Local Government code of conduct complaints have turned into a ‘monster’

A law expert says the local government code of conduct complaints process is a well-intentioned idea that has grown into a monster.

In the Wellington Region alone complaints have ranged from whether it was accurate to refer to councillors eating a “lavish” buffet of roast chicken, to claims of being “attacked” on Facebook.

Yesterday the Herald revealed Wellington City Council was made to release a complaint against councillor Simon Woolf, alleging he caused staff considerable distress and failed to consider his duty of care to them.

This was after the Herald complained to the Ombudsman more than 16 months ago.

During this time Wellington mayor Andy Foster chose not to pursue an investigation as he was satisfied Woolf had acknowledged the wrongdoing and promised to do better in future.

Meanwhile, Foster himself is in the middle of an unresolved code of conduct complaint.

Councillor Jenny Condie made a complaint regarding Foster’s behaviour the morning of a controversial vote on whether to sell and lease council-owned land at Shelly Bay for development.

She claimed Foster showed her information she believed he did not have permission to share, and was potentially defamatory to a former council officer.

The pair are still waiting on the outcome of an independent investigation.

Without passing judgment on any specific complaints, Victoria University of Wellington associate law professor Dr Dean Knight said, broadly, the process is a well-meaning idea that has turned into a monster.

“That’s not because the idea of good behaviour, good governors, isn’t valuable”, he said.

“It’s because the process of codes of conduct tend to be hijacked by the political actors themselves and weaponised in a way that means they’re used as a negative and destructive political tool.”

Knight said this risked undermining incidents of bad behaviour that should be treated seriously.

Code of conduct complaints involve a formalised process including lawyers, which cost ratepayers’ money.

Many disputes should instead be dealt with as matters of confidence between colleagues, genuine apologies, or at the ballot box, Knight said.

He said he was aware of several councillors across the country caught by a chilling effect because they were worried about being subject to complaints by engaging passionately on issues or taking matters to the public.

The codes of conduct elected members sign up to establish things like guidance for managing relationships, provisions for dealing with conflicts of interest, and for dealing with confidentiality of information.

Penalties for a material breach of a code of conduct include a letter of censure, a request for an apology, a vote of no confidence, restricted entry to council offices, or an invitation for the member to consider resigning from council.

The code of conduct issue was considered in an independent governance review of Wellington City Council by Peter Winder.

He said codes of conduct were a “curious” part of local government and while they may have been established with admirable intent, the process is entirely lacking in any consequence or meaningful enforcement mechanisms.

“Complaints tend to be a symptom that things aren’t going well. Unfortunately, they also have a tendency to morph into the cause for further problems and the widening of rifts.

“To make matters worse, often the making of complaints becomes contagious.”

Winder said during his review, five code of conduct complaints were brought to his attention at Wellington City Council.

He didn’t think that number was problematic from a council credibility perspective, but noted care should be taken to avoid them occurring.

“There are almost always more positive and constructive ways for differences to be resolved”, Winder said.

Local Government New Zealand president Stuart Crosby agreed the current penalties were often not enough to change behaviour.

In his experience, complaints were often personality driven and codes of conduct needed to balance elected members’ democratic right to have a strong view.

“Sometimes that threshold might be too low and that can take away the value of a code of conduct when there is a significant breach, for example confidentiality of a commercial agreement, or abuse between another elected member or staff member.”

Crosby said codes of conduct are designed to make sure the public in particular have trust and confidence in elected members and that there are consequences for breaches of the behaviour expected of them.

Local Government Commission chief executive Penny Langley said she was aware code of conduct issues are an area of concern.

She said the commission is engaging with the sector to better understand the issues at play and whether, if any, improvements could be made.

A survey was sent to all councils earlier this year which asked questions including whether the commission should have a role in the complaints process and whether legislation should include penalties.

Langley said the topic of standardising codes of conduct across the country was one of many suggestions raised during the commission’s engagement so far.

“However, we are still working through the analysis and engaging with the sector to understand the broader context and issues.”

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