Council

Tuesday 29 October 2019 at 1.00pm

 

 

AGENDA

 


Council Meeting

29 October 2019

Northland Regional Council Agenda

 

For the inaugural meeting of council to be held in the

Northland Regional Council Chamber

36 Water Street, Whangārei

on Tuesday 29 October 2019, commencing at 1.00pm

 

Recommendations contained in the council agenda are NOT council decisions. Please refer to council minutes for resolutions.

 

Item                                                                                                                                                                                   Page

Housekeeping

1.0       apologies (ngĀ whakapahĀ) 

             Elected Member Colin Kitchen

2.0       DECLARATIONS OF CONFLICTS OF INTEREST (NGA WHAKAPUAKANGA)

3.0       Decision Making Matters

3.1       Announcement of the results of Triennial Elections 2019                                                           4

3.2       Declaration by councillors                                                                                                                        7

3.3       Election of Chairperson                                                                                                                             9

3.4       Declaration by Chairperson                                                                                                                   11

3.5       Election of Deputy Chairperson                                                                                                           12

3.6       Legislation affecting councillors                                                                                                           14

3.7       Fixing the date of the first ordinary meeting of council                                                              24    

 


 

ACC - Accident Compensation Corporation

ALGIM - Association of Local Government Information Management

AMA - Aquaculture Management Area

AMP - Asset Management Plan/Activity Management Plan

AP - Annual Plan

BOI - Bay of Islands

BOPRC - Bay of Plenty Regional Council

CAPEX - Capital Expenditure (budget to purchase assets)

CBEC - Community, Business and Environment Centre

CDEM - Civil Defence Emergency Management

CEG - Co-ordinating Executive Group – Northland Civil Defence management team

CEO - Chief Executive Officer

CIMS - Co-ordinated Incident Management System (emergency management structure)

CMA - Coastal Marine Area

CPCA - Community Pest Control Areas

CRI - Crown Research Institute

DHB - District Health Board 

DOC - Department of Conservation

DPMC - Department of Prime Minister and Cabinet

ECA - Environmental Curriculum Award

ECAN - Environment Canterbury

EECA - Energy Efficiency Conservation Authority

EEZ - Exclusive Economic Zone

EF - Environment Fund

EMA - Employers and Manufacturers Association

EOC - Emergency Operations Centre

EPA - Environmental Protection Authority

ETS - Emissions Trading Scheme

FDE - Farm Dairy Effluent

FNDC - Far North District Council

FNHL - Far North Holdings Limited

FPP - First Past the Post – voting system for NRC elections

GE - Genetic Engineering

GIS - Geographic Information System

GMO - Genetically Modified Organism

HSNO - Hazardous Substances & New Organisms Act

HBRC - Hawke's Bay Regional Council

HEMP - Hapū Environmental Management Plan

Horizons - Brand name of Manawatu-Wanganui Regional Council

HR - Human Resources

HSWA - Health and Safety at Work Act 2015

IEMP - Iwi Environmental Management Plan

IPPC - Invited Private Plan Change: a process to allow Aquaculture Management Areas to be established

IRIS - Integrated Regional Information System

KDC - Kaipara District Council 

KPI - Key Performance Indicator

LATE - Local Authority Trading Enterprise

LGA - Local Government Act 2002

LGNZ - Local Government New Zealand

LGOIMA - Local Government Official Information and Meetings Act 1987

LGOL - Local Government Online

LTP - Long Term Plan

LTFS - Long Term Financial Strategy

MCDEM - Ministry of Civil Defence & Emergency Management

MFE - Ministry for the Environment 

MHWS - Mean High Water Springs

MMH - Marsden Maritime Holdings Limited

MNZ - Maritime New Zealand

MBIE - Ministry of Business, Innovation and Employment

MOH - Ministry of Health

MOT - Ministry of Transport

 

MPI - Ministry for Primary Industries

MSD - Ministry of Social Development

NCMC - National Crisis Management Centre

NES - National Environmental Standards

NDHB - Northland District Health Board

NZRC - New Zealand Refining Company (Marsden Point)

NGO - Non-Governmental Organisation

NIF - Northland Intersectoral Forum

NINC - Northland Inc.

NIWA - National Institute of Water and Atmosphere

NORTEG - Northland Technical Advisory Group

NPS - National Policy Statement

NZCPS - New Zealand Coastal Policy Statement

NZTA - New Zealand Transport Agency

NZQA - New Zealand Qualifications Authority

NZWWA - New Zealand Water and Wastes Association

OFI - Opportunity for Improvement

OSH - Occupational Safety & Health

OSPRI - Operational Solutions for Primary Industries

PCBU - Person Conducting Business or Undertaking

PDF - Portable Document Format

PPE - Personal Protective Equipment

RAP - Response Action Plan

RAQP - Regional Air Quality Plan

RCP - Regional Coastal Plan

RFI - Request for Information

RFP - Request for Proposal

RTC - Regional Transport Committee

RLTS - Regional Land Transport Strategy

RMA - Resource Management Act 1991

RMG - Resource Managers Group (Regional Councils)

RMZ - Riparian Management Zone

ROI - Return on Investment

RPMP - Regional Pest Management Plan

RPMS - Regional Pest Management Strategy

RPS - Regional Policy Statement

RSG - Regional Sector Group

RSHL - Regional Software Holdings Ltd

RTO - Regional Tourism Organisation

RWASP - Regional Water and Soil Plan

SIPO - Statement of Investment Policy and Objectives

SITREP - Situation Report

SMF - Sustainable Management Fund

SOE - State of Environment (or) State Owned Enterprise 

SOLGM - Society of Local Government Managers

SPARC - Sport & Recreation New Zealand

STV - Single Transferable Vote

SWAG - Surface Water Allocation Group

SWPA - Sustainable Water Programme of Action

TAG - Technical Advisory Group

Tier 1 - Site level plan or response for an oil spill

Tier 2 - Regional level plan or response to an oil spill

Tier 3 - National level plan or response to an oil spill

TLA - Territorial Local Authority – City & District Councils

TMP - Treasury Management Plan

TOR - Terms of Reference

TPK - Te Puni Kōkiri (Ministry of Maori Development)

TUANZ - Telecommunications Users Association of NZ

UNISA - Upper North Island Strategic Alliance

WDC - Whangarei District Council

WHHIF - Whangarei Harbour Health Improvement Fund

WRC - Waikato Regional Council

WSMP - Workplace Safety Management Practices

WWTP - Wastewater Treatment Plant

 

  


Council Meeting                                                                                                                                                         item: 3.1

29 October 2019

 

TITLE:

Announcement of the results of Triennial Elections 2019

ID:

A1151055

From:

Chris Taylor, Governance Support Manager

 

Executive summary/Whakarāpopototanga

The purpose of this report is to formally record the results of the 2019 triennial local body election for the Northland Regional Council.

 

Elections in the Te Hiku, Hokianga- Kaikohe, Coastal North, Coastal Central, Coastal South, Whangārei Urban and Kaipara constituencies were carried out by Independent Election Services Ltd, which has been appointed by the Northland councils to carry out the elections on their behalf.  Independent Election Services Ltd confirmed the official count of the election on 18 October 2019, with the declaration by public notice on Monday 21 October 2019.

 

Recommendation

That the report ‘Announcement of the results of Triennial Elections 2019’ by Chris Taylor, Governance Support Manager and dated 22 October 2019, be received.

 

Background/Tuhinga

The official results of the elections were as follows:

 

Issue:

Coastal Central Constituency

 

 

 

Number of vacancies:

1

 

 

 

 

 

Candidate Voting ID

Candidate Name

Affiliation

Votes Received

Rank

765

MACDONALD, Amy

 

2182

1

763

DIMERY, Paul

 

1639

 

764

JONGEJANS, Jeroen

 

1354

 

762

BUXTON, Maggie

 

829

 

761

ADAIR, Maureen

Independent

537

 

766

THEW, Colin Peter

 

373

 

767

Informal

 

65

 

768

Blank

 

524

 

 

 

 

 

 

Constituency

Coastal North Constituency

 

 

 

Number of vacancies:

2

 

 

 

 

 

Candidate Voting ID

Candidate Name

Affiliation

Votes Received

Rank

741

ROBINSON, Marty

Independent

6578

1

744

YEOMAN, Jocelyn

 

5678

2

743

SHEPHERD, Bill

 

5641

 

742

SAMUELS, Dover

Independent

4229

 

745

Informal

 

8

 

746

Blank

 

1343

 

Constituency

Coastal South Constituency

 

 

 

Number of vacancies:

1

 

 

 

 

 

Candidate Voting ID

Candidate Name

Affiliation

Votes Received

Rank

1722

STOLWERK, Rick

 

3522

1

1721

LOURIE, David

 

2250

 

1723

Informal

 

71

 

1724

Blank

 

542

 

Constituency

Te Hiku Constituency

 

 

 

Number of vacancies:

1

 

 

 

 

 

Candidate Voting ID

Candidate Name

Affiliation

Votes Received

Rank

702

KITCHEN, Colin Toss

 

3470

1

701

FINLAYSON, Mike

Independent

2652

 

703

Informal

 

4

 

704

Blank

 

482

 

Constituency

Whangārei Urban Constituency

 

 

 

Number of vacancies:

2

 

 

 

 

 

Candidate Voting ID

Candidate Name

Affiliation

Votes Received

Rank

1701

BAIN, John

Independent

5731

1

1702

CRAW, Jack

Independent

5647

2

1703

SINCLAIR, David

 

4922

 

1704

Informal

 

14

 

1705

Blank

 

812

 

 

Note: As the number of candidates did not exceed the number of vacancies, Justin Blaikie was duly declared as the elected member of the Northland Regional Council for the Hokianga-Kaikohe Constituency (one vacancy) and Penny Smart was duly declared as the elected member of the Northland Regional Council for the Kaipara Constituency (one vacancy).

 

In accordance with section 86 of the Local Electoral Act 2001 and section 62 of the Local Regulations 2003, a public notice declaring the official result of the election appeared in the Northern Advocate on Monday 21 October 2019.

 

Attachments/Ngā tapirihanga

Nil

Authorised by Group Manager

Name:

Malcolm Nicolson

Title:

Chief Executive Officer

Date:

22 October 2019

 


Council Meeting                                                                                                                                                         item: 3.2

29 October 2019

 

TITLE:

Declaration by councillors

ID:

A1151075

From:

Malcolm Nicolson, Chief Executive Officer

 

Executive summary/Whakarāpopototanga

Elected candidates took up office on 22 October 2019; the day after the official result was declared by public notice.  However, they cannot act in their capacity as a councillor until such time they have sworn the oath of office at the first meeting of council.

 

This report facilitates the formal declarations to be made by elected members at the inaugural meeting

 

Recommendation

That the report ‘Declaration by councillors’ by Malcolm Nicolson, Chief Executive Officer and dated 22 October 2019, be received.

 

Background/Tuhinga

Each elected member will be invited to make and sign a declaration to enable them to carry out their duties as councillors, as required by law.

 

Section 14 of Schedule 7 to the Local Government Act 2002 provides as follows:

 

“14.     Declaration by a member –

1.    A person may not act as a member of a local authority until –

(a)  That person has, at a meeting of the local authority following the election of that person, made an oral declaration in the form set out in subclause (3); and

(b)  A written version of the declaration has been attested as provided under subclause (2).

2.    The written declaration must be signed by the member and witnessed by –

(a)  The Chairperson; or

(b)  The Mayor; or

(c)   A member of the local authority; or

(d)  The Chief Executive of the local authority; or

(e)  In the absence of the Chief Executive, some other officer appointed by the Chief Executive.”

 

The form of the declaration must consist of the following elements:

 

Declaration by member

“I, [state full name], declare that I will faithfully and impartially, and according to the best of my skill and judgement, execute and perform, in the best interests of the Northland region, the powers, authorities, and duties vested in, or imposed upon, me as a member of the Northland Regional Council by virtue of the Local Government Act 2002, the Local Government Official Information and Meetings Act 1987, or any other Act”

Dated at Whangarei this 29th day of October 2019

[Signature]

Signed in the presence of

Malcolm Nicolson [Chief Executive Officer, Northland Regional Council]

Preparations are in place for these declarations to be made at the inaugural meeting.  I will ask each councillor-elect (in alphabetical order by surname) to step forward, read the declaration out loud and sign the declaration document.  I will then witness the declaration with my signature.

 

Attachments/Ngā tapirihanga

Nil

Authorised by Group Manager

Name:

Malcolm Nicolson

Title:

Chief Executive Officer

Date:

22 October 2019

 


Council Meeting                                                                                                                                                         item: 3.3

29 October 2019

 

TITLE:

Election of Chairperson

ID:

A1151562

From:

Malcolm Nicolson, Chief Executive Officer

 

Executive summary/Whakarāpopototanga

Clause 21(5)(b) of Schedule 7 of the Local Government Act 2002 stipulates that the election of the Chairperson, and the making and attesting of the declaration required of the Chairperson, is business that must be conducted at the first meeting of a local authority following triennial general elections.

 

This report facilitates the election of the Chairperson.

 

Recommendations

1.         That the report ‘Election of Chairperson’ by Malcolm Nicolson, Chief Executive Officer and dated 18 October 2019, be received.

2.         That in the event more than one nomination for Chairperson is received, “System A” as specified in Clause 25 of Schedule 7 to the Local Government Act be used for the election of the Chairperson.

3.         That _______________________________ be elected Chairperson of the Northland Regional Council.

 

Background/Tuhinga

The Chief Executive Officer will call for nominations for election to the office of Chairperson.  A mover and seconder will be required for each nomination.  Any nomination that is moved but not seconded, will be deemed to have lapsed.

If only one nomination is received, that person will be declared to be elected.  Should more than one nomination be received, the council will be called upon to decide which of the two systems of voting (as specified in Clause 25 of Schedule 7 to the Local Government Act) is to be used to make the appointment.  The two systems are as follows:

System A

(a)       Requires that a person is elected or appointed if he or she receives the votes of a majority of the members of the local authority or committee present and voting; and

(b)       Has the following characteristics:

(i)        There is a first round of voting for all candidates; and

(ii)       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

(iii)      If no candidate is successful in the second round there is a third; and if necessary a subsequent, round of voting from which, each time, the candidate with the fewest votes in the previous round is excluded; and

(iv)      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 resolved by lot.

 

System B

(a)  Requires that a person is elected or appointed if he or she receives more votes than any other candidate; and

(b)  Has the following characteristics:

(i)            There is only one round of voting; and

(ii)           If two or more candidates tie for the most votes, the tie is resolved by lot.

 

Once elected, the Chairperson will be asked to step forward, read the declaration out loud (as per Section 14 of Schedule 7 to the Local Government Act 2002), and sign the declaration document.  At this time the Chairperson will assume the chair from the Chief Executive and preside over the remainder of the council meeting.

 

Considerations

1.         Options

No.

Option

Advantages

Disadvantages

1

System A

More complex

Carries a lesser likelihood that the Chairmanship of council could be determined by lot.

2

System B

Simple system

Carries a higher likelihood that the Chairmanship of council could be determined by lot.

 

The staff’s recommended option is that, in the event more than one nomination be received for Chairperson, System A be applied.

2.         Significance and engagement

Regional councils must elect a Chairperson and therefore in relation to Section 79 of the Local Government Act 2002 and council policy, this issue is considered to be of low significance.

3.         Policy, risk management and legislative compliance

This report is submitted for consideration by council pursuant to the statutory requirements of Schedule 7 of the Local Government Act 2002.

Being a purely administrative matter, Community Views, Māori Impact Statement, Financial Implications and Implementation Issues are not applicable.

 

Attachments/Ngā tapirihanga

Nil

Authorised by Group Manager

Name:

Malcolm Nicolson

Title:

Chief Executive Officer

Date:

22 October 2019


Council Meeting                                                                                                                                                         item: 3.4

29 October 2019

 

TITLE:

Declaration by Chairperson

ID:

A1151669

From:

Malcolm Nicolson, Chief Executive Officer

 

Executive summary/Whakarāpopototanga

Clause 21(5)(b) of Schedule 7 to the Local Government Act stipulates that the election of the Chairperson, and the making and attesting of the declaration required of the Chairperson, is business that must be conducted at the first meeting of a local authority following the triennial general elections.

 

This report facilitates the formal declaration to be made by the Chairperson.

 

Recommendation

That the report ‘Declaration by Chairperson’ by Malcolm Nicolson, Chief Executive Officer and dated 18 October 2019, be received.

 

Background/Tuhinga

The newly elected Chairperson will be invited to make and sign a declaration to enable them to carry out their duties as Chairperson; as required by law.  I will then witness the declaration with my signature.

 

Section 14 of Schedule 7 to the Local Government Act stipulates that the form of the declaration must consist of the following elements:

 

Declaration by Chairperson

“I, [state full name], declare that I will faithfully and impartially, and according to the best of my skill and judgment, execute and perform, in the best interests of the Northland region, the powers, authorities and duties vested in, or imposed upon, me as Chairperson of the Northland Regional Council by virtue of the Local Government Act 2002, the Local Government Official Information and Meetings Act 1987, or any other Act.”

 

Dated at Whangārei this 29th day of October 2019.

[Signature]

Signed in the presence of:

Malcolm Nicolson [Chief Executive Officer, Northland Regional Council]

 

Attachments/Ngā tapirihanga

Nil

Authorised by Group Manager

Name:

Malcolm Nicolson

Title:

Chief Executive Officer

Date:

22 October 2019

 


Council Meeting                                                                                                                                                         item: 3.5

29 October 2019

 

TITLE:

Election of Deputy Chairperson

ID:

A1151889

From:

Malcolm Nicolson, Chief Executive Officer

 

Executive summary/Whakarāpopototanga

Clause 21(5)(e) of Schedule 7 to the Local Government Act 2002 stipulates that the election of the Deputy Chairperson is business that must be conducted at the first meeting of a local authority following triennial general elections.

 

This report facilitates the election of the Deputy Chairperson.

 

Recommendations

1.         That the report ‘Election of Deputy Chairperson’ by Malcolm Nicolson, Chief Executive Officer and dated 10 January 2019, be received.

2.         That in the event more than one nomination for the Deputy Chairperson is received, System A as specified in Clause 25 of Schedule 7 to the Local Government Act be used for the election of the Deputy Chairperson.

3.         That __________________________ be elected Deputy Chairperson of the Northland Regional Council.

 

Background/Tuhinga

Section 17(2) of Schedule 7 to the Local Government Act requires that every Regional Council shall elect one of its members to be its Deputy Chairperson.

The functions of the office of Deputy Chairperson are set out in section 17(3) as follows:

“ (3) The Deputy Mayor or Deputy Chairperson must perform all the responsibilities and duties, and may exercise all the powers, of the Mayor or Chairperson, -

(a)       With the consent of the Mayor or Chairperson, at any time during the temporary absence of the Mayor or Chairperson:

(b)       Without that consent, at any time while the Mayor or Chairperson is prevented by illness or other cause from performing the responsibilities and duties, or exercising the powers, of his or her office:

(c)       While there is a vacancy in the office of the Mayor or Chairperson.

 

(4) In the absence of proof to the contrary, a Deputy Mayor or Deputy Chairperson acting as Mayor or Chairperson is presumed to have the authority to do so.

(5) A Deputy Mayor or Deputy Chairperson continues to hold his or her office as Deputy Mayor or Deputy Chairperson, so long as he or she continues to be a member of the territorial authority or regional council, until the election of his or her successor.”

The procedure for electing the Deputy Chairperson is the same as detailed in Item 3.3 for the election of the Chairperson.  Again, it is proposed that “System A” be used as the method of voting.

 

 

Considerations

1.         Options

The options are either “System A” or “System B” and the advantages and disadvantages are the same as detailed in Item X.X for the election of the Chairperson.  The staff’s recommendation is that, in the event more than one nomination be received for Deputy Chairperson, “System A” be applied.

2.         Significance and engagement

Regional councils must elect a Deputy Chairperson and therefore in relation to Section 79 of the Local Government Act 2002 and council policy, this issue is considered to be of low significance.

3.         Policy, risk management and legislative compliance

This item is submitted for consideration by council pursuant to the statutory requirements of Schedule 7 of the Local Government Act 2002.

 

Being a purely procedural matter: Community Views, Maori Impact Statement, Financial Implications and Implementation Issues are not applicable.

 

Attachments/Ngā tapirihanga

Nil

Authorised by Group Manager

Name:

Malcolm Nicolson

Title:

Chief Executive Officer

Date:

22 October 2019

 


Council Meeting                                                                                                                                                         item: 3.6

29 October 2019

 

TITLE:

Legislation affecting councillors

ID:

A1151892

From:

Malcolm Nicolson, Chief Executive Officer

 

Executive summary/Whakarāpopototanga

This report is in accordance with Clause 21 of Schedule 7 to the Local Government Act 2002 requires the Chief Executive Officer to provide councillors, at the first meeting following elections, with a general explanation of specified Acts which directly affect them.

 

The implications of these laws, and best practice in dealing with them will be covered in a workshop on 12 November 2019.

 

Recommendation

That the report ‘Legislation affecting councillors’ by Malcolm Nicolson, Chief Executive Officer and dated 18 October 2019, be received.

 

Background/Tuhinga

Local Government Act 2002

This is the Act under which all authorities are constituted and which sets their core powers and authorities.

 

General principles

The Act contains detail on the powers of councils, their decision-making, planning and reporting responsibilities, and the setting of charges and making of bylaws, and the operation of Council Controlled Organisations (CCOs).[1]  Setting rates is done under the Local Government (Rating) Act 2002.

 

At a more general level, some principles are laid down for councils as a whole, and you are encouraged to become familiar with sections 10, 11, 12 and 14 as these guide what councils can do, and the way they should do it; accessible via the link:

http://legistlation.govt.nz/act/public/2002/0084/latest/DLM170873.html

 

Of particular note is the purpose of local government, as set out in section 10:

10        Purpose of local government

(1)       The purpose of local government is

(a)       to enable democratic local decision-making and action by, and on behalf of, communities; and

(b)       to promote the social, economic, environmental, and cultural well-being of communities in the present and for the future.

Sections 14 and 15 are also of broad significance and are included as Attachment 1 for ease of reference. 

Section 14 sets out the principles that all local authorities must apply in performing their roles.

Section 15 requires all local authorities in the region to enter into an agreement specifying how they will communicate with each other and co-ordinate their activities.  The agreement must be entered into by 1 March 2020.

Section 12(5) states that a regional council must exercise its powers wholly or principally for the benefit of all or a significant part of its region, and not for the benefit of a single district.

 

Councillors

Clause 1 of Schedule 7 provides that a person’s office as member of a Local Authority is vacated if the person, while holding office as a member of the local authority –

“(a) ceases to be an elector or becomes disqualified for registration as an elector under the Electoral Act 1993; or

(b) is convicted of an offence punishable by a term of imprisonment of two years or more.”

Note that you are disqualified if convicted of that type of offence; it does not matter that you may not be imprisoned.

Absence from four consecutive council meetings without leave means you automatically vacate office; Clause 5(1)(d) of Schedule 7.

 

Councillor conduct

Clause 27 of Schedule 7 requires councillors to comply with the Standing Orders adopted by the council.  The Northland Regional Council has previously adopted a set and these still apply until such time the council elects to amend or adopt a new set of Standing Orders.

Clause 15 of Schedule 7 requires council to have a Code of Conduct.  It deals with behaviour between councillors and with staff, media and the public, and a general explanation of relevant law.  The current Code of Conduct still applies.  However, council will be given the opportunity to review the Code of Conduct in due course.

You can access copies of the Standing Orders and the Code of Conduct via your mobile devices.           

 

Liability and indemnity of councillors

Councillors can be indemnified by the council for costs in proceedings arising from actions as a councillor, so long as the councillor has acted in good faith in pursuance of their responsibilities, or they have successfully defended criminal proceedings (section 43 LGA). 

On the other hand, councillors can be held personally responsible by the Auditor-General for particular losses (see section 44 of the LGA).  The means councillors have to personally pay the amount of the loss to the Crown (section 46 LGA).

 

Councillors are the collective employer of the Chief Executive

As the governing body, the Chair and councillors are the employer of the Chief Executive.  As the employer, the council has obligations under the Employment Relations Act 2000 (ERA), the Act and under the council's Code of Conduct.  In all of its dealings with the Chief Executive, the council must act collectively and in accordance with its good employer obligations under the Act, its good faith obligations under the ERA, the implied and express terms of the Chief Executive’s employment agreement and the obligations the council owes to its employee

Clause 36 of Schedule 7 of the Act details the council's "good employer" obligations, including operating a personnel policy that includes provisions requiring:

 

(a)          good and safe working conditions; and

(b)         ensuring that all employees maintain proper standards of integrity, conduct, and concern for the public interest.

 

Under section 39(d) and Schedule 7, Clause 36 of the Act, councils are required to be good employers.  In examining whether a body acts as a "good employer", matters such as compliance with employer policies, codes and terms of employment, and the good faith provisions of the ERA, are all relevant.

As the chief executive’s employer, the Council has various obligations under the ERA, including to:

 

(a)          act in good faith at all times;

(b)         not engage in any conduct which unjustifiably disadvantages the chief executive in their employment;

(c)          provide the chief executive with a safe working environment (including not subjecting them to undue or unreasonable levels of stress); and

(d)         not act in a manner that could give rise to potential claims of constructive dismissal.

 

The obligation of good faith requires that the parties to an employment relationship must:

 

(a)          deal with each other in good faith;

(b)         not to do anything which could, or is likely to, directly or indirectly mislead or deceive each other; and

(c)          be active and constructive in establishing and maintaining a productive employment relationship including being responsive and communicative. 

 

A mutual obligation of trust and confidence between an employer and employee is implied into an employment relationship.  This obligation requires an employer, in the case of an employee, not to act in such a way so as to damage the trust and confidence between the parties.

 

Local Government Official Information and Meetings Act 1987 (LGOIMA)

This Act provides that information held by local authorities is to be made publicly available unless there are good reasons, in terms of the Act, for withholding it.  The reasons specified for the withholding of information also apply to the exclusion of members of the public from meetings of the council and its committees.

The relevant extracts from Sections 6 and 7 of the Act are as follows:

“6. Conclusive reasons for withholding official information –

Good reason for withholding official information exists, if the making available of that information would be likely –

a.    To prejudice the maintenance of the law, including the prevention, investigation, and detection of offences, and the right to a fair trial; or

b.    To endanger the safety of any person.

 

7. Other reasons for withholding official information –

1. Where this section applies, good reason for withholding official information exists, for the purpose of section 5, unless, in the circumstances of the particular case, the withholding of that information is outweighed by other considerations which render it desirable, in the public interest, to make that information available.

2. Subject to sections 6, 8 and 17 of this Act, this section applies if, and only if, the withholding of information is necessary to –

a. Protect the privacy of natural persons, including that of deceased natural persons; or

b. Protect information where the making available of the information –

i. Would disclose a trade secret; or

ii. Would be likely unreasonably to prejudice the commercial position of the person who supplied or who is the subject of the information; or

[ba] In the case only of an application for a resource consent, or water conservation order, or a requirement for a designation or heritage order, under the Resource Management Act 1991, to avoid serious offence to tikanga Māori, or to avoid the disclosure of the location of waahi tapu; or

c.     Protect information which is subject to an obligation of confidence or which any person has been or could be compelled to provide under the authority of any enactment, where the making available of the information -    

i.              Would be likely to prejudice the supply of similar information, or information from the same source, and it is in the public interest that such information should continue to be supplied; or

ii.             Would be likely otherwise to damage the public interest; or

d.    Avoid prejudice to measures protecting the health or safety of members of the public; or

e.    Avoid prejudice to measures that prevent or mitigate material loss to members of the public; or

f.     Maintain the effective conduct of public affairs through –

i.              The free and frank expression of opinions by or between or to members or officers or employees of any local authority, or any persons to whom section 2(5) of this Act applies, in the course of their duty; or

ii.             The protection of such members, officers, employees, and persons from improper pressure or harassment; or

g.    Maintain legal professional privilege; or

h.    Enable any local authority holding the information to carry out without prejudice or disadvantage, commercial activities; or

i.      Enable any local authority holding the information to carry on, without prejudice or disadvantage, negotiations (including commercial and industrial negotiations); or    

j.     Prevent the disclosure or use of official information for improper gain or improper advantage.”

 

Section 17 gives some other grounds for refusing to disclose information including that disclosure would be in breach of another law, the information will soon be public anyway, or it cannot be made available without substantial work.

Section 13(5) of the Act requires that decisions on information requests be made by the Chief Executive Officer (or an officer or employee authorised by that Chief Executive).  If you receive a request personally, you should send it promptly to the Chief Executive to ensure it is processed appropriately; and you may tell the requester you are doing that.  Please do not give the requester any informal assurances that the information exists or will be provided.  It is quite likely that at the point the request is made, you may not be aware of all the relevant circumstances.

Be aware that:

(1)  Your copies of council papers, including your own annotations on them, are official information, and may be requested.

(2)  Exclusion of the public from a meeting or workshop does not mean that the papers for or generated at the meeting or workshop are automatically able to be withheld.  The Act still applies; often the reason for confidentiality may have passed.

(3)  Some draft documents are official information.  There is no special exemption for draft documents.

Public excluded meetings

Unless one or more of the grounds in Sections 6 or 7 apply, then the council cannot exclude the public from a meeting.  Every resolution to exclude the public from a meeting is required to state:

a.    The general subject of each matter to be considered;

b.    The reason why the matter is considered to be confidential; and

c.     The grounds in the Act under which the resolution is based.

 

Any items deemed by the Chief Executive Officer to be confidential are included at the back of the council agenda and are excluded from copies provided to the public.  A suggested resolution to comply with the above requirements is also provided in the non-confidential part of the agenda.

Workshops are routinely closed to the public, except people who are invited to attend for a specific purpose.

 

Meeting procedures

LGOIMA also regulates and sets out the procedural requirements for meetings of local authorities; including the notification of meetings, the publication of agendas and access by the public to the minutes of meetings.

Of particular importance for the roles and conduct of elected members is the fact that the Chair has the responsibility to maintain order at meetings, but all elected members should accept a personal responsibility to maintain acceptable standards of address and debate.  No elected member should:

 

·    create a disturbance or a distraction while another councillor is speaking

·    be disrespectful when they refer to each other or other people

·    use offensive language about the council, other councillors, any employee of the council or any member of the public.  

 

Unlike MPs, elected members of councils do not have absolute privilege for what they say at council meetings.  There is a form of qualified privilege, but it is lost if you are proved to have been predominantly motivated by ill will, or took improper advantage of the situation; sections 52 and 53 LGOIMA.

Think of the defences as being available if you make a mistake.  Attacking someone in the belief that the defences will protect you is a very high risk strategy.

 

Things you should not do

As well as not attempting to deal with official information requests (discussed above), as elected members you should not:

 

·    become engaged in employment issues, other than the employment of the Chief Executive.  You appoint the Chief Executive.  The Chief Executive hires, fires, disciplines, and promotes the other employees; and is accountable to you for how this is done.

·    become engaged in prosecution decisions.  Elected members should set prosecution guidelines.  Individual decisions on whether or not to prosecute should be made by officers at the appropriate level, implementing your guidelines.

 

Generally, avoid statements that suggest you have predetermined an issue.  In most cases, significant council decisions have to be made by following a process that includes consultation and allowing people to tell you their views.  Predetermination can mean you cannot participate in a decision process on something you feel strongly about.  There is a world of difference between:

“I will never require boaties to pay for fan worm control”; or

“I am totally opposed to off-leash dog exercise areas in council reserves”

AND

“I understand fan worm spreads in various ways.  I’m not convinced that boaties should be charged for its control, but we need to assess the options”; or

“I can see there are health and safety issues with dogs off-leash and children both using reserves.  I will need to be satisfied that child safety can be assured before I will agree”.

 

The Local Authorities (Members’ Interests) Act 1968

One purpose of the Act is to control the making of contracts between councils and councillors, their partners or companies in which they have roles or interests that need not be controlling interests.  The Act applies to a contract, contracts or sub contracts with the council to a value of $25,000 or more each year, in total.   It is no excuse that the contract is at arms-length, or on standard terms.

The Act also restricts the actions of councillors when matters in which they have a monetary interest are being considered.  The Act imposes restrictions on councillors who are deemed to have a pecuniary interest in matters coming before the council.  This affects participation in both discussions and formal voting.  You are required by the Act to declare the fact of a pecuniary interest when the matter comes before the council and that, and your abstention from discussing and voting will be recorded in the minutes.

The Controller and Auditor-General has produced a useful guide to the provisions of this Act; “Guidance for Members of local authorities about the Local Authorities (Members’ Interests) Act 1968” which can be accessed using the link:

http://www.oag.govt.nz/2010/lamia

The Act permits the Controller and Auditor General to grant exemptions from its provisions.  That must be sought in advance.  Hence, councillors are urged to advise the Chief Executive Officer of their financial interest in any entity or a disqualifying contract so that the appropriate exemption can be sought, if possible.

Local Government Auditors request each year to see a register of councillors’ interests, so it is essential that councillors complete the “Declaration of Interests” form, making a declaration (nil or otherwise) and provide the Chief Executive Officer with details.  The completed form needs to be returned to the Governance Support Manager on or before the inaugural council meeting.  These returns will be treated in strict confidence.

The Controller and Auditor-General has produced a useful guide which councillors are encouraged to read entitled “Managing conflicts of interest: Guidance for public entities” which is accessible via the link:

http://www.oag.govt.nz/2007/conflicts-public-entities

The Act addresses only pecuniary interests in contracts.  You may well have other interests that reasonable observers might reasonably conclude could affect your decision making.  Please be alert to the risk of that perception occurring and address how you should act before issues arise.

 

Sections 99,105 and 105A of The Crimes Act 1961: Bribery and Corruption

These sections of the Act relate to acceptance of bribes by “officials”.

The definition of an “official” in Section 99 of the Act includes any member or employee of a local authority.  A ‘bribe’ means “any money, valuable consideration, office or employment, or any benefit whether direct or indirect.”

Sections 105 creates an offence of accepting or trying to obtain a bribe in respect of your official capacity; penalty up to 7 years jail.

Section 105A creates an offence with the same penalty for corruptly using or disclosing information obtained in an official capacity to obtain advantage or gain for yourself or anyone else.

Secret Commissions Act 1910

This Act makes it an offence for any officer or member of a local authority to offer or receive gifts, favours or inducement in relation to the affairs of the local authority including the granting of contracts.  The same applies to their agents and offers to them.

Any gift or other consideration given or offered to any parent, husband, wife, child, partner, “clerk or servant” of the councillor or staff member is also caught within the provisions of this Act.  The receipt of gifts is also prohibited.

Penalties for conviction or indictment includes fines of up to $1,000 and imprisonment for up to two years.

The Act is old and archaic, but is very much alive, and there have been some high profile convictions in recent years.

 

Financial Markets Conduct Act 2013

This Act prohibits trading in listed securities (broadly shares or bonds) by an information insider.  Typically this is called insider trading, and the prohibitions include not trading (buying or selling) by the insider, no disclosing to others likely to trade, and no encouraging of trading by others (even if the information itself is not disclosed).

Inside information is not just information about listed securities held by the council e.g. Marsden Maritime Holdings, or council’s listed company investments.  It can include information about companies with which council is dealing (for example, advance notice of an application for a consent that suggests a big development is planned).

Inside information is material information not generally available to the market; and which the person knows or ought reasonably to know was material information not generally available and would have a material effect on the price of the quoted stock.

The source of information, the motive of the councillor, and whether he or she makes no profit is irrelevant.

The rules are enforced by the Financial Markets Authority and it is assiduous about protecting the integrity of the stock market.  Enforcement is most likely to be against an individual councillor or councillors, not the council.

There are some technical exceptions.  One that can be relevant is for redemption of managed investment products in managed investment schemes.

There are some defences, for example the use of blind trusts, but generally councillors should avoid any conduct that means they are likely to need to rely on the exceptions or defences.  Councillors are encouraged to take expert advice personally at an early stage if they suspect an insider trading situation may arise.

 

Health and Safety at Work Act 2015 (HWSA)

The Health and Safety at Work Act 2015 (HSWA) imposes health and safety duties on "persons conducting a business or undertaking" (PCBU).  The council is a PCBU under HSWA.  Under s 36 a PCBU has the primary duty of care to ensure so far as is reasonably practicable the health and safety of:

 

•     workers (a wider group than just employees) who work for the PCBU

•     workers whose activities are influenced or directed by the PCBU, while the workers are carrying out the work (e.g. contractors)

•     other persons are not put at risk from work carried out as part of the business of undertaking e.g. visitors, customers, members of the public

HSWA has also introduced the concept of an “officer”.  An officer of a PCBU must exercise due diligence to ensure that the PCBU complies with its duties.  Councillors and the Chief Executive are officers under HSWA. 

 

The officer's duty is personal and cannot be discharged by others.  An officer must exercise the care, diligence, and skill that a reasonable officer would exercise in the same circumstances, taking into account (without limitation):

 

·    the nature of the business or undertaking; and

·    the position of the officer and the nature of the responsibilities undertaken by the officer.

 

Officers of high-risk PCBUs and/or officers who have more responsibility and more control over the PCBU's activities will be expected to do more in order to discharge their due diligence duty.

Officers have one duty under HSWA and that is to exercise due diligence, of which there are 6 key elements which are:

(a)  To acquire, and keep up-to date, knowledge of work health and safety matters; and

(b)  To gain an understanding of the nature of the operations of the business or undertaking of the PCBU, and generally of the hazards and risks associated with those operations; and

(c)   To ensure that the PCBU has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking; and

(d)  To ensure that the PCBU has appropriate process for receiving and considering information regarding incidents, hazards and risks and for responding in a timely way to that information; and

(e)  To ensure that the PCBU has, and implements, processed for complying with any duty or obligation of the PCBU under this Act; and

(f)   To verify the provision and use of the resources and processes referred to in paragraphs (c) to (e).

 

The duties of the Officers and of the PCBU are independent of each other.  This means if a PCBU has failed to meet its duty, but the Officers exercised due diligence then they would not be personally liable for the health and safety failings of the PCBU provided they have exercised due diligence adequately.

A member of the governing body of a local authority (or local board or community board) who is appointed or elected under the Local Electoral Act 2001 does not commit an offence, when acting in that capacity, for failure to comply with the duty of an officer.  However, elected members will have the duties of an officer when acting in their capacity as an officer of a CCO.

 

Governance guidelines for officers on their health and safety responsibilities have been developed to provide a framework for how officers can lead, plan, review and improve health and safety.  It is an essential resource for governing bodies, providing information on responsibilities, the role of governing bodies in health and safety, diagnostic questions and actions as well as case studies and a checklist.  These will assist officers to identify whether their health and safety systems are effective at minimising risk.  The guide has been updated to cover some of the key concepts in the Health and Safety at Work Act 2015 that are particularly relevant to directors – officers due diligence duty, officers’ liability and worker engagement and participation requirements.  The guidance was reviewed in 2016 by WorkSafe and Institute of Directors.  Councillors should read these as if they were directors.

The guidelines for good governance are accessible via the link:

 https://worksafe.govt.nz/managing-health-and-safety/businesses/guidance-for-business-leaders

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             

 

 

Attachments/Ngā tapirihanga

Attachment 1: Sections 14 and 15 of the Local Government Act 2002  

Authorised by Group Manager

Name:

Malcolm Nicolson

Title:

Chief Executive Officer

Date:

22 October 2019

 


Council Meeting  ITEM: 3.6

29 October 2019Attachment 1

PDF Creator


Council Meeting                                                                                                                                                         item: 3.7

29 October 2019

 

TITLE:

Fixing the date of the first ordinary meeting of council

ID:

A1153536

From:

Chris Taylor, Governance Support Manager

 

Executive summary/Whakarāpopototanga

This report gives effect to Schedule 7, Clause 21(d) of the Local Government Act 2002, which stipulates that ‘the fixing of the date and time of the first meeting of the local authority, or the adoption of a schedule of meetings’ is business that must be conducted at the inaugural meeting.

 

Recommendations

1.         That the report ‘Fixing the date of the first ordinary meeting of council’ by Chris Taylor, Governance Support Manager and dated 18 October 2019, be received.

2.         That council notes an extraordinary meeting of the Northland Regional Council will be held at the council offices, 36 Water Street, Whangārei on Wednesday 6 November 2019 commencing at 9.30am (to address business that has been suspended during the election period).

3.         That the first ordinary meeting of the Northland Regional Council be held at the council offices, 36 Water Street, Whangārei on Tuesday 19 November 2019 commencing at 10.30am

4.         That a schedule of council meetings for the remainder of the 2019 calendar year be presented at the first ordinary meeting of council for its consideration.

5.         That a full meeting schedule (including the meeting dates of council’s subordinate bodies) be presented to council for its consideration once the governance structure has been confirmed.

 

Background/Tuhinga

The Local Government Act 2002, Schedule 7, Clause 19 contains general provisions for the calling of meetings.  In particular there is provision [Clause 19(6)] for the local authority to adopt a schedule of meetings that:

 

-      May cover any future period that the local authority considers appropriate; and

-      May be amended.

 

Furthermore, council has previously found that setting a schedule has been an efficient way to plan for meetings listed for that period, noting that there will be amendments required to meet changing circumstances.

It is anticipated that council will give consideration to preferred meeting days and its governance structure as a matter of priority.  Based on the outcome of these discussions, staff will develop a meeting schedule for both council and its subordinate bodies.

In the interim an extraordinary council meeting has been scheduled on Wednesday 6 November 2019 to address business that has been suspended over the election period and the first ordinary council meeting on Tuesday 19 November 2019; until these important discussions have taken place.

 

Considerations

Options

No.

Option

Advantages

Disadvantages

1

Approve the proposed dates.

This meets council’s obligations under the Local Government Act and provides certainty until such time council has confirmed its preferred meeting dates and governance structure.

The dates have been selected (and canvassed with the other Northland councils) to avoid clashes.

None apparent

2

Approve alternate meeting dates.

The alternate dates may be better aligned with councillors’ commitments.

There is the potential for clashes with other induction or cross council commitments.  The current dates have been selected to avoid this.

 

 

The staff’s recommended option is 1.

2.         Significance and engagement

This is a procedural matter required by law.  Hence when assessed against council policy is deemed to be of low significance.

3.         Policy, risk management and legislative compliance

This item is submitted for consideration by council pursuant to the statutory requirements of Schedule 7 of the Local Government Act 2002.

Being a purely procedural matter; Community Views, Māori Impact Statement, Financial Implications and Implementation Issues are not applicable.

 

Attachments/Ngā tapirihanga

Nil

Authorised by Group Manager

Name:

Malcolm Nicolson

Title:

Chief Executive Officer

Date:

22 October 2019

    



[1]           Northland Inc Ltd is a CCO.  Marsden Maritime Holdings Ltd is not a CCO, even though NRC holds the majority of the shares.  It is listed on the NZX.