13 July 2020

Media: Local Democracy Reporter

Topic: Legal costs incurred for advice about predetermination and governance

Enquiry

*NOTE: this enquiry follows on from enquiries relating to the same matter, which were responded to on 9 July and 10 July

I have just received this from Councillor Reynold Macpherson on the topic of the legal costs re predetermination.

I have copied much of it below and bolded parts that are directly critical.

I have cc'd in the Mayor, Deputy Mayor and councillors Trevor Maxwell and Merepeka Raukawa-Tait to invite their right of reply as, along with the chief executive, they have been identified by the below.

*NOTE: GW refers to Council CE Geoff Williams, RM refers to Cr Macpherson, FD refers to reporter

Reynold Macpherson:

GW: It was important to seek advice in order to try and mitigate the risk that predetermination poses for Council. Councillor MacPherson also requested that the organisation seek legal advice about this.

Part of my role as Chief Executive is to provide support and advice to elected members to ensure Council operates according to best practice in terms of decision-making, and in a way that reflects good governance for this organisation.

RM: Yes, I asked the Chief Executive to get legal advice on recusals around conflicts of interest due to predetermination. It seemed to me that he was offering misleading political advice to Council, whipping up unwarranted fears about judicial reviews and encouraging elected representatives to allege bias and predetermination to suppress criticism of the draft Annual Plan. If so, he would be manipulating what should have been an open debate and democratic decision making by elected representatives on what is best for the people.

GW: The worst-case scenario in the case of predetermination would be an affected party challenging a decision through judicial review. There would be significant implications if that happened, including legal costs, loss of public confidence and the cost and time that would be involved in having to repeat consultation and/or decision-making if that were required as a result.

RM: This worst-case scenario is extremely unlikely, with risks hugely exaggerated, and yet repeatedly stressed by the Mayor and the Deputy Mayor. In the case before us, it is the RDRR minority of Crs Kumar, Bentley and I that have been accused of predetermination regarding the draft Annual Plan - which embodied eight months of planning and predetermination that ignored much of the diverse feedback collected through public consultation.

RDRR can't afford a judicial review. Council would use ratepayers' money to defend it. And why would members of the majority seek a judicial review when they have already approved the Annual Plan using their numbers? So, why did the CE whip up fears of a judicial review with fake risks? We believe that it was political advice intended to suppress our criticism of the draft Annual Plan.

GW: We have not yet been invoiced for all the work undertaken by our legal counsel regarding predetermination. We have been invoiced in the amount of $10,031.70 to date, but have not yet been invoiced for the remainder, including counsel coming to speak to our elected members. We estimate that the total will come to about $20,000.

Regarding staff time, staff hours related to obtaining legal advice are absorbed into business as usual so we don't record that but it's fair to say that dealing with work like this diverts from other tasks. Staff time has probably totaled about 20 hours on this particular matter.

RM: The responsibility for running up these legal costs lies solely with the Chief Executive, presumably at the direction of Council, although I don't recall elected representatives giving our approval.

The last time this happened was when I petitioned the District Court and paid my own costs to ask for a review of the role of the Chief Executive in the 2016 local elections. When the judge ruled against one aspect of my petition I withdrew and saved ratepayers any further costs. Despite a non-disclosure agreement, Council then authorised the CE to calculate the total costs to ratepayers and some elected members tried to blame me for the waste.

I offer this detail to refresh Cr Maxwell's memory because he is emerging as the leader of this imminent witch hunt.

FD: What is your perspective on the legal costs associated with the council's query with Tomkins Wake as to the legal risk of your dual role as elected member and submitter on the annual plan and sewerage SOP?

RM: Costs are covered above.

Regarding predetermination, there are no legal risks to elected representatives making submissions on public policy issues, especially if they are presented as preliminary positions. All I did was ignore an internal political norm that, in my view, gives officials undue influence over the policy making process. I will not be seeking their permission on when and how I will exercise my right to freedom of expression, although I have been banned from using Powerpoint.

When the 'independent legal advice' obtained by the CE was tabled it supported Cr Kumar's point that the Code of Conduct only allows for self recusal; it "must come from within." Much worse, there is nothing in Standing Orders or in Council's Code of Conduct that permitted the 'formal request' made by the Chair of Strategy, Policy and Finance Committee, Cr Raukawa-Tait. She exceeded her authority when she asked Crs Bentley, Kumar and I to explain our position on an alleged conflict of interest due to predetermination.

Cr Bentley rightly questioned the 'independence' of the so-called independent advice because it came from Council's paid legal advisors.

So my advice to the Mayor, CE and Cr Raukawa-Tait is that, when you are suffering from foot-in-mouth disease, don't swallow.

Response

The following responses were provided:

From Acting CE Craig Tiriana:

A key role of the council chief executive is to advise and support elected members to enable effective decision-making and good governance. Legal advice was requested and was provided. Tompkins Wake is a reputable law firm and is Council's legal advisor.

Please also refer to information provided by CE Geoff Williams last week.

From Mayor Chadwick:

These constant slurs, assumptions and unfounded accusations are unnecessary distractions.

The time and place to debate things is in the Chamber. What I'm focussed on is doing what needs to be done for our community.

We have set a direction and have a recovery plan and it's disappointing that yet again, rather than the media reporting on that, we are instead discussing process because someone didn't get their way.

It's a bit rich for Cr Macpherson to be critical about legal advice and costs resulting from his own unwillingness to follow proper process or take advice, and it's not the only matter relating to this councillor that has incurred significant legal costs.

Regarding chairing of meetings, you have to call it as you see it - there's no third umpire and the chair is charged with ruling on all matters of procedure. That's in our Standing Orders.

It's clear Cr Macpherson is still having difficulty with the workings of council and I encourage him to get some help with that. He is also welcome to get his own legal advice, rather than stooping to alleging bias because he didn't like what he heard - that is very poor form.

Information provided for further understanding re chairing of meetings:

You'll find the standing orders HERE on council's website. Note the below excerpt from the standing orders (from the section on chairing (starts p37):

14.4 Chairperson's rulings

The Chairperson will decide all procedural questions where insufficient provision is made by these standing orders and with regard to all points of order. Any refusal to obey a Chairperson's ruling or direction constitutes contempt.

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Media: Rotorua Daily Post

Topic: Truck crash at Hemo Gorge

Enquiry

I am just working on a follow-up story to the crash which happened at the weekend. A truck fell down the area where the underpass is. This is not the first time something like this has happened in this area so just wanted to check:

• How many complaints have council received regarding this roundabout?
• What is councils reaction to this incident where someone using the underpass, at the wrong place and wrong time, could have been injured, potentially fatally?

Response

From Infrastructure Group Manager Stavros Michael:

As with any incident we are glad no one was injured on Saturday. Waka Kotahi - NZ Transport Agency is the lead agency responsible for State Highways and we have been in touch with them about Saturday's incident. We understand that a police investigation is underway. We will wait to hear the results of that investigation before we discuss any considerations with them.