Monday, October 20, 2014

Conflict of interest and bias in decision making



And this is where the rubber hits the road in so many of those allegations of corrupt local government practice.  Who has a conflict of interest?  And how is it judged?

Can I say to anyone who is elected to local government that this is one of the most crucial parts of your role that you must get right at all times?

This is not a time for grey areas or angels polka-dotting on pinheads of needles.  Either you have a conflict or you don’t, and you’ll have to prove it within the confines of the rules if called on to do so. 

And neither can you stay in the room in the audience pit “just to listen”.  This is one of those black and white areas where you declare an interest and then leave the room.

And you can’t say, I didn’t know, because the Act uses those catch-all words “is aware or ought to be aware”.

Why am I writing on this topic? 

A perusal of the website Tasmanian Times finds a veritable litter of conflict and bias allegations at all levels of government.

Local government is particularly prone to these, if the articles on various Councils are any indication.

So just this once, it would be good to outline some thinking on this.

And what better way, than by a messy personal example.

To have a conflict or to not have a conflict...

I have to make a judgement call on whether I have a conflict of interest in sitting on the Development and Environment Services Committee for a development application for the University of Tasmania’s proposed development at Melville Street and voting on this at Council.

Conflict is the actual act, bias is the perception of it, although both a closely related.  The legal bit from the Local Government Act 1993 is listed out at the end, along with the relevant extracts from the Code of Conduct.  Here are the web links:


Code of Conduct: click on http://www.hobartcity.com.au/Council/Aldermen  and download the .pdf for the Code of Conduct.

So, back to why I am writing on it.  Firstly, my blog and other websites identify me as a student at the University.  I’ve received a financial scholarship (now finished) yet continue to be enrolled.  I’m on record as promoting Hobart as an education city, and particularly in favour of expansion of University activities in research, medicine, marine and oceanography and the like. 

For me, education at all levels is the most crucial tool to success in our western social and economic system.  No education, no futures.  And more so for women, as an educated woman is society’s principal change agent.  In Tasmania, 50% of its population is functionally illiterate.  If we’re to cope with the modern world, education is so, so important to provide to everyone. 

As you can see I’m passionately biased about education and research being top billing in Tasmania’s economic and social future – we’re the end of the railroad when it comes to commodity and manufacturing economies – we just can’t compete, but this is the way we can.

But educating people – here’s where we have all the advantages in providing good if not excellent teaching and facilities for research, yet also a safe, beautiful, happy place in which to provide it.  So yes, I have a real interest in promoting UTAS and in its development.

While I received the scholarship, I declared an interest in development decisions relating to the University, as there was a clear financial interest between myself and it, and that relationship was not shared by a substantial portion of the City’s electors (5% or 1000 people).  The scholarship finally ceased early this year, although there was a period of 12 months when I took medical leave of absence from my university activities and received no stipend.

The development application

The judgement call today is on whether I have a conflict in sitting on the Development and Environment Services Committee for a development application for the University of Tasmania’s proposed development at Melville Street and voting on this at Council.  Have a look at this at: http://www.hobartcity.com.au/Council/Council_Meetings/Development_and_Environmental_Services_Committee and click on the agenda for 20 October.  It is Item 6.1.1 49 Melville Street, 46 & 64 Brisbane Street and 145, 147, 163, 165, 171-175 Elizabeth Street, Hobart – Redevelopment for flats, carparking, restaurant, university facilities and hydraulic infrastructure.  It’s a long read (including the supplementary reading) but check out the Executive Summary first. 

Note that the Officer Recommendation is for Refusal.

I’ll take you through the decision process as an example of resolving a conflict of interest, not the development decision-making process (that’s way different).

Okay.  Now to get UTAS off the Sandy Bay Campus and into the City satisfies a widely held desire around the table to re-invigorate the City.  The Medical Precinct and the Arts Precincts are two examples of where Hobart’s Aldermen have supported this.  And love or hate the architecture of the Menzies Centre (personally, I love the design of both buildings), it is bought people into the City and circulates them around.

The Melville Street carpark has long been a site of heated conversation for development.  A previous Rundle government wanted to put a transport hub (read bus exchange) there; the Council went through an EOI process to get commercial development there (it fell over due to there being too many Chiefs in the decision process) and now UTAS want to put student accommodation and related activities there.  I’ve supported this as people means society and more people in an area means revitalisation through social and economic benefits.

And it is important to get UTAS on the site because it will market the accommodation to international students, and that will financially benefit the University.  It may also keep fees down and ensure the provision of better services and amenities to its students.

So you see why I’m a champion of the University.  And I’m not alone in this around the table at Council or in the wider community.

The question is, do I have a conflict of interest? 

And if I do, should I leave the room and not take part in any decision making?  This is in fact a two part decision.  Do I have a conflict?  If no, is there a “reasonable man” test for a perception of conflict and bias?

The rule is this:

A councillor or member has an interest in a matter if the councillor or member or a close associate would, if the matter were decided in a particular manner, receive, have an expectation of receiving or be likely to receive a pecuniary benefit or pecuniary detriment. [S.49(1)]

So do I receive a benefit if the UTAS application is approved?  As a student, one might say no because I’ll get no accommodation or carparking there, not being an international student.  I may however benefit from the likely lesser fees if the site is a good earner for UTAS or for that matter, increase if the business plan doesn’t work and the university has to jack up fees to cover the loss.  Further, are there other tests I need to look at?

This rule doesn’t apply if the benefit or detriment is one received in common with all or a substantial proportion of the electors of the municipal area [S.52(1)(a)], where a substantial proportion of the electors means at least 5% or 1 000 electors, whichever is the lesser [S.52(1A)].  So, the question, how many electors of Hobart City Council are university students?  One website advised around 9000 students for the Hobart Campus, and even allowing for a number living outside the municipality, this tests would appear to be satisfied, assuming those living or registered as “occupiers” are on the Rolls for Hobart number greater than 1000.  I think common sense would apply here but I can’t quantify the numbers and in a judicial test of this, I’d have to.

Neither does it apply if in relation to the consideration of an application or request for approval, authorisation, licence, permit, exemption or other right under this or any other Act, the extent of the interest of the councillor, member or close associate is no greater than that of any other member of the public [S.52(1)(c)].  So in meeting this test, is my interest no greater than any other member of the public?  Okay, interest in getting a good education is fairly widespread in Hobart, and having access to an education is important.  However, the service will not be for Hobart occupants – the building will service international students.

Neither does it apply because the pecuniary interest results from goods or services (that) are supplied in the same manner and subject to the same terms and conditions as apply to members of the public [S.52 (2)(b)].  The presumption is that any member of the public as in the electors of Hobart or wider Tasmania or the world will have access to the goods and services on the same terms and conditions.  I’m not sure this is the case, so it’s getting a bit muddy.

And finally, it does not apply if the matter relates to planning and development issues that apply throughout the municipal area and do not result in any particular benefit or detriment to the councillor or member or close associate that is no greater than any member of the public [S.52(2)(e)]  Well, supply of international student house and all the surrounding social and economic fallout may well be of equal particular benefit or detriment to members  of the public, but I’m a university student and the particular benefit or detriment is likely to be more specific.

This one is a bit knife-edge as to whether I have a conflict of interest.  Some have said not, others have interpreted it otherwise when I’ve discussed it with them.  So here is where we apply the Code of Conduct, in particular the Standards relating to bias and conflict.

Standard of Conduct #3 applies predominantly to actual or potential conflicts of interest which are non-pecuniary interests, in respect of which conflicts it is open to Council to determine the rules which apply to their management.

It also should be noted that, given the nature of public office for elected officials, the management of mere perceptions of conflict of interest are also important for the sake of the integrity of the Council and its Aldermen and employees.

However, unless a perceived conflict of interest relates to what is in reality, or becomes, a potential or an actual conflict of interest, then it will largely be a matter of managing those perceptions and possibly may instead be a contributor to allegations of bias.

So in my case, have been a long term university student and one who has benefitted from a Scholarship, it may be that a mere perception of a conflict of interest can arise, even if it is a misguided perception.  As such it may form sufficient foundation for a person to conclude that an ‘interest’ of an Alderman may have influenced me in the exercise of my role when Council acts as a planning authority.  Especially if I enter the debate and exercise my vote when Council acts as a planning authority; more so if I’m voting to overturn qualified officer advice for refusal.  If I vote for a favourable UTAS outcome, how well, how does it look?

Advice to Aldermen is clear.  In this regard, perceptions of a conflict of interest can be as important as actual conflicts of interest.

And the advice has always been, that if you think you may have a conflict, whether pecuniary or non-pecuniary, whether actual or perceived, that may lead to allegations of bias, leave the room.  It may well be a crucial vote on a matter dear to you, and if this is the case, it becomes even more important that ethical considerations rule, no matter the pain of not getting the outcome wanted.


POSTSCRIPT
In the end, I declared an interest at the Committee, advising that while there was no actual pecuniary conflict, there was a perception of a non-pecuniary conflict and possible perception of bias, due to my position on promoting UTAS and being a current UTAS student.
I also declared an interest in the other item on the Agenda dealing with the Campbell Street site, for the same reasons.

 

 

All the legal bits

PART 5 - Interests

47A.

48. Declaration of interest by councillor

(1) A councillor must not participate at any meeting of a council, council committee, special committee, controlling authority, single authority or joint authority in any discussion, nor vote on any matter, in respect of which the councillor–

(a) has an interest; or

(b) is aware or ought to be aware that a close associate has an interest.

Penalty:

Fine not exceeding 20 penalty units.

(2) A councillor must declare any interest in a matter before any discussion on that matter commences.

Penalty:

Fine not exceeding 50 penalty units.

(3) On declaring an interest, the councillor is to leave the room in which the meeting is being held.

Penalty:

Fine not exceeding 20 penalty units.

(4) The councillor, by notice in writing, is to advise the general manager of the details of any interest declared under this section within 7 days of so declaring.

Penalty:

Fine not exceeding 20 penalty units.

(5) The general manager is to –

(a) ensure that the declaration of interest is recorded in the minutes of the meeting at which it is made; and

(b) record the details of any interest declared in the register of interests kept under section 54.

(6) In addition to any penalty imposed under this section, a court may make an order –

(a) barring the councillor from nominating as a candidate at any election for a period not exceeding 7 years; and

(b) dismissing the councillor from office.

48A. Declaration of interest by member

(1) At any meeting of a special committee or controlling authority, or the board of a single authority or joint authority, a member must not participate in any discussion, or vote on any matter, in respect of which the member–

(a) has an interest; or

(b) is aware or ought to be aware that a close associate has an interest.

Penalty:

Fine not exceeding 20 penalty units.

(2) A member must declare any interest in a matter before any discussion on that matter commences.

Penalty:

Fine not exceeding 50 penalty units.

(3) On declaring an interest, the member is to leave the room in which the meeting is being held.

Penalty:

Fine not exceeding 20 penalty units.

(4) A member of a special committee or controlling authority, by notice in writing, is to advise the general manager of the details of any interest declared under this section within 7 days of that declaration.

Penalty:

Fine not exceeding 20 penalty units.

(5) A member of a board of a single authority or joint authority, by notice in writing, is to advise the chief executive officer of that authority of the details of any interest declared under this section within 7 days of that declaration.

Penalty:

Fine not exceeding 20 penalty units.

(6) The general manager or chief executive officer is to –

(a) ensure that the declaration of interest is recorded in the minutes of the meeting at which it is made; and

(b) record the details of any declared interest in the register of interests kept under section 53B or 54A.

49. Having an interest

(1) A councillor or member has an interest in a matter if the councillor or member or a close associate would, if the matter were decided in a particular manner, receive, have an expectation of receiving or be likely to receive a pecuniary benefit or pecuniary detriment.

(2) ...........................

50...........................

51.Close associate

For the purposes of this Part, a person is a close associate of a councillor or member if that person is–

(a) a body corporate of which the councillor or member is a director or a member of the governing body; or

(b) a proprietary company in which the councillor or member is a shareholder; or

(c) a public company in which the councillor or member is directly or indirectly a substantial shareholder; or

(d) a beneficiary under a trust or an object of a discretionary trust of which the councillor or member is a trustee; or

(e) a business partner of the councillor or member; or

(f) the employer or an employee of the councillor or member; or

(g) a person from whom the councillor or member has received, or might reasonably be expected to receive, a fee, commission or other reward for providing professional or other services in relation to a matter being dealt with or to be dealt with by the council, council committee, special committee, controlling authority, single authority or joint authority; or

(h) the spouse or partner of the councillor, member, councillor's son or daughter or member's son or daughter; or

(i) the son, daughter, brother, sister, mother or father of the councillor or member or of their spouse or partner.

52. Non-application of Part

(1) This Part does not apply to a councillor, member or close associate who has any pecuniary interest in any matter if–

(a) the benefit or detriment is one received in common with all or a substantial proportion of the electors of the municipal area; or

(b) the matter relates to an insurance policy or an indemnity policy being considered or taken out by the council, single authority or joint authority to insure or indemnify councillors or members or their spouses or partners unless the matter relates to, or is a claim made by, the councillor or member; or

(c) in relation to the consideration of an application or request for approval, authorisation, licence, permit, exemption or other right under this or any other Act, the extent of the interest of the councillor, member or close associate is no greater than that of any other member of the public; or

(ca) the matter relates to the making of a rate or charge under Part 9; or

(d) the matter relates to any allowances or expenses payable to councillors or members; or

(e) the interest is a beneficial interest in shares of a company or other body where the total nominal value of those shares does not exceed whichever is the lesser of the following amounts:

(i) an amount of $10 000;

(ii) an amount which is 1% of the total nominal value of the issued share capital of the company or body.

(1A) For the purpose of subsection (1)

substantial proportion of the electors means at least 5% or 1 000 electors, whichever is the lesser.

(2) This Part does not apply to a councillor, member or close associate who has any pecuniary interest in any matter only because –

(a) the matter involves –

(i) expenditure from money belonging to, or held by, a council, council committee, special committee, controlling authority, single authority or joint authority and the councillor or member contributes to the money as a ratepayer; or

(ii) the fixing of fees by a council, single authority or joint authority; or

(iii) the terms and conditions on which the right to participate in the supply of goods and services is offered to members of the public; or

(b) the councillor or member or close associate is a person to whom goods or services are supplied in the same manner and subject to the same terms and conditions as apply to members of the public; or

(c) the councillor or member or close associate provides services of a professional nature to another person who is the subject of, or is involved in, the matter; or

(d) the councillor or member or close associate is a member of a body, club, union or other non-profit organisation if –

(i) a personal benefit or detriment to the councillor, member or close associate, or the spouse or partner of the councillor, member or close associate, is not involved; and

(ii) the councillor, member or close associate is not an office-bearer of that body, club, union or organisation; or

(da) the councillor, member or close associate is appointed or nominated as a member of a body by the council; or

(e) the matter relates to planning and development issues that apply throughout the municipal area and do not result in any particular benefit or detriment to the councillor or member or close associate that is no greater than any member of the public; or

(f) the councillor or member or close associate is an employee in the service of the Crown or of a body established under any Act for a public purpose; or

(g) the councillor or member or close associate is a candidate for election as councillor, mayor or deputy mayor; or

(h) the councillor, member or close associate is a member of a body established by a council.

(3) A council, at a meeting open to the public, may decide to exempt a councillor or member from this Part for a period not exceeding 12 months if the councillor or member has a potential pecuniary interest in a matter only because of being appointed or nominated as a councillor or member due to expertise arising from direct involvement in an activity that gives rise to that potential pecuniary interest.

53. Notification of interest

(1) Any person who considers that a councillor or member has an interest in a matter to be, or being, dealt with by a council, council committee, special committee or controlling authority may notify the general manager in writing of that interest.

(2) On receipt of a notification, the general manager is to advise –

(a) the mayor or chairperson; and

(b) the councillor or member who is the subject of the notification.

53A. Notification of interest of member

(1) Any person who considers that a member of a board of a single authority or joint authority has an interest in a matter to be, or being, dealt with by a single authority or joint authority may notify the chief executive officer of that authority in writing of that interest.

(2) On receipt of a notification, the chief executive officer is to advise –

(a) the chairperson; and

(b) the member who is the subject of the notification.

53B. Register of interests of board members

(1) The chief executive officer of a single authority or joint authority is to keep a register of interests of members of the board of that authority advised under section 48A(5).

(2) A register kept under this section is exempt from the provisions of the Freedom of Information Act 1991.

54. Register of interests of councillors

(1) The general manager is to keep a register of interests of councillors.

(2) A person, by notice in writing to the general manager, may apply to inspect the register of interests.

(3) On receipt of an application, the general manager is to allow the applicant to inspect the register of interests.

(4) .........................

(5) .........................

54A. Register of interests of members

(1) The general manager is to keep a register of interests of members of a special committee or controlling authority.

(2) A councillor of a council that has established a special committee or controlling authority may inspect a register of interests kept under this section.

(3) A register kept under this section is exempt from the provisions of the Freedom of Information Act 1991.

55. Interests of employees and general manager

(1) An employee of a council must notify the general manager, or in the case of the general manager the mayor, in writing of having an interest as referred to in section 49 in any matter in respect of which he or she–

(a) provides advice to the council or council committee; or

(b) makes a decision or determination; or

(c) makes a recommendation to the council or council committee.

Penalty:

Fine not exceeding 50 penalty units.

(1A) Section 51 applies as if a reference to a councillor were a reference to an employee or a general manager.

(2) The general manager is to –

(a) advise the council of the existence of any interest notified under subsection (1); and

(b) keep a register of any such interest.

(3) Any register kept under subsection (2)(b) is exempt from the provisions of the Freedom of Information Act 1991.

55A. Interests of employees of authorities

(1) An employee of a single authority or joint authority must notify the chief executive officer in writing, or the chief executive officer of a single authority or joint authority must notify the board of management of that authority in writing, of having an interest as referred to in section 49 in any matter in respect of which he or she –

(a) provides advice to that authority; or

(b) makes a decision or determination; or

(c) makes a recommendation to that authority.

Penalty:

Fine not exceeding 50 penalty units.

(2) Section 51 applies as if a reference to a councillor were a reference to an employee or a chief executive officer of a single authority or joint authority.

(3) The chief executive officer of a single authority or joint authority is to –

(a) advise the board of management of that authority of the existence of any interest notified under subsection (1); and

(b) keep a register of any such interest.

(4) Any register kept under subsection (3)(b) is exempt from the provisions of the Freedom of Information Act 1991.

56.Validity of decisions

Any proceedings or decisions of a council, council committee, special committee, controlling authority, single authority or joint authority are not invalid by reason only that at the time the proceedings were held or the decisions were made, a councillor or member–

(a) had not declared an interest as required by section 48 or 48A; or

(b) had voted on a matter in respect of which the councillor or member had not declared such an interest.

 

Code of Conduct Excerpt

 

2 No Bias in Decision-making

Standard of Conduct #2 – No Bias in Decision-making: You must ensure that you bring an impartial and unprejudiced mind to all matters being decided upon by you in the course of your Council duties.

2.1 Key Concepts:

The rules of procedural fairness require that a decision-maker in public office should be able to decide the issues pertaining to each decision free from any bias or prejudgment.  The test for determining whether a person is disqualified by reason of the appearance of bias is whether a fair-minded, lay observer might reasonably apprehend that the decision-maker might not bring an impartial and unprejudiced mind to the resolution of the question which must be decided (Johnson v Johnson [2000] HCA 48 at paragraph 11). Specifically, the case of R v West Coast Council; ex parte Strahan Motor Inn [1995] TASSC 47 (at paragraph 30) tells us that the political and legislative duties of elected members of Council require that:

...objectors or supporters be heard by members of council who are capable of being persuaded. The legislature could not have intended to have a hearing before a body who has already made a decision which is irreversible. The party alleging disqualifying bias must establish that there is a prejudgment of the matter, in fact, to the extent that any representations at variance with the view, which has been adopted, would be futile. Statements by individual members of council while they may very well give rise to an appearance of bias will not satisfy the test unless the court concludes that they are the expression of a final opinion on the matter, which cannot be dislodged.

You must therefore ensure that you bring an open mind to all matters being decided upon by you in the course of your duties. This does not mean that an Alderman is automatically disqualified purely for having held a public view on a matter which is the subject of a Council decision, as also explained in the West Coast Council case referred to above (at paragraph 33):

Councillors may be assumed to hold and to express views on a variety of matters relevant to the exercise of the functions of the council. Expressing such views is part of the electoral process. Provided that expressions of opinion do not go so far as to evince an intention to exercise a discretion conferred by statute without regard to the terms in which it is conferred or without being prepared to listen to any contrary argument, it ought not be taken to disqualify the councillor from participating in a relevant decision making process.

The HCC regards this as an ethical, and not merely legal, expectation.

It is within this area that Aldermen must be aware of the importance of perceptions of conflict of interest. Where actual conflicts of interest arise, Standard #3 will also apply. However, where a mere perception of such a conflict of interest arises, even if a misguided perception, this may form sufficient foundation for a person to conclude that an ‘interest’ of an Alderman may have influenced him or her in the exercise of a duty. In this regard, perceptions of a conflict of interest can be as important as actual conflicts of interest.

 

3 Conflicts of Interest

Standard of Conduct #3 – Conflict of Interest: You are responsible to ensure that, when carrying out your public duty, you are not wrongfully influenced by other external interests that you have, or duties that you owe. You must therefore, in all such dealings, put the interests of the community to which the HCC is accountable foremost.

3.1 Key Concepts:

An actual conflict of interest exists if:

(a) you have a specific duty relating to your Council role (e.g. to participate in the making of a specific decision); and

(b) you have an interest or owe a duty external to your Council duties which could reasonably be expected to conflict with the specific duty in question relating to your Council role.

By contrast, a potential conflict of interest exists when you have or owe an external interest or duty which does not presently conflict with, but which in view of the types of decisions in which you participate might be expected to give rise to a conflict with your duties in the normal course of your office with Council.

An actual, potential or perceived conflict of interest can further be divided into two types:

Pecuniary Interest

Where a member of Council has a direct or indirect financial interest in a matter to be considered by Council (i.e. one in which there is a reasonable likelihood or expectation of an appreciable financial loss or gain).

Non-pecuniary Interest

Where a Councillor has some other conflicting private or personal interest (or duty) in a matter that does not amount to a pecuniary interest.

Part 5 of the Local Government Act 1993 deals with situations where a pecuniary interest exists. The onus is on Aldermen to identify where a pecuniary interest, to which no statutory exemption applies, exists; declare that interest; and to leave the meeting whilst that item is discussed and decided.

This Standard of Conduct #3 therefore applies predominantly to actual or potential conflicts of interest which are non-pecuniary interests, in respect of which conflicts it is open to Council to determine the rules which apply to their management.

It also should be noted that, given the nature of public office for elected officials, the management of mere perceptions of conflict of interest are also important for the sake of the integrity of the Council and its Aldermen and employees. However, unless a perceived conflict of interest relates to what is in reality, or becomes, a potential or an actual conflict of interest, then it will largely be a matter of managing those perceptions and possibly may instead be a contributor to allegations of bias (see Standard #2).

Finally, the onus is on you to identify a conflict of interest, whether perceived or real, and take the appropriate action to resolve the conflict in favour of your public duty.

3.2 What is expected of you?

As an Alderman of the HCC, you are responsible to ensure that, when carrying out your public duty, you are not wrongfully influenced by other external interests you have or duties you owe. You must therefore, in all such dealings, strive to openly and honestly put the interests of the community to which the HCC is accountable foremost. This requires that you observe the following principles:

(a) you should exercise reasonable judgment to decide if circumstances have arisen which may place you in a potential or actual conflict of interest situation;

(b) you should seek to remove yourself from positions of conflict of interest as far as reasonably possible and so should resolve in favour of the responsibilities of your public office all conflicts between your Council duties and responsibilities and any other private or personal (including business) duties or interests you have elsewhere, including clubs, memberships or affiliations;

(c) you should adhere to principles of transparency and honesty and therefore always declare actual or potential conflicts of interest at any meeting of Council and at any working group or any meeting of an outside body to which you are appointed or nominated by the Council, and abide by the rules, policies and law to adequately and appropriately deal with any conflicts;

(d) you should act in good faith and exercise reasonable judgment, to determine whether the actual or potential conflict of interest is so material that it demands one or more of the following actions in addition to the expectations set out in paragraphs (a) – (c) above, namely that:

(i) you state your views on the matter for discussion or decision but abstain from participating in any Council discussion on the relevant matter;

(ii) in addition you refrain from participating in any Council decision on the relevant matter; or

(iii) you remove yourself physically from any Council discussion and remain out of the room during the decision on the relevant matter.

(e) if in doubt as to whether circumstances might amount or lead to an actual or potential conflict of interest or whether the conflict is material, you should contact the General Manager to help resolve your course of action and to resolve any conflict or incompatibility between your private or personal interests and the impartial performance of your public or professional duties; and

(f) Aldermen are expected to act in good faith in the interests of advancing and preserving the good standing and reputation of the Council and its Aldermen, and the preservation of the resources of Hobart City Council, by attempting to resolve all disputes relating to allegations of conflict of interest, through:

(i) attempting to resolve the dispute first with the assistance of the Lord Mayor, or, if the allegations involve the Lord Mayor, then with the assistance of the Deputy Lord Mayor or another suitable Alderman, as the case may require; or

(ii) if such resolution of the dispute fails, then through entering in to a formal mediation with the assistance of a recognised mediator; and

(iii) resort to the Code of Conduct Panel or the Local Government Association of Tasmania Standards Panel to be regarded strictly as a last resort.

3.3 Supporting example:

Remember, as a key question, when asking yourself whether you have a conflict of interest, you should ask yourself whether you are, or may be, inappropriately influenced by other external interests you have or duties you owe in making the relevant Council decision. As examples only, consider this question in the following

contexts:

• Under the appropriate delegation, if you sit on a tender committee or you are part of a decision-making process on behalf of the HCC, to select a contractor and place the contract with, say, a supplier of goods or services to the HCC, it would be an unacceptable conflict of interest for you to place the contract with, say, a family member of yours or business contact without declaring this connection, and either removing yourself from the process for selection or, if you are required to continue to participate in the process, then strictly following the applicable HCC tendering or other relevant procedures for the selection of the contractor.

• If a decision is before Council in which you have a personal (non-pecuniary) interest because it will assist a not-for-profit organisation of which you, or a family member, are a member (but not a director which would be a conflict of interest), then it is required that you clearly declare the nature of your interest but it is unlikely to be so material as to exclude you from discussion or decision.

• In the previous scenario, it becomes even less likely that you have a conflict of interest, for instance, the longer it is since you had formal involvement with the other organisation, although it is entirely a matter of looking at all of the surrounding circumstances; e.g. after leaving it, were you then made a life member and a patron and continue to be consulted by those in control of the organisation? If so, the likelihood of this giving rise to a conflict of interest is increased.

• Further, if Council’s decision is, in such a case, likely to assure the survival of that not-for-profit organisation, and you are not only still a member but also one of the founders, and it might otherwise be expected that without Council’s decision the organisation will be wound up, then your conflict of interest is much more material and you ought to consider at least abstaining from the vote if not the discussion.

3.4 Supporting material:

Local Government Act 1993 - Part 5

Local Government (General) Regulations 2005 - Section 22A(a)

 

Authorised by Eva Ruzicka, 10 Congress Street, South Hobart

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