The Local Government Act 1999 (SA) (the Act) and Code of Conduct for Council Members 2013 (SA) (the Code) are part of the framework that regulate the behaviour, including misconduct, of council members.

While this framework must be followed and applied, there is a degree of autonomy under the Code that allows councils to establish their own bespoke procedures and practices for investigating and resolving complaints.

However, it is essential that council procedures and practices for handling alleged breaches directly reflect the intent of the Code, and do not give a council additional powers that are contrary to it.

Adopting Investigation Findings vs Amending Investigation Findings

Clauses 2.17 to 2.25 of the Code set out rules for handling behavioural complaints against council members, which form part of a council's complaint handling process. Relevantly, Clause 2.22 states:

A failure of a Council member to comply with a finding of an investigation under this Part, adopted by the Council, may be referred for investigation under Part 3.

In our experience, this clause is often interpreted by councils to mean that they can alter a finding, or make an entirely different finding, to a finding of an investigation (i.e. by an independent investigator). This has been evidenced through the existence of procedures expressly allowing this, or simply through the general practice of a council.

Though the Code is not entirely clear with respect to this issue, it is our view that the phrase 'adopted by the Council' means a council has the power to either adopt the finding, or to not adopt the finding. We do not consider the Code gives councils the power to make a different finding.

In circumstances where a council's complaint handling procedure expressly permits them to make a different finding to an investigator, our view is that the procedure in question is ultra vires (i.e. 'beyond its power'). For example, an investigation may find a breach of Part 2 of the Code has occurred, but on receipt of the report the council, in pursuance of its procedures, resolves that there has been no breach. While a council would strictly be complying with its complaint handling procedure, we believe both the procedure and the resolution are flawed.

In other circumstances, a council's complaint handling procedure may not expressly empower that council to consider and alter an investigation finding, but in practice councils are making resolutions or findings contrary to what has been found in investigation and reported to them. Again, this practice and decision-making process appears to be beyond the scope of a council's powers as conferred by the Code.

The Code permits councils to not adopt an investigation's findings, but we are of the view that an alternative finding cannot be made. For example, an investigation may find no breach, but the council resolves that a breach has occurred. This is neither a decision to adopt the investigation's findings, nor a decision to not adopt the investigation's findings. Rather, the council has made a different finding, contrary to the investigator. We are of the view that this is not permitted by the Code and would be an ultra vires act of the council.

This remains the case even where a council's procedures permit 'preliminary findings' to be made. The Code does not contemplate councils having a power to make preliminary findings. Where this power is exercised to vary the investigator's findings, or make a different finding, the council's actions will again be ultra vires.

As for not adopting the findings of an investigator, this is permitted by the Code. However, it does give rise to the question of why a council would not do so. A council that ignores the results of an investigation invites scrutiny as to whether it formed a pre-determined view of the outcome. It may have also taken other irrelevant matters into consideration that the investigator did not, which is not permitted.

In our view, a council should have very persuasive reasons for not adopting the findings of an investigation. Only after assessing the thoroughness, logic and procedural fairness of the investigation, should a council consider taking the exceptional step of ignoring the investigation report and not adopting the investigator's findings.

Alternative Courses of Action

Clause 2.25 of the Code sets out specific powers vested in a council following the findings of an investigation:

If, following investigation under the Council's complaints handling process, a breach of the Behavioural Code by a Council member is found, the Council may, by resolution:

• Take no action;
• Pass a censure motion in respect of the Council Member;
• Request a public apology, whether written or verbal;
• Request the Council member to attend training on the specific topic found to be have been breached;
• Resolve to remove or suspend the Council member from a position within the Council (not including the member's elected position on Council)
• Request the member to repay monies to the Council

The report provided by an investigator contains the findings of the investigation and is intended to inform the council of the facts of a case, as well as whether allegations of a breach have been substantiated. These findings are then presented to a council meeting where the council may, after adopting or not adopting the finding, resolve to take any action specified in Clause 2.25.

Importantly, Clause 2.25 states that a council may take action. It does not mandate a council to take any particular action, even in circumstances where a breach is found to have occurred. Where a breach is found through an investigation, and a council resolves not to adopt the investigators findings, it follows that the council is not obligated to make any further resolution about what action to take. In accordance with Clause 2.25, the council could pass a resolution to take no action.

While a council can exercise its discretion to take any action permitted under Clause 2.25, they effectively do not have a power to substitute an investigations findings with their own.

Recommendations

Usually a council's procedures will require an investigator to recommend what action to take. As discussed, Clause 2.25 sets out the powers of a council and what actions it may take in circumstances where a breach is found to have occurred. Therefore, it follows that an investigator will generally recommend an action from that list.

Subject to a council's procedures, they have discretion to adopt the recommendation of the investigator or not. Our view is that whilst the finding(s) of breach (or not) are not capable of being overturned or amended by the council, it is able to:

• adopt the finding;
• not adopt the finding;
• resolve to take action (whether in accordance with the recommendation or not); or
• resolve to take no action (whether in accordance with the recommendation or not).

Summarising Report to Council

Another issue we commonly face is the question: If a breach of Part 2 of the Code is found to have occurred, what form must the investigations and findings take when being presented to a council as a report per Clause 2.24 of the Code? Specifically, should an investigation report be provided in its entirety, or is provision of the report in summarised form sufficient?

It is our opinion, that for a council to resolve whether or not to adopt the findings of an investigation (Clause 2.22), and determine what action to take (Clause 2.25) a full copy of the investigator's report, findings and recommendations should be presented to the council. Council procedures that mandate or are silent on the issue of summarisation, may run into issues of interpretation. An investigator operates with independence and in full possession of the facts. This could be compromised by a process where this objectivity is accidently altered by a member or employee of the council.

Again, it is important to bring attention to the ambiguity of the Act and Code in specifying what form of report is required to be provided to the council (Clause 2.24). While we do not believe the council has the power to alter findings by a resolution, if a full report is not presented to the council it would also be entirely unreasonable for them to do so.

This further highlights the importance of the role of the investigator in making a fully informed and independent decision, enabling the council to decide whether to adopt the finding or not. While all councils are compliant in using their discretion when acting on the basis of the investigator's recommendations, we believe it is this consideration of the independent investigations findings and the substitution for the council's own, that is ultra vires.

Given the specific nature of the powers vested by the Code, our position is that if this power was intended to be granted to councils then it would have been done explicitly. Should a council find fault with the way in which an investigation has been undertaken, they may resolve to not adopt the finding or have the investigation re-done. However, there is no power to alter findings based on their disagreement.

Recommendations

We recommend that councils undertake a review of their complaint handling procedures and practices. Specifically, councils should question the following:

• Do the council's procedures specify whether or not an investigator's report is to be presented either in its entirety, or as a summary?

• If the procedures specify that findings are to be summarised, do the procedures put in place measures to ensure that the summary reflects the integrity and independence of the original report?
• We recommend that, subject to the need at law or otherwise, to redact parts, the final report is presented to the council meeting. This ensures that council members are sufficiently informed of the findings, and the reasons behind the investigator's recommendations, to enable council to resolve whether or not to adopt the findings.

• Do the council's procedures create a clear and unambiguous distinction between the findings of the investigator, their recommendations for action, and the resolution on action that the council is empowered to make?

• To ensure compliance, we recommend ensuring any language used is reflective of that used in the Act and Code. To avoid uncertainty where council procedures are silent, we recommend ensuring current practices reflect the intent of the Act and Code as discussed in this article.

• Do the council procedures grant powers to council not specified in the Act, other than when the Act and Code grants discretion?

• We recommend reviewing all procedures to ensure that council only exercises powers granted by the Code. Councils do not have inherent powers and cannot grant themselves powers. Councils must be expressly empowered by the Act, the Code, or other related legislation, in order to lawfully act.

If you need assistance with any of the issues raised above, please contact your local government specialist at MinterEllison.