Part 4: Complaints and enforcement processes

Local authority codes of conduct.

4.1
In this Part, we discuss the provisions of codes that relate to complaints and enforcement. We were especially interested to see whether – and if so, how – councils have included provisions in their codes to enforce compliance. (In the next Part, we discuss the experiences of those councils who have had to use these provisions.) This Part is largely based on our examination of the codes of all 85 councils.

Must codes provide for enforcement?

4.2
The Act specifies that elected members must comply with their council’s code of conduct.1

4.3
However, the Act does not provide councils with any additional powers to penalise breaches of their code, and the Act makes it clear that breach of a code is not an offence.2

4.4
Accordingly, the question of enforcement is left open. Councils can legitimately choose whether or not to have any enforcement mechanism:

  • councils may decide to regard their code as nothing more than a statement of good governance practice; or
  • councils may decide to provide for remedies for breaches of their codes.

4.5
The obligation to comply with a code can stand on its own. But, if councils do provide for enforcement and provide for remedies, then they need to design processes and penalties that are clear, lawful, fair and efficient. They need to be prepared to use those processes in suitable cases, and to follow their processes properly.

Do codes provide for enforcement?

4.6
Seventy-one codes address, in some way, the question of enforcing compliance with the code. They usually do so by providing that the council or a nominated committee will “monitor” compliance with the code, and by also providing for complaints, investigations, and penalties for breaches of the code.

4.7
Thirteen codes are entirely silent on this topic, and make no provision for dealing with alleged breaches of the code. Most of these codes do not expressly state that the council will never take action to enforce compliance with the code, but we suspect this may be their intention.3 Often, these councils’ codes are otherwise closely based on the model code (or another council’s code), so it seems that they have deliberately chosen to omit the provisions about enforcement. In some of these cases, the council’s code is described as “voluntary” or “self-complying”.4

4.8
One code explicitly says that “there are no enforcement mechanisms attached to this code”.

4.9
Some codes emphasise the desirability of resolving issues informally if possible, or (if issues arise in a meeting) encourage them to be resolved at the time by the chair. We agree – see our discussion of this issue at paragraphs 5.32-5.34 and 5.50. Nevertheless, councils have often also decided that a more serious process is sometimes desirable. The remainder of this Part is concerned with the contents of formal enforcement processes that are provided for in codes.

Complaints

4.10
Where a code envisages enforcement action, we expected that the usual mechanism for initiating enforcement action would be by someone making a formal complaint about a member.5 We looked to see whether codes address complaints, and whether they specify who is entitled to complain.

4.11
We found that:

  • 70 codes contain provisions about making complaints about alleged breaches of the code;
  • 15 are silent as to whether or not complaints will be accepted; and
  • none explicitly state that complaints will not be accepted.6

4.12
The model code provides that complaints of alleged breaches of a code must be made in writing, and most of the codes that address the topic include a provision to this effect. Beyond this, many codes do not prescribe precisely how a complaint should be made; nor to whom it should be made.

4.13
Of the codes that mention complaints, none at present specifically preclude a complaint being made by a member of the public (see also paragraph 5.28).7

4.14
However, it is usually not made explicit that any class of person does or does not have the right to complain. Most codes are silent on this, and some appear to be drafted on an assumption that only another member or the chief executive (perhaps on behalf of a staff member) is likely to make a complaint.

4.15
As we discuss later (see paragraph 5.31), allowing any person to complain would not necessarily create problems, because we do not consider that a right to complain also confers on a complainant the right to insist that any particular complaint be accepted or “prosecuted”.

Taking enforcement action

4.16
Sixty-two codes contain some process for investigating and determining alleged breaches of a code. The remaining 23 do not give any indication of how, if at all, the council will act upon a complaint of an alleged breach.

4.17
It is for councils to decide for themselves whether they prefer this – or any stage of it – to be done by elected members, or independent external persons, or a combination of both. Councils are entitled to design a process that best suits their needs, so long as it is fair to all affected parties.

Who investigates complaints?

4.18
Of those codes that do deal with enforcement, some specify that complaints are only ever to be considered by the full council (without any preliminary investigation or report by someone else).

4.19
However, the majority use a 2-step process, whereby:

  • a person or committee investigates the complaint and reports to the council; and
  • the full council then makes any decisions about the matter.

4.20
Many codes use the 2-step process in the model code as their starting point. Under the model code, compliance with the code is monitored by a particular committee of the council (of which the mayor is a member). The committee will notify the member concerned of the alleged breach, and will explain when and how that member will get the opportunity to put their version of events. The committee will investigate the alleged breach, and report to the council, which will then consider the report.

4.21
But there are several other variations. Alternatives include:

  • specifying that complaints will be investigated by the mayor or chief executive (instead of by a committee);
  • specifying that the mayor or chief executive will consider the complaint in the first instance, and that they have a discretion to decide whether or not the complaint warrants referral to the investigating committee (or full council)8 – see our discussion of this issue at paragraph 5.27;
  • specifying that the investigating committee must include one or more persons who are not members of the council (and, in some cases, these independent external people must have dispute resolution or mediation skills – see also paragraph 5.39);
  • specifying that the investigation will be undertaken not by a committee but by an independent person who is not a member or employee of the council (one code allows the member who is the subject of the complaint to choose whether the investigation will be by a committee or by an independent external person); or
  • permitting the member who is the subject of the complaint (and, in one case, also the complainant) to nominate a member of the investigating committee.

4.22
Some codes are silent or unclear as to who investigates complaints (perhaps to preserve flexibility).

4.23
Using members for a formal investigation can have special difficulties. Many elected members could be alleged to have prejudicial views about their peers. Also, many elected members are uncomfortable with the idea of having to sit in judgement over their peers. They are conscious that they will have to continue to try and work together for the remainder of the triennium, and disciplinary proceedings can severely undermine their ability to do so. Our view is that, on balance, it may be better to use independent external people, rather than elected members, for the investigation stage. This will help ensure that the matter is dealt with impartially and is less likely to be seen as a partisan act (whether on political or personal grounds). As we have said, though, this is for each council to decide.

What is the process?

4.24
Any enforcement process must allow the person complained against to be made aware of the substance of the complaint and have an opportunity to put their case to the investigating person or body in writing or in person, often at an early stage. We expected to find processes that embodied this aspect of fairness. We found that it was at least implicit, and often explicit, in all the processes contained in codes.

4.25
It is not always clear from codes whether:

  • the investigating committee or person is expected to hold a hearing that the complainant and member who is the subject of the complaint (and perhaps others) are able to attend; or
  • the investigating committee or person will instead obtain information from relevant parties by way of private meetings or interviews with affected individuals and/or inviting written comments.9

4.26
Councils may have deliberately preserved flexibility in this area. We are aware that both types of process have been used.

4.27
Nevertheless, some codes provide additional details about other aspects of the process. These include:

  • clarifying that the member who is the subject of the complaint must not be a member of the investigating committee, and must not vote on the council’s decision-making about the complaint;10
  • expressly empowering the investigating committee or person to initiate investigations of their own motion (as well as upon receipt of a formal complaint);
  • expressly empowering the investigating committee or person to discontinue an investigation if the complaint is considered to be technical, trivial or vexatious;
  • expressly permitting the member who is the subject of the complaint to have an advocate or support person;
  • providing that the council will pay the costs of legal representation for the member who is the subject of the complaint;
  • permitting the investigating committee or person to only make findings of fact, and prohibiting them from making findings or recommendations about whether the code has been breached or what penalties should be imposed (leaving those matters to the full council to decide);
  • requiring the investigator to present their report in person to a meeting of the council; or
  • expressly permitting the member who is the subject of the complaint (and, in one case, the complainant) to make submissions at the meeting of the council.

4.28
Some (but not all) of these elements might be permissible or necessary anyway, in order to meet fairness requirements, but it can be helpful for all parties to have them written down.

4.29
Some codes specify that enquiries and deliberations of the investigating committee will be undertaken in private, or that the investigating committee is deemed not to be a committee of the council (presumably so that the requirement in the LGOIMA for meetings to ordinarily be held in public does not apply).11 Once the matter reaches the full council, many codes, based on the model code, provide that the council will consider the investigating body’s report in a meeting open to the public (unless confidential information or personal privacy issues require otherwise), although some require it to be in private.

4.30
We consider that the question of whether to conduct such business in private or public is not amenable to a firm rule either way. It will depend on the nature of the matter being considered, and on the type of process being followed.12 We consider that it will usually be desirable for consideration at any stage below the level of the full council to be undertaken in private.

4.31
Some codes specify that the council’s decision on the matter is “final and binding” on the member, and that the member may not challenge the outcome in any way, except in relation to natural justice issues (that is, the legal principles about conducting a fair process). However, it is questionable whether a disaffected party can be prevented from using whatever legal rights they may have to challenge the outcome of an investigation.

4.32
One code includes an appendix that appears to be based on a staff policy, and which uses the language of employment law. It purports to allow members to be warned, suspended and dismissed. This is inappropriate. Council members are not subject to employment law, and are not able to be removed from office by their peers. We have written to that council to draw attention to this.

Penalties

4.33
Sixty-nine codes specify the potential penalties that may be imposed if a member is found to have breached their code. Fifteen do not give any indication of what, if any, penalties may be imposed. One council has specifically precluded the imposition of penalties.

4.34
Of those codes that do provide for investigation and penalties, nearly all – like the model code – provide that a meeting of the full council (rather than any investigating committee or person) decides, by resolution, whether penalties will be imposed on a member who has breached the code. Regardless of the type of investigation process followed up to that point, it seems that nearly all councils regard any decision to impose penalties as one which warrants the involvement of all members.13

4.35
Most councils use the penalty provisions from the model code. These provide that where the matter is something governed by statute, it may be referred to the relevant external enforcement agency.14 For “non-statutory” matters, the potential penalties are:

  • censure;
  • removal of the member from committees or other bodies to which they have been appointed; and
  • dismissal from a position as regional council chair, regional council deputy chair, deputy mayor or committee chair.

4.36
Some additional penalties, that a few codes mention, include such things as:

  • a letter to the member;
  • a request (made either privately or publicly) or requirement15 for an apology;
  • a vote of no confidence in the member;
  • removal of certain council-funded privileges (such as cellphones, or attendance at conferences);
  • suspension (rather than removal) from committees or other bodies; and
  • an invitation for the member to consider resigning from the council.

4.37
Councils do not have any power to suspend or remove a member from the council; nor to impose a monetary penalty like a fine or suspension of remuneration (although dismissal of a member from a deputy mayor or committee chair’s position will often result in a reduction of their remuneration).

4.38
Some codes do not specify what penalties may be imposed on a member who breaches the code, perhaps to preserve flexibility over the range of options. Some permit penalties to be imposed only by a special majority (such as 75%).

4.39
The penalties discussed in paragraphs 4.35 and 4.36 are all within the inherent power of councils. They were available before codes existed, and are unchanged from those that were available prior to enactment of the Act. The Act, and codes, have not given councils any new powers to penalise members who do not comply with expected standards of conduct.

4.40
We understand that the absence of new or more powerful penalties is the result of a deliberate policy decision by the drafters of the Act (see paragraph 1.29). Among people we interviewed, views are split on whether the law ought to allow for stronger penalties:

  • some people feel that codes need real “teeth” in order to be effective, and that the inability of councils to impose heavier penalties (such as suspension from office or a fine) weakens the credibility and effectiveness of codes because the worst-behaved members can simply ignore any attempts at enforcement;
  • some feel that the current situation is best, because of a fear that stronger penalties may increase the risk of codes becoming abused for improper purposes; or because codes’ real value should be educative rather than punitive; or because it is undemocratic for elected members to be able to be removed from office by any means other than an election.

4.41
Views are often strongly held on the question of whether the Act should provide for penalties. However, from our interviews of council members and officers, we did not identify a consensus or clear majority view on this question.

Our conclusions

4.42
Members have a statutory duty to comply with their code, and it is for councils to decide for themselves whether – and, if so, how – to enforce the provisions of a code against an offending member.

4.43
Some councils appear to have made a policy decision not to provide for any enforcement of their codes, and may prefer not to have any available remedies for “breaches” of the code. That is an entirely legitimate choice, and enables a code to sit simply as part of the council’s governance framework.

4.44
However, most of the remainder have provided for enforcement, with remedies. If councils do provide for remedies, then they need to design processes and penalties that are clear, lawful, fair and efficient. They need to be prepared to use those processes in suitable cases, and to follow their processes properly.

4.45
Most councils use a 2-step process, with an investigation by a person or committee, and then a decision by the full council. Nearly all councils regard any decision to impose penalties as one which warrants the involvement of the full council.

4.46
In the detail, however, councils have designed a variety of different processes. Enforcement is the area where councils have most commonly departed from the text of the model code. Councils have often rewritten (or deleted) the model code’s provisions to suit their own preferences. We do not have any concerns about the fact that a range of processes exists.

4.47
We have not identified significant concerns about the processes set down in councils’ codes. It is clear that many councils have given careful thought to the processes they wish to apply. The key issue is that any process must be fair. From our review, councils appear generally aware that enforcement processes need to be fair to all affected parties, and they have designed their processes accordingly.

4.48
We consider that it may be better to use independent external people, rather than elected members, for the investigation stage. However, this is for each council to decide.

4.49
Views are often strongly held on the question of whether the Act should provide for penalties. However, we did not identify a consensus or clear majority view on this question.

1: Clause 15(4) of Schedule 7.

2: Clause 15(7) of Schedule 7.

3: Although, in our view, a code’s silence on this point does not necessarily mean that the council is prohibited from taking action, should it decide it wishes to do so.

4: In another case, a council – after going through a long and unsatisfactory series of complaints – amended its code to remove all references to complaints, enforcement and penalties.

5: However, some councils that have a standing committee performing an ongoing monitoring role in respect of the code expressly permit that committee to initiate an investigation of its own motion.

6: One says that there are no “enforcement mechanisms”, but this does not necessarily mean that a complaint will never been considered. It may simply mean that penalties will not be imposed.

7: We have been told by one council that it intends to amend its code to preclude complaints from members of the public.

8: One code sets out permissible grounds for such a decision.

9: One code says that the investigator is not to hold a hearing. Another code explicitly states that the committee will hold a hearing.

10: However, it is not always made clear that a member who is a complainant should not be a member of the investigating committee, and also should not vote on the council’s decision-making about the complaint.

11: We are not sure whether such an assertion would be legally effective, if the investigating body meets the Act’s definition of a “committee”, and where it otherwise behaves as a committee of the council.

12: For instance, if the process is managed as an inquisitorial investigation (with interviews or research), it is probably best done in private; but, if it is conducted by way of a formal hearing or meeting under standing orders, it may be expected or required to be public.

13: Although the member who is the subject of a complaint, and the complainant (if that person is also a member), would presumably not participate in the council’s decision-making on the matter.

14: For instance, a breach of the Local Authorities (Members’ Interests) Act constitutes an offence, and may be prosecuted only by the Auditor-General. However, it is not always clear whether councils intend to preclude the possibility of them also imposing penalties themselves where a matter is governed by another statute.

15: We do not consider that councils have any power to “require” a member to give an apology.

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