7.7 transparency in decision making in local … · 5/30/2017 · monash will be a sector leader...

Council Meeting 30 May 2017 Section 7.7 –

Transparency in Decision Making in Local Government

7.7 TRANSPARENCY IN DECISION MAKING IN LOCAL GOVERNMENT Submitting Councillors Crs Lake and Paterson

MOTION That Council 1. Resolves in principle to implement all the recommendations relevant to councils, and

within its control, made by the Victorian Ombudsman in her ‘Investigation into the transparency of local government decision making’ report dated 15 December 2016.

2. Resolves in principle to implement further changes consistent with the attributes identified in the report of a ‘transparent council’.

3. Adopts the recommended actions and timeframes in the table contained within this report detailing the steps to be taken by Council in addressing the report.

4. Notes that many these changes require amendment to Council’s Local Law No 1 on Meeting Procedure which is currently under review and these changes will not be able to be implemented until the new Local Law No 1 is adopted.

5. Notes that upon adoption of these changes, there will not be a more transparent council in Victoria based upon the criteria identified by the Ombudsman and that Monash will be a sector leader in transparency, disclosure and good governance practices.

BACKGROUND Based on the findings of an investigation by the Victorian Ombudsman into a decision made by Casey City Council about a special charge which was tabled in Parliament in June 2016, the Ombudsman launched a wider investigation into the transparency of decision making in local government. Local councils account for around 25 per cent of complaints to the Ombudsman each year. The Ombudsman found that councils were not engaging in widespread, deliberate, secretive behaviour but there was evidence of poor transparency and governance practices across the sector. The Ombudsman reported to Parliament on 15 December 2016, making many observations about transparency short comings and identifying several areas for improvement. DISCUSSION In the foreword of her report, the Ombudsman comments ‘For the most part, despite pockets of good practice, we found that transparency was a box to be ticked with minimum requirements, not a principle to be welcomed’. I propose that Council respond proactively, comprehensively and enthusiastically to all the areas highlighted by the Ombudsman for improvement across councils. In the table following this discussion, I have captured each of the recommendations relevant to councils as well as the attributes of a transparent council identified by the Ombudsman in



her report and indicated which ones Council is currently compliant with and which we are not. For all the areas where we are not compliant, I have proposed actions for us to reach full compliance. For some of the areas where we are compliant, I have also suggested some appropriate actions which are consistent with the spirit of the report. At some 184 pages, the report is substantial and represents a very high quality study of transparency and governance practices in Victorian local government. It provides an excellent and obvious way for councils to immediately seek improvement to their own practices by using the conclusions drawn in the report as a road map to improve their own processes. While I think in parts of the commentary the Ombudsman has failed to fully appreciate the contextual and inherently political nature of councils and councillors, I do not disagree with any of her recommendations or the attributes she has identified as being consistent with a transparent Council. In my view, unless there is significant reason for quarrel with a conclusion of an integrity agency such as the Victorian Ombudsman, it is logical and incumbent upon councils to act diligently to adopt the better practices recommended in these kinds of reviews. That is the course I have adopted here and I urge other councillors to follow this approach as well unless they believe a recommendation or attribute is so clearly misconstrued by the Ombudsman that it ought to be departed from. In such an instance, I believe that clear and cogent reasoning needs to be applied by Council in justifying such a departure. The Ombudsman made six recommendations in her report. Recommendations 1 through 5 are recommendations to the State Government and Local Government Victoria rather than to councils. Recommendation 6 is a recommendation to councils. I propose that as well as addressing Recommendation 6, Council also addresses the parts of Recommendations 1 and 2 which are within Council’s control to respond to. Recommendations 3 through 5 are not applicable to local council. The table below makes clear the various ways in which Council can act proactively in this regard and do so well in advance of the new Local Government Act being introduced some time in 2018 or 2019. In doing so, Council can help guide the State Government and other councils in relation to comprehensively addressing the matters identified by the Ombudsman. To the extent that we agree these are worthy matters of implementation, this signals a proactive approach by Council and a commitment to achieve better practice in our governance.



Table setting out proposed actions in response to the Victorian Ombudsman’s Investigation into the Transparency of Local Government Decision Making Report dated 15 December 2016 Ref Reference to

report Recommendation/transparent attribute Is Council

currently compliant?

Proposed action Timeline and responsibility

1. Recommendation 1 (p 148) – to the State Government and Local Government Victoria: In its review of the Local Government Act, ensure that…[there are]…

• requirements for the closure of meetings, including:

o a public interest test similar to that in section 10B of the Local Government Act 1993 (NSW)

o the removal of any ‘catchall’ provision for meeting closures from section 89(2)

o a requirement for more detailed reasons in relation to the closure of meetings to be specified in the minutes, similar to the requirements in section 90 of the Local Government Act 1999 (SA)

o a requirement for councils to include a ‘sunset’ provision in relation to all items discussed in closed meetings, which specifies a date or event after which the information will no longer be confidential without a further resolution of council

o that embarrassment to, or potential adverse criticism of, council are irrelevant considerations in deciding whether to close a meeting to the public, similar to that in section

✗ No

Council to develop a certification/attestation process for each item to be considered at a closed meeting. This approach would require a certificate to be completed for each item of confidential business which would appear on the public Council agenda. Each certificate would provide information to the public about the item (so far as is possible without breaching confidentiality), the reasons why the item needs to be considered in closed Council and a recommendation for when the item and decision can be released publicly (or if not, the reasons why this is not appropriate). The certificate could have the following attributes: • it would be signed off by the CEO or, in the

case of a Notice of Motion or Urgent Business Motion submitted by a councillor, the submitting councillor;

• it would describe the item and explain the type of decision which Council is considering (to the extent possible without disclosing confidential business);

• it would specify the grounds upon which the matter is confidential and the basis under the

The certification process is to be developed and adopted by the August 2017 Council meeting. Responsibility: Executive Manager Corporate Administration & Customer Service



Ref Reference to report

Recommendation/transparent attribute Is Council currently compliant?


10B of the Local Government Act 1993 (NSW) or section 90 of the Local Government Act 1999 (SA).

Local Government Act 1989 which qualifies it for confidentiality;

• it would specify for how long confidentiality should attach to the item. Conceivably, some items will be able to be released in whole or in part following the resolution of Council in confidential business while others may not be appropriate for release until sometime in the future, or perhaps not at all;

• it would confirm that consideration had been given to whether part of the item could be considered in open Council and whether the in the interests of transparent decision making it was worth splitting this part of the decision from the confidential part so it could be made in open Council; and

• it would confirm that any consideration of embarrassment to, or potential adverse criticism of Council or any councillor or officer associated with Council, has not been a factor in reaching the view that the item is confidential.

At the point of the Council meeting where Council closes the meeting to the public, the Council would consider a motion along the following lines:

That Council, having reviewed and considered the certificate/s in relation to the matters listed for confidential business, and being satisfied that it is appropriate and necessary to consider this/these matter/s at a closed meeting, resolves to:






1. close the meeting to the public in

accordance with the Local Government Act 1989 for the reasons specified in the/each certificate; and

2. to release information publicly in relation to the/each item in accordance with the recommendation contained in the/each accompanying certificate.

In considering this motion, it would be open to Council to resolve to deal with a particular item in a different way to what is recommended by the CEO or the submitting councillor, such as, for example, if it is the view of the Council that all or part of an item can reasonably be considered in open Council.

2. Recommendation 1 (cont)

• a requirement for councils to maintain an up to date list of advisory committees, special committees and members of those committees on their website.

Partially compliant. Our website currently has a list of committees and the names of councillor representatives, not it does not include the names of the other members.

Include the names of all members of each committee and keep this information up to date. Ensure that each committee page has useful information about the role of the committee, the committee terms of reference and the contact details for a relevant council officer. Where the committee reports on occasion to Council through the council reports process, contain links to these past reports.

By end of June 2017. Responsibility: Manager Communications

3. Recommendation • appropriate conflict of interest ✗ No Develop a common sense policy for disclosure of A proposed






1 (cont) requirements to extend to members of advisory committees

conflicts of interest for non-councillor members of Council’s advisory committees. This should be modelled on best practice corporate governance principles, be in plain language and be accompanied by appropriate training and examples. Note, it is not proposed that the conflict of interest provisions which are applicable to councillors would be used because these are very detailed, technical and often difficult to apply. Advisory committees also do not exercise any decision making powers or functions of Council so they pose a lesser risk and need not be subject to the same provisions. In this regard, managing conflicts of interest among non-councillor members of the advisory committees should be relatively straight forward, non-threatening and based on readily understood principles of common sense.

policy is to be developed for consideration at the July 2017 Council meeting. Responsibility: Executive Manager Corporate Administration & Customer Service

4. Recommendation 2 (p 148) – to the State Government and Local Government Victoria: Ensure that the following areas are covered, as a minimum, in guidance for all

• agendas being made available to the public at least five days before a council meeting.

✗ No

Council to release agendas online by no later than 5.30 pm on the Thursday prior to Council meetings.

To commence from the June meeting cycle. Further, as part of the review of Local Law no 1 on Meeting Procedures, changes to be made to the Local Law to






councils…

reflect the agenda being circulated at least five days prior to meetings. Responsibility: Executive Manager Corporate Administration & Customer Service


• reporting on the exercise of delegations ✗ No

A central page to be developed for the website summarising all delegations that are in place – including from Council to special committees, Council to the CEO and other officers and from the CEO or other officers to other officers. A further report to be presented to Council on how non-planning decisions above a certain and appropriate threshold which are made under delegation might be reported and summarised publicly (note, planning decisions made under delegation are already transparently reported publicly through the monthly town planning schedules report).

A delegations page to be in place by the end of July 2017. A report on options to report on non-planning delegate decisions to be presented to Council by the August meeting. Responsibility: Executive Manager Corporate Administration






& Customer Service


• use of notices of motion ✗ No

A policy and procedure to be adopted and made available publicly on the effective and appropriate use of Notices of Motion. Potentially to be included as part of Council’s adoption of a revised Local Law No 1 on Meeting Procedure.

To coincide with the review of Local Law No 1 on Meeting Procedures currently underway. Responsibility: Executive Manager Corporate Administration & Customer Service


• recording of public questions and answers at council meetings in minutes, or through audio or audio- visual recording and publication

✓ Yes


• councillor briefing sessions ✗ No A policy and procedure to be adopted and made available publicly on the effective and appropriate use of councillor briefing meetings. Potentially to be included as part of Council’s adoption of a revised Local Law No 1 on Meeting Procedure.

To coincide with the review of Local Law No 1 on Meeting Procedures currently underway. Responsibility: Executive Manager Corporate






Administration & Customer Service


• en bloc voting should only occur in clearly defined circumstances including:

o en bloc voting should not be used to decide planning matters or other matters where the interests of third parties are involved

o every resolution made at a council meeting, including a resolution to pass a number of matters en bloc should be clearly recorded in the minutes of the meeting.

✓ Yes En bloc voting has rarely been used at Council. On the infrequent occasions it has been used, it has been confined to small numbers of non-contentious reports to manage time pressures.

A policy and procedure to be adopted and made available publicly on the appropriate use of en bloc voting at Council meetings. Potentially to be included as part of Council’s adoption of a revised Local Law No 1 on Meeting Procedure.



• audio recording wherever practicable of both open and closed council meetings, and posting of audio recordings of open meetings on council websites.

Partially compliant. Council streams public Council meetings but does not record closed meetings.

Commence the audio recording of closed Council meetings. Develop a policy and procedure for dealing with audio recording of closed meetings.

Commence an audio recording of closed meetings from the July council meeting onwards. The development of a policy and procedure to coincide with






the review of Local Law No 1 on Meeting Procedures currently underway. Responsibility: Executive Manager Corporate Administration & Customer Service

11. Recommendation 6 (p 149) – to councils:

• any council which has not done so in the last three years:

o review their governance and meeting procedure local laws to ensure consistency with the requirements of the Local Government Act

✓ Yes Council is currently reviewing its Local Law No 1 on Meeting Procedure

Review the proposed Local Law No 1 on Meeting Procedure (and any other subsidiary documents such as the Supplementary Standing Orders and any policies) against the Local Government Act prior to adoption by Council of these revised documents.



o review their special committees to determine their level of compliance with the requirements of the Local Government Act and

✗ No Note: Council has one special

Do a review of the MGA Committee of Management’s and the Audit and Risk Committee’s structures and practices against the Local Government Act.

By September. Responsibility: Executive






whether the special committee structure is fit for the committee’s purpose.

committee – the MGA Committee of Management. However, the Audit and Risk Committee is similar in nature to a special committee and any governance practices appropriate for a special committee should be considered for it as well.

Note, the MGA Committee of Management is currently reviewing its charter so this will fit in well into the review proposed.

Manager Corporate Administration & Customer Service


• maintain an up to date special committee page on their website listing all special committees, with links to their delegations, meeting notices, minutes of meetings and any other relevant materials.

✗ No

Maintain a page on the Council website containing the membership of the MGA Committee of Management and the Audit and Risk Committee, a copy of the relevant charters, the delegations from Council, agendas and minutes and details of when and where the meetings are held. Note, there is no links to this information on the Council web page for the MGA Committee of Management. There is a committee page on the MGA site but it is not intuitive to locate (we could only find it by a global search). It contains committee members, meetings dates and agendas/minutes. It does not contain its charter

By December 2017. Responsibility: Director Community Services (in relation to the MGA Committee of Management) and the Director Corporate Services in relation to the






or delegations from Council. This information should be contained on the Council website and linked to from the MGA site.

Audit and Risk Committee)

14. Attributes of a ‘transparent council’… – in meetings (p 150)

• Provides meeting agendas to the public and councillors at least five days in advance of an ordinary meeting (longer if agenda papers particularly complex).

✗ No

As above in row 4, Council to release agendas online by no later than 5.30 pm on the Thursday prior to Council meetings.

To commence from the June meeting cycle. Further, as part of the review of Local Law no 1 on Meeting Procedures, changes to be made to the Local Law to reflect the agenda being circulated at least five days prior to meetings. Responsibility: Executive Manager Corporate Administration & Customer Service

15. • Advertises meetings a variety of ways, including prominent display on the website, social media and newspapers. Links to agenda or key matters to be

✓ Yes

Include reference to this current practice in a policy and procedure.

To coincide with the review of Local Law No 1 on Meeting






decided at a meeting should be included with the post, to catch the interest of the public.

Procedures currently underway. Responsibility: Executive Manager Corporate Administration & Customer Service

16. • Live streams its council meetings and provides access to the recordings of meetings on its website after the meeting.

✓ Yes

17. • Engages with the community to find out what type of meeting participation processes will suit its needs and implements these (balanced with efficiency).

✓ Yes

Include an invitation for feedback on Council’s website for suggestions from the community on improving Council meetings and include a provision on soliciting and enabling regular feedback from the community in relation to any consideration by Council of further changes to Council’s meeting procedures, standing orders or polices.


18. • Engages in debate during meetings which assists the public in understanding the reasons for council decisions.

✓ Yes

19. • Records public questions and answers in ✓ Yes






minutes of meetings. 20. • Does not vote en bloc. ✓ Yes 21. • Promptly creates media releases for

website and social media summarising key decisions made at each council meeting and providing links to relevant records.

✓ Yes

22. • Has local laws in place with respect to meeting procedures that are consistent with the Local Government Act and provides additional guidance to staff, councillors and members of the public on meeting procedures.

✓ Yes

23. Attributes of a ‘transparent council’… – in relation to closed meetings (p 150)

• Provides a list of specific items proposed to be discussed in closed session in the publically available meeting agenda.

At the April 2017 Council meeting, Council resolved to list these items on the public agenda unless the nature of the confidentiality clearly requires otherwise

24. • Critically considers every meeting closure to discuss a particular item, with a view to minimising the number of matters dealt with in closed meetings.

✗ No

See proposed certification approach above in row 1.

25. • Considers public interests and any harms that may be caused by discussing a matter in public when deciding whether to close a meeting.

✗ No







26. • Does not give consideration to matters such as embarrassment or reputational damage to council when deciding whether to close a meeting.

✓ Yes

27. • Deals with closed meeting items in the same meeting as open meeting items (rather than at a different location/time).

✓ Yes

28. • Audio records closed meetings. ✗ No As per row 10, commence the audio recording of closed Council meetings. Develop a policy and procedure for dealing with audio recording of closed meetings.

Commence an audio recording of closed meetings from the July 2017 council meeting onwards. The development of a policy and procedure to coincide with the review of Local Law No 1 on Meeting Procedures currently underway. Responsibility: Executive Manager Corporate Administration & Customer






Service 29. • Provides detailed reasons for closure of a

meeting in the public minutes of the meeting, including:

o Reference to the specific provision of section 89(2) relied on in relation to each item

o Reasoning as to why the closure of the meeting was appropriate which goes beyond subject matter alone.

✗ No


30. • Releases all information possible from each closed item immediately after closed meeting. Where this is not possible, specifies a date or event which will ‘sunset’ confidentiality of the information.

✗ No


31. Attributes of a ‘transparent council’… – in relation to what happens outside of meetings (p 151)

• Has policies in place to deter councillors from reaching agreements outside council meetings or allowing non-transparent in influences to impact their decision making.

✗ No

A policy and procedure to be adopted and made available publicly on the appropriate way that councillors are to conduct themselves in maintaining an open mind on matters before the Council and observing the highest standards of good governance. Potentially to be included as part of Council’s adoption of a revised Local Law No 1 on Meeting Procedure.


32. • Provides training to councillors to assist them in understanding the importance of

✓ Yes

Consider further and continuous training for officers and councillors.

December 2017.






not reaching agreements outside council meetings or allowing non-transparent in influences to impact their decision making.

Responsibility: Executive Manager Corporate Administration & Customer Service

33. • Assists councillors to understand that they must act in the best interests of the whole municipality, not just their ward.

✓ Yes

A policy and procedure to be adopted and made available publicly on the appropriate way that councillors are to make decisions in the best interests of the whole municipality and not just the ward that they represent. Potentially to be included as part of Council’s adoption of a revised Local Law No 1 on Meeting Procedure.


34. • Discourages factions and bloc voting, potentially through audio-visual recording of meetings.

✓ Yes

As with row 31, a policy and procedure to be adopted and made available publicly on the appropriate way that councillors are to conduct themselves in maintaining an open mind on matters before the Council and observing the highest standards of good governance. Potentially to be included as part of Council’s adoption of a revised Local Law No 1 on Meeting Procedure.

To coincide with the review of Local Law No 1 on Meeting Procedures currently underway. Responsibility: Executive Manager






Corporate Administration & Customer Service

35. • Officers provide frank and fearless advice and do not seek inappropriate direction from councillors to guide advice and recommendations in officer reports.

✓ Yes

A policy and procedure to be adopted and made available publicly which provides that councillors must not exert (or attempt to exert) unreasonable influence on the professional advice submitted to Council by Council officers. Potentially to be included as part of Council’s adoption of a revised Local Law No 1 on Meeting Procedure.


36. • Provides a list of advisory committees and members on its website.

✗ No

As with row 2, include the names of all members of each committee and keep this information up to date. Ensure that each committee page has useful information about the role of the committee, the committee terms of reference) and the contact details for a relevant council officer. Where the committee reports from time to time to Council through council reports, contain links to these past reports.

By end of July 2017. Responsibility: Manager Communications

37. • Has policies in place requiring all advisory committee members to declare and record conflicts.

✗ No

As with row 3, develop a common sense policy for disclosure of conflicts of interest for non-councillor members of Council’s advisory committees. This

A proposed policy is to be developed for






should be modelled on best practice corporate governance principles, be in plain language and be accompanied by appropriate training and examples. Note, it is not proposed that the conflict of interest provisions which are applicable to councillors would be used because these are very detailed, technical and often difficult to apply. Advisory committees also do not exercise any decision making powers or functions of Council so they pose a lesser risk and need not be subject to the same provisions. In this regard, managing conflicts of interest among non-councillor members of the advisory committees should be relatively straight forward, non-threatening and based on readily understood principles of common sense.

consideration at the July 2017 Council meeting. Responsibility: Executive Manager Corporate Administration & Customer Service

38. Attributes of a ‘transparent council’… – in relation to delegations (p 151)

• Makes its register of delegations available on its website.

✗ No

As with row 5, a central page to be developed for the website summarising all delegations which are in place – including from Council to the CEO and other officers and from the CEO or other officers to other officers.

A delegations page to be in place by the end of July 2017. Responsibility: Executive Manager Corporate Administration & Customer Service

39. • Regularly gives consideration and implements practices to maximise

✗ No

As with row 5, a further report to be presented to Council on how non-planning decisions above a

A report on options to






transparency around staff delegated decisions.

certain and appropriate threshold which are made under delegation might be reported and summarised publicly (note, planning decisions made under delegation are already transparently reported publicly through the monthly town planning schedules report).

report on non-planning delegate decisions to be presented to Council by the August 2017 meeting. Responsibility: Executive Manager Corporate Administration & Customer Service

40. • Has an up to date list of special committees and membership on its website with links to meeting notices, minutes and other relevant documents.

✗ No

As with row 13, maintain a page on the Council website containing the membership of the MGA Committee of Management and the Audit and Risk Committee, a copy of the relevant charters, the delegations from Council, agendas and minutes and details of when and where the meetings are held. Note, there is no links to this information on the Council web page for the MGA Committee of Management. There is a committee page on the MGA site but it is not intuitive to locate (we could only find it by a global search). It contains committee members, meetings dates and agendas/minutes. It does not contain its charter or delegations from Council. This information should be contained on the Council website and

By December 2017. Responsibility: Director Community Services (in relation to the MGA Committee of Management) and the Director Corporate Services in relation to the Audit and Risk Committee)






linked to from the MGA site. 41. • Provides contact, training, support and

guidance materials to special committee members to assist them in understanding and keeping up with legislative governance requirements.

✗ No

Consider further and continuous training for the non-councillor members of the MGA Committee of Management and Council’s Audit Committee.

December 2017. Responsibility: Executive Manager Corporate Administration & Customer Service

42. • Ensures all special committees are maintaining compliance with legislative transparency requirements.

✗ No

To be oversighted by the Executive Manager Corporate Administration & Customer Service. Must provide an attestation to Council each year that each special committee (currently just the MGA Committee of Management) and the Audit and Risk Committee is maintaining compliance with legislative requirements, Council’s transparency expectations, its charter, Council’s policy and that non-councillor members are participating appropriately in relevant training made available to committee members by Council.

Attestation by December of each calendar year. Responsibility: Executive Manager Corporate Administration & Customer Service

43. • Regularly reviews its special committees to ensure special committee structure is still appropriate for each committee.

✗ No

Ensure that the charters of the MGA committee of Management and the Audit and Risk Committee have a requirement that these must be reviewed by Council at least once every two or three years.

Responsibility: Executive Manager Corporate Administration & Customer Service

7.7 transparency in decision making in local … · 5/30/2017 · monash will be a sector leader...

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