The offical view on Councillors talking with constituents about Development Applications - or anything else

An LVRC ratepayer has written to the Deputy Mayor, Tanya Milligan, seeking clarification of the legal basis for suggestions that Councillors should be careful in having contacts with constituents who oppose a development application as it may cause a conflict of interest or an impression of bias that may interfere with the decision making process of Councillors.

I referred to this in my last post here and gave the example of the role and views of one Brisbane City Councillor as a contrast with the above view.

A reply to the ratepayer's letter has now been received from the Lockyer Valley Regional Council CEO - this is normal practice in the LVRC when a Councillor believes that they are being asked for the Council's position on something rather than their own opinion.  Just why a Councillor can't be trusted to convey the Council's position on something when it is an apparently clear and long standing policy (at least since the early days of this Council's tenure) is unclear.

Anyway ... the CEO's letter is enlightening, not least because it does not even attempt to provide any legal or policy basis for the stance.  Here it is:

The letter contains some useful guidelines and principles worth summarising.

• Under the Local Government Act 2009 Councillors are required to effectively consult and liaise with their community members, ratepayers and residents.

• Councillors have a responsibility to be informed of matters requiring a decision of Council.

• Councillors who feel that attending a meeting with their constituents opposed to a development application would be beneficial in gathering further information that would assist in making their decision on the proposal may do so.

• In reaching their decision Councillors need to give due consideration to: the matters put forward by the Applicant in respect of the proposal; submissions received from submitters; the detailed assessment report provided by the Council's officers; and information gathered during the decision making process.

Of course Councillors who have properly informed themselves as to their role and responsibilities under the Local Government Act (and any community members who take an interest in how their local government works) are already aware of these points and more.

There are some points in the letter with which I strongly disagree, but these concerns in no way detract from the significance of having the LVRC CEO's clarification of the Councillors' duties and rights regarding their contacts with constituents.

First, it is wrong to state that Councillors are required to be "neutral in the decision making process".  Councillors can be red-hot opposed to a development application or fervently in favour of it without this giving any cause for concern.  What the law requires is impartiality.  Councillors cannot favour one outcome or another without valid reasons - but there is no requirement that they not be strongly committed to their arguments for one position or the other.  The words "neutral" and "neutrality" do not appear in the Local Government Act.

Second, it is highly unlikely that there would be causal link between a lack of impartiality in decision making and a conflict of interest on the Councillor's part.  Impartiality has to do with even-handedness in approaching a decision, and weighing up both sides of the argument fairly. Conflict of interest has to do with whether or not the Councillor has some personal, family or business interest which could be advantaged by a decision going in a particular direction.  One can be lacking in impartiality without having any vested interest in the outcome - for example if one has taken a dislike to one party and lets that influence ones willingness to engage or the way one votes in a council meeting.  (On the other hand, a conflict of interest can, of course, lead to a lack of impartiality, but that is not the issue here.)

It would require a stretch of the imagination to even suggest that a conflict of interest which did not exist before could arise from a Councillor consulting with his or her constituents to find out their views and concerns in relation to an issue.  Yet, this conflict of interest stick has been used to dissuade Councillors from consulting with the community, and vice versa.

It goes without saying that Councillors should consult with their constituents, whether as individuals or as members of a community group. They cannot fulfil their duties, including those described at 4(2)(c) and 12(1) of the Local Government Act, without such consultation.  And, of course, in this context "consult" includes both actively seeking out the views and concerns of residents, and being available to hear those views and concerns when contacted by residents.

 With regard to Councillors and community groups, the Local Government Act, at Section 173(3) specifically says: "A councillor does not have a conflict of interest in a matter merely because of an engagement with a community group ... undertaken by the councillor in his or her capacity as a councillor".

I sincerely hope that this letter from the CEO setting out the guidelines (as well as, of course, better awareness of the relevant parts of the Local Government Act, including particularly Sections 4, 12(1-3), and 173) will clear the way for both Councillors and community members to engage in necessary dialogue on important issues in the government of the Lockyer Valley Region - and not just on issues restricted to the Adare motocross proposal.

Should Councillors talk to constituents to hear their views on development applications?

Ever since the Lockyer Valley Mayor addressed a community meeting last December, we have been hearing that Councillors need to be very careful about meeting with people objecting to the motocross application, or being seen to allocate more time to objectors than to the applicant, lest they be accused of bias or impartiality.

It was suggested at the 18 March Council meeting that Councillors who might consider accepting an invitation to a community meeting where they could hear the remainder of a presentation on community concerns about the motocross proposal and have the opportunity to ask questions that they should "seek advice".

This whole line or argument seems to fly in the face of Councillors' responsibilities and duties, and even to be contrary to the provisions of the Local Government Act.  I've lost count of the number of people who were dumbfounded when they heard that this could even be an issue.  The way it has been presented seems to cast Councillors in the role of a "jury" which should not be contaminated by seeking information or understanding outside of that provided by the Council staff (and possibly also the applicant).  Clearly Councillors are not a jury - they are elected representatives of their constituents.

So my attention was grabbed last night when there was an item on the TV news showing Brisbane City Councillor Helen Abrahams addressing a rally in West End against a highrise development application, and apparently siding with the protesters.  Didn't she realise the risks she was taking?

This morning I checked out her website - she's even inviting people to discuss the details of the application with her!  Here's an excerpt from her website page which deals with this application:

The application is Impact Assessable and so neighbours will be notified and it will be advertised on the property boundary. There is a right of appeal of Council’s decision. You can view the development application at The Gabba Ward Office, 2/63 Annerley Road, Woolloongabba or at a Customer Service Centre. Alternatively you can view the application on line at www.brisbane.qld.gov.au and click on view development applications and follow the prompts.

You may wish to make a submission on the application. The submission should be addressed to Mr Colin Jensen, CEO, Brisbane City Council, GPO Box 1434, Brisbane Q 4001. If you wish to discuss the details of this application with Councillor Helen Abrahams please ring 3403 2160.

How could the situation be so different in the Lockyer Valley Region?

Helen Abrahams has been a Councillor since 2003, thus she should be pretty knowledgeable about potential issues of bias and partiality which might arise when dealing with her constituents.  So I phoned her and asked  whether her close involvement with her constituents' issues has ever been raised as a possible basis for charges of bias or lack of impartiality within the Brisbane City Council.

Her response was one of surprise at the questions, and incredulity when I described the warnings issued to LVRC Councillors.  Her view is that, as a Councillor, her constituents' problems are her problems.  She believes that she  needs to know about them and understand them, and to advocate on behalf of her constituents.  I gathered from what she said that doing this is not in any way in conflict with the well informed impartiality that she brings to bear in the Council decision-making process as a Councillor.  It is what is expected of Councillors and her role has never been challenged in terms of partiality or of bias. 

Brisbane City Council operates under the City of Brisbane Act 2010 - but, much of that Act (including the parts dealing with Councillors' responsibilities, conflict of interest, and impartiality) mirror the Local Government Act 2009.  Neither piece of legislation has any prohibitions on Councillors informing themselves of the views and expectations of their constituents, even in relation to development applications. There's nothing about allocating "equal time" to constituents and applicants either.

On that basis, you'd have to wonder where this "policy" that is being applied to the LVR Councillors comes from, and whose interests it is serving.