Late Reports Agenda of Ordinary Council Meeting

Ordinary Council Meeting Agenda

24 March 2020

1 Business

1.4 Emergency Provisions for COVID-19

File Number: A11343905

Author: Susan Jamieson, General Manager: People & Engagement

Nick Swallow, Manager: Legal & Commercial

Authoriser: Marty Grenfell, Chief Executive

Purpose of the Report

1. The Coronavirus (COVID-19) pandemic in New Zealand continues to evolve and the Council is asked to consider special delegations for emergency decision-making and governance processes to ensure there is a mechanism for lawful decision-making where the Council and its committees are unable or unavailable to hold meetings.

Recommendations

That the Council:

(a) Receives the report “Emergency Provisions for COVID-19”

(b) Establishes an Emergency Committee with a membership of three consisting of the Mayor Tenby Powell as the Chairperson, the Deputy Mayor Larry Baldock as the Deputy Chairperson and one other elected member selected in the following order:

· Councillors Kelvin Clout and Steve Morris (Standing Committee Chairpersons – with preference being given with the Chairperson whose portfolio aligns with the matter of urgency being considered)

· Councillors Tina Salisbury, Jako Abrie, Dawn Kiddie and Heidi Hughes (Standing Committee Deputy Chairpersons - with preference being given with the Deputy Chairperson whose portfolio aligns with the matter of urgency being considered)

· Councillors John Robson, Andrew Hollis and Bill Grainger

In the event that the Mayor or Deputy Mayor are unavailable three elected members in the order as stated above.

(i) To determine matters within the authority of Tauranga City Council where the urgency of those matters precludes a full meeting of the Council, or its committees, or emergency legislation is enacted and the Council or its committees are unable to meet.

(ii) To exercise all Council functions that cannot be exercised by the Council or its committees using its standard processes and procedures due to a pandemic, other natural disaster or state of emergency, except for those that:

· have been delegated to staff; or

· cannot be delegated as set out in Clause 32 of Schedule 7 of the Local Government Act 2002 which are:

(a) the power to make a rate; or

(b) the power to make a bylaw; or

(d) the power to adopt a long-term plan, annual plan, or annual report; or

(e) the power to appoint a chief executive; or

(f) the power to adopt policies required to be adopted and consulted on under this Act in association with the long-term plan or developed for the purpose of the local governance statement; or

(g) [Repealed]

(h) the power to adopt a remuneration and employment policy. or

· cannot be delegated by the Council as set out in any other legislation.

(iii) The Emergency Committee can only be activated by resolution of Council for specific emergency events, or where resolution by Council is not possible, on the joint authority of the Mayor and Deputy Mayor and the Chief Executive.

(iv) The Emergency Committee will report to the Council (at the next available full meeting of Council) summarising the Committee’s activities and any decisions made over the period.

(v) The quorum for the Emergency Committee will be two members.

(vi) The Emergency Committee will meet as required.

(vii) When an Emergency Committee meeting has been called, Councillors will be notified details by email and agendas and minutes will be circulated electronically. Public notice requirements as set out in the Local Government Official Information and Meetings Act 1987 will apply.

(d) Delegates to the Mayor, the Deputy Mayor and the Chief Executive, the authority to activate the Emergency Committee during the COVID-19 emergency when a resolution of Council is not possible.

(e) Establishes that the quorum for the Council’s Standing Committees during the COVID-19 emergency will be two members to be physically present.

(f) For the purposes of the COVID-19 emergency, delegates to the Chief Executive all the Council’s powers, duties, and responsibilities that the Council can lawfully delegate to officers, including the ability to enter into any contract and/or to authorise any level of expenditure (“Emergency Delegation”). This Emergency Delegation does not include (or limit) the powers, duties, and responsibilities that the Council has already delegated to the Chief Executive under delegations in force at this time, or any authority to make any Council decisions under the Civil Defence Emergency Management Act 2002 (which shall be dealt with in accordance with that Act). This Emergency Delegation is subject to the following conditions:

(i) It may be exercised only in circumstances where the Council and its committees are unable or unavailable to hold meetings that comply with the requirements of the Local Government Act 2002 and the Local Government Official Information and Meetings Act 1987;

(ii) The Chief Executive may only exercise the Emergency Delegation in consultation with the Mayor (or if the Mayor is unavailable, the Deputy Mayor, or if the Deputy Mayor is unavailable, the Chairperson of the relevant committee, or if the Chairperson of the relevant committee is unavailable, the Deputy Chairperson of the committee).

(iii) Any decisions made and documents executed in exercising the Emergency Delegation must be reported to the next ordinary meeting of the Council.

(iv) This Emergency Delegation may be revoked at any time by the Council.

(v) In the event there is any inconsistency between this Emergency Delegation and any other delegation made by the Council, this Emergency Delegation takes precedence. For the avoidance of doubt, this means that the contract value and other limits specified in the Chief Executive’s delegations under clause 6 of Council’s Procurement Policy (relating to approval of exemptions to open procurement and contract variations) will not apply while this Emergency Delegation is in effect, thus enabling the Chief Executive to approve these no matter the contract value or contract variation parameters during the effective period of this Emergency Delegation.

(g) Delegates the powers, duties and responsibilities of the Chief Executive to Christine Jones, General Manager: Strategy and Growth, as Acting Chief Executive in the event that the Chief Executive is unable to fulfil his duties due to COVID-19; and

(h) Agrees that where the Acting Chief Executive is unable to fulfil her duties due to COVID-19, the Chief Executive’s delegated powers, duties and responsibilities will be transferred to the next designated General Manager in the following order:

· Paul Davidson, General Manager: Corporate Services

· Barbara Dempsey, General Manager: Regulatory and Compliance

· Nic Johansson, General Manager: Infrastructure

· Gareth Wallis, General Manager: Community Services

· Susan Jamieson, General Manager: People and Engagement

Executive Summary

2. The COVID-19 pandemic will most likely impact on the Council’s ability to meet collectively, either physically or virtually, to consider and make decisions on urgent matters. It is good practice to prepare for this to happen. An Emergency Committee is recommended to be established to ensure decisions can be made as quickly as possible. It is also recommended that quorums for the Standing Committees are amended to provide for two members to be physically present. Increased authority and powers to the Chief Executive are also recommended as well as a succession plan in the event the Chief Executive is not able to fulfil his duties due to COVID-19.

Background

3. The COVID-19 situation continues to evolve quickly, and the Council will be guided by the advice of the Ministry of Health and as directed by the Prime Minister.

4. Local Government New Zealand is coordinating with the Ministry of Health (MOH), National Emergency Management Agency (NEMA), Department of Internal Affairs (DIA) and the Society of Local Government Managers (SOLGM) to ensure all councils are receiving information through the appropriate channels. A Local Government COVID-19 response team has been formed and is providing information to councils across the country about contingency measures in the event of a community wide outbreak. One of the issues they are looking at is to modify the quorum requirements in the Local Government Act 2002 (LGA 2002). Currently members have to be physically present to meet the quorum. If modified these would enable quorums to be met via electronic methods.

5. The Chief Executive has established a COVID-19 Planning Team and they are actively evaluating the Council’s responses which are focused on the health and wellbeing of our staff, contractors, elected members and the public and minimising disruption of service to our community.

6. The recommendations in this report are designed to reduce the number of people physically present at meetings. In the interests of public safety, other measures are being implemented, including: public notices, physical distancing of the public seating area and asking the public to present or attend virtually rather than in person. The Council livestreams its meetings and this practice will continue throughout COVID-19 wherever possible.

establish an Emergency committee

7. It is recommended that an Emergency Committee is set up to make effective and timely decisions in an emergency environment where the Council or its committees are unable to meet collectively, either physically, or in a virtual way.

8. The membership is proposed to be three members, consisting of the Mayor Tenby Powell as the Chairperson, the Deputy Mayor Larry Baldock as the Deputy Chairperson and one other elected member selected in the following order:

· Councillors Kelvin Clout and Steve Morris (Standing Committee Chairpersons – with preference being given with the Chairperson whose portfolio aligns with the matter of urgency being considered)

· Councillors John Robson, Andrew Hollis and Bill Grainger

In the event that the Mayor or Deputy Mayor are unavailable three elected members in the order as stated above.

9. Terms of Reference are modelled on other councils, in particular the Bay of Plenty Regional Council, and are proposed to be:

· have been delegated to staff; or

· cannot be delegated as set out in Clause 32 of Schedule 7 of the Local Government Act 2002 which are:

(a) the power to make a rate; or

(b) the power to make a bylaw; or

(d) the power to adopt a long-term plan, annual plan, or annual report; or

(e) the power to appoint a chief executive; or

(f) the power to adopt policies required to be adopted and consulted on under this Act in association with the long-term plan or developed for the purpose of the local governance statement; or

(g) [Repealed]

(h) the power to adopt a remuneration and employment policy. or

· cannot be delegated by the Council as set out in any other legislation.

(iv) The Emergency Committee will report to the Council (at the next available full meeting of Council) summarising the Committee’s activities and any decisions made over the period.

(v) The quorum for the Emergency Committee will be two members.

(vi) The Emergency Committee will meet as required.

(vii) When an Emergency Committee meeting has been called Councillors will be notified details by email and agendas and minutes will be circulated electronically. Public notice requirements as set out in the Local Government Official Information and Meetings Act 1987 will apply.

10. The Council can deactivate the Emergency Committee at any time.

11. The provisions for calling an emergency meeting and public notice provisions are set out in the Local Government Official Information and Meetings Act 1987 and these will continue to apply.

quorum for standing committees

12. There are some legislative constraints around quorums under the LGA 2002.

13. For Council meetings, the legislative requirement is that half of the members need to be physically present, where the number of members (including vacancies) is even; and a majority of the members need to be physically present, where the number of members (including vacancies) is odd. Once this quorum of members physically present is reached the remaining members could participate and vote through audio or visual means (Clause 23 (3)(a) and 25A(4) of Schedule 7 of the LGA 2002).

14. Council’s current quorum for each of its Standing Committees (as specified in their Governance Terms of Reference) is the same as for Council, i.e.: “Half of the members physically present, where the number of members (including vacancies) is even; and a majority of the members physically present, where the number of members (including vacancies) is odd.” However, the legislative requirements for a Standing Committee quorum enable Council to set the quorum for its Standing Committees to two members (clause 23(3)(b) Schedule 7 LGA 2002).

15. There is discussion with DIA to have some of the rules around these legislative quorum matters relaxed during the pandemic period. However, this matter is not a simple one as the key legislative constraints are primarily statutory not regulatory. Changes to statutes require Parliamentary approval. However, an Order in Council could be made by the Governor-General (acting on advice from central government) under sections 12 or 15 of the Epidemic Preparedness Act 2006 to suspend or amend legislative requirements to enable compliance for the duration of the emergency. The local government content of what could be included in a potential Order is being looked at with urgency by LGNZ, SOLGM and DIA.

16. Until the quorum requirements are relaxed, an interim solution is set out below.

17. As specified above, the current quorum for the Council’s four standing committees is set out in the Council’s Terms of Reference (Policy, Projects, Services and Operations, Finance, Audit and Risk and Urban Form and Transport Development Committees) and is the same quorum requirements as for the full Council meeting i.e.

(i) half of the members where the number of members (including vacancies) is even,

(ii) a majority of the members where the number of members (including vacancies) is odd

18. Clause 23 (3) (b) of Schedule 7 of the LGA 2002 provides for a committee quorum to be set at two members, which must include at least one member of the local authority. As such, there is an option for the Council to amend the quorum for its four standing committees to enable two members to be physically present (which would meet the current legislative requirement). The remainder of the members could attend via audio-visual link. It would make sense for the Chairperson and Deputy Chairperson to be the two members physically present. This has not been specified in the recommendation to provide for greater flexibility however this might be something to consider and include.

19. The quorum changes would enable the standing committees to continue to meet to conduct business for as long as possible during COVID-19, subject to staff availability and resourcing. In the event that business as usual in terms of supporting the committees is unable to continue, the Emergency Committee would convene and attend to urgent business matters only.

delegations to the chief executive

20. Delegations to the Chief Executive are recommended to be increased to enable the Chief Executive to undertake all of the Council’s powers, duties, and responsibilities that the Council can lawfully delegate to officers. These powers, duties, and responsibilities include the ability to enter into any contract and/or to authorise any level of expenditure.

21. Like the delegations to the Chief Executive during the interregnum period, these emergency delegations are subject to a number of conditions and do not include (or limit) the powers, duties, and responsibilities that the Council has already delegated to the Chief Executive under delegations in force at this time, or any authority to make any Council decisions under the Civil Defence Emergency Management Act 2002 (which shall be dealt with in accordance with that Act).

22. It is recommended that this emergency delegation is subject to the following conditions:

(ii) The Chief Executive may only exercise the emergency delegated powers, duties and responsibilities in consultation with the Mayor (or if the Mayor is unavailable, the Deputy Mayor, or if the Deputy Mayor is unavailable, the Chairperson of the relevant committee, or if the Chairperson of the relevant committee is unavailable, the Deputy Chairperson of the committee).

(iii) Any decisions made and documents executed in exercising these emergency delegated powers, duties and responsibilities must be reported to the next ordinary meeting of the Council.

(iv) This emergency delegation may be revoked at any time by the Council.

23. There are recommendations to provide for succession planning in the event that the Chief Executive is unable to carry out his duties due to COVID-19. It is recommended that Christine Jones, General Manager: Strategy and Growth be appointed as Acting Chief Executive and, in the event that she is unable to carry out her duties due to COVID-19, the other General Managers are authorised to step into the role in the succession order specified in the recommendation.

Strategic / Statutory Context

24. Clause 23 of Schedule 7 of the LGA 2002 sets out the requirements for quorums of council and committee meetings. These quorum requirements require all business to be transacted with at least a quorum of members present during the whole of the meeting.

Options Analysis

Option 1 – Establish Emergency Provisions – preferred option

25. The Council has the option of establishing emergency provisions. This option sets out a contingency plan in the event that the Council and committees are unable to meet and make decisions during the COVID-19. This option also provides for additional emergency delegations to the Chief Executive and for succession planning in the event that the Chief Executive is not able to carry out his duties.

26. This option is considered good practice and provides for continuity of decision-making and governance processes in an emergency. It is consistent with actions from other councils.

27. This option is considered to be a “belts and braces” approach to the current situation that provides for continuation of business as usual for as long as possible while keeping members, staff and the public as safe as possible.

Option 2 – Do nothing option

28. The Council has the option of not implementing emergency provisions. The Council could wait until the central government issues an Order in Council changing quorum provisions or issuing emergency legislation closing all public meetings.

29. This option is not recommended. The Council can revisit a decision around quorums once further information is available; however it is considered that acting now would provide surety in a volatile environment.

Option 3 – Mix and Match

30. The Council has the option of choosing some of the emergency provisions. However, these are a total package and are considered to be a “belts and braces” approach to the current situation that provides for continuation of business as usual for as long as possible while keeping members, staff and the public as safe as possible.

Financial Considerations

31. There are no financial impacts from this decision.

Legal Implications / Risks

32. There is a risk that decisions required during an emergency may not be lawfully made or executed if these emergency provisions are not enacted.

33. There are risks that the emergency provisions are not seen as democratic and transparent. This risk can be mitigated by the openness and transparency of Emergency Committee meetings, although there is provision under Local Government Official Information and Meetings Act 1987 for parts of the meeting to be held in public excluded if required.

34. The Chief Executive’s extended emergency powers are subject to a number of conditions that reduce the risk of abuse of these powers. Succession planning reduces the risk of the Council being without a Chief Executive in the event the Chief Executive is unable to carry out his duties due to COVID-19.

Consultation / Engagement

35. There is no requirement to consult or engage the public on this matter.

Significance

36. This matter is not considered to be significant in terms of the Council’s Significance and Engagement Policy.

Click here to view the TCC Significance and Engagement Policy

Next Steps

37. If the Council agrees with the recommendations in the report, standing committee meetings will reduce to two physically present members and the remaining councillors will attend virtually. Members will be assisted on how to participate electronically. The public will be encouraged to attend meetings virtually (for public forum) and to watch the livestream meetings on You Tube. New meeting arrangements and information will be published on our website.

38. Any changes to the quorum requirements of the LGA 2002 will be advised and put into effect immediately.

Attachments

Nil


AGENDA Late Reports Ordinary Council Meeting Tuesday, 24 March 2020

Date:	Tuesday, 24 March 2020
Time:	9am
Location:	Tauranga City Council Council Chambers 91 Willow Street Tauranga
Please note that this meeting will be livestreamed and the recording will be publicly available on Tauranga City Council's website: www.tauranga.govt.nz.
Marty Grenfell Chief Executive