By Mike Doesburg, a partner at Wynn Williams who acts for councils on a wide range of local government and environmental issues.
The reality of local government is that there is a fine line between promoting certain interests or political positions as a candidate and remaining free from conflict or accusations of bias when it comes to participating in decision-making.
The 2022 local government elections are now over and around 39 percent of kiwis cast their votes compared to 42 percent in 2019.
Such apathy and seeming disinterest in who’s running our communities has renewed calls for an independent review of the local government election system, including the use of online voting.
Nonetheless, those who voted have spoken. And those votes have morphed into mayors, councillors and local board members. The business of local government for the 2022-2025 triennium can begin.
With a significant number of new mayors and councillors, its perhaps timely to reflect on what to expect at the first meeting and recap on conflicts of interest, before reflecting on the challenges ahead for this cohort of mayors, councillors and local board members.
The first meeting
One of the first steps following an election is to re-form the council at the first meeting. The first meeting addresses a number of important preliminary requirements, including members making the required declaration to act in the best interests of the region or district, the election of a chairperson (for regional councils) and the election of the deputy mayor or deputy chairperson.
An important statutory requirement is that the chief executive must give or arrange a general explanation of the laws relating to information and meetings, the Local Authorities (Members’ Interests) Act 1968 and laws relating to bribery and conduct in financial markets. The first meeting is also a useful time to go over the code of conduct for members and the standing orders.
While members may not be thrilled about beginning the term with a law lecture, it is important they understand the obligations and responsibilities that come with the elected position.
Even for returning members, a refresher is helpful. The reality of local government is that there is a fine line between promoting certain interests or political positions as a candidate and remaining free from conflict or accusations of bias when it comes to participating in decision-making. It would be a Pyrrhic victory to be elected on a platform but then not be able to discuss or vote on the issue!
Conflicts of interest
Conflicts of interest can arise in a number of ways, including a conflict of roles (where a member has other roles with competing interests) or where members have other financial or non-financial interests that overlap with their local government decision-making. Having a conflict is not a problem by itself, nor is it uncommon.
However, conflicts need to be properly managed. They should be identified and disclosed, and an appropriate action should be taken in response (which may include not participating in discussion or decision-making on the issue).
An Act that is often forgotten about is the Local Authorities (Members’ Interests) Act 1968. The Act prohibits members taking part in a council discussion or decision-making if they have a pecuniary interest in the discussion, other than an interest in common with the public. Participating in a discussion or voting in breach of the Act is a criminal offence, punishable by a fine of up to $100, but a member so convicted is disqualified from being a member of the council, which, along with the criminal record, is a greater deterrent than the fine.
A challenging triennium
It is no secret that 2022-2025 is set to be a time of significant change and uncertainty for local government.
In addition to legislative change with the controversial three waters reform and replacement of the resource management framework, the draft report from the independent Ministerial review of the future of local government will be released on 28 October 2022 and is expected to herald changes to the structures and systems of local government.
To add to the uncertainty, the 2023 general election brings the prospect of a change of government and the consequential changes to government policy and legislative direction. For example, the National party has clearly signalled that, if it is elected, the three waters reform would be on the chopping block (at least in part).
Despite the challenges this triennium will bring, councils are still tasked with the core functions to promote the social, economic, environmental and cultural well-being of their communities – now and for the future.