Agenda of Extraordinary Council

Ethical Decision Making and Conflicts of Interest

A guiding checklist for Councillors, officers and community committees

Ethical decision making

· Is the decision or conduct legal?

· Is it consistent with Government policy, Council’s objectives and Code of Conduct?

· What will the outcome be for you, your colleagues, the Council, anyone else?

· Does it raise a conflict of interest?

· Do you stand to gain personally at public expense?

· Can the decision be justified in terms of public interest?

· Would it withstand public scrutiny?

Conflict of interest

A conflict of interest is a clash between private interest and public duty. There are two types of conflict:

· Pecuniary – regulated by the Local Government Act 1993 and Office of Local Government

· Non-pecuniary – regulated by Codes of Conduct and policy. ICAC, Ombudsman, Office of Local Government (advice only). If declaring a Non-Pecuniary Conflict of Interest, Councillors can choose to either disclose and vote, disclose and not vote or leave the Chamber.

The test for conflict of interest

· Is it likely I could be influenced by personal interest in carrying out my public duty?

· Would a fair and reasonable person believe I could be so influenced?

· Conflict of interest is closely tied to the layperson’s definition of ‘corruption’ – using public office for private gain.

· Important to consider public perceptions of whether you have a conflict of interest.

Identifying problems

1st Do I have private interests affected by a matter I am officially involved in?

2nd Is my official role one of influence or perceived influence over the matter?

3rd Do my private interests conflict with my official role?

Local Government Act 1993 and Model Code of Conduct

For more detailed definitions refer to Sections 442, 448 and 459 or the Local Government Act 1993 and Bega Valley Shire Council (and Model) Code of Conduct, Part 4 – conflictions of interest.

Agency advice

Whilst seeking advice is generally useful, the ultimate decision rests with the person concerned.Officers of the following agencies are available during office hours to discuss the obligations placed on Councillors, officers and community committee members by various pieces of legislation, regulation and codes.

Contact	Phone	Email	Website
Bega Valley Shire Council	(02) 6499 2222	council@begavalley.nsw.gov.au	www.begavalley.nsw.gov.au
ICAC	8281 5999 Toll Free 1800 463 909	icac@icac.nsw.gov.au	www.icac.nsw.gov.au
Office of Local Government	(02) 4428 4100	olg@olg.nsw.gov.au	http://www.olg.nsw.gov.au/
NSW Ombudsman	(02) 8286 1000 Toll Free 1800 451 524	nswombo@ombo.nsw.gov.au	www.ombo.nsw.gov.au

Disclosure of pecuniary interests / non-pecuniary interests

Under the provisions of Section 451(1) of the Local Government Act 1993 (pecuniary interests) and Part 4 of the Model Code of Conduct prescribed by the Local Government (Discipline) Regulation (conflict of interests) it is necessary for you to disclose the nature of the interest when making a disclosure of a pecuniary interest or a non-pecuniary conflict of interest at a meeting.

The following form should be completed and handed to the General Manager as soon as practible once the interest is identified. Declarations are made at Item 3 of the Agenda: Declarations - Pecuniary, Non-Pecuniary and Political Donation Disclosures, and prior to each Item being discussed:

Council meeting held on __________(day) / ___________(month) /____________(year)

Item no & subject
Pecuniary Interest	In my opinion, my interest is pecuniary and I am therefore required to take the action specified in section 451(2) of the Local Government Act 1993 and or any other action required by the Chief Executive Officer.
Significant Non-pecuniary conflict of interest	– In my opinion, my interest is non-pecuniary but significant. I am unable to remove the source of conflict. I am therefore required to treat the interest as if it were pecuniary and take the action specified in section 451(2) of the Local Government Act 1993.
Non-pecuniary conflict of interest	In my opinion, my interest is non-pecuniary and less than significant. I therefore make this declaration as I am required to do pursuant to clause 5.11 of Council’s Code of Conduct. However, I intend to continue to be involved with the matter.
Nature of interest	Be specific and include information such as : · The names of any person or organization with which you have a relationship · The nature of your relationship with the person or organization · The reason(s) why you consider the situation may (or may be perceived to) give rise to a conflict between your personal interests and your public duty as a Councillor.
If Pecuniary	Leave chamber
If Non-pecuniary (tick one)	Disclose & vote Disclose & not vote Leave chamber
Reason for action proposed	Clause 5.11 of Council’s Code of Conduct provides that if you determine that a non-pecuniary conflict of interest is less than significant and does not require further action, you must provide an explanation of why you consider that conflict does not require further action in the circumstances
Print Name	I disclose the above interest and acknowledge that I will take appropriate action as I have indicated above.
Signed

NB: Please complete a separate form for each Item on the Council Agenda on which you are declaring an interest.

Extraordinary Council 6 May 2020

Item 3.2

3.2. Statement by Candidates for the position of Mayor

An opportunity for Candidates for the position of Mayor to address Council.

General Manager

Officers Recommendation

That the following Candidates for the position of Mayor address Council:

Mayoral Candidates:

(insert names)

Background

Council resolved on 2 September 2015 to allow Candidates for the position of Mayor and Deputy Mayor to address Council:

Councillors wishing to stand for the position of Mayor or Deputy Mayor be given the opportunity as part of Mayoral and Deputy Mayoral election proceedings to address Council on their reasons for seeking that position.

As we only have a resignation from Cr McBain from the Mayoral position this item will provide the opportunity for candidates for Mayor to address in this instance.

Issues

Policy

The process for the addresses by candidates will be in line with Council’s Code of Meeting Practice, Clause 33 – Deputations to Council:

33.5 Those people who have been granted approval to be heard by a meeting shall provide supporting documentation, at their cost prior to the meeting and the General Manager is to arrange for it to be circulated to Councillors at the earliest convenient opportunity. People wishing to use PowerPoint presentations, or require maps or photos to be displayed on screen must provide their electronic files to the executive assistant by 4.00pm on the day prior to the meeting.

33.6 People addressing a meeting are to be limited to five minutes, but may be permitted to exceed that limit for a nominated time by leave of the meeting.

Lodgement of a Nomination Form will be regarded as a request to address the Council. Candidates may decline to address the Council if this is their preference.

The order of addresses will be in the order the Nominations Forms were received.

Addresses will be heard as the first item on the Agenda, prior to the Election process proceeding.

Conclusion

Councillors have been advised of the process for addressing Council and the appropriate documentation will be provided to Councillors as outlined above.

Attachments

Nil

Extraordinary Council 6 May 2020

Item 3.3

3.3. Election of Mayor

Council is required to elect a Councillor as Mayor in keeping with Section 225 of the Local Government Act and the General Regulation.

General Manager

Officers Recommendation

1. That the election of Mayor for the period 6 May 2020 until 16 September 2020 proceed as outlined in the report with appropriate Resolutions.

2. That the election of the Mayor for the period 6 May 2020 until 16 September 2020 proceed by voting by way of either:

· ordinary ballot, OR

· preferential ballot, OR

· open voting by way of show of hands

3. That all nomination papers (and ballot papers – if ballot papers have been used) used in connection with the election of the Mayor for the period ending 16 September 2020 be destroyed.

4. That the Chief Executive of the Office of Local Government and the Chief Executive of the Local Government NSW be advised of the result of the election of the Mayor for the period from 6 May 2020 until 16 September 2020.

Background

Legal

Mayor Cr Kristy McBain has advised me of her resignation as Mayor the Bega Valley. The current mayoral term runs until September 16, 2020.

Under the Local Government Act 1993 (amendments 2016) terms of office for a mayor elected by Councillors is for a two-year period. Council is now required to elect a mayor for the remainder of the current mayoral term which concludes on 16 September 2020.

In September 2020, under the COVID-19 local government election circular following amendments to the Act, mayoral elections will need to be held for the period September 2020 until the 2021 Council elections.

Nominations for this election can be via hard copy or electronic form (e-form).

If nomination via e-form the following will apply:

E-forms will have security and confidentiality applied. Only Councillors will have access to the electronic form link.

Nominators will receive a confirmation of their e-form nomination immediately after submission via email.

An e-form nomination will be accepted only when endorsement has been received via email to the Executive Officer from the nominator, seconder and nominee.

The election of the Mayor is to proceed in accordance with Schedule 7 of the Local Government (General) Regulation 2005. Schedule 7 has been included below for your information.

The election is to be conducted by the General Manager or in her absence, a council employee designated by the General Manager, or in the event that all of these people are absent, by the person who called the meeting.

Role of the Mayor

The Local Government Amendment (Governance and Planning) Bill 2016 also amends section 226 Role of the Mayor. The new section reads:

226 Role of Mayor

The role of the Mayor is as follows:

(a) to be the leader of the council and a leader in the local community,

(b) to advance community cohesion and promote civic awareness,

(c) to be the principal member and spokesperson of the governing body, including representing the views of the council as to its local priorities,

(d) to exercise, in cases of necessity, the policy-making functions of the governing body of the council between meetings of the council,

(e) to preside at meetings of the council,

(f) to ensure that meetings of the council are conducted efficiently, effectively and in accordance with this Act,

(g) to ensure the timely development and adoption of the strategic plans, programs and policies of the council,

(h) to promote the effective and consistent implementation of the strategic plans, programs and policies of the council,

(i) to promote partnerships between the council and key stakeholders,

(j) to advise, consult with and provide strategic direction to the general manager in relation to the implementation of the strategic plans and policies of the council

(k) in conjunction with the general manager, to ensure adequate opportunities and mechanisms for engagement between the council and the local community,

(l) to carry out the civic and ceremonial functions of the mayoral office,

(m) to represent the council on regional organisations and at inter-governmental forums at regional, State and Commonwealth level,

(n) in consultation with the councillors, to lead performance appraisals of the general manager,

(o) to exercise any other functions of the council that the council determines.

Schedule 7 – Election of Mayor by Councillors

Part 1 – Preliminary

1. Returning Officer

The General Manager (or a person appointed by the General Manager) is the returning officer.

2. Nomination

(1) A Councillor may be nominated without notice for election as Mayor or Deputy Mayor.

(2) The nomination is to be made in writing by 2 or more Councillors (one of whom may be the nominee). The nomination is not valid unless the nominee has indicated consent to the nomination in writing.

(3) The nomination is to be delivered or sent to the returning officer.

(4) The returning officer is to announce the names of the nominees at the Council meeting at which the election is to be held.

3. Election

(1) If only one Councillor is nominated, that Councillor is elected.

(2) If more than one Councillor is nominated, the Council is to resolve whether the election is to proceed by preferential ballot, by ordinary ballot or by open voting.

(3) The election is to be held at the Council meeting at which the Council resolves on the method of voting.

(4) In this clause:

§ “ballot” has its normal meaning of secret ballot

§ “open voting” means voting by a show of hands or similar voting.

Part 2 – Ordinary ballot or open voting

4. Application of Part

This Part applies if the election proceeds by ordinary ballot or by open voting.

5. Marking of ballot-papers

(1) If the election proceeds by ordinary ballot, the returning officer is to decide the manner in which votes are to be marked on the ballot-papers.

(2) The formality of a ballot-paper under this Part must be determined in accordance with clause 345 (1) (b) and (c) and (6) of this Regulation as if it were a ballot-paper referred to in that clause.

(3) An informal ballot-paper must be rejected at the count.

6. Count – 2 candidates

(1) If there are only 2 candidates, the candidate with the higher number of votes is elected.

(2) If there are only 2 candidates and they are tied, the one elected is to be chosen by lot.

It is noted the candidate chosen by lot is the successful candidate.

7. Count – 3 or more candidates

(1) If there are 3 or more candidates, the one with the lowest number of votes is to be excluded.

(2) If 3 or more candidates then remain, a further vote is to be taken of those candidates and the one with the lowest number of votes from that further vote is to be excluded.

(3) If, after that, 3 or more candidates still remain, the procedure set out in subclause (2) is to be repeated until only 2 candidates remain.

(4) A further vote is to be taken of the 2 remaining candidates.

(5) Clause 6 of this Schedule then applies to the determination of the election as if the 2 remaining candidates had been the only candidates.

(6) If at any stage during a count under subclause (1) or (2), 2 or more candidates are tied on the lowest number of votes, the one excluded is to be chosen by lot.

Part 3 – Preferential ballot

8. Application of Part

This Part applies if the election proceeds by preferential ballot.

9. Ballot-papers and voting

(1) The ballot-papers are to contain the names of all the candidates. The Councillors are to mark their votes by placing the number “1”, “2” and so on against the various names so as to indicate the order of their preference for all the candidates.

(2) The formality of a ballot-paper under this Part is to be determined in accordance with clause 345 (1) (b) and (c) and (5) of this Regulation as if it were a ballot-paper referred to in that clause.

(3) An informal ballot-paper must be rejected at the count.

10. Count

(1) If a candidate has an absolute majority of first preferences votes, that candidate is elected.

(2) If not, the candidate with the lowest number of first preference votes is excluded and the votes on the unexhausted ballot-papers counted to him or her are transferred to the candidates with second preferences on those ballot-papers.

(3) A candidate who then has an absolute majority of votes is elected, but, if no candidate then has an absolute majority of votes, the process of excluding the candidate who has the lowest number of votes and counting each of his or her unexhausted ballot-papers to the candidates remaining in the election next in order of the voter’s preference is repeated until one candidate has received an absolute majority of votes. The latter is elected.

(4) In this clause, “absolute majority”, in relation to votes, means a number which is more than one-half of the number of unexhausted formal ballot-papers.

11. Tied candidates

(1) If, on any count of votes, there are 2 candidates in, or remaining in, the election and the numbers of votes cast for the 2 candidates are equal – the candidate whose name is first chosen by lot is taken to have received an absolute majority of votes and is therefore taken to be elected.

(2) If, on any count of votes, there are 3 or more candidates in, or remaining in, the election and the numbers of votes cast for 2 or more candidates are equal and those candidates are the ones with the lowest number of votes on the count of the votes – the candidate whose name is first chosen by lot is taken to have the lowest number of votes and is therefore excluded.

Part 4 – Choosing by lot

12. Choosing by lot

To choose a candidate by lot, the names of the candidates who have equal numbers of votes are written on similar slips of paper by the returning officer, the slips are folded by the returning officer so as to prevent the names being seen, the slips are mixed and one is drawn at random by the returning officer and the candidate whose name is on the drawn slip is chosen.

13. Result

The result of the election (including the name of the candidate elected as Mayor or Deputy Mayor) is:

(a) To be declared to the Councillors at the Council meeting at which the election is held by the returning officer, and

(b) To be delivered or sent to the Chief Executive of the Office of Local Government and the Chief Executive of Local Government NSW.

Nominations must be in writing and signed by two or more Councillors (one of whom may be the nominee) and the nominee must indicate his or her consent to the nomination in writing.

The nomination is to be delivered or sent to the Returning Officer (General Manager) who will announce the names of the nominees at the meeting. The written nominations can be given to the General Manager at the meeting prior to the election.

If more than one nomination is received, the Council is required to resolve whether the election is to proceed by preferential ballot, ordinary ballot, or by open voting.

Councillors should note that an election by preferential ballot or ordinary ballot is a secret ballot. Open voting is by show of hands (or similar means).

Process Required Resolutions

1. If only one nomination for the office of Mayor is received, the Returning Officer (General Manager) will declare that Councillor elected to the office of Mayor for the period until September 2020. The declaration will be recorded in the minutes.

The Mayor should then take the Chair.

2. If two or more nominations are received, an election is required. The Council must resolve the method to be used for the election. An appropriate Resolution would be:-

That the election of the Mayor for the period until September 2020 proceed by way of [eg: open voting]

3. On completion of voting the Returning Officer will declare the result (which will be recorded in the Minutes) and the Mayor will assume the Chair.

4. At this point a motion should be proposed authorising the destruction of nomination papers and any ballot papers. An appropriate motion would be:-

That all nomination papers (and ballot papers – if ballot papers have been used) used in connection with the election of the Mayor for the period ending 16 September 2020 be destroyed.

5. The Regulation provides for the Office of Local Government and Local Government NSW to be informed of the results of the election. An appropriate motion would be:-

That the Chief Executive of the Office of Local Government and the Chief Executive of Local Government NSW be advised of the result of the election of the Mayor for the period until 16 September 2020.

Attachments

1 ⇩. Ballot Papers Mayoral Election 6 May 2020

2 ⇩. Nomination paper (hard copy) for the position of Mayor Election 6 May 2020

3 ⇩. Nomination paper (e-form) for the position of Mayor Election 6 May 2020

Extraordinary Council 6 May 2020

Item 3.4

3.4. Election of Deputy Mayor

The Council has traditionally elected a Deputy Mayor under Section 231 of the Local Government Act 1993. This item will be considered fully if the Deputy Mayor position becomes vacant due to the earlier Mayoral election item.

General Manager

Officers Recommendation

That this item not be considered as the current Deputy Mayor Cr Sharon Tapscott maintains the position until the end of the current term on 16 September, 2020.

That candidates for the Deputy Mayor position be provided the opportunity to address Council as outlined in the earlier item.

AND FOLLOWING ADDRESSES

1. That the election of Deputy Mayor for the period until September 2020 proceed as outlined in the report with appropriate resolutions.

2. That the election of the Deputy Mayor for the period until September 2020 proceed by voting by way of either:

· ordinary ballot, OR

· preferential ballot, OR

· open voting by way of show of hands

3. That all nomination papers (and ballot papers – if ballot papers have been used) used in connection with the election of the Deputy Mayor for the period ending September 2020 be destroyed.

4. That the Chief Executive of the Office of Local Government and the Chief Executive of the Local Government NSW be advised of the result of the election of the Deputy Mayor for the period until September 2020.

Background

Under the Local Government Act 1993 (amendments 2016) the term of office for a Mayor elected by Councillors is for 2 years. Council has traditionally elected a Deputy Mayor. Cr Tapscott current hold the position of Deputy Mayor with a term to 16 September 2020.

Cr Kristy McBain has announced her resignation from the position of Mayor of the Bega Valley Shire Council. An election to fill this legislative position has been held earlier in the meeting.

If Cr Tapscott, the current Deputy Mayor, nominates for and is elected to the position of Mayor, then the Deputy Mayor position will be vacant, and Council needs to either resolve not to have someone in the role or hold an election for Deputy Mayor. At this point candidates for the Deputy Mayor position will be provided the opportunity to address Council in line with the outline the earlier item.

Nominations can be made prior to the meeting or from the floor on the day.

The Local Government Act 1993 at section 223 states:

231 Deputy Mayor
(1) The councillors may elect a person from among their number to be the deputy mayor.
(2) The person may be elected for the mayoral term or a shorter term.
(3) The deputy mayor may exercise any function of the mayor at the request of the mayor or if the mayor is prevented by illness, absence or otherwise from exercising the function or if there is a casual vacancy in the office of mayor.
(4) The councillors may elect a person from among their number to act as deputy mayor if the deputy mayor is prevented by illness, absence or otherwise from exercising a function under this section, or if no deputy mayor has been elected.

Bega Valley Shire has traditionally elected a Deputy Mayor. Operationally it has been appropriate to have an elected Deputy Mayor to support the Mayor with civic duties and to undertake key civic activities when the Mayor is out of the Shire.

The Council therefore must resolve whether it wishes to elect a Deputy Mayor and the period for the appointment which can be one or two years. The first Resolution of this report must be taken prior to determining the election of a Deputy Mayor if so resolved.

The procedure for the election of the Deputy Mayor is the same as that for the election of the Mayor as set out in the previous item.

Nominations for this election can be via hard copy or electronic form (e-form).

If nomination via e-form the following will apply:

E-forms will have security and confidentiality applied. Only Councillors will have access to the electronic form link.

Nominators will receive a confirmation of their e-form nomination immediately after submission via email.

An e-form nomination will be accepted only when endorsement has been received via email to the Executive Officer from the nominator, seconder and nominee.

ISSUES

Process Required / Resolutions

1. If only one nomination for the office of Deputy Mayor is received, the Returning Officer (General Manager) will declare that Councillor elected to the office of Deputy Mayor for the period determined by Resolution. The declaration will be recorded in the minutes.

2. If two or more nominations are received, an election is required. The Council must resolve the method to be used for the election. An appropriate Resolution would be:

That the election of the Deputy Mayor for the period to September 2020 proceeds by way of (eg: open voting)

3. On completion of voting the Returning Officer will declare the result (which will be recorded in the Minutes).

4. At this point a Motion should be proposed authorising the destruction of nomination papers and any ballot papers. An appropriate Motion would be:

That all nomination papers (and ballot papers – if ballot papers have been used) used in connection with the election of the Deputy Mayor for the period ending September 2020 be destroyed.

5. The Regulation provides for the Office of Local Government and Local Government NSW to be informed of the results of the election. An appropriate Motion would be:

That the Chief Executive of the Office of Local Government and the Chief Executive of Local Government NSW be advised of the result of the election of the Deputy Mayor for the period ending to September 2020.

Attachments

1 ⇩. Ballot Papers Deputy Mayor Election 6 May 2020

2 ⇩. Nomination paper (hard copy) for the position of Deputy Mayor Election 6 May 2020

3 ⇩. Nomination paper (e-form) for the position of Deputy Mayor Election 6 May 2020

Extraordinary Council	6 May 2020
*Item 3.3 - Attachment 1*	Ballot Papers Mayoral Election 6 May 2020

Extraordinary Council	6 May 2020
*Item 3.3 - Attachment 2*	Nomination paper (hard copy) for the position of Mayor Election 6 May 2020

Extraordinary Council	6 May 2020
*Item 3.3 - Attachment 3*	Nomination paper (e-form) for the position of Mayor Election 6 May 2020

Extraordinary Council	6 May 2020
*Item 3.4 - Attachment 1*	Ballot Papers Deputy Mayor Election 6 May 2020

Extraordinary Council	6 May 2020
*Item 3.4 - Attachment 2*	Nomination paper (hard copy) for the position of Deputy Mayor Election 6 May 2020

Extraordinary

Meeting Notice and Agenda

To:

Copy:

Live Streaming of Council Meetings

Publishing of Agendas And Minutes

Ethical Decision Making and Conflicts of Interest

A guiding checklist for Councillors, officers and community committees

Ethical decision making

Conflict of interest

The test for conflict of interest

Identifying problems

Local Government Act 1993 and Model Code of Conduct

Agency advice

Disclosure of pecuniary interests / non-pecuniary interests

Agenda

1 Apologies and requests for leave of absence

2 Declarations

3 Staff Reports – Governance and Strategy

Extraordinary Council

6 May 2020

Staff Reports – Governance And Strategy

6 May 2020

3.1. Selection of a Chairperson for the Mayoral Election

Officers Recommendation

Background

Legal

Conclusion

Attachments

Extraordinary Council	6 May 2020
*Item 3.4 - Attachment 3*	Nomination paper (e-form) for the position of Deputy Mayor Election 6 May 2020