6 October 2020
to a requisition dated 5 October 2020 from Mayor Barry
an Extraordinary Council meeting will be held in the
Council Chambers, 2nd Floor, 30 Laings Road, Lower Hutt,
Friday 9 October 2020 commencing at 1.00pm
Mayor C Barry (Chair)
Deputy Mayor T Lewis
Cr D Bassett
Cr J Briggs
Cr K Brown
Cr B Dyer
Cr S Edwards
Cr D Hislop
Cr C Milne
Cr A Mitchell
Cr S Rasheed
Cr N Shaw
Cr L Sutton
For the dates and times of Council Meetings please visit www.huttcity.govt.nz
DemocraticServicesTeam@huttcity.govt.nz4 570 6666 | 0800 HUTT CITY
Council meets on a six weekly basis (Extraordinary Meetings can be called following a resolution of Council; or on the requisition of the Chair or one third of the total membership of Council)
POWER TO (BEING A POWER THAT IS NOT CAPABLE OF BEING DELEGATED)1:
• Make a rate.
• Make bylaws.
• Borrow money other than in accordance with the Long Term Plan (LTP).
• Purchase or dispose of assets other than in accordance with the LTP.
• Purchase or dispose of Council land and property other than in accordance with the LTP.
• Adopt the LTP, Annual Plan and Annual Report.
• Adopt policies required to be adopted and consulted on under the Local Government Act 2002 in association with the LTP or developed for the purpose of the Local Governance Statement.
• Appoint the Chief Executive.
• Exercise any powers and duties conferred or imposed on the local authority by the Local Government Act 1974, the Public Works Act 1981, or the Resource Management Act 1991, that are unable to be delegated.
• Undertake all other actions which are by law not capable of being delegated.
• The power to adopt a Remuneration and Employment Policy for Council employees.
• Adoption of all policy required by legislation.
• Adoption of strategies, and policies with a city-wide or strategic focus.
• Prior to public notification, approval of recommendations of District Plan Hearings Subcommittees on any Proposed Plan, Plan Changes (including private Plan Changes) and Variations, on the recommendation of the Regulatory Committee.
1 Work required prior to the making of any of these decisions may be delegated.
• The withdrawal of Plan Changes in accordance with clause 8D, Part 1, Schedule 1 of the Resource Management Act 1991.
• Approval, to make operative, District Plan and Plan Changes (in accordance with clause 17, Part 1, Schedule 1 of the Resource Management Act 1991).
• Acceptance, adoption or rejection of private Plan Changes.
Representation, electoral and governance matters
• The method of voting for the Triennial elections.
• Representation reviews.
• Council’s Code of Conduct for elected members
• Local Governance Statement.
• Elected Members’ Remuneration.
• The outcome of any extraordinary vacancies on Council.
• Any other matters for which a local authority decision is required under the Local Electoral Act 2001.
• Appointment and discharge of members of committees when not appointed by the Mayor.
• All matters identified in these Terms of Reference as delegated to Council Committees (or otherwise delegated by the Council) and oversee those delegations.
• Council‘s delegations to officers and community boards.
Delegations and employment of the Chief Executive
Review and negotiation of the contract, performance agreement and remuneration of the Chief Executive.
Meetings and committees
• Standing Orders for Council and its committees.
• Council’s annual meeting schedule.
Long Term and Annual Plans
• The adoption of the budgetary parameters for the LTP and Annual Plans.
• Determination of rating levels and policies required as part of the LTP.
• Adoption of Consultation Documents, proposed and final LTPs and proposed and final Annual Plans.
Council Controlled Organisations
• The establishment and disposal of any Council Controlled Organisation or Council Controlled Trading Organisation.
• Approval of annual Statements of Corporate Intent for Council Controlled Organisations and Council Controlled Trading Organisations.
Community Engagement and Advocacy
• Receive reports from the Council’s Advisory Groups.
• Monitor engagement with the city’s communities.
• National Emergency Management Agency matters requiring Council’s input.
• Road closing and road stopping matters.
• Approval of overseas travel for elected members.
• All other matters for which final authority is not delegated.
• The non-elected members of the Standing Committees, including extraordinary vacancies of non- elected representatives.
• The Directors of Council Controlled Organisations and Council Controlled Trading Organisations.
• Council’s nominee on any Trust.
• Council representatives on any outside organisations (where applicable and time permits, recommendations for the appointment may be sought from the appropriate Standing Committee and/or outside organisations).
• The Chief Executive of Hutt City Council.
• Council’s Electoral Officer, Principal Rural Fire Officer and any other appointments required by statute.
• The recipients of the annual Civic Honours awards.
Extraordinary meeting to be held in the Council Chambers, 2nd Floor, 30 Laings Road, Lower Hutt on
Friday 9 October 2020 commencing at 1.00pm.
Cr S Rasheed
2. CONFLICT OF INTEREST DECLARATIONS
Deputy Mayor Lewis as the complainant and Councillor Milne as the respondent are interested parties in this matter and may not take part in these proceedings including the discussion, deliberation and voting.
3. Chief Executive's Report on the Code of Conduct complaint against Councillor Milne (20/1176)
Report No. HCC2020/6/215 by the Chief Executive 9
“That the recommendations contained in the report are discussed.”
HEAD OF DEMOCRATIC SERVICES
05 October 2020
Report no: HCC2020/6/215
Chief Executive's Report on the Code of Conduct complaint against Councillor Milne
Purpose of Report
1. This report has been prepared in accordance with the process under the Hutt City Council Code of Conduct for Elected Members (“the Code”). That process requires the Chief Executive Officer to prepare a report for Council, where an independent investigator has found there to be a material breach of the Code. Council must then meet to consider the findings and determine whether or not a penalty, or some other form of action, will be imposed.
(i) notes and receives the Chief Executive’s Report on the Code of Conduct complaint against Councillor Milne;
(ii) receives the report titled Code of Conduct Investigation Report re Councillor Milne – 4 October 2020 (“the Final Report”), attached as Appendix 1 to this report;
(iii) notes the findings of the independent investigator in the Final Report that:
(a) based on the information and documentation before me to date and the information provided to me in my interviews with David Howie, Bruce Hodgins and Councillor Milne, I am of the view that Councillor Milne’s breaches of clause 5.3 in respect of complaint 1, and clauses 8 and 10 in respect of complaint 2 are material and serious and should be drawn to the attention of, and considered by, Council; and
(b) Councillor Milne’s actions and responses to date reflect a lack of awareness of how those actions could be perceived and could be detrimental to the Council’s reputation. The adverse impacts of Councillor Milne’s actions are real and, if not remedied by his acceptance that they should not be repeated, they risk undermining the purpose and objectives of the Code;
(iv) gives Councillor Milne an opportunity to appear and speak in his own defence;
(v) notes that the complainant, the respondent and any other interested party may not take part in the discussion, deliberation or voting on this matter; and
(vi) determines whether or not a penalty, or some other form of action, will be imposed.
2. On 25 May 2020, Deputy Mayor Tui Lewis made two formal complaints regarding Councillor Chris Milne to the Mayor under the Hutt City Council Code of Conduct for Elected Members (“the Code”). The Code is attached as Appendix 2 to this report. The complaints were that:
(a) Complaint 1: Councillor Milne contacted David Howie, Lower North Island General Manager for Waste Management Ltd, on 15 April 2020, to discuss a number of issues pertaining to the Hutt City Council waste and recycling tender, in breach of clause 4 (role and responsibilities) and clauses 5.2 and 5.3 (relationships with staff and relationships with the public) of the Code; and
(b) Complaint 2: Councillor Milne phoned a senior Council staff member, Bruce Hodgins, twice to talk about a proposal concerning the sale of tennis court land at a Hutt Valley Tennis facility, in breach of clause 8 (conflicts of interest) and clause 10 (ethical behaviour) of the Code.
Context of the Complaints
3. The circumstances that gave rise to Complaint 1 occurred when the country was in lockdown level 4, fighting the coronavirus pandemic. As noted in the attached report, I received a call from Mr Howie of Waste Management Limited, reporting that he had been contacted by an elected member during a live tender process, against the communication protocols in place for this type of process. I reported this to the Mayor who sought to address it with Councillor Milne, with a view to addressing the concerns and negating the need for any more formal action to be taken. The focus from a Council perspective was simply to ensure that proper communication protocols were observed, as not following them could put the Council at risk. The attempt to resolve the concerns was not successful at this stage.
4. Complaint 2 concerns an on-going conflict of interest matter Councillor Milne has, due to his wife being the President of Hutt Valley Tennis. This conflict of interest was raised with Councillor Milne, prior to a decision being made to provide funding to Hutt Valley Tennis in 2019. Despite this, Councillor Milne voted on the matter.
5. After substantial media attention, consideration of the risk to Council and following specialist external legal advice, Council decided to re-vote on the matter, with Councillor Milne taking no part.
6. In February 2020, Councillor Milne again indicated that he was going to ignore Council officer advice not to participate in a matter concerning Hutt Valley Tennis. The Chief Legal Officer wrote to Councillor Milne on 10 February 2020, noting his conflict of interest, and attaching further advice that he had a conflict of interest when it came to matters concerning Hutt Valley Tennis and should not participate in the discussion or decision-making on the matter.
7. During May, I had further cause to contact the Mayor after I received a report from a senior Council officer to say that he had been contacted by Councillor Milne on 11 May 2020, to talk about a proposal to sell some of the Council owned, tennis court land at Mitchell Park, for the benefit of Hutt Valley Tennis. The officer described Councillor Milne’s manner as “bullish” and reported that the Councillor had said he was keen to move things along quickly and that Council should “adopt it as a solution to the long running issue and accept the financial risk of committing funds to the HVT upgrade while going through the process.”
Confidential Dispute Resolution Process
8. After a period of time with no resolution, the Deputy Mayor, On 25 May 2020, made the two formal complaints. On receipt of the formal complaints, the Mayor attempted to resolve matters through informal dispute resolution (under Step 1 of Appendix B of the Code). This was a step that was added to the LGNZ Code of Conduct template by Hutt City Council. It provides for a confidential and without prejudice, informal resolution process to take place. The intent of this is to allow for matters to be resolved, prior to being sent to an external investigator.
Appointment of the Independent Investigator
9. On 12 June 2020, the Deputy Mayor forwarded the complaints to me. She advised:
“Given Cr Milne’s recent email to all Councillors, essentially in defence of his conduct, I do not believe it is now possible to informally resolve this matter. I have advised the Mayor of this.”
The Mayor also confirmed that the informal resolution process had not been, and was not likely to be, successful.
10. Under Step 2 of the process, if I receive a complaint from either the Mayor or a complainant not satisfied with the informal resolution process or proposed resolution, I must then refer to the complaint to an external investigator.
11. The Mayor and I, acting jointly, do have the power to dismiss a complaint prior to sending it to an external investigator, if we are of the view that the complaint does not have a reasonable prospect of being declared substantial or material. In this instance, we did not believe this complaint could be dismissed using that discretion.
12. I determined that the complaints were in the correct form (under clause 12.3 of the Code) and then referred them to an independent investigator for a Preliminary Assessment.
13. The independent investigator used was Leo Donnelly, a Principal Lawyer of Chen Palmer Lawyers. Mr Donnelly is a former Ombudsman, from 2016 to 2018 and Deputy Ombudsman, from 2004 to 2016. He has extensive experience at both investigating this type of matter, and in the local government sector generally.
The Preliminary Assessment
14. I received the Preliminary Assessment Report on 5 August 2020. The outcome of the Preliminary Assessment was:
a. Complaint 1 was considered to be at least substantial and may be material and a full investigation was required to determine it.
b. Complaint 2 was considered to be material and a full investigation was required.
Material is the most serious category of breach under the Code and occurs when an independent investigator finds that the breach, if proven, would bring a member or the Council into disrepute or, if not addressed, reflect adversely on another member of Council.
15. The Code provides that if the subject of a complaint is found to be material the investigator will inform the Chief Executive, who will inform the complainant and the respondent, which was done. The independent investigator then conducts a full investigation and prepares a report for Council on the seriousness of the breach.
The Final Report and Findings
16. That report, titled “Code of Conduct Investigation Report re Councillor Milne – 4 October 2020” is attached to this report (in accordance with Step 5 of Appendix B of the Code). Under the heading “Conclusions on seriousness” at paragraphs 205 and 206 of the report, Mr Donnelly ultimately finds:
a. Based on the information and documentation before me to date and the information provided to me in my interviews with David Howie, Bruce Hodgins and Councillor Milne, I am of the view that Councillor Milne’s breaches of clause 5.3 in respect of complaint 1, and clauses 8 and 10 in respect of complaint 2 are material and serious and should be drawn to the attention of, and considered by, Council.
b. Councillor Milne’s actions and responses to date reflect a lack of awareness of how those actions could be perceived and could be detrimental to the Council’s reputation. The adverse impacts of Councillor Milne’s actions are real and, if not remedied by his acceptance that they should not be repeated, they risk undermining the purpose and objectives of the Code.
17. Council must now consider the findings of the independent investigator and determine whether or not a penalty, or another form of action, will be imposed.
Strategic / Statutory Context
18. Clause 15 of Schedule 7 of the Local Government Act 2002 states that a council must adopt a code of conduct for members and that an elected member must comply with the code of conduct.
19. The Code of Conduct sets out the standards of behaviour expected from elected members in the exercise of their duties. Its purpose is to:
a. enhance the effectiveness of the local authority and the provision of good local government of the community, city, district or region;
b. promote effective decision-making and community engagement;
c. enhance the credibility and accountability of the local authority to its communities; and
d. develop a culture of mutual trust, respect and tolerance between the members of the local authority and between the members and management.
20. This purpose is given effect through shared values which set out a common framework around how members are expected to behave and are fundamental to what elected members stand for. The commitments members agree to include acting ethically and with objectivity. Members are to serve the best interests of the community and will work together constructively and to uphold the values of honesty, integrity, accountability and transparency. In addition members are to treat people, including other members, with respect and courtesy alongside upholding the law, fulfilling the duties and responsibilities of office and actively promoting and supporting these principles.
Process for considering the investigator’s report
21. Members with an interest in the proceedings may not take part in these proceedings including the discussion, deliberation and voting. This includes the Deputy Mayor, Tui Lewis (as complainant) and Councillor Milne (as respondent).
22. The Code provides that this report will be considered in a public meeting, unless there are grounds for not doing so under the Local Government Official Information and Meetings Act 1987.
23. Before making a decision in respect of the investigator’s report, Council must give Councillor Milne an opportunity to speak in his own defence.
24. After considering the report and giving Councillor Milne an opportunity to speak in his defence, Council may wish to move into public excluded to deliberate. This is acceptable practice when performing this type of quasi-judicial function.
25. Any decision should be supported by reasons.
26. The task for Council is to consider the findings of the independent investigator and determine whether or not a penalty, or another form of action, will be imposed. This is not a substantive re-investigation of the complaints. That investigation has been the delegated task of the highly experienced independent investigator who has carefully undertaken it over the course of some time.
27. The penalties that might be applied will depend on the nature of the breach and may include actions set out in clause 13.1 of the Code. These can include:
a. A letter of censure to the member;
b. A request (made either privately or publicly) for an apology;
c. A vote of no confidence in the member;
d. Removal of certain council-funded privileges (such as attendance at conferences);
e. Restricted entry to council offices, such as no access to staff areas (where restrictions may not previously have existed);
f. Limitation on any dealings with council staff so that they are confined to the Chief Executive only;
g. Suspension from committees or other bodies;
h. An invitation for the member to consider resigning from the council;
i. Reimbursement of all or a portion of Council’s external costs, including meetings payments to external committee members, incurred in investigating the matter.
28. Council may decide that penalties will not be imposed where a respondent agrees to do one or more of the following:
a. Attend a relevant training course; and/or
b. Work with a mentor for a period of time; and/or
c. Participate in voluntary mediation (if the complaint involves a conflict between two members); and/or
d. Tender an apology
Reimbursement of Costs
29. It should be noted that the ability for Council to seek reimbursement for all or a portion of Council’s external costs is not part of the LGNZ Code of Conduct template. That provision was added through an amendment at the 15 December 2016 Council meeting, adopting some amendments to the Code. To assist Council in determining how that provision might be applied, it is useful to have reference to Councillor Milne’s statement when moving it:
“…and if in fact we are going to have to pay people to investigate material breaches of the Code, then it’s a judicial process really and normally in a judicial process there is a provision for costs and so this really recognises that there is a cost to Council and I think this would round this Code off nicely.”
30. On this basis, we have asked Mr Donnelly to provide a concise supplementary report to Council that touches on some of the things that might reasonably be taken into account when considering how to determine “costs” in this circumstance. Very generally, I have been advised that relevant considerations might be:
a. The extent to which the person charged/investigated was vindicated.
b. Whether the person charged/investigated was co-operative with the process. A higher award may be justified if the person has been obstructive or added unnecessary complication.
31. Council has the option of:
a. imposing penalties, or
b. taking some other form of action, or
c. not imposing penalties or any other form of action.
32. The total costs for the Code of Conduct Investigation amount to $27,500 +GST.
33. As noted in the report above, Council has the ability to require reimbursement for all or a portion of the external costs in investigating this matter.
Code of Conduct Investigation Report regarding Councillor Milne - 4 October 2020
Code of Conduct for Elected Members
Author: Jo Miller