Genius is one percent inspiration and 99 percent perspiration

Whilst many Council’s work effectively and behave in a professional manner, poor behaviour of some Councillors is often getting in the way of getting things done. Councillors as community leaders are at the coal face, with a strong connection to their constituents, however elected members may find themselves in a challenging environment unlike most other workplaces.

With the objective of having “a local government sector that is working effectively, an environment needs to be created where poor behaviour is unlikely to occur and is quickly addressed when it does…”, the Local Government Culture Project, Discussion Paper captured the current climate around culture Local Government Victoria.  “While most Councillors behave in a professional manner, there have been many cases of poor Councillor behaviour in recent times.” Experience of bullying and harassment, discrimination and corruption were identified amongst the poor behaviour that is not only causing real harm but is impeding progress of the important work that Councils do.  This is in turn undermining community confidence in local government and elected office holders.

We take this opportunity to look at the internal arbitration process found in the Local Government Act 2020 and ask how it helps or hinders the work of councils.

All is fair….

As a relatively new procedure the internal arbitration process is one mechanism intended to help councillors police councillor conduct and achieve a culture where Councillors can be effective decision makers in the interests of their community. The internal arbitration process makes findings about whether Councillor conduct amounts to misconduct and is different from the councillor conduct panel that determines serious misconduct. The standards of conduct expected of Councillors in performing their role are contained in the Regulations and can be summarised as:

  • treating others with, dignity, fairness, objectivity, courtesy and respect.
  • performing the role of Councillor responsibly
  • complying with good governance measures
  • not discrediting or bringing the Council in to disrepute, nor deliberately misleading the Council of public.

There is an acknowledgement that these standards of conduct are not intended to “restrict or detract from robust public debate in a democracy”.  In other words, there is protection afforded to the inherent function of councils as democratic decision makers to engage in “vigorous” and public debate on matters before Council.

If you don’t have anything nice to say…

Social networks are our new soap-box where we can signal the issues that are important to us. As elected members remaining connected and relevant is important. Unfortunately, the rules of engagement are not clear. Social media is about communities of interest, the issues of the day and is a fertile field for disputes about local government issues.  Councillors who contribute to these often-heated exchanges are frequently the subject of misconduct allegations.  Arbiters must decide the correct balance between comments that are discourteous or which may bring Councils into disrepute and comments accepted as vigorous public debate in a thriving democracy. The Arbiter has to make a call about whether conduct was within the ballpark of public debate or outside in the realm of misconduct.

Same same, but different

Arbiters are appointed from a panel only after the complaint is accepted by the Principal Councillor Conduct Registrar. How to articulate an application, is not easy. Being clear about the troubling conduct and how and what standards the conduct breached and ensuring sufficient evidence is included so that a complaint is accepted is not a straight forward or easy endeavour.

Similarly, when a Councillor is met with a misconduct complaint, how and when do they respond? Each Arbiter is free to approach matters in their own way and to adopt their own processes. Whilst this flexibility and informality is intended to make the process easier to navigate, it can be disarming and confusing for Councillors particularly when involved in multiple complaints. Over time the PCCR will issue guidelines that will assist this process and has produced forms that Councillors can use.

A bird in the hand

Another impact of the Arbitration process is that preparing to argue a case before a decision maker in an adversarial setting can have the effect of heating rather than cooling hostilities. Preparing for a hearing can solidify the perceived transgression or cause a defendant to double down, their opposition becoming entrenched. Once an application is made, a responding councillor must respond to protect their reputation and unless the application is withdrawn, a hearing is inevitable.

A friend in need is a friend indeed

The CCO is charged with assisting the Council in the implementation of, and conduct of, the internal arbitration process. The Councillor Conduct Officer (CCO) role is defined in the act and is appointed by the Chief Executive Officer. The CCO also assists the Principal Councillor Conduct Registrar to perform their functions in relation to the internal arbitration process.

Many Councils have identified that this is a key interface that supports Councillors and requires understanding of the workings of Council, of the Principal Councillor Conduct Registrar role, and of the Arbitration process.

The umpire’s decision is final

Just like in sport, well after the final siren there will continue to be those who disagree with the umpire’s call, particularly where it changed the outcome of the game. Of course there are ways to appeal decisions of an Arbiter but these differ from the statutory provision that decisions of a Councillor Conduct Panel about serious misconduct which can be referred to VCAT.

Time waits for no man

A Councillor’s role is already a busy one. On top of training, meeting the needs of constituents, attending briefings, reading Council papers and attending to Council business, Councillors must also find time for misconduct complaints. There are strict time frames within which an internal arbitration process for misconduct must commence (three months).  If matters are more serious councillors can commence a serious misconduct application for a Councillor Conduct Panel within 12 months from the date of the conduct. Whilst internal arbitration matters may be resolved quickly, within three months, this is not always the case. There are a number of reasons outside of the process itself such as leave and illness that have seen arbitration applications made out of time, or decisions delivered many months after the complaint was commenced.

A stitch in time….

The Local Government Culture Project Insights report considered “implementing clearer dispute resolution procedures in a council’s Code of Conduct to foster early intervention”. The report focused on reviewing existing processes and those that were aimed at “genuinely trying to resolve the issue in contention.”   The report encouraged “Amending the Local Government Act to compel Councillors to participate in mediation and dispute resolution activities”. One thing is for sure, allowing disputes to linger unresolved is not helpful and can be detrimental to the ongoing working relationship between councillors – preventing or delaying getting things done.

An ounce of prevention…

Councils have put in place codes of conduct as required by the Act. These codes often incorporate mediation under the supervision of the Mayor or the CEO or even an external mediator in efforts to resolve conflict. When Councillors review and adopt the code of conduct after the general election they are agreeing to abide by the code and to engage in good faith with these alternative dispute resolution processes. There is some discussion about these mechanisms not having “teeth.” However it is encouraging that Councillors agree to participate in alternative dispute resolution thus ensuring their time and commitment to their community is directed towards how the council best make collective decisions for the future of their community rather than policing behaviour.

Be the change you want to see

So whilst the internal arbitration process is available to councillors as a mechanism for identifying misconduct, it is worth remembering that:

  • The arbitration does not settle disputes or grievances. The ambit of the decision maker is restricted to breaches of the standards.
  • Once commenced the Arbiter must make a decision (unless the application is withdrawn). There is no power for an Arbiter to accept an outcome that is agreed between the parties, such as an apology.
  • The decision of the Arbiter must be tabled at the next Council meeting – essentially making matters public.
  • Preparing for and presenting at an arbitration is a time-consuming activity and when councillor’s time is such a precious resource it should be used wisely.

Relevantly, early intervention and mediation processes can be flexible and get to the heart of issues quickly, provided they are put in motion early, and assist with maintaining or repairing relationships. This is because the process is in the hands of the participants, rather than a third party arbiter or a Court. Councillors can also then get back to attending to important council business and progressing issues of importance to them and their constituents.

Remember leaders set the tone

Local government councils are a case study in group decision making and getting things done. Whilst some councillors are policing poor behaviour through the internal arbitration process, other councillors are rising to the challenge and addressing poor behaviour by being effective leaders, focussing on shared values, building a team spirit and engaging in professional development as to how to have a difficult conversation.

What are the qualities of leadership will most impact culture? In our view they are:

  • Leaders who are self aware and reflective. Leaders take time to reflect on their own behaviour and can acknowledge that they have had good and bad days. Leaders seek to develop their skills as leaders and are prepared to give and receive respectful feedback. Leaders can own up to their own mistakes without loss of credibility and accept a win or a loss with grace and humility.
  • Leaders who embrace diversity and are effective at cross cultural communication. Leaders encourage diversity knowing that whilst it improves outcomes it brings together people with different sensibilities. Leaders accept that they may need to work to make the arena of robust debate welcoming and safe. Leaders accept and look for ways to celebrate these differences.
  • Leaders who are strategic. The passion and issues that drive people to seek positions of responsibility are a signpost/reminder to ensure that this is where the most energy and time is spent. Leaders are future focused and whilst they learn lessons from the past they lose time in moving the debate forward after decisions have been made. Leaders acknowledge they are in a fortunate position to influence the future.

Justitia’s governance and training practice supports local government councils be the best they can be. If you have any queries about our queries or how we might work with you, please contact our team:

Melissa Scadden (Managing Partner), Sarah Rey (Founding Partner), & Megan Lawton (Senior Associate) on (03) 86214500 or