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Intro

Departmental Circular 8 2020

In the past, regulation 9 has sometimes been misinterpreted as allowing the council or Chief Executive Officer (CEO) of a local government to authorise a councillor to undertake a task that contributes to the administration.

Regulation 9 did not and does not enable a council or CEO to extend the role of councillors beyond the roles provided for in the Local Government Act 1995 (the Act) and allow them to undertake administrative tasks.

To remove any confusion and ensure there is an appropriate separation of powers and roles between the elected body and administration, amendments to regulation 9(1) have been gazetted, and are in effect pending the outcome of a disallowance motion in the Legislative Council.

The most common circumstances where regulation 9 has been misinterpreted is in relation to the recruitment of senior employees (other than the CEO) and the seeking of legal advice.

In terms of recruiting senior employees, the CEO is responsible for the recruitment of staff. In the case of senior employees (other than the CEO), section 5.37 sets out the involvement of council in that process; which is that council can accept or reject the CEO’s recommendation.

It does not extend to participating in the actual recruitment and selection process in any way.

The recruitment of employees, including senior employees, must not include a member of council. If a senior employee is to be recruited, following completion of the selection process the recommendation for appointment is provided as an item to council, where council can accept or reject the recommendation.

Regarding the receipt of legal advice, as noted in Ministerial Circular 4-2020, this is an administrative task that is the responsibility of the CEO. If the CEO has a conflict, this can be delegated to another staff member by the CEO (using the current delegation powers in section 5.44).

If not already in place, it is recommended that the CEO considers establishing such a delegation to enable the administrative seeking of legal advice where the CEO may have a conflict.

There may however be very limited, rare and extenuating circumstances where it is not appropriate for a CEO to seek legal advice, and there is no acting CEO or delegation in place. This should only occur where advice is required in relation to the existing CEO and no other solution is in place.

In the circumstance where a council has no other recourse (i.e. through delegation) but to resolve to seek legal advice in relation to the CEO, it may seek such advice through resolving that an elected member may request advice from a legal practitioner on behalf of the council.

In summary, when considering whether an action is for council or a council member, or whether it is an administrative task, the council and/or council member needs to determine whether it aligns to their role as outlined in the Act.

A common-sense approach should be used in making an assessment, with consideration given to whether the decision is likely to undermine the separation of powers of either the council or the administration.

If you require further information, please contact the department through the Local Government Hotline at lghotline@dlgsc.wa.gov.au

Duncan Ord
Director General

Examples

Example Action
The CEO is undertaking a recruitment process for a new senior employee Recruitment of administration staff is the responsibility of the CEO. Council members should not be involved in any other aspect of the recruitment process.
 
Once a decision has been made on the suitable applicant, the CEO is to put a report to council which provides council the ability to accept or reject the CEO’s recommendation.
The council needs advice on the appropriateness of including a specific clause in an incoming CEO’s contract Councils are currently required to have an approved process in place and will soon be required to adopt model standards for CEO recruitment.
 
If specific advice is required on the recruitment of a CEO, this advice should be provided by the external recruitment consultant.
The CEO has been absent for some time and the council wish to terminate the contract. The council is still required to apply the natural justice principles. This will be outlined in the new CEO Standards to be implemented by the end of the year.
 
If legal advice is required as part of the termination, the acting CEO (or officer with the appropriate delegation power) should seek the legal advice on behalf of the council.
The council have been provided legal advice from the CEO and would like a second opinion The council can request the CEO to seek alternative advice.

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Page reviewed 30 July 2019