|
Inaugural
Council meeting Agenda
|
2
August 2024
|
4.6 Fixing of
date and time of the first Council meeting
File
Number: A16211829
Author: Coral
Hair, Manager: Democracy and Governance Services
Authoriser: Marty
Grenfell, Chief Executive
Purpose of the Report
1. The purpose of the report
is to fix the date and time of the first Council meeting.
|
Recommendations
That the Council:
(a) Receives the report
"Fixing of date and time of the first Council meeting".
(b) Approves the first meeting of
the Tauranga City Council be held on Thursday, 15 August 2024 commencing at
9:30 am in the ground floor meeting room, Tauranga City Council office, 306
Cameron Road, Tauranga.
|
Statutory Context
2. Section 21(5) (d) of
Schedule 7 of the Local Government Act 2002 requires the Council at the
Inaugural meeting to fix a date and time for the first Council meeting of the
Tauranga City Council or adopt a schedule of meetings.
options analysis
3. A date for the first
meeting of the Tauranga City Council is proposed for Thursday, 15 August 2024,
commencing at 9:30 am in the ground floor meeting room, Tauranga City Council
office, 306 Cameron Road, Tauranga.
4. This meeting will
consider the following reports:
· Governance structure and committee appointments
· Remuneration
· Meetings schedule for period August-December 2024
· Chief Executive’s report on any decisions under his
delegation during the election interregnum period.
5. There is an option to
move this meeting to a later date.
6. It is recommended that
the 15 August 2024 date be approved to enable the governance structure to be
determined and the other business to be decided as quickly as possible.
Financial Considerations
7. There are no
unbudgeted financial implications of this decision and future costs of Council
and Committee meetings are allocated in the Governance budget.
Legal Implications / Risks
8. The matters
addressed in this report are procedural in nature and there are no legal implications
or risks associated with this decision.
TE AO MĀORI APPROACH
9. The matters
addressed in this report are of a procedural nature and there is no need
to consider the Te Ao Māori Approach.
CLIMATE IMPACT
10. The matters addressed in this report
are of a procedural nature and there is no need to consider climate change
impacts.
Significance
11. The Local Government Act 2002
requires an assessment of the significance of matters, issues, proposals and
decisions in this report against Council’s Significance and Engagement
Policy. Council acknowledges that in some instances a matter, issue,
proposal or decision may have a high degree of importance to individuals,
groups, or agencies affected by the report.
12. In making this assessment,
consideration has been given to the likely impact, and likely consequences for:
(a) the current
and future social, economic, environmental, or cultural well-being of the
district or region
(b) any persons who are likely to be
particularly affected by, or interested in, the matter.
(c) the capacity of the local authority
to perform its role, and the financial and other costs of doing so.
13. In accordance with the
considerations above, criteria and thresholds in the policy, it is considered
that the matter is of low significance.
ENGAGEMENT
14. Taking into consideration the
above assessment, that the matter is of low significance, officers are of the
opinion that no further engagement is required prior to Council making a
decision.
Next
Steps
15. The
meeting will be advertised and an agenda will be made publicly available.
Attachments
Nil
|
Inaugural
Council meeting Agenda
|
2
August 2024
|
4.7 Legislative
advice for the incoming Council
File
Number: A16171962
Author: Coral
Hair, Manager: Democracy and Governance Services
Authoriser: Marty
Grenfell, Chief Executive
Purpose of the Report
1. This report provides
elected members with a general understanding of the legislation that applies to
them when they come into office.
|
Recommendations
That the Council:
(a) Receives the report
"Legislative advice for the incoming Council".
(b) Notes the process for each
elected member to declare any personal or financial interests that may at
times conflict with their role as an elected member.
|
Executive Summary
2. This
report contains an overview of legal provisions that members must be aware of,
and abide by, to avoid a risk of disqualification from office.
Background
3. The
Local Government Act 2002 (Clause 21 of Schedule 7) requires the Chief
Executive to highlight key aspects of specific legislation at the Inaugural
Council meeting.
4. The
key pieces of legislation that you as elected members need to be aware of
include:
· Local Government Official Information and
Meetings Act 1987
· Local Authority (Members’ Interests) Act
1968
· Crimes Act 1961 – Sections 99, 105 and
105A
· Secret Commissions Act 1910
· Financial Markets Conduct Act 2013.
5. I
have also included information on the Local Government Act 2002 and the Health
and Safety at Work Act 2015 in Appendix, 1 as these are key pieces of
legislation.
6. A
range of information has been made available to elected members (Stellar
library portal under ‘Administration’ ‘ Documents’
section), which covers this material in more depth including:
· Good
Governance Guide – Local Government New Zealand
publication
· Tauranga City Council Code of Conduct (which
includes a summary of key legislation)
· Guidance for members of local authorities about
the Local Authorities (Members’ Interests) Act 1968 – Office of the
Auditor General publication
· Managing conflicts of interest: A guide for the
public sector
LOCAL GOVERNMENT
OFFICIAL INFORMATION AND MEETINGS ACT 1987
7. The
Local Government Official Information and Meetings Act 1987 (LGOIMA) provides
for all local government activities to take place in an open and transparent
environment. It also specifies that, generally, all information held by the
council in any form should be available to the public. The purpose of LGOIMA is
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, with a view to enhancing respect for the law
and promoting good local government in New Zealand.
8. At the heart of LGOIMA is the
principle of availability, which states that the information should be made
available unless there is good reason for withholding it. There are two aspects
to this Act:
· Access to local authority information; and
· Local authority meetings.
An overview of these provisions is provided in
the following paragraphs.
Access to local authority information
9. Generally,
all information held by a local authority in any form should be available to
the public. However, the LGOIMA does state that certain material does not
constitute “information” for the purposes of the Act such as
library or museum material.
10. It also sets
out certain reasons that a Council might rely on to withhold information, such
as the protection of privacy or to protect the Council during commercial
negotiations.
11. LGOIMA
provides for anyone to have the right to request information held by the
Council and if that request is refused the applicant has the right of appeal to
the Ombudsman. The Ombudsman will then consider the request; the nature and
content of the information and the grounds relied on for refusing to provide
it. If the Ombudsman believes that some or all the information should be
released, they will recommend a course of action to the Council. It is then up
to the Council to decide what to do. The Council’s decision is reviewable
by the High Court.
12. Under LGOIMA
the Council must publish a document outlining its functions and giving a
general description of the information held by it. This material is published
through the Local Governance Statement which is required to be updated within
six months following each election. The Local Governance Statement is publicly
available on the Tauranga City Council website.
13. LGOIMA
specifically provides that there will be no liability on elected members for
any information released in good faith under the legislation. However, the
Privacy Act 2020 places strict limitations on the council in respect of the
release of information relating to private individuals.
14. Under LGOIMA
the authority to make decisions on whether information should be released is
delegated to the Chief Executive. Information contained in the open section of
any agenda is already in the public domain. Any information marked
“public excluded” or “confidential” should not be
released or discussed outside the meeting concerned. If, as an elected member,
you are asked to provide that information to a third party you should refer the
request to either the Chief Executive or to the General Manager responsible for
the report. Should an elected member release confidential information and
should the council suffer any loss as a result, the member may become
personally liable for the council’s loss if it can be shown that the
member was not acting in good faith.
Local
authority meetings
15. LGOIMA
provides that all meetings of Council, which includes meetings of its
committees, shall be open to the public, unless certain specified reasons can
be satisfied for excluding them. These reasons are basically the same as for
withholding information and are set out within Section 48 of the Act. It is
necessary for the meeting to be satisfied that any one or more of these reasons
exist before the public is excluded.
16. LGOIMA also
enables the Mayor (or Chairperson in the case of committees) to introduce an
item that is not on the agenda as long as there is a clear reason why the item
is not on the agenda and why it cannot wait until the next meeting. A formal
resolution, including reasons, must then be passed to receive and consider the
item. This relates to major and urgent matters only. Council is still subject
to the requirements of the decision-making processes as set out in the Local
Government Act 2002 (LGA).
17. Agendas for
Council and committee meetings must be made available to the public two clear
working days before the day of the meeting. The agendas are published on
council’s website.
18. Other
provisions of the LGOIMA require meetings to be publicly notified and provide
that any matters, including defamatory matter published in any agenda, or oral
statements made at any meeting, are privileged unless proven to have been made
with malice. This type of privilege is known as qualified privilege. It is a
protection afforded by the law on certain occasions to a person acting in good
faith and without any improper motive who makes a defamatory statement about
another person. It is established in law that meetings of local authorities are
privileged occasions. The reason given by the courts is that those who
represent local government electors should be able to speak freely on any
matter they believe affects the interests of their residents. The situation
regarding statements made outside a formal meeting is not so clear and the
protections afforded by sections 52 and 53 may not necessarily extend outside a
meeting. What is required for qualified privilege to apply is a positive belief
in the truth of what is said, and that there is no suggestion of personal spite
or ill-will by the maker.
19. The
Chairperson at a meeting can require a member of the public to leave a meeting
if the behaviour of the person concerned is likely to prejudice the orderly
conduct of the meeting. If an elected member’s conduct prevents the
orderly conduct of the meeting, that member can also be asked to leave by the
Chairperson under Council’s Standing Orders.
local authority
(members’ interests) act 1968
20. The Local Authority (Members’ Interests) Act 1968 (LAMIA) helps to protect the integrity of local authority
decision-making by ensuring that elected members are not affected by personal
motives when they participate in council decision-making and that they cannot
use their position to obtain preferential access to contracts. This Act deals
with two forms of “interest”, pecuniary interest and non-pecuniary
interest.
21. The two
specific rules in the LAMIA are that members cannot:
(a) Enter into contracts with their local authority
worth more than $25,000 (including GST) in a financial year unless the
Auditor-General approves the contracts (referred to as the contracting rule).
Breach of this rule results in automatic disqualification from office.
(b) Participate in matters before Council in which
they have a pecuniary interest, other than an interest in common with the
public (referred to as the participation rule). Breach of this rule is a
criminal offence and conviction results in automatic disqualification from
office.
22. A pecuniary
interest is one that involves money. This could be direct or indirect. It is
sometimes difficult to decide whether an interest in a matter is pecuniary or
some other kind. It is always the responsibility of each elected member to make
this decision, to declare any interest when appropriate and to ensure that as
an elected member you always comply with the Act’s requirements.
23. The LAMIA also
provides that an “interest” exists where a member’s spouse is
involved and/or where a member or their spouse is a major shareholder or have
control or management of a company which contracts with the council or where
the company has a pecuniary interest in the decision. It may also apply where
your family trust has a contract with the council. The LAMIA does provide for
the Office of the Auditor General to give approval to a member to enter into a
contract with the council, in which case the provisions of the Act will not
disqualify the councillor from remaining in office. The approval needs be
gained before the contract is entered into and each contract or interest must
be pre-approved.
24. The LAMIA also
requires that a member shall not vote or take part in the discussion of any
matter in which they have any pecuniary interest, other than an interest in
common with the public. This interest is required to be declared by the member
and is noted in the minutes. The Office of the Auditor General oversees this
legislation, and it also has the responsibility and power to institute
proceedings against any member. The Act does not define pecuniary interest,
however the Office of the Auditor-General uses the following test:
“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 loss of money for the member concerned.”
25. In deciding
whether you have a pecuniary interest you should consider the following
factors:
· What is the nature of the decision being made?
· Do I, or a member of my immediate family, have a
financial interest in that decision – do I, or my family, have a
reasonable expectation of gain or loss of money as a result of making that
decision?
· Is my financial interest one that is in common
with the public?
· Do any of the exceptions in the Act apply to me?
· Could I apply to the Auditor-General for
approval to participate?
26. Further
guidance is provided in the booklet “Guidance for members of local authorities about the Local
Authorities (Members’ Interests) Act 1968” which has been provided to elected members. It is important that
you pay attention to the contents of this booklet as this is one of the few
areas of council’s business where staff do not set out to provide
pro-active advice and members are personally liable for compliance with the
provisions of this Act.
Requirement
to keep a register of Elected Members’ pecuniary interests
27. In November 2022, the Local
Government Act 2002 (LGA) was amended1 to
require local authorities to keep a register of the pecuniary interests of
their elected members.
28. “Pecuniary
interest” is defined as “a matter or activity of financial benefit
to the member”. Under the LGA, it is mandatory for members to declare
their pecuniary interests (make a “pecuniary interest return”) by
certain dates containing prescribed information. Failing to do so is an
offence.
29. The Council must make publicly
available a summary of the information contained in the register. The summary should provide sufficient information for the
public to identify relevant interests, but without providing excessive details
about an elected member’s personal affairs.
Difference between LGA
pecuniary interest requirements and LAMIA
30. LAMIA and the new LGA
provisions relating to the pecuniary interest register have separate
requirements that need to be met by Members and the main differences are set
out in the table below:
|
LAMIA
|
LGA pecuniary interest requirements
|
|
A member or a member’s spouse/partner or dependents pecuniary
interests.
|
A member’s pecuniary interests e.g. Director of a company,
employment, interests in trust
|
|
A member’s spouse/partner property interests
|
A member’s property interests
|
|
Contracts with the council in which a member is interested
|
Member of an organisation that has applied for funding from the
council
|
|
Direct and indirect financial interests that a member or their
spouse/partner has in a matter before the Council
|
Organisation the member appointed to as an elected member
|
|
Applies to appointed members of Council committees and sub-committees
|
Gifts including hospitality and donations
|
|
Members to report new interests as they arise
|
Payments received for activities member involved in
|
|
|
Travel to overseas countries where travel and accommodation costs paid
in full or part by others (excluding family)
|
|
|
Does not require ongoing reporting of new interests as they arise
between annual returns
|
31. To ensure elected members’ compliance with both the
LGA pecuniary interests and LAMIA staff will combine the requirements of both
Acts in Council’s Pecuniary Interests Return Form with Section 1 relating
to the LGA pecuniary interest’s requirements and Section 2 relating to
LAMIA. Forms are required to be completed 120 days after the members come
into office and then the last day of February in subsequent years.
Non-pecuniary
interest
32. Non-pecuniary
interest is any interest the member may have in an issue that does not involve
money. A common term for this is “bias”. Rules about bias operate
not only to ensure that there is no actual bias, but also so there is no
appearance or possibility of bias. The principle is that justice should not
only be done, but it should be seen to be done. Bias may be exhibited where:
· By their statements or conduct a member may indicate that they have
predetermined the matter before hearing or considering all the relevant
information on it (including the Council’s debate); or
· The member has a close relationship with an individual or
organisation affected by the matter.
33. Non-pecuniary
interest is a difficult issue as it often involves matters of perception and
degree. The question you need to consider, drawn from case law, is:
“Is there, to a reasonable, fair-minded and informed
observer, a real indication of bias on the part of a member of the
decision-making body, in the sense that they might unfairly regard with favour
(or disfavour) the case of a party to the issue under consideration?”
34. If there is,
the member should declare their interest and withdraw from the debate. The law
about bias does not put you at risk of personal liability but the validity of
Council’s decision could be challenged.
35. Further
guidance is provided in by the Office of the Auditor-General in their guide “Managing
conflicts of interest: A guide for the public sector” which has been provided to elected members.
36. While the Registrar will help elected members
who seek advice on the pecuniary interest register but does not provide
definitive advice on the application of the new provisions for every situation.
Practically I would suggest that if you feel that you
may have an “interest” in any matter before the Council or a
committee of which you are a member, then you should discuss the issue with
your lawyer (at no cost to the council), the Mayor, the Committee Chair or
myself as Chief Executive before the meeting. While this will not relieve you
of your obligations under the LGA pecuniary interests provisions or LAMIA, it
will provide you with some independent guidance.
Crimes act 1961:
sections 99, 105 & 105A
37. Under this Act
it is unlawful for an elected member (or officer) to:
· Accept or solicit for themselves (or anyone
else) any gift or reward for acting or not acting in relation to the business
of the Council.
· Use information gained in the course of their
duties for their, or another person’s monetary gain or advantage.
38. Section 99 of the Crimes Act 1961
defines a member or employee of a local authority as an official. For the
purposes of the Crimes Act 1961 this means that each elected member of Council
is an official of the council. Section 99 also defines a “bribe” as
being “any money, valuable consideration, office, or employment, or any
benefit, whether direct or indirect”. The words “or indirect”
open this definition considerably, e.g. an offer of employment to a son or a
daughter could be construed as amounting to being a bribe so members need to be
aware of their exposure under this Act through other family members.
39. Section 105 and 105A provide: -
105. Corruption and bribery of official—
1. Every
official is liable to imprisonment for a term not exceeding 7 years who,
whether within New Zealand or elsewhere, corruptly accepts or obtains, or
agrees or offers to accept or attempts to obtain, any bribe for himself or any
other person in respect of any act done or omitted, or to be done or omitted,
by him in his official capacity.
2. Everyone is
liable to imprisonment for a term not exceeding 7 years 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 him in his official capacity.
105A. Corrupt use of official information— Every
official is liable to imprisonment for a term not exceeding 7 years who,
whether within New Zealand or elsewhere, corruptly uses [or discloses] any
information, acquired by him in his official capacity, to obtain, directly or
indirectly, an advantage or a pecuniary gain for himself or any other person.
40. As elected
members you are deemed to be “officials” for the purposes of this
Act, and you are subject to these penalties if you are found to be in breach of
them. A conviction would also have the consequences of loss of office in terms
of Clause 1 of Schedule 7 of the Local Government Act 2002 (which disqualifies
a member who is convicted of an offence punishable by a term of imprisonment of
two years or more).
secret commissions
act 1910
41. The Secret Commissions Act 1910 states that
you must not use your office for improper gain. It specifically establishes
offences relating to the giving, receiving, or soliciting of gifts or other
consideration as an inducement or reward for doing or not doing something in
relation to the affairs of the Council, or showing or having shown favour or
disfavour to any person in relation to the Council’s affairs or business
(section 4(1)).
42. In summary it
is an offence for an agent (for the purposes of the Act an elected member is
deemed to be an “Agent”) to:
· Receive a secret commission
· Accept a bribe (a gift for doing or not doing
something)
· Aid and abet (encourage or refuse to act)
43. Prosecutions
made for offences under this Act require the approval of the Attorney-General
who has the power to decide whether any such prosecution shall be dealt with as
an indictable offence or as one punishable on summary conviction. An indictable
offence penalty for individuals includes up to two years imprisonment or a fine
of up to $1,000.00. A conviction would also have the consequences of loss of
office in terms of Clause 1 of Schedule 7 of the Local Government Act 2002. For
a summary offence the penalties include a period of up to 3 months imprisonment
or a fine of up to $100.00.
financial markets
conduct act 2013
44. The Financial Markets Conduct Act 2013 (FMC
Act) replaced the Securities Act 1978. The purpose of the FMC Act is to promote
and facilitate the development of fair, efficient and transparent financial
markets, and to promote the confident and informed participation of businesses,
investors and consumers. The FMC Act works to reform the regulation of
financial conduct and governs the way financial products are offered, promoted,
issued and sold. This includes the on-going responsibilities of those who
offer, issue, manage, supervise, deal in and trade financial products. The FMC
Act also regulates the provision of certain financial services.
45. The FMC Act essentially places elected
members in the same position as company directors whenever the Council offers
financial products (such as an issue of debt or equity securities). Elected
members may be personally liable if documents that are registered under the
Act, such as a product disclosure statement, contain false or misleading
statements. Elected members may also be liable if the requirements of the Act
are not met in relation to offers of financial products.
Strategic / Statutory Context
46. This report outlines legislative
matters that apply to elected members, as required by the Local Government Act
2002.
Legal Implications / Risks
47. This report contains an
overview of legal provisions that members must be aware of, and abide by, to
avoid a risk of disqualification from office.
Significance
48. The Local Government Act 2002
requires an assessment of the significance of matters, issues, proposals and
decisions in this report against Council’s Significance and Engagement
Policy. Council acknowledges that in some instances a matter, issue,
proposal or decision may have a high degree of importance to individuals,
groups, or agencies affected by the report.
49. In making this assessment,
consideration has been given to the likely impact, and likely consequences for:
(a) the current
and future social, economic, environmental, or cultural well-being of the
district or region
(b) any persons who are likely to be
particularly affected by, or interested in, the matter.
(c) the capacity of the local authority to
perform its role, and the financial and other costs of doing so.
50. In accordance with the
considerations above, criteria and thresholds in the policy, it is considered
that the matter of elected members’ legal obligations is of medium
significance, however the decision proposed in this report (to receive the
report), is of low significance.
ENGAGEMENT
51. Taking into consideration the above
assessment, that the decision is of low significance, officers are of the
opinion that no further engagement is required prior to Council making a
decision.
Next Steps
52. The induction
programme planned for elected members from July 2024 will provide further
information about the roles and responsibilities of elected members, the
Tauranga City Council Code of Conduct, and decision-making processes under the
Local Government Act 2002.
Attachments
1. Local
Government Act 2002 and Health and Safety at Work Act 2015 - A16212055 ⇩ 
