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3. Election of a Chairperson Te
Kōwhiringa o te Tiamana
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|
Reference Te Tohutoro:
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25/2012193
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|
Responsible Officer(s) Te Pou Matua:
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Ron
Lemm - Manager Legal Service Delivery
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Accountable ELT Member Pouwhakarae:
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Mary
Richardson, Chief Executive Te Tumu Whakarae o te Kaunihera o Ōtautahi
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1. Purpose and Origin of the Report Te Pūtake Pūrongo
1.1 The
Local Government Act 2002 prescribes the processes by which Community Boards
must elect their Chairpersons and Deputy Chairpersons. This report describes
the alternative processes available, one of which must be adopted.
2. Officer Recommendations Ngā
Tūtohu
That Te Pātaka
o Rākaihautū Banks Peninsula Community Board:
1. Receives the information in the Election of a Chairperson Report.
2. Adopts,
by resolution, whether it will use System A or System B to elect a Chairperson
and Deputy Chairperson.
3. Proceeds
to elect a Chairperson and Deputy Chairperson.
3. Legal Considerations
Introduction
3.1 The
provisions of Schedule 7 of the Local Government Act 2002 apply to Community
Boards (with a small number of exclusions), with necessary modifications as if
the boards were local authorities. Clause 21 of Schedule 7 requires that each
Community Board, at its first meeting, must elect one of its members to be its
Chairperson and another to be Deputy Chairperson.
3.2 The
manner in which a Community Board is to elect these positions is prescribed in
Clause 25 of Schedule 7. It provides that the Community Board must determine by
resolution that the Chairperson and Deputy Chairperson be elected or appointed
by using one of the following systems of voting:
System A
3.3 Requires
that a person be elected or appointed if he or she receives the votes of a
majority of the members of the Community Board present and voting; and
3.4 Has
the following characteristics:
3.4.1 There
is a first round of voting for all candidates, and
3.4.2 If
no candidate is successful in that round, there is a second round of voting
from which the candidate with the fewest votes in the first round is excluded;
and
3.4.3 If
no candidate is successful in the second round, there is a third, and if
necessary, subsequent, round of voting from which, each time, the candidate
with the fewest votes in the previous round is excluded; and
3.4.4 In
any round of voting, if two or more candidates tie for the lowest number of
votes, the person excluded from the next round is determined by lot.
System B
3.5 Requires
that a person is elected or appointed if he or she receives more votes than any
other candidate; and
3.6 Has
the following characteristics:
3.6.1 There
is only one round of voting, and
3.6.2 If
two or more candidates tie for the most votes, the tie is resolved by lot.
Practical
application of clause 25
3.7 Each
Community Board must first determine, by resolution, which system of voting it
will use, that is, System A or System B.
3.8 Nominations
for the position of Chairperson and Deputy Chairperson are called for.
3.9 If
there is only one candidate, then the Community Board may resolve that person
be elected.
3.10 If
there is more than one candidate, the Community Board must then put the matter
to a vote according to the system it has adopted. The Community Board members
are then asked to vote on each candidate.
3.11 The
following examples may be useful to illustrate two of the systems:
|
Voting System
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Examples
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System A
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Example
1
Three nominations are received, and
upon the votes being counted, the result is: A (5) B (2) C (1). In this case,
A is elected to the relevant position.
Example 2
Three
nominations are received, and upon the votes being counted, the result is:
A (3) B (3) C (2). In this case, no
candidate is successful, so a second round of voting is held for candidates A
and B. The lowest polling candidate, C, is excluded.
|
|
System B
|
Example
1
Three nominations are received, and
upon the votes being counted, the result is: A (5) B (2) C (1). In this case,
A is elected to the relevant position.
Example 2
Three
nominations are received, and upon the votes being counted, the result is:
A (4) B (4) C (0). In this case, a
lot is held to determine who between A and B will be elected to the relevant
position
|
Attachments Ngā Tāpirihanga
There are no
attachments to this report.
In addition to the attached documents, the following background
information is available:
|
Document
Name – Location / File Link
|
|
Not
applicable
|
Signatories Ngā Kaiwaitohu
|
Author
|
Ron Lemm -
Manager Legal Service Delivery
|
|
Approved By
|
Mary
Richardson - Chief Executive
|
|
6. Explanation
of Statutory Requirements Te Whakamārama o Ngā Herenga ā
Ture
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|
Reference Te Tohutoro:
|
25/2089733
|
|
Responsible Officer(s) Te Pou Matua:
|
Ron
Lemm, Manager, Legal & Democratic Services Te Ratonga Ture me te Manapori
|
|
Accountable ELT Member Pouwhakarae:
|
Mary
Richardson, Chief Executive Te Tumu Whakarae o te Kaunihera o Ōtautahi
|
1. Purpose and Origin of the Report Te Pūtake Pūrongo
1.1 This
report contains a general explanation of the Local Government Official
Information and Meetings Act 1987 and other statutes. It has been prepared by
the Council’s Legal & Democratic Services.
1.2 The
Local Government Act 2002 requires this to be provided to the first meeting of
the Council following a triennial general election of members.
2. Officer Recommendations Ngā Tūtohu
That Te Pātaka
o Rākaihautū Banks Peninsula Community Board:
1. Receives the information in the Explanation of
Statutory Requirements report.
3. Background/Context Te Horopaki
Introduction
3.1 Clause 21, Schedule 7 of the Local Government Act 2002 requires the
Council to include in the business to be conducted at the first meeting of the
Council, a general explanation of the Local Government Official Information Act
1987 and other statutes affecting members.
3.2 These are:
3.2.1 The
appropriate provisions of the Local Authorities (Members’ Interests) Act
1968;
3.2.2 Sections
99, 105, and 105A of the Crimes Act 1961;
3.2.3 The
Secret Commissions Act 1910; and
3.2.4 The
Financial Markets Conduct Act 2013.
Local Government Official Information and Meetings Act
1987 (the Act)
3.3 The stated purposes of this Act are to:
3.3.1 Increase
progressively the availability to the public of official information held by
local authorities, and to promote the open and public transaction of business
at meetings of local authorities, in order to:
· Enable more effective
participation by the public in the actions and decisions of local authorities;
and
· To promote the
accountability of local authority members and officials.
3.3.2 Provide
for the proper access by each person to official information relating to that
person;
3.3.3 Protect
official information and the deliberations of local authorities to the extent
consistent with the public interest and the preservation of personal privacy.[1]
3.4 ‘Official information’ is any information held by a
local authority (the Council). This can include hard copies of documents,
electronic/digital data and audio and audio-visual recordings.[2]
3.5 ‘Local authority’ includes any committee or subcommittee or standing committee or special committee or
joint standing committee or joint special committee which the local authority
is empowered to appoint under its standing orders or rules of procedure or
under any enactment or Order in Council constituting the local authority or
regulating its proceedings; and a
committee of the whole local authority.[3]
3.6 The fundamental principle of the Act is that information must be
made available unless there is good reason under the Act to withhold it and,
where good reason exists, the withholding of the information is not outweighed
by the public interest in making it available.[4]
3.7 Reasons for refusing a request are set out in section 7 of the
Act. These include it being necessary to withhold information in order
to:
3.7.1 Protect
an individual’s privacy;
3.7.2 Prevent
unreasonable prejudice to the commercial position of a person;
3.7.3 Protect
information which is subject to an obligation of confidence;
3.7.4 Maintain
the effective conduct of public affairs through the free and frank expression
of opinions between elected members and between elected members and staff;
3.7.5 Maintain
legal professional privilege;
3.7.6 Enable
the Council to carry out commercial activities or conduct negotiations without
prejudice or disadvantage.
3.8 The Council may also refuse a request on several administrative
grounds, including that the information requested cannot be made available
without substantial collation or research, or it will soon be publicly
available.[5]
3.9 Anyone may make a request for information.[6]
Where the information is held by the Council, a decision on the request must be
made within 20 working days of it being received.[7] If
the Council doesn’t hold the information, but believes it knows who does,
it has 10 working days in which to transfer the request to another
organisation.[8]
3.10 The Ombudsman may be asked to investigate and review a decision to
refuse a request.[9]
The outcome of the investigation may be a recommendation that the Council
releases the information requested[10]
in which case if the Council refuses, the recommendation will be published in
the Gazette along with the Council’s reasons for its decision.[11]
3.11 The Act requires meetings of the Council, its committees,
subcommittees and community boards, to be publicly notified[12] and for
agendas and reports to be available to the public at least two clear working
days before every meeting.[13]
Anyone may attend meetings, but the Council has the right to exclude the public
for the whole or any part of the proceedings. The reasons for doing so
are set out in the Act and are similar to the reasons for withholding
information.[14]
3.12 Matters not on the agenda may be dealt with as supplementary items
if the meeting resolves to do so, and the chairperson explains why the matter
was not on the agenda and why it cannot be left for another meeting.[15]
3.13 The Act also contains provisions that apply when a meeting is open
to the public, including the maintenance of order. If the behaviour of
any member of the public is likely to prejudice the orderly conduct of the
meeting, the chairperson has the right to require that person to leave.[16]
3.14 Finally, the Act provides that written statements contained in
agenda items, or made orally at meetings, are protected by privilege unless the
statements are proven to be motivated by ill will. This is known as qualified
privilege and applies in situations where a person acting in good faith and
without any improper motive makes a statement that is defamatory.[17]
3.15 The rationale for this is that people who represent local government
electors should be able to speak freely on any matter they believe affects the
interests of their constituents. However, for privilege to apply there must be
a positive belief in the truth of what is said or written and no suggestion of
personal spite or ill-will.
Local Authorities (Members’ Interests) Act 1968
(LAMIA)
3.16 The purpose of the Act is to ensure elected members are not affected
by personal motives when they participate in Council decisions, and to prevent
members with an interest in any contract with the Council from using their
position to obtain preferential treatment.
3.17 There are two specific rules - members may not enter into contracts
with the Council worth more than $25,000 (GST inclusive) in a financial year
(the limit is based on the value of all payments made under all contracts in
which the member has an interest during the financial year)[18], or
participate in matters before the Council in which they have a pecuniary
interest, other than an interest in common with the public.[19] A member
is required to declare any pecuniary interest at relevant meetings and for the
minutes to record that declaration of interest.[20]
3.18 The Act does not define the term ‘pecuniary interest’.
The courts have considered its meaning from time to time. The test used is
whether, if the matter were dealt with in a particular way, discussing or
voting on that matter could reasonably give rise to an expectation of a gain or
a loss of money for the member concerned.
3.19 The Act also refers to indirect pecuniary interests which means that
if a member’s spouse or partner has a pecuniary interest in a matter
before the Council, then the member is deemed to have the same interest.
This applies if:
· the pecuniary
interest is through a company in which the member, and/or his or her spouse or
partner owns 10% or more of the shares, or is general manager or managing
director;
· the member, and/or
his or her spouse or partner is a member of a company controlling the company
having a pecuniary interest, or is general manager or managing director of the
company having a pecuniary interest.[21]
3.20 The disqualification does not apply if the member’s interest
arises as an administrator or trustee of an estate or trust (as long as the
member is not a beneficiary), and a manager appointed under the Protection of
Personal and Property Rights Act 1988.[22]
3.21 It is important for members to recognise that when a matter reaches
the stage where it can reasonably be expected to affect the member’s
interests, he or she should no longer take part in the decision-making process.[23]
Failure to do is an offence and the member is liable on conviction to a fine
not exceeding $100.[24]
3.22 An exemption to this requirement may be granted, on application in
writing, if, in the opinion of the Auditor-General, application of the rule
would impede the transaction of business by the Council, or it would be in the
interests of electors for the rule not to apply.[25]
3.23 No person can become, or continue to be, an elected member if he or
she is “concerned or interested” in contracts with the Council and
the total payments made, or to be made, by the Council exceed the financial
limit imposed by the Act. As previously noted, the limit relates to the
value of payments made for all contracts, it does not apply separately to each
contract.[26]
3.24 Even if the contract is between the Council and another person, an
elected member will still have an interest in it if he or she has a personal
connection with that person or could benefit from the contract (an indirect
pecuniary interest as referred to earlier).[27]
3.25 The Auditor-General may grant an exemption to the Act’s
requirements and approve contracts that would otherwise exceed the $25,000
limit. Criteria to be considered will include whether the reasons for the
Council awarding the contract are justifiable and the process followed is fair
and transparent.[28]
3.26 The Auditor-General’s role also includes providing guidance
for elected members and Council staff to assist with any compliance issues in
particular situations and investigating and prosecuting alleged offences
against the Act.[29]
3.27 It should be noted that the Local Government (Pecuniary Interests
Register) Amendment Act 2022 requires elected members to make an annual
declarations (with the prescribed content) of their pecuniary interests within
120 days after the elected member comes into office, being the day after the
day on which the official result of the election is declared by public notice;
and the last day of February in each subsequent year.[30]
3.28 The member must ensure that the information contained in the return
is accurate.[31]
3.29 If the member becomes aware of an error or omission in any return
they must advise the Registrar.[32]
3.30 Every pecuniary interest return must contain the prescribed
information.[33]
Sections 99, 105, and 105A Crimes Act 1961
3.31 Part 6 of the Act refers to crimes affecting the administration of
law and justice, specifically bribery and corruption. For the purposes of
this Part the definition of “official” in s.99 includes any member
or employee of a local authority.
3.32 Section 105(1) provides that every official who corruptly accepts,
obtains, agrees, or offers to accept, or attempts to obtain any bribe for
himself or herself or any other person in respect of any act done or omitted,
or to be done or omitted, in his or her official capacity is liable to
imprisonment for a term not exceeding 7 years.
3.33 Section 105(2) provides that everyone who corruptly gives or offers
or agrees to give any bribe to any person with intent to influence any official
in respect of any act or omission by that official in his or her official
capacity is also liable to imprisonment for a term not exceeding 7 years.
3.34 Section 105A provides that every official who corruptly uses or
discloses any information, acquired by that official in his or her official
capacity, to obtain, directly or indirectly, an advantage or a pecuniary gain
for himself or herself or any other person is liable to a term of imprisonment
not exceeding 7 years.
Secret Commissions Act 1910 (SCA)
3.35 As the name suggests, this Act prohibits secret commissions and is
based on the principle that a person in a position of trust should not profit
from that office. Every Council officer or member is deemed to be an
agent of the Council for the purposes of the Act, which provides that:
3.35.1 An
agent who corruptly accepts or obtains or agrees or offers to accept or
attempts to obtain or solicits any gift or other consideration as an inducement
or reward for doing, or not doing, something or showing favour or disfavour to
any person in relation to the Council’s affairs or business, is guilty of
an offence.[34]
3.35.2 An
agent is guilty of an offence if he or she enters into a contract on behalf of
the Council and fails to disclose the existence of any pecuniary interest the
agent has in the contract.[35]
3.35.3 An
offence is committed if an agent provides the Council with a receipt, invoice,
or account (or similar document) in relation to the business or affairs of the
Council which the agent knows to be materially false or defective, or likely to
mislead the Council, and which omits to state the fact of any commission, or
other consideration having been received by or promised to the agent.[36]
3.35.4 “Consideration”
means valuable consideration of any kind, and particularly includes discounts,
commissions, rebates, bonuses, deductions, percentages, employment, payment of
money (whether by way of loan, gift, or otherwise), and forbearance to demand
any money or valuable thing.[37]
3.36 Any person who commits an offence against the Act is liable to
imprisonment for a term not exceeding 7 years.[38]
Financial Markets Conduct Act 2013 (FMCA)
3.37 The purpose of the Act is to promote:
· the development of
fair, efficient, and transparent financial markets in New Zealand; and
· the confident and
informed participation of businesses, investors, and consumers in those
markets.[39]
3.38 Financial markets include markets for the provision of financial
services, and capital markets.[40]
3.39 If the Council at some point should wish to raise capital through
the issue of debt or equity securities the Act imposes obligations on elected
members in matters such as the proposed governance arrangements for any
securities issued and the information to be disclosed to prospective investors.[41]
In this regard, elected members will be treated the same as company directors
being persons occupying a position that is comparable with that of a director
in a company.[42]
3.40 In those instances where the Council would look to raise capital
through the issue of debt or equity securities professional advice, both
internally and externally, would be sourced and provided before the Council
considers and makes any decisions. However, elected members should be
aware that a breach of the Act can give rise to civil and criminal liability.
Attachments Ngā Tāpirihanga
There are no
attachments for this report.
In addition to the attached documents, the following background
information is available:
|
Document
Name – Location / File Link
|
|
Not
applicable
|
Signatories Ngā Kaiwaitohu
|
Author
|
Ron Lemm -
Manager Legal Service Delivery
|
|
Approved By
|
Helen White -
General Counsel / Director of Legal & Democratic Services
Mary
Richardson - Chief Executive
|
