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Waitākere Ranges Local Board
31 October
2013
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Election of Chairperson
File No.:
CP2013/24957
Purpose
1. In accordance with Schedule 7, clause 21(5)(b) of the Local
Government Act 2002, the Chief Executive, will call for nominations for the Chairperson
of the Waitākere Ranges Local Board.
Executive Summary
2. The local board must elect a member to this position in
accordance with Schedule 7, clause 25 of the Act, noting that no member has a
casting vote.
3. The
local board will also need to determine what method they will apply to elect
the chairperson.
Schedule 7, Part 1,
Clause 25 of the Local Government Act 2002 stipulates that:
25 Voting systems for certain appointments
(1) This clause applies to -
(a) the election or appointment
of the chairperson and deputy chairperson of a regional council; and
(b) the election or appointment
of the deputy mayor; and
(c) the election or appointment
of the chairperson and deputy chairperson of a committee; and
(d) the election or appointment
of a representative of a local authority.
(2) If this clause applies, a
local authority or a committee (if the local authority has so directed) must
determine by resolution that a person be elected or appointed by using one of
the following systems of voting:
(a) the voting system in subclause (3) (system A):
(b)
the voting system in subclause (4) (system B).
(3)
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 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
2 or more candidates tie for the lowest number of votes, the person excluded
from the next round is resolved by lot.
(4)
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 1 round of
voting; and
(ii) if 2 or more candidates
tie for the most votes, the tie is resolved by lot.
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Recommendation
That the Waitākere Ranges Local Board:
a) Elects a Chairperson for the
2013-2016 political term, utilising either System A or System B of Schedule 7, Part 1, Clause 25 of the Local Government Act 2002.
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Attachments
There are no
attachments for this report.
Signatories
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Author
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Riya Seth - Democracy Advisor
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Authorisers
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Karen Lyons - Manager Local Board
Services
Glenn Boyd -
Relationship Manager Henderson-Massey, Waitākere Ranges, Whau
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Waitākere Ranges Local Board
31 October
2013
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Election of Deputy Chairperson
File No.:
CP2013/24960
Purpose
1. In accordance with Schedule 7, clause 21(5)(e) of
the Local Government Act 2002, the Chairperson will call for nominations for
the Deputy Chairperson of the Waitākere Ranges Local Board.
Executive Summary
2. The local board must elect a member to the Deputy Chairperson
position in accordance with Schedule 7, clause 25 of the Act, noting that no
member has a casting vote.
3. The local board will also need to determine what
method they will apply to elect the Deputy Chairperson.
Schedule
7, Part 1, Clause 25 of the Local Government Act 2002 stipulates that:
25 Voting systems for certain appointments
(1) This clause applies to -
(a) the
election or appointment of the chairperson and deputy chairperson of a regional
council; and
(b) the
election or appointment of the deputy mayor; and
(c) the
election or appointment of the chairperson and deputy chairperson of a
committee; and
(d) the
election or appointment of a representative of a local authority.
(2) If this
clause applies, a local authority or a committee (if the local authority has so
directed) must determine by resolution that a person be elected or appointed by
using one of the following systems of voting:
(a) the voting system in subclause (3) (system A):
(b)
the voting system in subclause
(4) (system B).
(3)
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
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 2 or more candidates tie for the lowest number of votes,
the person excluded from the next round is resolved by lot.
(4)
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 1 round of voting; and
(ii) if 2
or more candidates tie for the most votes, the tie is resolved by lot.
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Recommendation
That the Waitākere Ranges Local Board:
a) Elects a Deputy Chairperson for the 2013-2016 political
term, utilising either System A or System B of Schedule 7, Part 1, Clause 25 of the Local Government Act
2002.
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Attachments
There are no
attachments for this report.
Signatories
|
Author
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Riya Seth - Democracy Advisor
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Authorisers
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Karen Lyons - Manager Local Board
Services
Glenn Boyd -
Relationship Manager Henderson-Massey, Waitākere Ranges, Whau
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Waitākere Ranges Local Board
31 October
2013
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LAWS AFFECTING LOCAL BOARD
MEMBERS
Executive Summary
At the
first meeting of each local board after the three-yearly general election,
local board members receive a general explanation of laws that affect them as
local board members.[1] These
laws include:
· the
Local Government Official Information and Meetings Act 1987;
· the
Local Authorities (Members’ Interests) Act 1968;
· sections
99, 105 and 105A of the Crimes Act 1961;
· the
Secret Commissions Act 1910; and
· the
Securities Act 1978.
This
report also summarises relevant provisions from the Local Government Act 2002
and the Local Government (Auckland Council) Act 2009.
Preliminary
comments: Auckland Council
Before
turning to the legal requirements, it is important to remember that the Local
Government (Auckland Council) Act 2009 (LGACA) creates “Auckland
Council” as a “two-tier governance structure comprising the governing body
and the local boards”, with decision-making responsibilities shared between
the governing body and the local boards.[2] That is, the governing body and the local boards
collectively comprise the “Auckland Council” entity. The powers, functions and
responsibilities of the governing body and local boards, respectively, are
discussed below.
Legislative
Overview
Meetings
and Official Information
The
Local Government Official Information and Meetings Act 1987 (LGOIMA)
generally applies to the use and release of official information (that is,
information held by council). The fundamental principle in LGOIMA is that
official information is publicly available, unless one or more withholding
grounds (listed in LGOIMA) apply.
LGOIMA
also applies to council meetings, including meetings of local boards. Relevant
to meetings:
· LGOIMA
states the grounds when the public can be excluded from a meeting, for example,
when “good reason” to withhold information exists.[3] The public
can also be excluded where there is a right of appeal on the particular
decision being discussed.
· To
exclude the public, the local board must make a resolution stating the subject
of each matter to be considered while the public is excluded, and must give the
reasons for excluding the public, referring to the statutory grounds in LGOIMA.
· 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 or continue to
prejudice the orderly conduct of the meeting.[4]
· If
a local board member’s conduct prevents the orderly conduct of the meeting,
that local board member can also be asked to leave by the chairperson under the
council’s standing orders.
· Where
a meeting is open to the public, and an agenda / minutes are made available,
then any defamatory matter published in this way will be treated as privileged,
unless the publication was predominantly motivated by ill will.[5] Oral statements made at meetings of the local board are
also privileged, unless the statement is shown to be predominantly motivated by
ill will.[6]
· Items
which are not on an agenda for a meeting can still be dealt with if the meeting
resolves to do so; and the chairperson explains in open meeting why the item is
not on the agenda and why the matter cannot be delayed to a subsequent meeting.[7] Minor matters relating to the general business of the
local board can be discussed without a resolution to do so, so long as the chairperson
explains at the beginning of the meeting, when it is open to the public, that
the item will be discussed. In that case no resolution, decision or
recommendation can be made except to refer the item to a subsequent meeting for
further discussion.[8]
Local
boards can hold workshops or seminars without allowing the public to attend.
This is because workshops or seminars are not treated as formal council
meetings (as no decisions are made), and so they are not subject to LGOIMA.
Members’
Interests
The
Local Authorities (Members’ Interest) Act 1968 deals
with financial conflicts of interest - it applies
to situations where your personal interests impinge, or could be seen as
impinging, on your duties as an elected local board member.
There
are two key rules:
· You
will be disqualified from office as an elected member if you are concerned or
interested in contracts under which payments made by or on behalf of the local
board exceed $25,000 in any financial year.
· As
an elected member, you are also prohibited from participating in any council
discussion or voting on any matter where you have a financial interest, other
than an interest in common with the general public. (When describing financial
interests, the Act uses the term “pecuniary” interest.)
The
same rules can apply where your spouse, partner, company (depending on
shareholding levels or your position in the company) and possibly family trust,
is concerned or interested in a contract, or has a financial interest.
As an
elected member, you may contact the Audit Office for guidance on whether you
have a financial interest and, if so, may seek an exemption to participate or
vote on a particular issue in which you may have a financial interest. (This
must be done before the discussion or vote.) The chief executive must also seek
approval from the Audit Office for contractual payments to members, their
spouses, partners or others (as outlined above) that exceed the $25,000 annual
limit.
Failure
to observe these requirements could leave you open to prosecution and you could also be disqualifed from office.
Crimes
of Bribery and Corruption
The
Crimes Act 1961 makes it an offence for you to corruptly seek or accept a bribe
or reward for doing, or not doing, something in your official capacity as an
elected member.[9] This
includes gifts, money, a job, or anything else that benefits you directly or
indirectly.[10]
It is
also an offence to obtain any advantage or financial gain from information that you receive in
your role as an elected member.[11]
If
convicted, you could be imprisoned for up to seven years. You would also be
disqualifed from office.
Secret
Commissions
The
Secret Commissions Act 1910 makes it an offence for you to take bribes, or use
your position as an elected member for improper gain (either for you, or
someone else). For example, you cannot:
· accept
a gift or something valuable for doing, or not doing, something that affects
the council’s business;
· interfere
with council business, in the hope of getting some reward (eg a gift or
something valuable); or
· help
someone else commit an offence under the Act.
It is
also an offence under the Secret Commissions Act not to disclose if you have a
direct or indirect financial interest in a council contract.
If
convicted, you could be imprisoned for up to two years or receive a fine of up to $1,000. You would
also be disqualifed from office.
Securities
and Insider Trading
The
Securities Act 1978 essentially places elected members in the same position as
company directors whenever the council offers stock to the public. You may be
personally liable if investment documents contain untrue statements and may be
liable for criminal prosecution if the requirements of the Act are not met.
If any
council debt securities are listed on a registered stock exchange, then any
elected member cannot use (or benefit from) information that is not generally
available to the public.
Natural
Justice
In
addition to these statutory requirements, the
common law principles of natural justice also apply to local board members. This means that when making decisions as an elected
member, you must not be biased (ie treat anyone with fear or favour); you must not have made up
your mind about an issue without listening to all the evidence, views and
preferences; and you must not be a judge in
your own cause.
The
exact natural justice requirements will depend on the circumstances.
Personal
Liability of Local Board Members
Generally
speaking, you are indemnified in respect of your actions as a member of the
local board. This indemnity (by the council) covers:
· costs
and damages for any civil liability if you are acting in good faith and
carrying out the responsibilities or powers of the local board; and
· costs
arising from any successfully defended criminal action relating to acts or
omissions in your capacity as a local board member.[12]
Local
board members can also be indemnified if the council has incurred loss due to
actions of the local board. This only applies to situations when the local
board:
· unlawfully
spends money;
· unlawfully
sells or disposes of an asset;
· unlawfully
incurs a liability; or
· intentionally
negligently fails to enforce the collection of money it is lawfully entitled to
receive.[13]
Where
the Auditor-General has reported on one of these situations as a “loss”, then
that loss is recoverable as a debt due to the Crown. This debt must be paid
back to the council from each local board member (the debt is recoverable
jointly and severally). However, as a local board member, you have a defence
if you can show that the act or failure which led to the loss occurred:
· without
your knowledge;
· with
your knowledge but against your protest made at or before the time when the
loss occurred;
· contrary
to the manner in which you voted on the issue at a meeting of the local board;
or
· in
circumstances where you acted in good faith and relied on information or
professional/expert advice given by a council officer or professional advisor
on matters which you reasonably believed were within that person’s competency.[14]
Purpose,
Role and Powers of the Council
The
Local Government Act 2002 (LGA 02) and the Local Government (Auckland
Council) Act 2009 (LGACA) underpin a lot of what the council does.
The LGA
02 sets out the purpose of local government:
· to
enable democratic local decision-making and action by, and on behalf of,
communities; and
· to
meet the current and future needs of communities for good-quality local
infrastructure, local public services, and performance of regulatory functions
in a way that is most cost-effective for households and businesses.
(Here, “good-quality” means infrastructure, services, and performance that are
efficient; and effective; and appropriate to present and anticipated future
circumstances.)[15]
Local boards are required to give effect to
this purpose in their local board area.[16] Local boards will do this when exercising their powers.
Local board powers are either conferred by statute (through LGACA); allocated
by the governing body; or delegated by the governing body (or Auckland
Transport).[17]
LGACA also imposes specific limits on what local boards may
do. A local board cannot acquire, hold or dispose of property; or appoint,
suspend or remove staff. In addition, some matters may not be delegated to
local boards including the powers to make a rate; to make a bylaw; or appoint a
chief executive.[18]
Legal advice
If you require legal advice or assistance on any council
matter, please contact your
Relationship Manager and/or the council’s General Counsel.
