his findings in accordance with
section 81AA(2)(d)(ii) of the Local Government Act 1989 (Act).
The arbiters findings were received during the election period and consequently, in
accordance with the provisions of the Act and the Councils Election Period Policy, this
matter could not be dealt with by the previous Council as this may have constituted an
inappropriate decision.
Summary
Three complaints alleging breaches of the Councillor Code of Conduct were made
against Cr James Williams and former councillors Helen Leach and Elise Chapman.
In accordance with the internal resolution procedure of Council, these complaints were
referred to an independent arbiter for hearing. The hearing took place on Tuesday 13
September 2016 and the arbiters report was received on Tuesday 11 October 2016.
The arbiter found all three councillors had breached the Councillor Code of Conduct: two
breaches by Cr Williams and Ms Leach (one breach respectively) to be at the lower end
of the scale, and three breaches of more significance by former councillors Leach and
Chapman (one breach and two breaches respectively).
Cr Williams has provided a written apology to Ms Leach.
The Act requires the arbiter to give his findings to the Council for a decision on the
sanctions, if any, for contravention of the Councillor Code of Conduct. The Council may
give any or all of the written directions specified by way of sanction in the Act, and failure
to comply with a written direction constitutes misconduct.

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PROCEDURAL MOTION
That having considered the report and the apology made by Cr Williams, Council note
the findings and take no further action.
~~~~~~~~~~~~~~~~~~~~~~~~~
Policy Context
Council Plan Reference: Council demonstrates good governance and leadership.
Background Information
Cr James Williams (supported by former Cr Barry Lyons) made a complaint against
former councillor Helen Leach citing behavioural issues, and specifically referred to a
governance meeting held on 21 April 2016.
Ms Leach made a complaint against Cr Williams alleging breaches of the Code of
Conduct, the Councils Bullying Prevention Policy, the Discrimination and Harassment
Policy during Council debates at meetings on 27 January 2016, 13 April 2016 and 4 May
2016.
Cr Williams (supported by former Cr Barry Lyons) made a complaint against former
councillor Elise Chapman, less precisely stated, that appeared to be about behaviour.
In accordance with the internal resolution procedure of Council, the Principal Conduct
Officer referred the complaints to an independent arbiter for consideration. Given the
three complaints were inter-related, the arbiter decided to hear them together.
As required by the Act, having heard the three applications from Ms Leach and
Cr Williams, and having ensured the parties affected by each application alleging a
contravention of the Councillor Code of Conduct had been given an opportunity to be
heard, the arbiter is required to make findings in relation to the application and give the
findings to the Council with written reasons.
The arbiters report has been provided to Councillors as a Confidential Attachment under
Section 77(2)(c) of the Local Government Act.
Report
The arbiter heard the applications from Ms Leach and Cr Williams on Tuesday 13
September 2016 at the municipal offices.
The hearing was conducted informally and each party had the opportunity to speak to
their respective statements and respond to questions from the arbiter.
The arbiter made the following findings as to fact in relation to the three applications:

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(a) that there had not been any harassment and bullying by Cr Williams of former
councillors Leach or Chapman (or any bullying by either of them);
(b) that at the governance meeting held on 20 April 2016, Ms Leach breached paragraph
2(5)(b) of the Councillor Code of Conduct; and
(c) that at the organics meeting Cr Williams was in breach of paragraph 2(5)(b) of the
Councillor Code of Conduct.
The arbiter acknowledged that these breaches of the Code of Conduct were at the lower
end of the scale.
The arbiter wrote that the more significant matter was whether former councillors Leach
and Chapman adhered to paragraph 2(6) of the Code of Conduct. This relates
specifically to supporting and promoting the general councillor conduct principles and
demonstrating leadership by actively implementing promoting and supporting the values
of responsiveness, integrity, impartiality, accountability and respect.
In relation to this matter the arbiter found that:
(d) Ms Leach breached paragraph 2(6) of the Councillor Code of Conduct in that she was
inappropriate in her dealings with the Hopley Recycling Operation extension at White
Hills;
(e) Ms Chapman breached paragraph 2(6) of the Councillor Code of Conduct in that she
continued in her opposition to the mosque planning application;
(f) there was not sufficient evidence to link Ms Chapman to actively promoting that
opposition through the Voices for Bendigo/Rights for Bendigo websites, but
(g) as a councillor she had failed to demonstrate the leadership and example expected of
a councillor by not accepting the majority decision of Council to approve the planning
permit for the mosque.
Written reasons are contained in a confidential section of the arbiters report.
The Act provides that the Council may apply sanctions for contravention of the Councillor
Code of Conduct. These are that the Council may give any or all of the following written
directions to the councillor complained against, to:
(a) direct the councillor to make an apology in a form or manner specified by the
Council;
(b) direct the councillor to not attend up to, but not exceeding, two meetings of the
Council;
(c) direct that, for a period of up to, but not exceeding, two months commencing on a
date specified by the Council, the councillor(i)

be removed from any position where the councillor represents the Council;
and
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(ii)

Ordinary Meeting - 14 December 2016

to not chair or attend any advisory committee or special committee meeting

or an assembly of councillors or any other meeting specified in the
direction.

Conclusion
The Councils internal resolution procedure was conducted and has found that
Cr Williams and former councillors Leach and Chapman contravened the Councillor
Code of Conduct.
The options for penalty no longer apply to former Councillors Chapman and Leach.
Council has the option to impose a sanction or sanctions upon Cr Williams.
Council has previously considered the conduct findings as procedural motions without
discussion at the meeting, as the findings have been clear and no debate considered
necessary.
Resource Implications
Other than the cost of engaging the arbiter to consider the application at a cost of
$9,750, there are no resource implications in following the Councils internal resolution
procedure.

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