GIFTS AND BENEFITS POLICY Responsible Officer Group Manager Governance and Executive Services Contact Officer Stewart Todd Email: stewart.todd@pmhc.nsw.gov.au Authorisation Council Effective Date 22/04/2009 Modifications Record of all amendments and modifications to this policy, including dates that amendments were approved, and/or came into effect Superseded Documents Review The Group Manager Governance and Executive Services will review this policy before May 2011. File Number All documents relating to the policy development, communication, implementation and review must be held on a PMHC registered file. Contact the Records Section. Associated Documents Council Code of Conduct Fraud Prevention Policy Local Government Act, 1993 ICAC Publication Managing Gifts and Benefits in the Public Sector Toolkit June 2006 ICAC Publication Gifts, Benefits or Just Plain Bribes June 1999 ICAC Publication Bribery Corrupt Commissions and Rewards Tip Sheet February 2008. 1. INTRODUCTION The Gifts and Benefits register acts as a record of any gifts and benefits received by the Administrator, Councillors, Council employees and Delegates (Council Officials). It includes details of the nature and value of the gift or benefit, who gave it, the circumstances or reason for the gift, the decision about the use or disposal of the gift. It is important to record this information so that if any issues arise at a later date, Council has a record proving that Council has been open and transparent in dealing with the gift or benefit. As a general rule it is better to refuse any gifts or benefits offered to you. However, circumstances may arise where refusal may be difficult or inappropriate. If you accept a gift or benefit, you must register it in the Gift Register. Note: The registration of the gift or benefit in the Gifts and Benefits Register does not necessarily mean that it is ethical or appropriate to accept the gift or benefit in the first place. The acceptance of a gift or benefit can be registered in the on line Gifts and Benefits Register at: I drive\executive\gift Register\declaration Page 1 of 7
2. POLICY OBJECTIVE This policy aims to provide guidance to Council officials so that they are not compromised in the performance of their duties through innocently or in good faith accepting gifts or benefits which may result in a feeling of obligation or could be construed as an attempt to influence. 3. POLICY SCOPE This policy applies to the Administrator, Councillors, employees and delegates of the Port Macquarie-Hastings Council. 4. DEFINITIONS Council official a Councillor, Council employee or Council delegate. 5. LEGAL & POLICY FRAMEWORK Corruptly receiving a gift or benefit is an offence under the common law and NSW legislation. 1) Crimes Act 19 (NSW) Section 249B of the Crimes Act creates an offence if a Council official corruptly receives or solicits (or corruptly agrees to receive or solicit) from another person any benefit as an inducement to do, or not to do, something in relation to their official duties. This also pertains to receiving benefits for showing favour or disfavour to any person in relation to their official duties. 2) Local Government Act, 1993 Section 440 of the Act requires that Councils adopt a Code of Conduct. This section states that serious corrupt conduct, of which bribery is an example, may lead to dismissal or temporary suspension from the office of Councillor or of a staff member. 6. POLICY In the course of undertaking Council duties as a Councillor or Officer of Port Macquarie-Hastings Council you could be offered a gift or a benefit. This gift or benefit could be offered in good faith, or it could be an attempt to influence or bribe you. The purpose of this policy is to give you guidance on what to do if someone offers you a gift or benefit in the course of your work. Gifts and Benefits Register The details of all gifts and benefits received shall be entered into the Gifts and Benefits Register by the completion of and Gifts and Benefits Declaration form. The Gifts and Benefits Register shall be available for public inspection. Gifts and Benefits For the purposes of this policy, a token value is defined as not exceeding a value of $50.00. Gifts and benefits of nominal or token value that do not create a sense of obligation may be accepted. It Page 2 of 7
is the responsibility of each individual Council official to ensure that details of any gift given to them or benefit received by them is recorded in Council s Gifts and Benefits Register. Council officials should not solicit gifts or benefits under any circumstances or accept gifts of more than a nominal or token value. Offers of money or gift vouchers should never be accepted. Council officials who are offered a gift or benefit, even those refused, are required to ensure that the following details are entered in the Gifts and Benefits Register as soon as practical. Date and place of the offer Details of the official to whom the gift or benefit was offered Who offered the gift or benefit and contact details (if known) Description of the gift or benefit and estimated value What did you do with the gift or benefit or offer Any action taken by supervisor/management Approval/Refusal of Supervisor/ Director (in case of staff) or the General Manager (elected officials/directors) Where you receive a gift or benefit of more than a token value that cannot reasonably be refused or returned, this must be disclosed promptly to your supervisor (staff) or General Manager (elected official). The recipient, supervisor or General Manager must ensure that any gifts or benefits of more than a token value that are received are recorded in the Gifts and Benefits Register. The gift or benefit must be surrendered to Council unless the nature of the gift or benefit makes this impractical. Offers of a nominal or token value can be accepted where they do not create a sense of obligation to the receiver, however, in the interest of transparency, the particulars should be entered in the Gifts and Benefits Register. Token Gifts and Benefits (Value not exceeding $50.00) Generally speaking, token gifts and benefits include: Gifts of single bottles of reasonably priced alcohol to individual Council officials at end of year functions, public occasions or on recognition of work done (such as providing a lecture/training session/address). Free or subsidised meals, beverages or refreshments provided infrequently that have been arranged primarily for, or in conjunction with the discussion of official business. Free meals of a modest nature and or beverages provided to Council officials who formally represent Council at work related events. Refreshments of a modest nature provided at conferences. Invitations to appropriate out of hours cocktail parties or social functions organised by groups, such as council committees or community organizations. Ties, scarves, coasters, tie pins, pens, diaries, notepads, key rings, chocolates, flowers and small amounts of beverages. Gifts and Benefits of Value In general you must not accept gifts and benefits that have more than a nominal or token value. Gifts and benefits that have more than a token value include: Gifts and benefits that have more than a nominal value will include, but are not limited to, tickets to major sporting events, corporate hospitality at a corporate facility or at a sporting venue, discounted products for personal use, use of holiday homes or free or discounted travel. Page 3 of 7
If you receive a gift or benefit of more than nominal or token value and the circumstances are such that it cannot reasonably be refused or returned, you should accept the gift and disclose this promptly to the relevant Director (staff) or General Manager (elected officials). You must also ensure that the gift or benefit is recorded in the Gifts and Benefits Register. You should avoid situations where the perception could be that the gift or benefit (including hospitality) is being given to influence the behaviour of a Council official. You should take all reasonable steps to ensure that your immediate family members do not receive gifts or benefits that could be perceived to be an attempt to secure favourable treatment (immediate family members ordinarily include parents, spouses, children and siblings. Councillors and designated persons must by law disclose a description of any gift or gifts totalling a value exceeding $500.00 made by the same person during a period of 12 months or less (pecuniary interest return form section C- Section 449(3) Local Government Act 1993). Cumulative Gifts A series of small gifts or benefits, each of which is of minimal value, may have an aggregate value that exceeds the nominal or token of $50.00. For the purpose of this policy, gifts or benefits given by a person or organization to the same Council official within a six month period are considered to be part of a series of gifts forming an aggregate value. At the point that these gifts or benefits reach the total amount of $50.00, they must be treated as gifts or benefits that exceed the nominal or token value. Prizes and Gifts Occasionally a Council official may receive a gift or prize as a result of entering a competition while engaged in official duties. For example, a staff member attending a session at a conference may enter a draw for a prize by submitting their business card or signing up for more information about a product. In such cases, since the official is representing the Council, any prize should be treated as such and recorded in the Gifts and Benefits Register and acted upon accordingly. Bribes Bribery is defined as inducement by offering undue reward by, or to, any person in public office in order to influence his or her behaviour in that office and to influence that person to act contrary to the known rules of honesty and integrity. Council officials must not offer or seek a bribe. Receiving or offering a bribe is an offence under the Crimes Act 1900 (NSW). Any Council official who believes they have been offered a bribe should refuse it and report the matter immediately to the General Manager. The General Manager must then report the matter to the Independent Commission Against Corruption (ICAC) in accordance with the ICAC legislation. The General Manager must also inform the NSW Police Service of the incident. Gifts that are Unable to be Returned When a gift is received that exceeds the token value of $50.00, or for some other reason cannot be retained by the Council official, Council must make a decision as to how the relevant gift is disposed of, having regard to the nature of the gift and the circumstance in which it was received. Where the gift is in the nature of a technical resource, the gift may be retained by the Council for use in Council operations. Other gifts could be donated to a suitable charity or the items auctioned Page 4 of 7
and the proceeds donated. Whatever process is utilised, the reasons for the decision should be documented in the Gifts and Benefits Register. Breaches of the Policy The obligation to comply with this policy rests with each Council official. Sanctions may be applied if this policy is breached. Any person may report an alleged breach of this policy by a Council official to the General Manager, or in the case of an alleged breach by the General Manager, to the Administrator. The General Manager or Mayor as appropriate shall investigate any report received and take such action as is considered necessary. If this policy is breached, such action may include, counselling, censure motions, disciplinary action, laying of charges and the taking of civil action. For Managers The Independent Commission Against Corruption (ICAC) has found that one of the most important factors affecting decisions about accepting gifts and benefits is the attitude and behaviour of management. In other words, employees are more likely to be influenced by what they see their managers doing than by the organisation s rules and policies. Therefore, as a manager, you have the responsibility of leading by example. As well as making sure that you abide by Council s Code of Conduct, other steps you can take include: Communicating to all staff and on a regular basis Council s policies and expectations relating to gifts and benefits; Encouraging staff to report any incidents to you; Actively rewarding staff who demonstrates appropriate ethical behaviour. Being offered a bribe or having to refuse even a well-intentioned gift may be difficult or upsetting for staff. As a manager, you should make staff aware that they should report any incidents to you and that they can expect support and, if necessary, guidance from you if they are unsure what to do or have any concerns about what will happen. Specific Examples Example 1: Gifts, benefits and hospitality A regular supplier offers the Council s purchasing officer a free weekend for two at a beach resort. The officer s impartiality when dealing with the supplier would be compromised if he or she accepts the offer. Planning and building staff are regularly offered alcohol, food, tickets to major sporting events and free lunches by developers, builders, project managers and suppliers. Staff sometimes accept these gifts without declaring them and argue that they are in return for providing good service and are an accepted way of doing business. Again, this will be perceived to have compromised the impartiality of the staff concerned. In these situations staff should, in the first instance, refuse any gift offered. If staff feel obliged to accept gifts, then they should declare the gift and have it recorded in Council s gift register. Council may then determine how these gifts are dealt with and could, for example, donate specific items to charity. Page 5 of 7
Example 2: Acceptance of gifts and bribery A local Council employee is involved in a series of inspections on a building site. During the inspections, the developer offers the employee numerous gifts including alcohol and a present for the employee s new born child. The employee accepts the gifts as he feels they are offered as unconditional and genuine tokens of appreciation for his work, especially as the inspection involved a number of lengthy tasks. The employee believes he is not compromised by the gifts and eventually makes a recommendation that is not in the developer s interests. After the recommendation is made, the developer complains to the Council about the employee accepting the gifts. Although the employee accepts the gifts in good faith, he nevertheless places himself in a vulnerable position. While each of the gifts is of modest value, when viewed in total, the value of the gifts seems quite substantial. The developer is able to manipulate the situation to allege the employee has accepted bribes. The employee s acceptance of the gifts could also be used as circumstantial evidence of bribery. The employee could not rely on the fact that he made a decision he would have made, regardless of the gifts, as a defence to bribery. Example 3: Acceptance of gifts and influence (a) A Council s information technology manager attends two meetings with potential suppliers. During the first meeting the suppliers serve tea, coffee and biscuits. The second meeting is held at a restaurant and the suppliers pay for the manager s three course meal. Both meetings arguably provide the manager s Council with benefit, namely the opportunity to discuss the supplier s products. Despite this a contrast can be drawn between the meetings. In the first, the refreshments are only modest in nature and consequently do not create the impression that an attempt is being made to gain the manager s favour. In the second, the nature of the lunch creates the impression that an attempt is being made to compromise the manager s impartiality. The damage of this perception far outweighs any benefit associated with the manager s attendance. (b) A Team Leader regularly purchases materials from three local hardware businesses operating in the local government area using a P card. Each of the businesses give Council trade discounts. At the weekend the team leader goes to one of these stores to buy materials for a home renovation and the store owner offers him a trade discount on his private purchases. Should the Team Leader accept the trade discount? He did not ask for a discount, it was feely offered by the store owner. It may help to ask yourself the following questions. Why is the store owner offering the Team Leader a trade discount? The owner knows the materials are for a home renovation and not for Council. If the Team Leader accepts the discount, will he feel obligated to use that store in preference to the others to purchase Council materials? What would the public perception be if they knew that the store owner offered the Team Leader a trade discount on his personal purchases. They don t receive a trade discount on their purchases from that store. Page 6 of 7
7. IMPLEMENTATION The draft policy will be placed on public exhibition for 28 days and any submissions received by Council will be considered prior to the adoption of the policy by Council. The policy will then be communicated to all Council officials through the normal induction process for new employees and training sessions for all other officials. The policy will be promoted through Wilson, Council s Intranet system. 7.1 Roles and Responsibilities It is the responsibility of all Directors and Managers to ensure that their staff are aware of this policy and that the requirements of the policy are regularly discussed at team and tool box meetings. 7.2 Support and Advice Manager Governance and Executive Services and Human Resources Manager are available to provide advice and support in the operation of this policy. 7.3 Communication The Draft policy will be publicly exhibited for a period of 28 days for public comment. On the adoption of the policy by Council, the policy will be communicated via Wilson and tool box talks, at MMM meetings, included in all Induction Training for new employees and promoted to elected members in training sessions organised for them. 7.4 Procedures and Forms The Gifts and Benefits Declaration form must be lodged electronically. It can be located on the I- Drive of Council s computer system. The form can be accessed from the Divisional Executive Assistants. 8. REVIEW The Manager Governance and Executive Services will review the policy every two years, unless there is the need to update the policy in the meantime. Page 7 of 7