Local Government Magazine

Pledges, politics & practicality: Councillors’ powers

Pledges, politics & Practicality Councillors’ powers - LG November 2016

Can elected members make good on their election “promises” to reverse decisions of the previous council or sack the chief executive? Simpson Grierson’s Jonathan Salter and Padraig McNamara spelt out the possibilities at SOLGM’s recent annual summit.

In both local and central government elections, candidates’ election promises are an important way of communicating to the electorate what a candidate stands for, and the means by which candidates can differentiate themselves from one another.

But unlike in central government, successful candidates in local authority elections will generally be unable to promise political outcomes – such as capping rates rises or delivering a major infrastructure project. This is due to several factors including:

  • Candidates running as independents, once elected, are not subject to a unified party structure that will dictate how they vote on particular issues;
  • The statutory requirement for local authority decisions to be made by votes cast at a meeting. This is, of course, subject to delegations;
  • Even mayors have limited powers under the Local Government Act 2002 (LGA) and Local Government (Auckland Council) Act 2009 (LGACA);
  • Statutory and common law requirements to consult.

But doesn’t legislation now give the mayor the role of providing leadership to the territorial authority and people of the district?

Yes, but section 41A of the LGA gives the mayor very limited powers to perform that role – the key one being the power to lead the development of key plans and policies such as the long-term plan (LTP) and annual plan. So while the mayor can promise to promote an LTP which limits annual rates rises to three percent, for example, if the mayor does not “command the numbers” around the council table, he or she cannot ensure that an LTP delivering that outcome will be adopted.

Is it the same in Auckland?

Fundamentally yes, although the LGACA also gives the Auckland mayor the power to establish and maintain an appropriately-staffed mayoral office with a minimum budget (no less than 0.2 percent of budgeted opex for that year). This at least allows the mayor to promote his or her agenda more strongly.

Do election promises have any legal status?

Almost invariably not. For a start, it is difficult to see a court upholding a candidate as “speaking for the council” during an election campaign. Further, campaign promises tend to be in the area of “discretionary” council decision-making (for example, how much to spend, and on what) where the courts have recognised that local authorities must be able to change their mind as circumstances dictate.

That may be distinguished from promises made by or on behalf of councils when they are acting essentially in a private capacity – such as making a decision to purchase land.

Importantly, any major proposal, and certainly the LTP, will be subject to consultation, the outcome of which cannot legally be predetermined by elected members.

Surely a new council can reverse positions and policies adopted by the previous council?

It depends on the nature of the decision, and any relevant legislation. On matters of policy and discretion councils will generally be free to do so. This is illustrated by Arms v New Plymouth District Council (High Court, New Plymouth, 14/5/2008, CIV-2006-043-399, Cooper J) where the High Court dismissed judicial review proceedings challenging the council’s decision to reverse a policy of allowing freeholding of Waitara leasehold land which it had adopted 15 years earlier.

By contrast, in Templeton v Kapiti Coast District Council (High Court, Wellington, 28/6/2005, CIV-2004-485-1686, Miller J) the High Court found a council unable to reverse the decision of one of its committees to sell a parcel of council land. It upheld the Templetons’ application for judicial review of the governing body’s decision to reverse the committee decision, due to the comprehensive nature of the delegation to the committee, and clause 30(6) of Schedule 7 of the LGA. This provision says in effect that nothing in clause 30 entitles a local authority to rescind a decision made under a delegation authorising a committee to make the decision.

Given the greater latitude courts tend to afford local authorities when making policy decisions affecting the wider public (as distinct from private individuals), it seems unlikely a court would have reached the same result had the decision not concerned a sale of land affecting only a single landowner.

What about legislative compliance?

This remains key. Any decision to reverse a decision of a previous council should be made in accordance with the requirements of Part 6 of the LGA that apply to all local authority decisions, and any specific statutory provisions that may apply (for example, provisions governing withdrawal or discontinuance of a statutory policy).

So what about an election promise to replace the chief executive?

The comments above about the status of election promises, and limits on a council’s ability to change its mind, apply equally to a “promise” to replace the chief executive.

In addition, a contract of employment is a contract. It cannot be unilaterally terminated, except in accordance with its terms. So, as a matter of law, a “promise” to replace the chief executive is a very difficult one to keep. It is also one which inevitably raises legal issues for the elected member who has taken such a stand during an election campaign. These could include issues of predetermination, bias, breach of good employer obligations and breach of good faith.

It is definitely a promise best not made.

Jonathan Salter and Padraig McNamara are both partners at Simpson Grierson.

This article was first published in the November 2016 issue of NZ Local Government Magazine.

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