Bernie O'Neil - 6 July 2021

Bernie O'Neil presented to Council as the Co-Convenor of A Better Eurobodalla, at the Public Access Session on 6 July 2021.

Improving Quality and Transparency of ESC Decision-making

A Better Eurobodalla presentation to ESC Public Access session, 6 July 2021

I am presenting as Co-Convenor of A Better Eurobodalla (ABE), a community forum dedicated to having open and inclusive government in our region. ABE expects that before governments, at any level, make decisions that will impact their communities, they will undertake broad and meaningful consultation, listen to and share expert advice, and proceed using a transparent decision-making process so that the community understands who makes decisions, when and why.

Today ABE is applying these principles to the issue of good decision making by our Council. This is the last opportunity we have to present at the ESC public access session before the September election of mayor and councillors. ABE has presented to this Council in public forum and public access sessions over many months. A characteristic of all those presentations is the fundamental importance of good decision making in delivering good governance. ABE believes that the citizens of Eurobodalla have a right to expect that our local government authority will make the best decisions for us using the principles of transparency, accountability, genuine consultation, and applying expert advice - all the things that ABE has been presenting on and writing to Council about.

Eurobodalla is widely recognised for its natural beauty. However, in the last 18 months it has been subject to major bushfires; flooding; Covid19 effects on business and the community; increased migration of people from other centres causing severe housing shortages, and other social issues. In short, the strategic environment has changed.

There are two ways Council decisions are made - those made by Councillors and those made under delegation by the general manager who, in turn, delegates to Council staff. Under the Local Government Act, Councillors are responsible for all outcomes relating to decisions made at Council meetings and the operational ones made by Council staff. Implementing the decisions made by Councillors is usually delegated to the general manager. It should be noted, however, that Councillors have the discretion at any stage to review, amend or reject aspects of the implementation process as they see fit.

Councillors are also responsible for the Council’s assets and financial reserves; and for all investment and expenditure outcomes. They have a duty to ensure decisions are based on full, accurate and balanced evidence, are financially responsible and take into consideration the views of ratepayers.

The quality of councillors’ decision making is influenced and dependent on advice and support from the general manager and council staff. Councillors need to actively engage in a process that results in good decision-making. This requires them to:

• be independent in their thinking,
• listen to their community, and
• be willing to interrogate staff and ask for additional information in briefing sessions and again in council meetings prior to making decisions.

A current operating practice that can inhibit Councillors’ ability to make good decisions is the onerous confidentiality requirements that prevent them from seeking community input or expert advice on material that they have been briefed on by staff. ABE believes that there is an overuse of confidentiality provisions that must be reviewed by our next Council.

To properly discharge their responsibilities, Councillors must ensure that appropriate processes are in place to enable them to be fully briefed about significant issues so that they are presented with impartial, evidence-based options including the key outcomes and costs before making decisions. In particular, where major financial, environmental, economic and public interest decisions are involved, they need:

• full consultation with Councillors and the shire community
• optimised community awareness through webcasting of public forum and other presentation processes at meetings, and
• the evidence relating to decisions made as publicly available as possible rather than the blanket use of ‘commercial in confidence’ and ‘legal privilege’ firewalls.

A poor administrative practice witnessed recently is Councillors being given a revised motion without notice to vote on either in, or immediately prior to, council meetings with assertions that it should or must be immediately endorsed. This has happened particularly on contentious issues where there has been strong community engagement. This practice does not allow the time Councillors need to fully consider the implications of decisions by seeking advice and consulting with each other and constituents.

An under used facility is advice that can be gained from the Advisory Committees of Council. These committees provide a mechanism for allowing expert and community input to decision-making, provided they operate fairly and transparently. Many other Councils also include and give responsibilities to advisory committees in the delegation process such as for finance, audit, infrastructure, environment, community services and sustainability. ABE seeks more open referrals to our Eurobodalla committees combined with improved resourcing and transparency in the advice they offer.

Since the decision of Councillors at its meeting in August 2017, all of the discretionary delegations are held by the general manager. She in turn has delegated many of these to her directors (who also often sub-delegate), with all reporting to Council being through her office. The use of delegations is appropriate – Councillors cannot make all the day to day decisions required of council. Whoever makes decisions, there are characteristics of good decision making that should be followed.

The ESC has a Delegations Register on its website but, unlike many Councils, there is no further list of responsible officers at director or other levels or the related committees for the various items. The ESC delegation arrangements are also at variance with many Councils who often retain and/or assert an active role in reviewing operational reports and decision-making in relation to what they consider are important projects of interest to the community.

All Councils in NSW are required to keep an up-to-date Register of Delegations to provide information about to whom Councillors have entrusted the decision making. ABE has reviewed NSW Council Delegation Registers including Bega Valley, Queanbeyan-Palerang, Orange and Newcastle which indicate that better practice should include:

a) significant aspects of delegations being kept at either Councillors’ or Councillor appointed committees’ level

b) Councillors’ delegations being reviewed and updated several times during the term of a Council, preferably annually and

c) Registers of Delegations available on the Councils’ websites should list all areas delegated to the general manager and show how the GM sub-delegates these delegations to other Council staff.  They should demonstrate transparency, be up to date and be easily accessible, written in plain English so as to be understood by the community

A relevant model of good practice for future Councillors to consider is Bega Shire Council’s Register of Delegations. This gives a brief plain English summary of the areas delegated and provides a clear description of how the GM’s delegations are then shared with staff. This makes it simple for the public to understand who is responsible for making a decision on a particular matter, and the

line of command, should a decision need to be clarified.

Improving Council’s performance in relation to the above issues can best be obtained by electing Councillors committed to improving current practice. ESC re-joining the NSW Local Government Association would give Council access to a range of professional analysis and advisory services to improve organisational performance.

ABE recommends the incoming Council commission an external local government consultant, answering directly to the Councillors, to undertake a review of its strategic environment and a range of council practices to, address such key issues as:

• the need to update Councils planning with a comprehensive, shire-wide strategic plan to address sustainable development
• providing ‘best practice’ advice to Councillors on how decisions should be made and what support they should expect from council staff
• applying a consistent definition and protocol around using ‘commercial in confidence’ and ‘legal privilege’ firewalls with a view to reducing this practice, including in relation to Code of Conduct complaints
• how to encourage and resource public engagement in decision making, using advisory committees and wide distribution of information on important decisions, with dedicated staff to facilitate processes recognising the needs of marginalised groups like the elderly, the isolated and socially disadvantaged
• improving the delegations register, listing responsible officers
• improved reporting to Councillors and the community on delegated decisions, to recognise the community’s right to know, and
• developing a more flexible approach to managing delegations and Councillors asserting their rights to information and decision making in areas that are most likely to improve Council’s performance and reputation.

Eurobodalla shire is a great place, rich in people of talent and good will and blessed with natural assets. ABE wants to see a council that recognises this and encourages a culture of best practice to plan for a sustainable future and build public confidence in and support for Council.

Bernie O’Neil
Co-convenor
A Better Eurobodalla
abettereurobodalla.org