Minutes of Extraordinary Meeting of Council

2 9 October 2020

Extraordinary meeting of The Hutt City Council held in the Council Chambers,
2nd Floor, 30 Laings Road, Lower Hutt on

Friday 9 October 2020 commencing at 1.05pm

PRESENT:	Mayor C Barry (Chair)	Cr D Bassett
	Cr J Briggs	Cr K Brown
	Cr B Dyer	Cr S Edwards
	Cr D Hislop	Cr A Mitchell
	Cr N Shaw	Cr L Sutton

APOLOGIES: Cr S Rasheed

IN ATTENDANCE: Ms J Miller, Chief Executive

Mr B Cato, Chief Legal Officer

Ms K Stannard, Head of Democratic Services

Mr J Griffiths, Head of Mayor’s Office (part meeting)

Mr J Shadwell, Communications and Engagement Advisor (part meeting)

Ms C Ellis, Senior Communications Advisor (part meeting)

PUBLIC BUSINESS

Cr Briggs opened the meeting with a Karakia.

Mayor Barry gave a brief statement on the process to be followed.

1. APOLOGIES

Resolved: (Mayor Barry/Cr Briggs) Minute No. C 20601

“That the apology received from Cr Rasheed be accepted and leave of absence be granted.”

2. CONFLICT OF INTEREST DECLARATIONS

Deputy Mayor Lewis as the complainant and Councillor Milne as the respondent were interested parties in the matter and did not participate in the discussion, deliberation and voting. Councillor Shaw highlighted that her name may be raised in the proceedings. No other Councillors identified themselves as affected parties.

Cr Bassett raised a point of order. He considered that the public should be given the opportunity to make public comment. He noted that transparency and accountability were key factors under the Local Government Act.

Mayor Barry ruled against the point of order. He stated the proceedings were quasi judicial and there was no opportunity for the public to speak.

Chief Executive's Report on the Code of Conduct complaint against Councillor Milne (20/1176)

Report No. HCC2020/6/215 by the Chief Executive

The Chief Executive elaborated on the report, the Code of Conduct Investigation Report regarding Councillor Milne and Council’s Code of Conduct. She highlighted to members the seriousness of the material breaches found against Councillor Milne by the independent investigator, Mr Leo Donnelly, Principal Lawyer at Chen Palmer. She stated that the findings of the independent investigator were that complaint one and complaint two were both material breaches of Council’s Code of Conduct that brought Council into disrepute. She elaborated on Council’s role which was to consider the findings of the independent investigator and determine whether or not a penalty or other action should be imposed.

The Chief Executive addressed matters raised by Councillor Milne since the publishing of the Order Paper for the meeting. She highlighted the matters raised by Councillor Milne were referred to the independent investigator. She confirmed that the matters raised were not new to the independent investigator as they were either issues raised or among the material made available to him in the course of his investigation. She noted that the independent investigator carefully considered the information but ultimately found it irrelevant to the investigation.

The Chief Executive addressed matters relating to a letter from Mr Stephen Franks of Franks Ogilvie, on behalf of Mr Mendzela and other unknown parties. She advised the contents of the letter proposed a judicial review of Council’s decision to move to a rates funded waste collection system. She stated that Councillor Milne had suggested that action and the matter of the complaints were linked and therefore he believed the process should be withdrawn. She highlighted that the independent investigator was aware of this. She stated that the two matters were not the same. She confirmed that Council’s Code of Conduct Investigation report stood and must be considered by Council. She summarised that any proceedings brought against Council would be rigorously defended.

Mayor Barry invited Councillor Milne to make his statements. Mr David Ogden accompanied Councillor Milne.

Mayor Barry covered off the parameters of the proceedings. He asked that comments made by Councillor Milne and Mr Ogden were kept within the scope of the findings of the independent investigator.

Mr Ogden spoke in support of the character and reputation of Councillor Milne. Mr Odgen advised that he had known Councillor Milne for 20 years. He highlighted Councillor Milne’s professional background which included involvement in several businesses and 12 years involvement with St James Church. He also spoke of Councillor Milne’s zealous nature. He stated Councillor Milne was an honest and good man with good intentions but could be annoying at times. He asked Council to let the matter lie on the table to allow both parties to come together and find a solution.

Councillor Milne spoke in his defence. He believed that the situation should never have been allowed to get this far.

In response to a question from Councillor Milne, Mayor Barry confirmed to Councillor Milne that he had not generated the complaints.

Councillor Milne outlined his submissions and supporting evidence. The key points were as follows:

· The independent investigator shied away from covering off the governing role of Councillors in his investigation report.

· The complaints were politically motivated.

· The Council’s Code of Conduct was a working document and a guide for Councillors to work with each other and others.

· He was fully justified to question what Council was doing and the advice it was receiving with regard to the rubbish and recycling tender. It was the responsibility of Councillors to make enquiries as that was their role as governors.

· Councillors had an obligation to work in the best interests of ratepayers when investigating matters where they believed the advice from officers was contradactory. He believed the officers were misleading him about the rubbish and recycling process.

Cr Briggs raised a point of order regarding the breach of Standing Order 20.2 in relation to statements made by Councillor Milne about the officers.

Mayor Barry asked Councillor Milne to be careful with his words when speaking about the officers.

· The effect of the external costs of the investigation on ratepayers.

· His conflict of interest with Hutt Valley Tennis was limited to participation and discussion at Council meetings.

· He did not appreciate the consequences of telephoning Mr Bruce Hodgins regarding the sale of land to Hutt Valley Tennis. He was unaware there was a conflict. He did not believe he was pushing Mr Hodgins but acknowledged he was being a bit bullish. He only wanted an update on the proposal.

· He was concerned that half way through the rubbish and recycling live tender, it was changed on Council’s website.

· He had no power to change the rubbish and recycling tender or process or influence Waste Management.

· The Chief Executive had not taken his concerns about the tender seriously. The independent investigator had not been told that Council had been legally challenged with regard to the rubbish and recycling process. The independent invetigator had not covered the matter in his investigation report.

· Once the independent investigator had been notified of the legal challenge, his final investigation report had already been issued. Had the independent investigator known about the legal challenge before writing his findings, he may well have reflected on the role of a Councillor. He acknowledged the independent investigator had ruled that the legal challenge was not relevant to this matter.

· He did not understand why he was facing a code of conduct complaint due to ringing the waste companies. He highlighted that Mayor Barry had encouraged Councillors to meet with the waste companies. The independent investigator had excluded information in his findings that other people were meeting with waste companies. He asked members to decide whether this was relevant.

· He outlined Council’s Code of Conduct process before a formal resolution was found. He advised that an offer to settle was made by Mayor Barry but he could not accept the series of demands.

· He elaborated on three offers to meet Mayor Barry to settle the matter on a one on one basis but was refused. It became increasingly difficult for him to engage with Mayor Barry.

· The rubbish and recycling tender process had resulted in a loss of trust in the organisation, it spread to other Councillors and the waste companies and into the community.

· The media were asking him questions about the findings of the investigation report within 15 minutes of receiving the Order Paper for the meeting. He questioned whether bored journalists were actively watching and refreshing Council’s website.

Cr Briggs raised a point of order regarding the breach of Standing Order 20.2 in relation to statements made by Councillor Milne about the public.

Mayor Barry asked Councillor Milne if 15 minutes was enough time to conclude his statements. Councillor Milne agreed.

· The telephone call to Mr Hodgins, in relation to Hutt Valley Tennis, was a teething problem. He had worked well with Mr Hodgins for 15 years and had a good relationship with him. He was disturbed with the interpretation of the telephone call by the independent investigator in that he was influencing Mr Hodgins. The new Chief Executive had imposed changes with Councillors communicating with officers which had led to the teething problem.

· Council’s inconsistent approach between his conflict of interest with Hutt Valley Tennis and Councillor Shaw’s conflict of interest with Fraser Park Sportsville.

· He confirmed that he had moved the motion to include an additional point under the penalties and action section of Council’s Code of Conduct asking for reimbursement of all or a portion of Council’s external costs.

· He had acted properly and with integrity regarding the rubbish and recyling tender and this was confirmed with Council now facing a legal challenge.

In response to questions from a member, Councillor Milne advised that he was a member of the Maungaraki Tennis Club, his wife was President and a life member of Hutt Valley Tennis and she worked for Hutt Valley Tennis on a voluntary basis. He believed that the advice from the Chief Legal Officer regarding his conflict of interest with Hutt Valley Tennis related only to Council meetings. He highlighted that the advice did not cover telephone calls to officers.

In response to a question from a member, Councillor Milne advised that he was not disagreeing with the interpretation made by the independent investigator over his telephone call to Mr Hodgins. He advised it was an innocent telephone call and he might have made a mistake.

In response to questions from a member, Councillor Milne stated that his relationship with Mr Franks was not relevant to these proceedings. He confirmed that he worked with Mr Franks at ACT in 1996. He also confirmed that he went cycling with Mr Franks and general discussion between the two of them was around their daily lives.

In response to questions from a member, Councillor Milne advised that his second telephone call to Mr David Howie of Waste Management Limited was asking Mr Howie to review his response to a letter from the Chief Executive to ensure he was not misrepresenting Mr Howie. He believed the letter from the Chief Executive did not reflect the telephone conversation between Mr Howie and him. He noted that Mr Howie confirmed that his response reflected his recollection of the telephone conversation and was accurate. He confirmed that he had telephone Mr Hodgins a second time asking Mr Hodgins why he had reported their telephone conversation to the Chief Executive as he was in ‘hot water’.

In response to a question from a member, Councillor Milne advised that it was appropriate for him to follow up with both Mr Howie and Mr Hodgins.

In response to a question from a member, Councillor Milne advised that he was unwilling to attend a meeting with Mayor Barry, the Chief Executive and the Chief Legal Officer as he did not want to raise concerns about the officers advice in front of them. He also advised that he was uncomfortable with the legal approach shown to him.

Cr Brown left the meeting at 2.54pm.

In response to questions from a member, Councillor Milne advised he was shocked as to what had been reported to Mayor Barry about his telephone conversation with
Mr Howie. He developed a sense that he was being blamed for something he had not done. He also advised that he could not remember what the series of demands were from Mayor Barry.

Cr Brown rejoined the meeting at 2.59pm.

Mayor Barry advised that he asked Councillor Milne to acknowledge his conduct, issue an apology and undertake some form of education to resolve the matter without further external costs. He also advised that the matter would have been reported to Council at its meeting held on 13 May 2020.

Councillor Milne advised that he did not believe that he had done anything wrong. He also advised that he did not want to issue an apology as he was justified in his actions due to his role as governor.

The meeting adjourned at 3.05pm and resumed at 3.15pm.

In response to questions from a member, Councillor Milne elaborated on his actions in taking part in the voting at Council meetings with regard to Hutt Valley Tennis in the last triennium.

In response to a question from a member, Councillor Milne advised that he was not required to disclose his legal advisor. He confirmed that he was not connected with the parties leading the legal challenge against Council. He also confirmed that he did not know about the rubbish and recycling official information request.

In response to a question from a member, Councillor Milne confirmed that he had no conflict with receiving advice from his legal advisor and the legal firm undertaking a legal challenge against Council.

In response to a question from a member, Councillor Milne believed that there was bad faith associated with the complaints made against him.

Councillor Milne expressed frustration as to why Council had cut the Technology Valley budget, resulting in him resigning from the organisation. He believed he was being targeted. He could not understand how two telephone conversations generated the complaints.

In response to a question from a member, Councillor Milne advised that between February and March 2020 he had made enquiries with Low Cost Bins, Al’s Litta Binz, Waste Management and officers from other local authorities.

In response to questions from a member, Councillor Milne advised that he did not discuss the tender with Low Cost Bins. He also advised that advice from consultants was that making these kind of enquiries was appropriate. He strongly advised that he did not need to respond to the question of whether Mr Mendzela was the consultant.

Mayor Barry advised Councillor Milne that he did not need to answer questions that he did not want to answer.

Councillor Milne clarified that he believed he had answered the questions truthfully with regard to his relationship with Mr Franks. However, he noted that his memory was not perfect.

In response to questions from a member, Councillor Milne advised that he had been on Council for 16 years and that attitudes around declaring conflict of interests had changed. He acknowledged that he had not moved with the times. He confirmed that he did not believe he had a conflict of interest with Hutt Valley Tennis.

In response to a question from a member, Councillor Milne advised that Deputy Mayor Lewis did not discuss her concerns with him before the complaints were laid. He also advised that he had not discussed the complaints with Mayor Deputy Lewis since the laying of the complaints against him.

Mayor Barry addressed the independent investigator’s findings that the impact of Councillor Milne’s actions was real and if not remedied by his acceptance that they should not be repeated. Mayor Barry asked Councillor Milne whether he was willing to apologise for his actions. Councillor Milne advised that he had explained his role as governor and would be not apologising.

In response to a question from a member, Councillor Milne advised he could acknowledge and apologise and then move forward but that his apology would not be genuine. However, he said that he was open to holding discussions.

Councillor Milne acknowledged that he had acted in a stubborn manner. However, he deemed his actions were a matter of principle. He advised that the big picture was that he was fulfilling his role as governor.

The Chief Executive elaborated on a number of minor corrections to Councillor Milne’s statements relating to the rubbish and recycling tender.

RESOLVED: (Mayor Barry/Cr Briggs) Minute No. C 20602

“That the public be excluded from the following part of the proceedings of this meeting namely:

(a) the deliberating on the penalty, if any, or other form of action Council may decide to impose on Councillor Milne;

(b) the reason for passing this resolution is to enable Councillors to deliberate in private about what penalty, if any, or some other form of action, it may decide to impose on Councillor Milne; and

(c) the specific ground under the Local Government Official Information and Meetings Act 1987 for the passing of this resolution is section 48(1)(d) to enable Council to deliberate in private on its decision or recommendation in any proceedings.”

The meeting adjourned at 4.18pm to allow members to deliberate in private. Mayor Barry advised that Council’s decision would be released to the public after members had deliberated.

The meeting resumed at 7.25pm.

Resolved: (Mayor Barry/Cr Dyer) (By Division) Minute No. C 20603

“That Council agrees to accept the findings of the independent investigator’s report in the Final Report attached as Appendix 1 to the Chief Executive’s Report on the Code of Conduct Complaint against Councillor Milne 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”.”

The motion was declared carried by Division with the voting as follows:

For

Mayor Barry

Cr Briggs

Cr Brown

Cr Dyer

Cr Edwards

Cr Hislop

Cr Mitchell

Cr Shaw

Against

Cr Bassett

Cr Sutton

Total: 8

Total: 2

Resolved: (Mayor Barry/Cr Edwards) (By Division) Minute No. C 206024

“That Council determines that penalties will be imposed as follows:

(i) a letter of censure written by the Mayor on behalf of Council to Councillor Milne expressing disappointment with his actions and stubbornness that has led to the inability to settle this matter at an earlier stage;

(ii) requires Councillor Milne to issue an unqualified public apology that is acceptable by the Mayor and Chairs of Standing Committees (excluding Deputy Mayor Lewis) which includes:

(a) an acknowledgement that his actions were serious and have breached the Code of Conduct and that those actions were wrong and will not be repeated; and

(b) a commitment to adhere to the Code of Conduct;

(iii) requires Councillor Milne to undergo training that addresses the matters found by the independent investigator and with a restorative process to rebuild trust between Councillor Milne and Council;

(iv) removal from the Risk and Audit Subcommittee and Seaview Marina Ltd Board unless an unqualified public apology is given by 23 October 2020 by Councillor Milne (see part (ii) above);

(v) reimbursement of $16,500 of Council’s external costs incurred in the full investigation required for the Final Report by the independent investigator; and

(vi) Councillor Milne will only have access to staff via the Chief Executive, for the remainder of the 2020/2021 financial year. The Chief Executive will establish protocols to implement this.

For the reasons that Councillor Milne has breached three provisions of the Code of Conduct and these breaches have been found to be serious and material by an independent investigator. Councillor Milne continues to display a lack of awareness of how those actions could be perceived and have been detrimental to Council’s reputation. The adverse impacts of Councillor Milne’s actions are real and he has not accepted that they should not be repeated, therefore his behaviour continues to risk undermining the purpose and objectives of the Code of Conduct.”