WHO’S REALLY IN CHARGE OF LOCAL GOVERNMENT—THE ELECTED COUNCIL OR THE STAFF?

Or to put it another way, how much control, if any, does a council have over its CEO and, through him, other employees?

A former Shire of York CEO had definite views on this question. He seemed to see himself, like King Louie in Disney’s film The Jungle Book, as ‘king of the swingers, the jungle VIP’. He used to tell his staff that in York, councillors had little or no power or authority compared with him and ‘his’ employees. 

For him, it seemed, shire councillors were mere vassals, to be permitted the illusion of power but kept on a tight leash.  And they acted like they believed it. 

Witness a former shire president’s notorious declaration that he and other councillors were ‘a cohesive team behind’ the CEO in question.  Who was in charge of whom?

The Hooper Doctrine

For the sake of brevity, let’s call that former CEO’s opinion ‘the Hooper Doctrine’.  It’s possible that some members of shire staff still adhere to it, along with some bureaucrats in the Department of Local Government. 

The latter may have a vested interest in ensuring that councillors exercise as little real power as possible.  Local government officials are easier to control than the elected representatives of the people and probably a lot less likely to cause embarrassment by complaining in public about departmental decisions.

Don’t meddle in administrative matters—that’s the message to councillors from the Department, the Acting CEO and even perhaps to Shire President Reid from his ‘mentors’. 

And don’t allow ordinary folk, those pesky ratepayers, to ask penetrating questions about staff and related ‘administrative’ matters.   They should make do with what the CEO chooses to tell them.

As Premier Barnett has acknowledged, in WA local communities are paying unconscionable amounts of money by way of rates to fund the excessive numbers, salaries, expenses and occasional junkets of senior local government employees and favoured councillors. 

 Add to that, in York and elsewhere, the ‘outsourcing’ to consultants of work senior employees are paid but are apparently not competent to do. 

How long will we in York have to wait before all the work goes offshore to Bangalore and Calcutta?

The Hooper Doctrine exposed as codswallop

As everybody knows, local government in Western Australia is covered by the Local Government Act 1995 (‘the Act’).  There is also a broad range of legislation that impinges on the work of local government, but that’s outside the scope of this article as are regulations made under the Act.

You can get easy online access to the Act on the DLGC website at http://www.dlg.wa.gov.au/Content/Legislation/ActsRegulations.aspx.

So what does the Act say about the respective roles, powers and functions of councils and CEOs and the relationship between an elected council and its staff?

The council’s role

Let’s start with section 2.6 of the Act, which is headed by the encouraging words ‘Local governments to be run by elected councils’.  The section states unambiguously that the elected council is the governing body of a local government, i.e. a city, town or shire.  This puts the community’s elected representatives firmly at the top of the local government tree.

Section 2.7 states that the council ‘governs the local government’s affairs’ and is responsible for performing the local government’s functions. 

The section goes on to say that councils ‘oversee’—in other words, supervise, direct or manage (Macquarie) —‘the allocation of the local government’s finances and resources’, as well as determine policy.

What this means is that ultimately it is the elected council, not the administration, which has authority over and control of every role, obligation and responsibility that falls within the local government’s purview.

The role of mayor or president

Section 2.8 deals with the role of the mayor or president.  As well as presiding over council meetings, undertaking ceremonial duties, and providing ‘leadership and guidance to the community’, the mayor or president speaks for the local government and ‘liaises with the CEO on the local government’s affairs and the performance of its functions’.

‘Liaise’ means ‘maintain contact and act in concert with’ (Macquarie).  It does not mean ‘stay out of business managed by the CEO’, for example staffing matters—of which more later. 

As I read the section, it provides for mayors or presidents to involve themselves in such matters ‘in concert’, that is, together and in accord with the CEO.  It does not exclude mayors and presidents from such involvement.

Moreover, for a council to ‘govern the local government’s affairs’ it must obviously have a measure of authority over its staff—including the CEO. 

‘Governance’ is a word bureaucrats occasionally use to suggest limitations on the exercise of power by councils.  But governance isn’t just a question of setting goals and policies and strategies to achieve them.  It has practical implications, too.  Its meanings include ‘the exercise of authority and control’ (Macquarie).

The role of councillors

Section 2.10 defines the work of individual councillors.  As well as ‘representing the interests of electors, ratepayers and residents’, providing the community with leadership and guidance, and taking part in council decision-making, councillors act as channels of communication between the community, the council and the administration.

A community member might feel more comfortable communicating complaints and concerns about, say, the behaviour towards them of a shire employee, through a councillor rather than directly to the CEO.

Unquestionably, local government employees have the right to be treated fairly and with dignity and respect.  That doesn’t mean they ought to be regarded as a protected species.  

In a free and open society, nobody is beyond the reach of satire, criticism or complaint.

Most local government employees are good, honest people who do their jobs efficiently, take pride in their work and relate courteously to each other and members of the community. 

However, as in every organisation, there exist those who, ‘dressed in a little brief authority’, have a tendency to bully not only their subordinates but also the people they are meant to serve—including those who are down on their luck and deserve compassion, not contempt.

Bringing such misguided employees into line is the job of the CEO.  It won’t help if the CEO is also a bully, but dealing with that problem—in other words, disciplining the CEO—is the prerogative of the elected council.

Councillors’ access to information

Section 5.92 of the Act provides that councillors and committee members—presumably, including members of council committees who are not councillors—‘can have access to any information held by the local government that is relevant to the performance by the person of any of his or her functions under this Act or any other written law’.

The section further provides that the information a councillor is entitled to access includes ‘all written contracts entered into by the local government’ and ‘all documents relating to written contracts proposed to be entered into by the local government.’

This is an important provision that I’m told has in the past in York been ‘more honoured in the breach than the observance’.  (Of course, I may have been misinformed.)

It’s true that disputes might arise as to what is and isn’t ‘relevant’.  But that issue should be judged in the light of the council’s overarching responsibility for governing the city, town or shire.

In other words, what matters most must be what the councillor deems to be relevant, not the opinion of the CEO or other members of staff.  If a dispute does arise regarding a councillor’s access to information, it should be the elected council, not the CEO or any other employee, that resolves it.

And don’t be bamboozled by ‘commercial-in-confidence’.  That’s usually a dishonest ploy to keep communities in the dark about how their money is being spent, for what purpose and for whose benefit or enrichment. 

By its very nature, confidentiality is a form of concealment.  Concealment is the precursor to secrecy, and secrecy in government, as I’m fond of saying, is the first step on the path to corruption.

Functions of the CEO

Section 5.36 of the Act requires ‘a local government’—that is, the elected council—to employ a CEO and ‘such other persons as the council believes are necessary to enable the functions of the local government and the functions of the council to be performed’.

This means, and can only mean, that not only is the CEO an employee of the council, but so also is every other local government employee.

Section 5.41 defines the CEO’s functions.  Primarily, they include advising the council as to what local government may and may not do according to law; providing the council with advice and information for decision-making purposes;

seeing that council decisions are implemented; and managing the day-to-day business of the council.

They also include being responsible for employing, managing, supervising, directing and dismissing employees.   Nobody should interpret that as justifying an embargo on questions touching on staffing matters from councillors or members of the public.  Being responsible for something has never meant being the only person who is allowed to question or comment on it.  There’s this awkward thing called democracy that keeps getting in the way.

The ordinary meaning of ‘responsible’ is ‘answerable or accountable’.  Being responsible means being accountable for something within your ‘power, control or management’ (Macquarie). 

To what or whom is the CEO accountable for the exercise of his functions?  The answer must be: in the first instance to the council that employs him, and through the council, to the community he is paid to serve.

We should remember that everything a local government does is paid for from the public purse. 

Employee costs are no different.  There is no good reason why the costs associated with employing people to work as public servants for the Shire of York should not be scrutinised, questioned and subjected to comment like any other aspect of council expenditure.

Exactly how much autonomy and discretion local government CEOs will have in the exercise of their functions depends largely on how much authority to act in their own right councils delegate to them.   A council’s ability to delegate its decision-making capacities to its CEO is covered by Sections 5.42 to 5.46 of the Act. 

It’s important to remember that when such delegation occurs, power and authority flow from the council to the CEO, not the other way around.   Council may decide at any time to exercise in its own right a power previously delegated to the CEO.  It may also withdraw any such delegation. 

In short, in this as in every other relevant respect, it is the council, not the CEO, that has the whip hand.

Summing up

I hope you will agree that even in this very brief and imperfect review of relevant sections of the Act, I have succeeded in exploding the Hooper Doctrine, as I call it, that elected councils count for little or nothing and real power in local government is wielded by CEOs and administrative staff.

The truth is that as should always be the case in a democracy, the elected representatives of the people are legally in charge—whether or not they or others believe it.

Unfortunately, power is a commodity that can always be given away.  The Act provides a mechanism for an elected council to delegate power and authority to its CEO.  A timid or lazy council may end up ceding too much power and authority, thus creating a situation akin to what our mediaeval ancestors described as the problem of ‘the over-mighty subject’.

That is a situation with which the York community is only too familiar. 

Let’s all do what we can to ensure that nothing like it arises again.

Written and authorised by James Plumridge 14 Harriott Street York 6302