Far North District Council
Code of Conduct
Adopted on the 7 December 2017
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1. Introduction
This Code of Conduct sets out the standards of behavior expected from individual elected
members in the exercise of their duties. Its purpose is to:
•
Enhance the effectiveness of the local authority and the provision of good local
government of the community, district, city or region;
•
promote effective decision-making and community engagement;
•
enhance the credibility and accountability of the local authority to its communities;
and
•
develop a culture of mutual trust, respect and tolerance between the members of
the local authority and between the members and management.
This purpose is given effect through the values, roles, responsibilities and specific behaviors
agreed in this Code.
2. Scope
The Code has been adopted in accordance with clause 15 of Schedule 7 of the Local Government
Act 2002 (LGA 2002) and applies to all members, including the members of any local boards that
may be established and members of community boards that agree to adopt it. The Code is
concerned with the behaviour of members towards;
•
each other;
•
the chief executive;
•
staff;
•
the media; and
•
the general public.
The Code also applies to the disclosure of information that members receive in their capacity as
elected members and information which impacts on the ability of the local authority to give
effect to its statutory responsibilities
This Code can only be amended (or substituted by a replacement Code) by a vote of at least 75%
of members present at a meeting when amendment to the Code of Conduct are being
considered. The Code should be read in conjunction with the Council’s Standing Orders.
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3. Values
The Code of Conduct is designed to give effect to the following values:
1.
Public interest: members will serve the best interests of the people within their
community, district or region and discharge their duties conscientiously, to the best
of their ability.
2.
Public trust: members, in order to foster community confidence and trust in their
Council, will work together constructively and uphold the values of honesty,
integrity, accountability and transparency;
3.
Ethical behaviour: members will not place themselves in situations where their
honesty and integrity may be questioned, will not behave improperly and will avoid
the appearance of any such behaviour;
4.
Objectivity: members will make decisions on merit; including appointments,
awarding contracts, and recommending individuals for rewards or benefits.
5.
Respect for others: will treat people, including other members, with respect and
courtesy, regardless of their race, age, religion, gender, sexual orientation, or
disability. Members will respect the impartiality and integrity of officials;
6.
Duty to uphold the law: members will comply with all legislative requirements
concerning their role, abide by this Code of Conduct, and act in accordance with the
trust placed in them by the public;
7.
Equitable contribution: members will take all reasonable steps to ensure they fulfil
the duties and responsibilities of office, including attendance at meetings and
workshops, background reading, attendance at civic events, and participation in
relevant training seminars organised by the Council.
8.
Leadership: – members will actively promote and support these principles and
ensure they are reflected in the way in which the Council operates including regular
review and assessment.
These values complement, and work in conjunction with, the principles of s.14 of the LGA 2002
and the governance principles of s.39 of the LGA 2002.
4. Role and responsibilities
Good governance requires clarity of roles and respect between those charged with
responsibility for the leadership of the local authority and those responsible for advice and the
implementation of decisions. These roles are:
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4.1 Members
The role of the governing body includes:
•
representing the interests of the people of the district, city or region;
•
developing and adopting plans, policies and budgets;
•
monitoring the performance of the Council against stated goals and objectives set
out in its long term plan;
•
providing prudent stewardship of the Council’s resources;
•
employing and monitoring the performance of the Chief Executive; and
•
ensuring the Council fulfils its responsibilities to be a ‘good employer’ and meet the
requirements of the Health and Safety at Work Act 2015.
4.2 Chief Executive
The role of the Chief Executive includes:
•
implementing the decisions of the Council;
•
ensuring that all responsibilities delegated to the Chief Executive are properly
performed or exercised;
•
ensuring the effective and efficient management of the activities of the local
authority
•
maintaining systems to enable effective planning and accurate reporting of the
financial and service performance of the local authority;
•
providing leadership for the staff of the Council; and
•
employing staff on behalf of the Council (including negotiation of the terms of
employment for the staff of the local authority).
Under section 42 of the LGA 2002 the Chief Executive is the only person
directly employed by
the Council itself. All concerns about the performance of an individual member of staff must, in
the first instance, be referred to the Chief Executive.
5. Relationships
This section of the code sets out agreed standards of behaviour between members; members
and staff; and members and the public.
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5.1 Values adopted by members of the Far North District Council
Given the importance of behaviours to the effective performance of the Council, members have
adopted a set of values by which they agree to conduct their dealings with each other, staff and
the public:
1. Honesty and Integrity
Elected members are committed to the following:
•
Be truthful
•
No surprises
•
Sincerity
•
Do what you say
•
Don’t undermine
•
Act in good faith
•
Objective and independent
We expect openness and truthfulness from each other. We make promises we know we
can keep and always work to maintain the confidence of others. We consistently uphold
ethical standards. We have faith in each other to act objectively and in the best interests
of our community.
2. Respect •
Listening
•
Treating others with dignity and respect
•
Language and tone of voice –
•
Empathetic
•
Focus on the issue not the person
•
Agree to disagree
We value each other and the perspectives we bring to the issues we discuss. We actively
listen to each other and choose to speak respectfully at all times. We accept the
diversity of our viewpoints because it reflects the diversity of our community.
3. Fairness •
Equal footing
•
No blame
•
Respect others’ views
•
Equity in process
•
An open mind
•
Inclusive
•
Consider all aspects
We ensure all voices are heard and are treated equally. We approach all discussions
with an open mind and respect all perspectives presented. We are fair and equitable in
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our processes to ensure our communities have trust and confidence in us to make the
right decisions.
4. Accountability and Professionalism
•
No blame
•
Admit your mistakes
•
Take ownership
•
Accept correction/ constructive criticism
•
Language and approach
•
Be prepared to apologise
•
Take responsibility
•
Be prepared and informed
We set high professional standards for ourselves and for each other. We are prepared
and informed in our work. We perform our duties and take responsibility for our actions
in ways that make our communities proud to have us as their representatives.
5. Leadership
•
Walk the talk
•
See the big picture
•
Show respect and dignity
•
Give others the right to speak
•
Treat others the way you want to be treated
•
Work as a team and back each other
•
Model behaviours
•
Be the leaders you want to see
We know that to be leaders we must behave in a manner that deserves supporters. We
show leadership in the way that we treat people, respecting and listening to their views.
We recognise the strength of our col ective voice and work to enhance it for the benefit
of our communities.
5.2 Relationships with other members
Given the importance of relationships to the effective performance of Councils and their
committees, members will conduct their dealings with each other in a manner that:
•
maintains public confidence;
•
is open and honest;
•
is courteous;
•
focuses on issues rather than personalities;
•
avoids abuse of meeting procedures such as a pattern of unnecessary notices of
motion and repetitious points of order; and
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•
avoids aggressive, offensive or abusive conduct, including the use of disrespectful
or malicious language including misuse.
Any failure by members to act in the manner described above represents a breach of this Code.
Please note that nothing in this Code of Conduct is intended to limit robust debate within the
local authority as long as it is conducted in a respectful and insightful manner.
5.3 Relationships with Staff
An important element of good governance involves the relationship between the Councils and
its Chief Executives. Members will respect arrangements put in place to manage the interface
between the governing body and its Chief Executive and:
•
raise any concerns about employees, officers or contracted officials with their Chief
Executive;
•
raise any concerns about the performance or behaviour of Chief Executive with the
Mayor/Chair of the Council or the Chairperson of the Chief Executive Performance
Review Committee (however described);
•
make themselves aware of the obligations that the Council and the Chief Executive
have as employers and observe those requirements at all times, such as the duty to
be a good employer;
•
treat al employees with courtesy and respect and avoid publicly criticising any
employee;
•
observe any protocols put in place by the Chief Executive concerning contact
between members and employees;
•
avoid doing anything which might compromise, or could be seen as compromising,
the impartiality of an employee.
Any failure by members to act in the manner described above represents a breach of this Code.
Please note: elected members should be aware that failure to observe this portion of the Code
of Conduct may compromise the Council’s obligations to be a good employer and consequently
expose the Council to civil litigation or affect the risk assessment of council’s management and
governance control processes undertaken as part of the Council’s audit.
5.4 Relationship with the public
Given that the performance of the Council requires the trust and respect of individual citizens,
members will:
•
interact with members of the public in a fair, respectful, equitable and honest
manner;
•
be available to listen and respond openly and honestly to community concerns;
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•
consider all points of view or interests when participating in debate and making
decisions;
•
treat members of the public in a courteous manner;
•
act in a manner that upholds the reputation of the local authority.
Any failure by members to act in the manner described above represents a breach of this Code.
6. Contact with the Media
The media play an important part in the operation and efficacy of local democracy. In order to
fulfil this role the media needs access to accurate and timely information about the affairs of
Council. From time to time individual members will be approached to comment on a particular
issue either on behalf of Council, or as an elected member in their own right.
When speaking to the media on behalf of the Council or when speaking to the media on their
own behalf, members will comply with the following provisions:
6.1 Media contact on behalf of the Council
•
The Mayor or Chairperson is the first point of contact for an official view on any
issue, unless delegations state otherwise. Where the Mayor/Chair is absent
requests for comment will be referred to the Deputy Mayor/Chair or relevant
Committee Chairperson;
•
the Mayor or Chairperson may refer any matter to the relevant Committee
Chairperson or to the Chief Executive for their comment; and
•
no other member may comment
on behalf of the Council without having first
obtained the approval of the Mayor or Chairperson.
6.2 Media comment on a member’s own behalf
Elected members are free to express a
personal view in the media, at any time, provided the
following rules are observed:
•
media comments must not state or imply that they represent the views of the
Council;
•
media comments which are contrary to a council decision or policy must clearly
state that they do not represent the views of the majority of members;
•
media comments must observe the other requirements of the Code of Conduct; for
example, comments should not disclose confidential information, criticize, or
compromise the impartiality or integrity of staff;
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•
media comments must not be misleading and should be accurate within the bounds
of reasonableness.
Any failure by members to meet the standards set out above represents a breach of this Code.
7. Information
Access to information is critical to the effective performance of a local authority and the level of
public trust felt by the public.
7.1 Confidential information
In the course of their duties members will occasionally receive information that may need to be
handled in a confidential manner. This will generally be information that is either commercially
sensitive or is personal to a particular individual or organisation. Accordingly, members agree
not to use or disclose confidential information for any purpose other than the purpose for which
the information was supplied to the elected member.
7.2 Information received in capacity as an elected member
Members will disclose, to other members and, if appropriate, the Chief Executive, any
information received in their capacity as an elected member that concerns the Council’s ability
to give effect to its responsibilities.
Members who are offered information on the condition that it remain confidential will inform
the provider of the information that the member has a duty of disclosure and will decline the
information if that duty is likely to be compromised.
Any failure by members to act in the manner described above represents a breach of this Code.
Please note: failure to observe these provisions may impede the performance of Council by
inhibiting information flows and undermining public confidence in the Council. It may also
expose Council to prosecution under the Privacy Act and/or civil litigation.
8. Conflicts of Interest
Elected members will maintain a clear separation between their personal interests and their
duties as elected members in order to ensure that they are free from bias (whether real or
perceived). Members therefore must familiarise themselves with the provisions of the Local
Authorities (Members’ Interests) Act 1968 (LAMIA).
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If a member is in any doubt as to whether or not a particular course of action (including a
decision to take no action) raises a conflict of interest, then the member should seek guidance
from the Chief Executive
immediately. Members may also contact the Office of the Auditor
General for guidance as to whether they have a pecuniary interest, and if so, may seek an
exemption to al ow that member to participate or vote on a particular issue in which they may
have a pecuniary interest. The latter must be done before the discussion or vote.
Members will not participate in any Council discussion or vote on any matter in which they have
a pecuniary interest, other than an interest in common with the general public. This rule also
applies where the member’s spouse contracts with the authority or has a pecuniary interest.
Members shall make a declaration of interest as soon as practicable after becoming aware of
any such interests.
Please note: Failure to observe the requirements of LAMIA could potentially invalidate the
particular decision made, or the action taken, by Council. Failure to observe these requirements
could also leave the elected member open to prosecution (see Appendix 1). In the event of a
conviction elected members can be ousted from office.
9. Register of interests
Members shall annually make a declaration of interest. These declarations are recorded in a
register of interests maintained by the Council. The declaration must include information on the
nature and extent of any interest, including:
a)
any employment, trade or profession carried on by the member or the members’
spouse for profit or gain;
b)
any company, trust, partnership etc for which the member or their spouse is a
director, partner or trustee;
c)
the address of any land in which the member has a beneficial interest within the
jurisdiction of the local authority;
d)
the address of any land owned by the local authority in which the member or their
spouse is:
•
a tenant; or
•
the land is tenanted by a firm in which the member or spouse is a partner, a
company of which the member or spouse is a director, or a Trust of which
the member or spouse is a Trustee;
e)
any other matters which the public might reasonably regard as likely to influence
the member’s actions during the course of their duties as a member (if the member
is in any doubt on this, the member should seek guidance from the Chief Executive)
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Please note: Where a member’s circumstances change they must ensure that the Register of
Interests is updated as soon as practicable.
10. Ethical behaviour
Members will seek to promote the highest standards of ethical conduct. Accordingly members
will:
•
claim only for legitimate expenses as determined by the Remuneration Authority
and any lawful policy of council developed in accordance with that determination;
•
not influence, or attempt to influence, any council employee, officer or member in
order to benefit their own, or family’s, personal or business interests;
•
use council resources (such as facilities, staff, equipment and supplies) effectively
and economical y in the course of their duties and not in connection with any
election campaign or personal interests;
•
not solicit, demand, or request any gift, reward or benefit by virtue of their position
and notify the Chief Executive if any such gifts are accepted. Where a gift to the
value of $50 or more is accepted by a member, that member must immediately
disclose this to the Chief Executive for inclusion in the publicly available register of
interests.
Any failure by members to comply with the provisions set out in this section represents a breach
of this Code.
10.1 Undischarged bankrupt
In accordance with Clause 15(5) of Schedule 7 (LGA 2002) any member who is an un-discharged
bankrupt will notify the Chief Executive prior to the inaugural meeting or as soon as practicable
after being declared bankrupt. The member will also provide the Chief Executive with a brief
explanatory statement of the circumstances surrounding the member’s adjudication and the
likely outcome of the bankruptcy.
11. Creating a supportive and inclusive environment
In accordance with the purpose of the Code, members agree to take al reasonable steps in
order to participate in activities designed to promote a culture of mutual trust, respect and
tolerance. These include:
•
attending post-election induction programmes organised by the Council in order to
facilitate agreement on vision, goals and objectives and the manner and operating
style by which members will work.
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link to page 12
•
taking part in any assessment of the Council’s overall performance and operating
style during the triennium.
1
•
taking al reasonable steps to ensure they possess the skil s and knowledge to
effectively fulfill their Declaration of Office and contribute to the good governance
of the district/region.
12. Breaches of the Code
Members must comply with the provisions of this Code of Conduct (LGA 2002, Schedule 5, s.
14(4)). Any member, or the Chief Executive, who believes that the Code has been breached by
the behaviour of a member, may make a complaint to that effect. All complaints will be
considered in a manner that is consistent with the following principles.
12.1 Principles:
The following principles will guide any processes for investigating and determining whether or
not a breach under this Code has occurred:
•
that the approach for investigating and assessing a complaint will be proportionate
to the apparent seriousness of the breach complained about;
•
that the roles of complaint, investigation, advice and decision-making will be kept
separate as appropriate to the nature and complexity of an alleged breach;
•
that the concepts of natural justice and fairness will apply in the determination of
any complaints made under this Code. This requires, conditional on the nature of
an alleged breach, that affected parties:
o
have a right to know that an investigation process is underway;
o
are given due notice and are provided with an opportunity to be heard;
o
have a right to seek appropriate advice and be represented; and
o
have their privacy respected.
12.2 Complaints
All complaints made under this Code must be made in writing and forwarded to the Chief
Executive. On receipt of a complaint the Chief Executive must forward that complaint to an
1 A self assessment template is provided in the Guidance to this Code.
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link to page 13
independent investigator for a preliminary assessment to determine whether the issue is
sufficiently serious to warrant a full investigation.
2
Only members and the Chief Executive make a complaint under this Code.
12.3 Investigation, advice and decision
The process, following receipt of a complaint, will follow the steps outlined in Appendix Two.
12.4 Materiality
An alleged breach under this Code is material if, in the opinion of the independent investigator,
it would, if proven, bring a member or the Council into disrepute or reflect adversely on a
member or the Council if not addressed.
13. Penalties and actions
Where a complaint is determined to be material and referred to the Council the nature of any
penalty or action will depend on the seriousness of the breach.
13.1 Material breaches
In the case of material breaches of this Code the Council, or a Committee with delegated
authority, may require one of the following:
1. a letter of censure to the member;
2. a request (made either privately or publicly) for an apology;
3. a vote of no confidence in the member;
4. removal of certain council-funded privileges (such as attendance at conferences);
5. Restricted entry to council offices, such as no access to staff areas;
6. limitation on any dealings with council staff so that they are confined to the Chief
Executive only;
7. suspension from committees or other bodies;
8. an invitation for the member to consider resigning from the council.
A Council or Committee may decide that a penalty wil not be imposed where a respondent
agrees to one or more of the following:
• attend a relevant training course; and/or
• work with a mentor for a period of time; and/or
2 On behalf of the Council the Chief Executive wil , shortly after the start of a triennium, prepare in
advance either a list of independent investigators for this purpose; contract with a reputable agency
capable of providing appropriate investigators, or engage an appropriate person fol owing receipt of a
complaint.
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• participate in voluntary mediation (if the complaint involves a conflict between two
members);and/or
• tender an apology.
The process is based on the presumption that the outcome of a complaints process will be made
public unless there are grounds, such as those set out in LGOIMA, for not doing so.
13.2 Statutory breaches
In cases where a breach of the Code is found to involve regulatory or legislative requirements,
the complaint will be referred to the relevant agency. For example:
1.
breaches relating to members’ interests (where members may be liable for
prosecution by the Auditor-General under the Member’s Interests Act)
2.
breaches which result in the council suffering financial loss or damage (where the
Auditor-General may make a report on the loss or damage under section 30 of the
Local Government Act which may result in the member having to make good the
loss or damage)
3.
breaches relating to the commission of a criminal offence which will be referred to
the Police (which may leave the elected member liable for criminal prosecution).
14. Review
Once adopted a code of conduct continues in force until amended by the Council. The code can
be amended at any time but cannot be revoked unless the council replaces it with another code.
Once adopted, amendments to the code of the conduct require a resolution supported by 75
percent of the members of the Council present at a council meeting where the amendment is
considered.
Council may formally review the code as soon as practicable after the beginning of each
triennium. The results of that review will be considered by the Council in regard to potential
changes for improving the Code.
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Appendix 1: Legislation bearing on the role and Conduct of Elected
Members
This is a summary of the legislative requirements that have some bearing on the duties and
conduct of elected members. The ful statutes can be found at
www.legislation.govt.nz.
The Local Authorities (Members’ Interests) Act 1968
The Local Authorities (Members’ Interests) Act 1968 (LAMIA) provides rules about members
discussing and voting on matters in which they have a pecuniary interest and about contracts
between members and the council.
A pecuniary interest is likely to exist if a matter under consideration could reasonably giver rise
to an expectation of a gain or loss of money for a member personally (or for their spouse or a
company in which they have an interest). In relation to pecuniary interests LAMIA applies to
both contracting and participating in decision-making processes.
In relation to pecuniary or financial interests a person is deemed to be “concerned or
interested” in a contract or interested “directly or indirectly” in a decision when:
• a person’s spouse or partner is “concerned or interested” in the contract or where they
have a pecuniary interest in the decision; or
• a person or their spouse or partner is involved in a company that is “concerned or
interested” in the contract or where the company has a pecuniary interest in the
decision.
There can also be additional situations where a person is potentially “concerned or interested”
in a contract or have a pecuniary interest in a decision, such as where a contract is between an
elected members’ family trust and the council.
Determining whether a pecuniary interest exists
Elected members are often faced with the question of whether or not they have a pecuniary
interest in a decision and if so whether they should participate in discussion on that decision and
vote. When determining if this is the case or not the following test is applied:
whether, if the matter were dealt with in a particular way, discussing or voting on that
matter could reasonably give rise to an expectation of a gain or loss of money for the
member concerned. (OAG, 2001)
In deciding whether you have a pecuniary interest members should consider the following
factors.
•
What is the nature of the decision being made?
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•
Do I have a financial interest in that decision - do I have a reasonable expectation of
gain or loss of money by making that decision?
•
Is my financial interest one that is in common with the public?
•
Do any of the exceptions in the LAMIA apply to me?
•
Could I apply to the Auditor-General for approval to participate?
Members may seek assistance from the Mayor/Chair or other person to determine if they
should discuss or vote on an issue but ultimately it is their own judgment as to whether or not
they have pecuniary interest in the decision. Any member who is uncertain as to whether they
have a pecuniary interest is advised to seek legal advice. Where uncertainty exists members
may adopt a least-risk approach which is to not participate in discussions or vote on any
decisions.
Members who do have a pecuniary interest will declare the pecuniary interest to the meeting
and not participate in the discussion or voting. The declaration and abstention needs to be
recorded in the meeting minutes. (Further requirements are set out in the Council’s Standing
Orders.)
The contracting rule
A member is disqualified from office if he or she is “concerned or interested” in contracts with
their council if the total payments made, or to be made, by or on behalf of the council exceed
$25,000 in any financial year. The $25,000 limit includes GST. The limit relates to the value of
all payments made for all contracts in which you are interested during the financial year. It does
not apply separately to each contract, nor is it just the amount of the profit the contractor
expects to make or the portion of the payments to be personal y received by you.
The Auditor-General can give prior approval, and in limited cases, retrospective approval for
contracts that would otherwise disqualify you under the Act.
It is an offence under the Act for a person to act as a member of a council (or committee of that
council) while disqualified.
Non-pecuniary conflicts of interest
In addition to the issue of pecuniary interests rules and common law govern the issue of
conflicts of interest more generally. These are rules that apply to non-pecuniary conflicts of
interest and include common law rules about bias. In order to determine if bias exists or not
members need to ask:
Is there a real danger of bias on the part of the member of the decision-making body, in
the sense that he or she might unfairly regard with favour (or disfavour) the case of a
party to the issue under consideration?
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The question is not limited to actual bias, but relates to the appearance or possibility of bias
reflecting the principle that justice should not only be done, but should be seen to be done.
Whether or not members believe they are not biased is irrelevant.
Members should focus be on the nature of the conflicting interest or relationship and the risk it
could pose for the decision-making process. The most common risks of non-pecuniary bias are
where:
•
members’ statements or conduct indicate that they have predetermined the
decision before hearing all relevant information (that is, members have a “closed
mind”);
•
members have a close relationship or involvement with an individual or
organisation affected by the decision.
In determining whether or not they might be perceived as biased members must also take into
account the context and circumstance of the issue or question under consideration. For
example, if a member has stood on a platform and been voted into office on the promise of
implementing that platform then voters would have every expectation that the member would
give effect to that promise. (this may not apply to decisions made in quasi-judicial settings, such
as an RMA hearing).
Local Government Official Information and Meetings Act 1987
The Local Government Official Information and Meetings Act 1987 sets out a list of meetings
procedures and requirements that apply to local authorities and local and community boards. Of
particular importance for the roles and conduct of elected members is the fact that the
Chairperson has the responsibility to maintain order at meetings, but all elected members
should accept a personal responsibility to maintain acceptable standards of address and debate.
No elected member should:
•
create a disturbance or a distraction while another Councillor is speaking;
•
be disrespectful when they refer to each other or other people;
•
use offensive language about the Council, other members, any employee of the
Council or any member of the public.
See Standing Orders for more detail.
Secret Commissions Act 1910
Under this Act it is unlawful for an elected member (or officer) to advise anyone to enter into a
contract with a third person and receive a gift or reward from that third person as a result, or to
present false receipts to council.
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If convicted of any offence under this Act a person can be imprisoned for up to 2 years, and/or
fines up to $1000. A conviction therefore would trigger the ouster provisions of the Local
Government Act and result in the removal of the member from office.
Crimes Act 1961
Under this Act it is unlawful for an elected member (or officer) to:
•
accept or solicit for themselves (or anyone else) and gift, reward for acting or not
acting in relation to the business of council;
•
use information gained in the course of their duties for their, or another persons,
monetary gain or advantage.
These offences are punishable by a term of imprisonment of 7 years or more. Elected members
convicted of these offences will be automatically cease to be members.
Financial Markets Conduct Act 2013
The Securities Act 1978 essential y places elected members in the same position as company
directors whenever Council offers stock to the public. Elected members may be personally
liable if investment documents such as a prospectus contain untrue statements and may be
liable for criminal prosecution if the requirements of the Act are not met.
The Local Government Act 2002
The Local Government Act 2002 (LGA 2002) sets out the general powers of local government, its
purpose and operating principles. Provisions directly relevant to this Code include:
Personal liability of members
Although having qualified privilege elected members can be held personally accountable for
losses incurred by a local authority where, following a report from the Auditor General under
s.44 LGA 2002, it is found that one of the following applies:
a)
money belonging to, or administered by, a local authority has been unlawfully
expended;
b)
an asset has been unlawfully sold or other wise disposed of by the local authority;
c)
a liability has been unlawfully incurred by the local authority;
d)
a local authority has intentionally or negligently failed to enforce the collection of
money it is lawful y entitled to receive.
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Members will not be personally liable where they can prove that the act or failure to act
resulting in the loss occurred as a result of one of the following:
a)
without the member’s knowledge;
b)
with the member’s knowledge but against the member’s protest made at or before
the time when the loss occurred;
c)
contrary to the manner in which the member voted on the issue;
d)
in circumstances where, although being a party to the act or failure to act, the
member acted in good faith and relied on reports, statements, financial data, or
other information from professional or expert advisers, namely staff or external
experts on the matters.
In certain situation members will also be responsible for paying the costs of proceedings (s.47
LGA 2002).
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Appendix 2: Process for the determination and investigation of
complaints
Step 1: Chief executive receives complaint
On receipt of a complaint under this Code the Chief Executive wil refer the complaint to an
investigator selected from a panel agreed at the start of the triennium. The Chief executive will
also:
•
inform the complainant that the complaint has been referred to the independent
investigator and the name of the investigator, and refer them to the process for
dealing with complaints as set out in the Code of Conduct;
•
inform the respondent that a complaint has been made against them, the name of
the investigator and refer them to the process for dealing with complaints as set
out in the Code of Conduct.
Step 2: Investigator makes preliminary assessment
On receipt of a complaint the investigator will assess whether:
1.
the complaint is frivolous or without substance and should be dismissed;
2.
the complaint is outside the scope of the Code of Conduct and should be redirected
to another agency or process;
3.
the complaint is non-material;
4.
the complaint is material and a full investigation is required.
In making the assessment the investigator may make whatever initial inquiry is necessary to
determine the appropriate course of action. The investigator has full discretion to dismiss any
complaint which, in their view, fails to meet the test of materiality.
On receiving the investigator’s preliminary assessment the Chief Executive wil :
1. where an investigator determines that a complaint is frivolous or without substance,
inform the complainant and respondent directly and inform other members (if there
are no grounds for confidentiality) of the investigator’s decision;
2. in cases where the investigator finds that the complaint involves a potential
legislative breach and is outside the scope of the Code, forward the complaint to the
relevant agency and inform both the complainant and respondent of the action.
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Step 3: Actions where a breach is found to be non-material
If the subject of a complaint is found to be non-material the investigator will inform the Chief
Executive and, if they choose, recommend a course of action appropriate to the breach, such as;
•
that the respondent seek advice from the Chairperson or Mayor with regard to
good practice;
•
that the respondent attend appropriate courses or programmes to increase their
knowledge and understanding of the matters that caused the initial complaint.
The Chief executive wil advise both the complainant and the respondent of the investigator’s
decision and any recommendations. Neither of which are open to chal enge. Any
recommendations made in response to a non-material breach are non-binding on the
respondent and the council.
Step 4: Actions where a breach is found to be material
If the subject of a complaint is found to be material the investigator will inform the Chief
Executive, who will inform the complainant and respondent. The investigator will then prepare
a report to the Council on the seriousness of the breach.
In preparing that report the investigator may:
•
consult with the complainant, respondent and any affected parties;
•
undertake a hearing with relevant parties;
•
refer to any relevant documents or information.
On receipt of the investigator’s report the Council, or a committee with delegated authority, will
meet to consider the findings and determine whether or not a penalty, or some other form of
action, will be imposed.
Step 5: Process for considering the investigator’s report
Depending upon the nature of the complaint and al eged breach the investigator’s report can be
considered by the ful council, excluding the complainant, respondent and any other ‘interested’
members, or a committee established for that purpose.
To remove any suggestion of bias a committee will often be the best mechanism for considering
and ruling on complaints. Committees should be established at eth start of a triennium with a
majority of members selected from the community through either an application process or by
invitation.
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The Council or Committee will consider the report in open meeting, except where the al eged
breach concerns matters that justify the exclusion of the public, such as the misuse of
confidential information or a matter that would otherwise be exempt from public disclosure
under s. 48 LGOIMA, in which case it will be a closed meeting.
Before making any decision in respect of the Investigator’s report the Council or committee will
give the member against whom the complaint has been made an opportunity to appear and
speak in their own defense. Members with an interest in the proceedings, including the
complainant and the respondent, may not take part in these proceedings.
The form of penalty that might be applies wil depend on the nature of the breach and may
include actions set out in Section 13.1 of the Code.
In accordance with this Code councils will agree to implement the recommendations of a Code
of Conduct committee without debate.
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