Lane Cove Mayor Tables Notice Of Motion on Councillor Conduct

Mayor Andrew Zbik has decided to go public with issues arising between Lane Cove Council staff and Lane Cove Councillors.

Mayor Andrew Zbik has tabled a notice of motion setting out how Councillors should conduct themselves at Council Meetings and their interaction with Lane Cove Council Staff. In his notice of motion, he attaches a copy of the Councillor Handbook and includes the following sentence from the Councillor Handbook (page 17):

“A good working relationship between councillors, the mayor, the general manager and other council staff is fundamental to an effective council.”

Mayor Zbik believes that current council resolutions are too prescriptive and need to be more apparent in their strategic intent.

Mayor Zbik also wants to educate Lane Cove residents on the role of Council, councillors, and council officers by holding a workshop.

In Mayor Zbik’s notice of motion, he cites a few examples where council resolutions have been too detailed and have been operational. Mayor Zbik told ITC that he is regularly contacted by constituents and asked to include matters that are operational and not permitted in council resolutions.

Mayor Zbik believes that some resolutions have put the Council and councillors at risk of legal action if an issue arises about the resolution.

On Monday, 11 September, a presentation was held for the councillors where a representative of Local Government NSW (the peak body representing NSW councils) provided advice to councillors on the risk of being involved in operational issues.

The presentation included the following advice:

•  Councillors should not seek to undertake activities or make decisions which are related to the operational activities of the Council as this is the domain of the General Manager and council staff.
• Councillors may be held liable if the governing body makes a decision based on the councillor’s own research / advice / experience. To avoid this risk, Councillors can and need to request the General Manager to investigate / enquire into a matter and provide a report back to Council to consider.
• Councillors have protection from liability under Section 731 of the Local Government Act (NSW) which provides that “A matter or thing done by a councillor does not, if the matter or thing was done in good faith, and for and on behalf of the Council, subject a councillor to any action, liability, claim or demand.

The presentation was held on Monday, and within a few days, Mayor Zbik drafted a notice of motion requesting further workshops on the same issue.

Mayor Zbik told ITC that the purpose of his notice of motion is to mitigate risk and to develop best practices. He was unaware of any legal action in NSW where a council has been involved in legal action due to a council resolution being operational. ITC note there have been cases where council officers have successfully used the section 731 good faith indemnity.

Councillors are being asked to vote on the following:

“That Lane Cove Council:

• Hold community workshops for local residents and local community groups to discuss the role of Councillors, Council Officers, and the operation of Council.
• Council conducts facilitated workshop for Councillors to develop:
  • Shared understanding with examples of the distinction between strategy and operations
  • Finding the balance between community opinion and advice from professional staff
  • What is good governance and how is it demonstrated?
  • Finding the balance between providing preventative advice and the conduct provisions contained with the Code of Conduct
• Resolve to work towards creating and adopting a ‘Councillor and Staff Interaction Policy’ in this term of Council.”

Some Matters to Be Included in the Councillor and Staff Interaction Policy (“the Policy”)

Difference Between Operational and Strategic

As noted above, the notice of motion also refers to Councillors having a shared understanding of the distinction between strategy and operations. Lane Cove Councillors must only be involved in strategic decisions, and operational issues are to be undertaken by council staff.

What are operational issues? There is no definition of operational issues in the Local Government Act, or the Model Code of Conduct. What is operational can only be inferred after combining several sections of the Local Government Act. The Councillor Handbook includes the following diagramme.

 

On one reading of the notice of motion, it could be inferred that Councillors are being told not to ask too many questions and not to ask operational questions. Mayor Zbik told ITC this was not his intention.

The proposed fetter on the number of questions asked by Councillors seems at odds with the new Questions with Notice procedure adopted by the Lane Cove Council. Several other Sydney Councils use Questions with Notice, and the questions are clearly operational in nature.

Lane Cove Council is not the first Council to grapple with the operational/strategic divide. The following was an op-ed piece in The Bugle.

 

Understand the expectations of Councillors relating to the skills, expertise and experience required to perform civic duties alongside the skills, expertise and experience Council Officers are employed to provide.

What are the expectations of Councillors? What are Constituents expectations?

Mayor Zbik notes “some resolutions brought before this Council in response to community pressure, has unnecessarily brought risk upon Councillors personally as a result of not trusting the skills, expertise and experience of Council Officers.”

Is it wrong to expect Councillors to ask questions to assist in performing their civic duties? Being a Councillor is a tough job. It is also not well-paid and includes long hours at council meetings and council functions.

In June 2023, Lane Cove Council resolved that the following annual fees be paid for the 2023/24 financial year, commencing 1 July 2023: –

• Mayor: $47,390 (in addition to the Councillors fee); and
• Councillors: $21,730.

In the 20221/2022  Lan Cove Council Annual Report, it was noted that  “The total amount payable in respect of the employment of senior staff, including salary, superannuation, fringe benefits and all other on-costs was $1,422,308 which includes $443,418 payable to the General Manager.”

A discussion paper issued by the Office of Local Government in September 2021 noted that Lane Cove Council is a Metropolitan Small Council. Craig Wrightson, Lane Cove General Manager, was the highest-paid General Manager in the Metropolitan Small Council classification.

Lane Cove Council residents are smart enough to know that councillors are members of the public who have put their hand up for civic duty and that they do not have any specific skills or expertise that qualify them for the role – any Lane Cove resident can stand for Council.

However, Councillors are limited in what they can do to assist with day-to-day issues. There is frustration in the community about dealing with the Lane Cove Council and receiving responses to emails and phone calls returned.   The current councillors have worked hard at Lane Cove Council’s communications strategy with a new and mobile responsive website and a new customer call centre.

Councillor Requests

Major Zbik wants the Policy to include procedures on how Councillor Requests are to be handled. He notes that council resources are finite, and a shared understanding of what is reasonable needs to be reached.

A Councillor Request is when a councillor asks for information to be provided to a constituent or when they seek background information to assist a member.

Councillor Requests are essential to the community. Constituents want to know that if they raise a matter with their councillor, it will be referred to the Council for action.

Mayor Zbik has assured ITC that general constituent requests will be permitted, but there has to be a cap on the number of times a councillor asks about a policy or a procedure. Once the information has been supplied, a councillor should not ask further questions when they decide to look at the issue from another angle.

Councillors responsibilities are set out in the Local Government Act:

Section 232 (2) clearly states that a councillor is accountable to the community. To make sure you are making the best decisions, you need to ask questions and ensure the answers provide you with enough information to make a decision. This may involve asking follow-up questions and asking for documents and policies.

Some councillors have to be more involved than others. Some wards have more issues than others, particularly those where major construction is underway (West Ward and East Ward).

Mayor Zbiks’s mayoral minute is titled: “Striving for best practice and effective relationships between our Community, Councillors and Council Officers”. Will this notice of motion achieve this aim?