19. Consultation
LGA s.82
(1) Consultation that a local authority undertakes in relation to any decision or other
matter must be undertaken, subject to subsections (3) to (5), in accordance with the
following principles:
(a)that persons who will or may be affected by, or have an interest in, the decision or
matter should be provided by the local authority with reasonable access to relevant
information in a manner and format that is appropriate to the preferences and needs
of those persons:
(b) that persons who will or may be affected by, or have an interest in, the decision or
matter should be encouraged by the local authority to present their views to the local
authority:
(c) that persons who are invited or encouraged to present their views to the local
authority should be given clear information by the local authority concerning the
purpose of the consultation and the scope of the decisions to be taken following the
consideration of views presented:
(d) that persons who wish to have their views on the decision or matter considered by
the local authority should be provided by the local authority with a reasonable
opportunity to present those views to the local authority in a manner and format that
is appropriate to the preferences and needs of those persons:
(e) that the views presented to the local authority should be received by the local
authority with an open mind and should be given by the local authority, in making a
decision, due consideration:
(f) that persons who present views to the local authority should be provided by the local
authority with information concerning both the relevant decisions and the reasons for
those decisions.
24. That other interest or duty might
exist because of:
• your own financial affairs;
• a relationship or role that you have; or
• something you have said or done.
• employment with another organisation;
• involvement in another business;
• professional or legal obligations owed to someone else;
• holding another office;
“Managing Conflicts of Interest in the Public Sector” Edrick Child Senior Solicitor, Office of the Controller and Auditor-General Lexis Nexis
In-House Counsel conference 2005
25. • membership of another organisation;
• investments and property ownership;
• beneficial interests in trusts;
• gifts and hospitality;
• debts;
• family or close personal relationships; and
• strong political or personal beliefs or public statements that
may indicate predetermination.
26. Managing conflicts
Some (not all) conflicts can be effectively managed
• enquiring as to whether all affected parties will consent to the
person’s involvement;
• imposing additional oversight or review over the person;
• withdrawal from discussing or voting on a particular item of
business at a meeting;
• exclusion from a committee or working group dealing with the issue;
27. Managing conflicts (cont)
• re-assigning certain tasks or duties to another person;
• agreement or direction not to do particular acts;
• placing restrictions on access to certain confidential
information;
• transferring the person (temporarily or permanently) to
another position or task;
• relinquishing the private interest; or
• resignation or dismissal from one or other position or entity.
28. Personal Liability
• Generally, members are exempt/indemnified from liability to
third parties if
• Acting in good faith; and
• in pursuance (or intended pursuance) of the responsibilities or
powers of the local authority (LGA s.43)
• BUT
29. Where Auditor-General finds the
local authority has
• Unlawfully expended money; or
• Unlawfully sold or otherwise disposed an asset; or
• Unlawfully incurred a liability; or
• Intentionally or negligently failed to enforce the collection of
money it is lawfully entitled to receive.
30. “Unlawful Expenditure”
• Negligence or bad faith not required
• Objective- no fault required
• Examples:
• Extravagant and unjustified payment of wages in excess of
prevailing rates to staff (Roberts v Hopwood)
• Wilful failure to increase rent on council dwellings in accordance
with statutory duty
31. Individual Council Members are
liable
• Jointly and severally unless the liability was incurred:
• without the defendant's knowledge; or
• with the defendant's knowledge but against the
defendant's protest made at or before the time when the
loss occurred; or
• contrary to the manner in which the defendant voted on
the issue at a meeting of the local authority; or
• in circumstances where the member acted in good faith
and in reliance on information prepared or supplied by:
• an employee of the local authority whom the defendant believed
on reasonable grounds to be reliable and competent in relation
to the matters concerned:
• a professional adviser or expert in relation to matters that the
defendant believed on reasonable grounds to be within the
person's professional or expert competence.
32. Therefore
• Take an active role in voting on resolutions
• Ensure dissent to illegal expenditure is recorded
• Take advice from Council solicitors
33. Liability for conflict of interest
• In addition to personal liability for damages discussed
above, members can be:
• Prosecuted for breach of Local Government (Members Interest)
Act (fine – loss of office)
• Prosecuted under Secret Commissions Act (2 years imprisonment
- $1000.00 fine – loss of office)
• Prosecuted under Crimes Act s.105 (corruptly obtain
bribe/reward for official acts – 7 years imprisonment
34. Code of Conduct
• Required under LGA 2002 Schedule 7 Part 1
• Must include
• understandings and expectations adopted by the local
authority about the manner in which members may
conduct themselves while acting in their capacity as
members, including—
• behaviour toward one another, staff, and the public; and
• disclosure of information to elected members that is received
by, or is in the possession of, an elected member in his or her
capacity as an elected member; and relates to the ability of the
local authority to give effect to any provision of the Act; and
• a general explanation of the Local Government Official
Information and Meetings Act 1987 and other enactment
or rule of law applicable to members.
35. Code of Conduct
• A member of a local authority must comply with the
code of conduct of that local authority (doesn’t
apply to community boards – should you consider
adopting?)
• Codes of Conduct – Cover
• Roles and responsibilities
• Elected members
• Mayor, Deputy Mayor, Committee Chairs
• Chief Executive
• Relationships and behaviours
• Relationships with other members, staff, community, news media
• Confidential information
• Conflicts of interest and other ethical matters
36. Code of Conduct (Cont)
• Key Messages
• Avoid actual and perceived impropriety
• If in doubt, declare, discuss
• Avoid bias and predetermination – approach issues with an open
mind
• Treat others with courtesy, respect and dignity.
• Attend and vote at meetings
37. Governance/Management
• Council Governs (concerned with ends – hands off)
• Chief Executive manages (concerned with means – hands
on)
• Must be a good employer
• Elected members should deal with Chief Executive not
direct with individual staff
• Members should
• Stand behind decisions of Council (respect lawful decisions)
• Not criticise management – or sponsor emotive resolutions
• Maintain confidentiality
38. Standing Orders
• All members must comply with standing orders
• Standing Orders :
• Reflect/paraphrase various statutory requirements inc:
• Local Government Act 2002, LGIOMA, Members Interests, Resource
Management Act
• Regulate the conduct of meetings and voting procedures
39. Meeting Procedure
• Governed by
• LGA
• LGOIMA
• Code of Conduct
• NZS 9202:2003
• Generally must be formally notified with sufficient notice to
inform public.
• Late agenda items can be considered
40. Late items
Standing Order 3.7.5. (LGOIMA s.46A)
Subject to Standing Order 3.7.5.1, where an item is
not on the agenda for a meeting, that item may be
dealt with at that meeting if—
(a) The local authority by resolution so decides; and
(b) The presiding member explains at the meeting at a time
when it is open to the
public,—
(i) The reason why the item is not on the agenda; and
(ii) The reason why the discussion of the item cannot be
delayed until a subsequent meeting.
41. Late items (cont)
Standing Order 3.7.5.1 (LGOIMA s.46A)
Where an item is not on the agenda for a meeting,—
(a) That item may be discussed at that meeting if—
(i) That item is a minor matter relating to the general business of the
local
authority; and
(ii) The presiding member explains at the beginning of the meeting, at a
time
when it is open to the public, that the item will be discussed at the
meeting;
but
(b) No resolution, decision, or recommendation may be made in
respect of that item except to refer that item to a subsequent
meeting of the local authority for further discussion.
42. For More Information
• In-house governance/democratic services/legal team
• www.legislation.govt.nz
