Councillors have, in a stormy private briefing session last Tuesday (6 June), emphatically rejected a proposed shire media relations policy that would have given council officers control over what councillors could or could not say to newspapers, TV, radio and all other means of communication – including the humble Mornington Peninsula Bandicoot’s Facebook page.
The policy would have stopped them from speaking to the media without senior staff approval. They sent it off for “workshopping”.
The draft policy was put to councillors by the shire’s manager of communications, media and events, Mr Mark Kestigian (pictured), a former journalist. It was approved by shire chief executive officer Carl Cowie, who, the draft states, “owns” the policy.
Bandicoot is told insiders had never seen the councillors so united in the half-year since the council election last October.
Only two councillors supported the draft document. One is believed to be newly elected; the other is a long-time devoted supporter of staff.
From what Bandicoot has been told by several sources, any councillor agreeing to sign the policy document would effectively have been handing over to officers control of their right and responsibility to fully represent their electors.
The document, which Bandicoot has seen, would have required councillors to:
■ undertake not to talk to the media without authorisation from a council officer – the CEO or Mr Kestigian, or someone nominated by the CEO;
■ agree not to release any official shire material without Mr Cowie’s authorisation;
■ undertake not to initiate contact with the media without authorisation;
■ not allow media representatives to enter shire premises without authorisation;
■ not talk to the media off the record during media interviews or at any other time. “All comments to media representatives should be considered on the record,” the draft policy states.
Such a policy, if approved, would give council officers substantial control over what councillors could say to journalists, thereby inhibiting criticism of the shire.
The draft presents itself as providing “a framework to ensure all communication with the media is accurate, well-informed, timely, professional and consistent”.
But it warns councillors that they are “bound by the Councillor Code of Conduct 2017 [which] obliges councillors to comply with [shire] policies, including the Media Relations Policy”.
In places the draft treats councillors as if they are shire employees – who are defined in the draft as “full-time and part-time employees, contractors, volunteers, temporary and casual employees” – and states that they, too, are subject to the draft policy.
Thus the shire executive branch seeks to control employees for whom the CEO has responsibility, plus the councillors, who actually employ him.
Bandicoot can only conclude that Mr Cowie has inadvertently slipped into a mindset in which he believes he controls everyone who derives an income from the shire, including those who are democratically elected and independent of him and his executive branch.
For Mr Cowie, or any shire executive, to claim any authority over councillors, as this policy does, is as strange as the head of the federal public service presuming power to order senators and MHRs not to speak to the Canberra Press Gallery without public service authority.
Returning to the dot points above, the first ignores the democratic bedrock known as the doctrine of separation of powers – which, in the case of local government, separates the CEO, or “executive”, from the councillor “legislature”. The legislature makes the laws, or decisions; the executive put them into operation. The third power is the “judicial” which, at national and state level, interprets the laws.
This separation at local government level is explained in a Queensland document to councillors, ‘Your Role as an Elected Councillor’, as follows:
The [Queensland] Local Government Act clearly distinguishes between the roles and responsibilities of elected councillors and the administrative arms of local government. This demarcation of roles is sometimes referred to as the separation of powers.
The primary role of councillors is to focus on policy development and strategic delivery of services in the public interest.
The internal day-to-day work of the local government is carried out by local government employees under the direction of the chief executive officer.
Councillors are responsible for planning for the future and developing corporate plans and strategies to achieve their goals and deliver outcomes to the community. Your role, as a councillor, is to demonstrate and provide strategic vision and leadership by putting in place principles, policies and local laws that enable the delivery of outcomes promised by your local government.
Councillors and mayors are not responsible for overseeing the work done by local government employees. This is done by the chief executive officer and senior staff.
THE DOT POINTS
Many restrictions the draft policy spelt out in these dot points and scattered elsewhere through the draft, are unsubtle, poorly drafted, often ambiguous, and unenforceable, so far as Bandicoot can discover. Certainly no mention is made of penalties.
The document is, not to mince words, authoritarian. The definition of “authoritarian” is “to advocate the enforcement of strict obedience to authority at the expense of personal freedom” – certainly in terms of councillor relations with the media.
Bandicoot is sure this is not what Mr Cowie or his officers, including former journalist Mr Kestigian, intended with this draft. Indeed, the document acknowledges that councillors “are entitled to present their own views” – but immediately ring-fences what those views can and cannot canvass.
■ Dot point one
Prohibiting councillors from speaking to the media without authorisation is nonsense. What of councillors and media who are friends? Of course councillors should use common sense when talking to the media in their formal role, but it is absurd to try to place them under the control of the “executive”, which under the separation of powers, interfere in the role of democratically elected councillors, as stated in the Queensland document quoted above.
■ Dot point two
If councillors were to agree not to release “any official shire material”, they would first need to know what is, and isn’t, “official shire material”. Clearly it is more than “confidential” documents. But no definition or further explanation is offered.
■ Dot point three
In an “electorate” as small as this shire, councillors are bound to have casual contact with media. At what point might this be construed as “initiating contact with the media”? Can a councillor initiate pleasantries with a journalist at a council meeting or other shire event without the approval of the CEO? Or must the councillor get the CEO’s nod first?
■ Dot point four
It is difficult to imagine why or when a councillor would send out an “unauthorised media release”. What “other form of information” that might be released does the policy have in mind? The words cover everything imaginable, and/or unimaginable.
■ Dot point five
This is a doozie, so loosely worded as to be almost meaningless. If a councillor saw a journalist about to enter, say, a library or a recreation reserve, s/he would be breaching the proposed policy by not trying to stop the entry if it were found to be unauthorised.
■ Dot point six
Speaking off the record is common in interviews. An interviewee will often explain or elaborate on a point in the flow of conversation by going off the record. Banning this would be a serious inconvenience to both interviewer and interviewee. Most journalists will check back if in doubt, to ensure comments to be included were on the record.
To prohibit speaking off the record “during media interviews or at any other time” is bizarre. So is the instruction that “All comments to media representatives should be considered on the record.”
Towards the end of the draft policy, councillors are told that “Information that is public information can be released to media representatives”. However, “Information of a confidential nature must not be communicated until it is no longer treated as confidential.” Is such a release allowed with, or without, authorisation, one wonders. How will councillors know? Must they check? Will the CEO issue bulletins?
Finally the draft policy deals with a method by which media can seek information over the heads of shire bureaucrats – via Freedom of Information legislation. By this means the blinding glare of democratic process can, like sunlight striking the Undead, defeat folk of uncommunicative bent.
The draft states: “The media can use the Freedom of Information Act 1982 to access information that is not publicly available,” in a concession gloomy but inaccurate. Such material is in fact publicly available, but requires resort to the law to rip it from unwilling shire executives’ fingers.
Without FoI the public and the media would have no means of accessing information if it did not suit public servants subject to it to release it, for any number of reasons: potential embarrassment, inefficiency, laziness, arrogance and full-on corruption among them.
That was the state of affairs before FoI. It was public servants’ preference for complete control of information that forced governments to introduce the law.
Back to the draft media policy – the content of media releases. These are “designed to provide information about a Council decision, activity, project or service”.
Then this – “The Mayor, Councillors and employees must work with the Communications, Media and Events team to prepare media releases.”
That is, at the instruction of (it appears) any member of the Communications, Media and Events team – no individual is specified – councillors, including the mayor, effectively become employees of the communications team for as long as the team requires them.
Bandicoot would like to hear how councillors would react to that!
But there’s good news for the public. The shire will “be a reliable source of information; never provide false information; be as cooperative as possible; be accessible to media representatives; ensure facts are accurate and up to date; and respond promptly.”
For those interested in Bandicoot’s view of this policy, here it is, based on a professional lifetime in journalism.
The draft urgently needs extensive work, including editing out all repeats, non-sequiturs, ambiguities, linguistic imprecision and assertions of executive power over councillors.
When all that is done it should then be tossed in the bin and councillors should be trusted to behave as responsible adults when talking to anyone at all – ratepayers, friends, foes, and media. Their Code of Conduct covers all that is necessary.