Discussion about closed workshops during Motueka Community Board meeting

During the last Motueka Community Board meeting there was a discussion about workshops and that they are held behind closed doors. Board member Hutt shared the view that she “felt more comfortable if it [a workshop] was held in a private settings”. Because in workshops behind closed doors she could speak freely.

Hearing these kind of statements is frustrating, because having workshops open to the public or behind closed, is in our opinion not a decision for elected members or Council staff to take, instead it is an interpretation of statutes, in this case Section 17 of the Local Government Act 2020, which states the the business on a local government level should be conducted in an “open, transparent, and democratically accountable manner”. Having closed workshops is not in line with these principles. That’s what the Chief Ombudsman determined last year when he did an investigation into local council meetings and workshops.

The discussion during the last Motueka Community Board makes us believe that the majority of community board members have not read the report of the Chief Ombudsman from October 2023. To address the issue that the Tasman District Council does not follow the clearly stated expectations from the Ombudsman (“opening workshops to the public by default”), we

• gave a speech in a council meeting

• talked briefly the Mayor

• had several phone calls with the Office of the Ombudsman

• filed 2 complaint with the Chief Executive

However, the Tasman District Councils keeps its position that the public is excluded from all workshops. The Mayor made it clear that there is no room for negotiations to even only open some of the workshops to the public. Therefore, we had to file a formal complaint with the Ombudsman, which can be read here.

Community board member Graham said during the meeting: “That’s where the downside of our workshops not being open to the public is, we are not taking community along [in decision making process]”.

The exact same issue was mentioned in the report of the Chief Ombudsman. Further, the Chief Ombudsman did not accept the argument that closed workshops are a safe space to ask silly questions out of the public eye. This is against the view of some community board members that they like to have closed workshops to “speak freely” and have “frank and free conversations”. The Chief Ombudsman wrote:

“Another reason put forward by councils for closing workshops was to provide elected members a ‘safe space’ to ask ‘silly questions’ out of the public eye. I do not accept this argument. Councillors are elected to public office, a position that demands accountability. They should be prepared for a level of scrutiny and even reasonable criticism from those they represent. The questions and concerns councillors have are no doubt shared by many of their constituents. It may be valuable for the answers to these ‘silly questions’ to be heard by the public.”

Councillor Dowler brought up an example of land purchase in Motueka that “had to be confidential”, and in consequence a workshops was necessary so that the public is excluded from the discussion. Mr Kirby also mentioned that workshops are used to have “confidential discussions”. Even though Mr Kirby may well accurately describe current practice, we strongly oppose the view that this is what workshops are intended to be. There are good reasons to have “confidential discussions”. However, instead of having them in a closed workshops they need to happen in a confidential session of a regular meeting with the public excluded. For meetings there need to be true and accurate meeting minutes. It goes without saying that a land purchase would require thorough record keeping alone due to the significant amount of public money involved. According to Councillor Dowler’s example this appears not to be the case because the discussion was held in a workshop, not a meeting.

Councillor Walker said that individuals or certain community groups “may have some knowledge, skill set or experience that they could kind of share and help us make us more rounded and information decisions”. In short, public participation, which is mentioned as a purpose of the Local Government Official Information and Meetings Act 1987 (“to enable more effective participation by the public in the actions and decisions of local authorities”)

Councillor Walker also said: “Regularly we have councillors that sit in the chambers and say, for this next workshop would we be able to open it to the public? We keep getting shut down on that.“ She asked “how do we get some movement over in the chambers in Richmond?”

There are 3 options:

1. having a majority of elected members to vote in favour of a resolution that workshops are open to the public

2. file a formal complaint with the Chief Executive or Mayor that the Tasman District Councils does not follow the expectations of the Chief Ombudsman

3. file a formal complaint with the Office of the Ombudsman (or write an email informing the Ombudsman that you support the complaint that we filed)

Interestingly, the discussion around workshops did not appear on the agenda but was started in response to what was said in public forum. So, there was definitely no element of theatre involved which Councillor Maru rightly called out when things are firstly discussed in a closed workshops to then be discussed anew in fornt of the public eye.

It was an authentic and genuine discussion about ups and downs of having closed workshops. This gives the public the chance to understand different viewpoints. We would love to see more of this and wish at the same time that elected members become more knowledgable about their role, its limitations and the processes underpinning this work in public office. We strongly believe that this has the potential to cure the perceived unease of being seen by the public eye during a workshop.

Warrants for Enforcement Officers

Sometimes people come in contact with so-called warranted officers. The classic example is the Enforcement Officer of the Local Authority (in our area the Tasman District Council) who wants to visit your private property. In those instances you will see 2 different documents.

The first document shows who the person is (e.g. an appointed Enforcement Officer). It is called the Warrant of Appointment, specifying the identity and role of the person.

The second document shows what this person is entitled to do (e.g. enter private land under section 332 of the Resource Management Act 1991). It is called the Warrant of Authority specifying the particular provision relevant for the action that the person would like to perform.

Section 332 of the Resource Management Act 1991 states:

Every enforcement officer who exercises any power of entry under this section shall produce for inspection his or her warrant of appointment and written authorisation upon initial entry and in response to any later reasonable request.

Ideally, they show both documents proactively “upon initial entry”. If not, you can request to see them, before they do any inspection or enforcement action.

This is confirmed in the Appointment Register of the Tasman District Council:

A warrant of authority and evidence of the officer’s identity must be produced upon any request to do so. If an officer is entering private land for purposes that may lead to enforcement action being taken, they should always present their warrant to avoid any argument later that evidence was collected unlawfully and is therefore inadmissible.

We requested under LGOIMA the release of the TDC Appointment Register. We received this document, unfortunately, heavily redacted. The last two pages of the Appointment Register contain a template for the identity card (warrant of appointment or “who is the person“) and also a template of the Warrant of Authority (“what can this person do“).

The Tasman District Council completely redacted these templates providing withholding of this information would be necessary to “prevent the disclosure or use of official information for improper gain or improper advantage.”

We cannot disagree more with that statement. Seeing these templates would not be in any form an “improper gain or improper advantage“, instead it would empower people to ascertain the validity of certain documents, if presented to them (e.g. an Enforcement Officer enters private land).

However, we found a copy of a Warrant of Appointment and a Warrant of Authority online, see below. They were part of a TDC presentation during the Environmental Compliance Conference 2019 in Christchurch and show the documents that TDC staff needs to produce when entering private land.

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TDC Warrant ID Card (source https://planning.org.nz/Attachment?Action=Download&Attachment_id=5678)

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TDC Warrant ID Card (source https://planning.org.nz/Attachment?Action=Download&Attachment_id=5678)

The persistence game at Tasman District Council

I guess, everybody knows what persistence is. Children want their ice creams, a dog or whatever it may be. They will remind us vigorously about the fact that they really want this or that, that we had promised to go to the pools, get the dog, but not kept to the promise. They may have done their share of the bargain or not.

It really comes down to a critical assessment, including assessing our own behaviour. For that it needs integrity. As parents we carry the responsibility to guide our children, to teach them what is appropriate and what is not. If we made a promise and they remind us of that, are there valid reasons for us to not hold that promise right now? On the other side, am I being a good role model to give in after the third time I am being asked to buy the ice cream? What am I teaching my children by doing that?

Well, I dare say that by giving in simply because someone persistently demands something of me, I teach that my boundaries are weak. I teach that my initial explanation does not mean much, my word is up for negotiation. I do not hold authority over my decisions.

There seems to be certain pattern of persistence when it comes to Council decisions. The Waimea Dam project was voted out in 28 August 2018 in an eight against six vote. Earlier that same year, when public submissions were consulted on as to whether or not including the Waimea Dam into the Long Term Plan, Councillor Greening stated that there had been a "resounding rejection" of that funding model by the community. "Having considered all the submissions and evidence, I do not support this funding model," he said.

Councillor Peter Canton said he believed to support the resolution would be a "snub" in the face of democracy. "Would I die for water? Maybe. Would I die for democracy? Absolutely," Canton said. "So I can't support this because overwhelmingly, our community has said to us that they do not support [it]."

Councillor Anne Turley said consultation had taken place. "We need to give our community the dignity of knowing that we have listened so I won't be supporting it.“

Councillor Dana Wensley said she would like the proposals to go into the LTP but to put them through "carte blanche" would make a "mockery" of the consultation. "Five days of consultation, I didn't hear a community that was happy with that arrangement," she said.

The Stuff article also mentioned “councillors were advised by council staff to put aside matters raised by submitters that were out of scope“.

But then, early September we read the following article:

“The controversial Waimea Dam is back on track after Tasman District councillors changed their minds and voted to continue with a new funding model.

The Tasman District Council met yesterday and voted 9-5 to revoke an in-principle decision it made on August 28 not to continue with the $100 million dam in the Lee Valley near Nelson.

The joint venture with Waimea Irrigators had been voted down the first time because of fears the dam, which would provide water for much of the region, would be too expensive for ratepayers.

Tasman Mayor Richard Kempthorne said on Thursday the decision was overturned after new information was presented to councillors that showed the cost to ratepayers of a $23m increase in the overall project price would be minimised.“

We all know how much the dam has cost the ratepayer so far.

Another example is the Cat Bylaw proposal by staff. On 5 December 2021 we read in the newspaper

“A staff report says the council has received representations that a bylaw requiring the microchipping of cats would assist in managing cat trespass, cat-transferred diseases, domestic cats being attacked by feral cats and threats to native birds”.

However, after a lengthy discussion on Thursday, a majority of elected members on the council’s regulatory committee voted against the proposal for a bylaw and going out for consultation. They agreed instead to a non-regulatory approach to responsible cat management via education. Now, in 2024, the Cat Bylaw is back on the table at the Council eating away finances. Why, we don’t know.

In the last weeks, both Community Boards were asked to reduce their costs by only having 6-weekly meetings or even only every 8 weeks. This suggestion was presented on the Chair’s report.

Golden Bay deputy Chair Grant Knowles who attended last week’s Motueka Community Board, was asked what the reasons were that were brought forward by staff for suggesting such move. He said that the reasoning was to be more in line with Full Council meetings and this was being brought forward multiple times over the years. He personally did not agree to have fewer meetings, but the majority of his board did, so they will give it a go. They could always change their opinion.

The Motueka Community Board was advised that the Local and Democracy Services Team were under resourced and this move would help them to manage their challenges. There was an overwhelming opposition from the public forum, that also included former Board members, as well as from contributions from members of the current board that this was not at all what would support the board’s work. Councillor Maru also added that surely they wouldn’t make a decision on a point on the Chair’s Report. There should be a decision required report. They would however, give feedback to staff. I think this is very reasonable.

What I am very concerned about however, is another very persistent way of bringing a point across. Since October 2023, there is a statement that persistently reappears on the Motueka Community Board agenda in between other points of decisions, without being given the space to decide on the matter separately. Staff provided for the third time since October that the Motueka Community Board is assumed to be under the code of conduct adopted by a previous board.

This was slipped in between an announcement of a workshop on the topic, again when the decision on adopting a draft policy was to be made in March 2024 and again, one month later, in April 2024, when this decision of adopting a draft policy was tabled again as the decision was adjourned back in March.

In October, three members responded to this “little insert“ by requesting their position to be noted in the meeting minutes, namely that the board was not presented with a code, did not table it, did not discuss it, did not vote on it. However, the meeting minutes did not contain this information. Because the in-house advice on the matter differs from LGNZ advice, clarification would be sought.

The March report was not reflecting any clarification, simply stated the same again. The Motueka Community Board is subject to a code adopted by a previous board. If they vote on adopting a new one, the old one would only be replaced.

The problem is, and is well understood by all board members right now, that this ultimately means that this Board is not given the discretion as per Local Government Act to choose whether or not to adopt a code of conduct at all. A complaint was filed with the Chief Executive in March as a report of that nature is, according to the Standing Orders, under responsibility of the Chief Executive. However, her answer was “unwilling to investigate“. Code is in place. Fullstop.

When the Board finally voted on adopting their draft last Tuesday on 16 April, there was no clarification presented on that question. It needs to be said that Full Council passed a resolution on a code of conduct complaint in November 2023, so just after the statement appeared on the Motueka Community Board agenda for the first time. The position of the member subject to the complaint was made clear, namely that the member does not accept that the code which was used to investigate the complaint, was ever adopted by the current board.

A previous article talked about this case at length. Several members of the Motueka Community Board will have a clear conflict of interest in regards to this question, some because they voted on Council’s resolution back in November, others because of their involvement in the case. There could have been a clear statement from the Board to that effect and a clarification that the Board is merely voting on adopting their own code, without making any statements on staff’s position that a code is already in place. But this was not the case.

What is worth noting though is that a request for official information was filed with the Tasman District Council to find out whether the Board’s voting on adopting their own code would also mean they are endorsing the report which was presented to them, namely that they are already bound by a previous board’s code. We were simply given the answer that the request is being refused as this official information does not exist.

We had to contact two further external agencies to find an answer to this question.

In summary, it appears to be a persistence game.

Long Term Plan Consultation 2024

As some of you may know, there is currently the consultation open on the Tasman Long Term Plan proposal. I simply wanted to reiterate that anybody is free to provide their submission in the form they choose, irrespective of TDC's tick the box approach.

Here is Councillor Greening's comment that we think is worth sharing:

The full council meeting of 28 March 2024 contained a very frank assessment of councils current financial position – and the reading should be a concern for all ratepayers. According to staff “Councils projected financial position raises several concerns as financial pressures and unbudgeted expenditure impact on the Council.” A message I have tried to convery during the LTP workshops and why I could not support its final form.

In my opinion, TDC finances look precarious. Staff's advice to get out of this position was to “focus on efforts to enhance income and control spending” (of current budgets). In response, I noted the absence of any advice to "reduce" budgets or costs. And we need to stop continually reaching into the pockets of ratepayers to "enhance (TDC's) income".

I also highlighted that I had provided several ideas (as a good "community guardian") to significantly reduce costs (eg, don't hire an extra 50 staff over the next 3 years, and reduce the 150 staff increase from the last LTP), but the mayor, CEO, and the majority of councilors have refused to entertain any of theses ideas.

I also suggested the 'dynamic rates cap' (in the proposed LTP) should be ditched for a 'hard' rates cap (3%). Not only does a 'dynamic rates cap' incentivise councillors to spend more money on nice to have community facilities we cannot apparently afford - it doesn't drive prioritisation of spending.

Finally, I suggested that we will not contain spending if we keep lifting the debt cap. It was raised by $50 million 3 years ago in the last LTP, and we have already consumed it, and are looking to lift it again to take the pressure off councils continual spending habits.

Of course the mayor did not like my criticism of the LTP proposals and shut me down in making my suggestions on how we could meet the staff's call for help in containing costs.

https://www.facebook.com/GreeningTasman/posts/pfbid02kL3P613irEm7TVKKqYdZtLRQCXr4f6ErRD4Ut4LbTx9R4VgBiwQuRruomBxuDRuil

Workshops at Tasman District Council

We are currently preparing a complaint to the Ombudsman regarding TDC's position not following Ombudsman recommendation to hold Council Workshops open by default to the public, unless there are good reasons not to.

In late October 2023, the Ombudsman reported on his view of Council holding Workshops behind closed doors following an investigation into eight Councils around the country (Clutha District Council, Palmerston North City Council, Rangitīkei District Council, Rotorua Lakes Council, Taranaki Regional Council, Taupō District Council, Timaru District Council and Waimakariri District Council).

“Some councils were previously closing workshops by default. In my view, that is unreasonable. The Local Government Act states that local authorities should conduct business in an open, transparent and democratically accountable manner. As a matter of good practice, workshops should be closed only where it is reasonable.”

The Ombudsman was encouraged that Councils signaled a readiness to consider holding workshops open to the public. Unfortunately, this is not the case for Tasman, even though it is the case for Nelson. Tasman’s Mayor Tim King remains of the firm position that he will not change his approach. This was asked only a few weeks back after two public forum presentations were touching on the Ombudsman position on Workshops and Tasman’s practice. It was also subject of a formal complaint to Council.

As Council, via Mayor King, is holding a very firm view, there are no other internal avenues available to initiate change and we decided to approach the Office of the Ombudsman instead.

We are intending to file a complaint on 18 April with a draft ready by 12 April. If one of you have interest in being part of this complaint, please let us know and we will include you and your reasons in the complaint. You don't have to be a member of our organisation, you can simply support the complaint. If you don't want to be named, but think you have got good reasons in support of this complaint, that’s also fine.

See: https://www.ombudsman.parliament.nz/news/chief-ombudsman-calls-council-workshops-be-open-default

Code of Conduct investigation: unlawful spending of $40,000 ?

In June 2023, former Tasman District Council Chief Executive Janine Dowding laid a Code of Conduct complaint against Motueka Community Board member Nick Hughes. However, no Code of Conduct policy was presented to or voted on by any member of the current board by then. Nor was the policy document in question provided when the complaint was presented to Mr Hughes. This is where this story should have stopped. 

As the Councils main policy advisor the Chief Executive is expected to know about the policies the Council has in place, including what to do if someone is subject to a workplace investigation. The story doesn't stop here. 

An initial assessor who is also the Chair of Council’s Audit and Risk Committee utilised two Council Code of Conduct policies to determine the merits of the complaint. Neither of these policies have anything to do with the current Motueka Community Board. The initial assessor would have had the experience to understand the financial implications of such an investigation in relation to the expenditure of public money and would have a duty to pay close attention to the policy framework he is using for a correct assessment. An assessment made under these two Code of Conduct policies did not make sense, but this didn’t stop the process. 

A further Council policy for investigating and ruling on alleged breaches was used to run the investigation. This policy sets out that the independent investigator’s findings and recommendations are binding for Council. Again, this policy was never tabled at a Motueka Community Board meeting. Yet again, this did not stop the process. 

The Mayor retains the view that this policy is binding for all, including Motueka Community Board members. This view appears questionable as the expected conduct must be well understood by the elected members and the community as set out in section 39 of the Local Government Act 2002 under the Governance principles.

In my view, it would somewhat imply that the process of dealing with breaches and possible repercussions are included therein. It could also indicate a certain lack of care and consideration for the members of the community boards in his district. If transparency and fairness are essential, then surely all members would be expected to be made aware of how their Council is dealing with anything that is considered to require intervention or an investigation. One of the four objectives of Code of Conduct policies according to Local Government New Zealand (LGNZ) is to develop mutual trust, respect  and tolerance in working relationships.

See page 5 here: https://www.horizons.govt.nz/HRC/media/Media/Agenda-Reports/Regional-Council-Meeting-2019-5-11/19167%20Annex%20B%20LGNZ%20Guide%20to%20Code%20of%20Conduct.pdf

However, all repercussions sought from the complainant were of a punitive nature and the complainant declared that she does not expect any change from board member Hughes as a result of the investigation. The purpose of the complaint was to protect staff and to send a strong signal to other elected members that such behaviour as shown by Mr Hughes is not acceptable. 

This alone leads to the question whether the complainant believes the policy is not fit for purpose or whether the policy does not accommodate the purposes of the complainant as this is significantly different to what Code of Conduct policies are meant to achieve. This inconsistency is evidently clear from various aspects of the complaint.

Council paid more than $2,000 on the initial assessment alone. Surely, a thorough analysis of the merits of the complaint would be expected for that price. Unfortunately the complainant’s uncertainty about the role and limits of a code of conduct remained unnoticed by the initial assessor and so the process continued.

A substantial part of the evidence provided from the complainant were personal social media posts Mr Hughes had made. The policy alleged to apply to the current Motueka Community Board does not include any provision or consequence for this. The question arises, how could a personal social media post possibly be subject to a complaint against an elected member? LGNZ explains that there is a big difference between speaking about Council and speaking on behalf of Council.

“Provided that an elected member does not attempt to present a personal view as anything other than their own view (and does not contravene other parts of the Code) they should be able to do so. Codes of Conduct are ideally designed to provide rules of conduct that promote debate and make it clear that personal views, and the rights of all members to express personal views, are to be respected.“ And „Among other things, a Code should promote free and frank debate which should in turn result in good decision making. Codes of Conduct should not be used in such a way as to stifle robust debate.”

See page 7 at https://www.horizons.govt.nz/HRC/media/Media/Agenda-Reports/Regional-Council-Meeting-2019-5-11/19167%20Annex%20B%20LGNZ%20Guide%20to%20Code%20of%20Conduct.pdf

A member’s right to freedom of expression is guaranteed, especially in his private capacity. The process (and associated costs) could have stopped here; but it didn’t. Instead the independent investigator determined:

“The posts will be considered as part of this investigation to determine if the Code has been breached. Mr Hughes’s Facebook page is accessible by the general public in the public domain that anyone can follow or view. The Code of Conducts sets standards for how elected members should behave in public.”

There has been quite some publicity around the possible abuse of Code of Conduct complaints in Councils around the country with the latest example from Wellington or from a Southland Community Board.

The perception, that there might be a political driver at force against elected members presenting certain community views, especially when they are concerned about spending of public money, are evident. Put this together with the financial awards of being a community board member and one could ask: Who would possibly be willing to earn around $100 per week for presenting views that may be likely to earn a Code of Conduct complaint and may even be accompanied by further threats to personal financial wellbeing. In this case of Mr Hughes, the complainant suggested to Council to start recovering costs from Mr Hughes should he be found to have breached the Code of Conduct. 

Ms Dowding is of the view that Mr Hughes’ actions are costing the ratepayer, but provide no benefit for them. Even though Ms Dowding is entitled to her personal view, it is clear that the voters in the next election will decide whether or not they have benefitted from a member’s work or not. In addition, it appears as though a code of conduct complaint does not seem to be the process for a CEO to transport such personal view. It would be through the Auditor-General that Council has to report or deal with a loss incurred for Council and ultimately, for the community.

Of note is that the social media posts referred to as part of the complaint had been already dealt with in the past (apart from the most recent post days before laying the complaint). Apologies were presented by Mr Hughes. He had accepted to limit his right to freedom of speech by agreeing to provide Council the ability to amend the member’s personal social media posts. The fact that this happened at all is of grave concern. 

The courtesy email from Mr Hughes to staff offering to amend the post if of concern after posting the most recent comment does not appear in the complaint, however the post does. This in itself could have stopped these proceedings. Unfortunately, this was not the case. 

A serious concern in the form of a possible conflict of interest became apparent during the investigation. The independent investigator’s firm Intepeople generated a total income of $411,000 from working with the Council on 22 occasions within a period of less than 12 months.

The independent investigator Melisa Kappely is a director and shareholder of this business. Further shareholders are also a family member and another person of the same residential address. Apparently these facts did not equate to a conflict of interest as far as the Mayor is concerned who oversaw the investigation and so it continued at further expense to all involved, especially ratepayers. 

The independent investigator’s declaration of any possible conflict of interest declares to not have any knowledge of Mr Hughes, but misses such statement in relation to the Mayor, the complainant and any other witnesses, in this case Council staff.

Solicitor Patrick Corish wrote already in 2021 for the Local Government Magazine:

“Some codes give the mayor and the council’s chief executive control over the process. This can include joint powers to dismiss a claim and control the flow of information between parties and decision makers. This is more efficient than leaving the administration of a complaint process to a committee, but does not protect against bias in the case where the mayor or chief executive are directly or indirectly involved in a complaint.”

It was the independent investigator who changed the final version of Mr Hughes’ witness statement by adding the words “agreeing to the Code of Conduct” without Mr Hughes’ knowledge. Mr Hughes noticed that and responded:

“For reasons of fairness and transparency, I am also notifying you that I noticed you altered my statement in the reviewed interview summary.”

The investigator stated:

“I have reviewed what you sent through regarding the altered statement, there were a lot of formatting issues with what you provided so I did adjust these. I note that I have amended some incorrect spelling in the interview summary but that there is no change to the meaning of this clause. However, given your feedback I will ensure that in the final report and in the final copy of the interview summary that the wording is as you provided.“

The independent investigator is part of an international association for workplace investigators. They published a document about their guiding principles, but I could not find a code of conduct.

What the ongoing pattern of Mr Hughes’ ‘unacceptable behaviour’ is, we do not know. What we do know is the alleged claim of a ‘lack of honesty and integrity and not treating people with courtesy and respect and criticising staff’.

The fundamental requirement is to link allegation and evidence with the policy framework in order to establish causation. The question is: did the social media post in question create a conflict with the Council’s Code of Conduct policy? (for the purposes of this exercise, let us disregard the fact that the Council’s Code of Conduct policy was not presented to the member and assume the member was bound by this policy). Does the comment made by the member constitute the member’s observation and thus considered as ‘the truth’ from the member’s point of view? Or, does the concern raised regarding Council service performance equate to criticising staff? 

Both the complaint itself and the investigator’s report should have made the merits of the complaint, or lack thereof, obvious (according to the policy used). The investigator‘s findings report presented to Council would have been internally peer-reviewed according to the independent investigator. For reasons of confidentiality. 

Some of these questions and concerns were put before the Deputy Mayor as well as the independent investigator just after receiving the complaint at the onset of the investigation at the beginning of July 2023. A number of questions still remain insufficiently answered to this day. These questions did for example point out the concerns around using two different policies for an initial assessment or the use of personal social media posts for a complaint into someone’s role as elected member and should have provided sufficient grounds for the investigation to stop. It didn’t.

The questions from Mr Hughes put forward finished with:

“I kindly ask you to pause any investigation against me until all questions above have been addressed, so that the lawfulness of actions against me in my capacity as a Member of the Motueka Community Board is established. I am willing to cooperate in any form to solve this alleged issue and prevent possible unnecessary spending for rate payers.”

One of the questions raised was:

“The Tasman District Council Policy for Investigation and Ruling on Alleged Breached of the Code of Conduct mentions required ‘budgetary constraints’. I hereby request what ‘budgetary constraints’ are in place for the investigation that is taken place against me, and who made the decision on these ‘budgetary constraints’ on which date?”

The answer was: “there has been no constraint set to the budget“.

Mr Hughes’ view on the applicability issue for a code of conduct only adopted by a previous board was communicated to the Mayor on 8 September 2023. All of the concerns, including the questions around applicability and enforceability of any code of conduct policy to Motueka Community Board Member Nick Hughes have been carefully analysed and presented from Mr Hughes to the independent investigator in a 28-page document on 11 September 2023.

This document states that Mr Hughes acknowledges a conflict exists between the complainant, Council staff and himself. However, Mr Hughes strongly disagreed with the reasons for the conflict, the process of dealing with it and the remedy sought. Mr Hughes is of the opinion that it is his duty and obligation to present and address issues and concerns as brought to him by his constituents. He is not confident that this is happening as many of his questions remain largely ignored when advocating for his community. It remains unknown whether or not this information was made known to Council when the investigator’s report was presented, as this happened in a confidential session, where Mr Hughes was explicitly excluded. 

Mr Hughes’ firm position that he is not subject to any of those policies continues to cause disruption for Council who has just requested of him for a second time to accept the charges for this unacceptable behaviour. It is understandable that this situation causes disruption because the question that now needs to be answered is: Who is liable for spending almost $40,000 of ratepayers’ money on an investigation with no policy framework in place?

At the end of September 2023 the former Motueka Community Board Chair reached out to LGNZ for advice after being presented with the finding that no code of conduct policy was currently adopted by the Motueka Community Board. LGNZ provides Councils with Code of Conduct templates, which most Councils around the country then adopt for their work.

Staff from Tasman District Council did not like the advice given by LGNZ which was:

“Whether or not a community board adopts a code of conduct is a matter for each board’s discretion. In my view, the 2013 code only applied to the board that was in place for that triennium. It does not have an ongoing life, unless specifically endorsed by subsequent boards - which aligns with the principle that governments cannot bind their successors.”

As a consequence of giving the advice, “a number of queries“ were received by LGNZ on the matter. It was the former Chief Executive herself who strongly requested from LGNZ to amend their statement on the matter suggesting LGNZ’s advice had somewhat contributed to the spending of public money on their advice.

She wrote on 28 November 2023:

“Council has been undertaking a lengthy and expensive investigation which is having a significant impact on resources and staff.”

“The subject of the complaint has questioned the process at every point and your advice (shared with him by the Chair of the community board) provided sufficient doubt over the validity of the complaint to cause increased resistance, reduced cooperation and ultimately more time and cost for the investigator.”

“we continue to be challenged on the basis of this ‚advice‘ from LGNZ“

“What I am seeking from you is confirmation that the advice provided was incorrect, that it wasn’t legal advice or based on any legal advice, but simply a matter of opinion expressed by you based on the information provided. I would further ask you to confirm that having now obtained the facts, that the Board’s code is in fact valid, based on the correct application of the LGA provisions.“

I dare to say that I respectfully disagree, given that concerns around the process were communicated since July 2023 before the independent investigator had started the investigation. Mr Hughes’ view on the applicability of a previous board’s code of conduct to him was communicated to the Mayor on 8 September 2023.

The complaint against Mr Hughes was actually overseen by the Mayor and supported by the Council’s legal team as per Council’s Policy on investigation and ruling of alleged breaches of the Code of Conduct. 

It is concerning that the complainant deemed it appropriate to get involved in discussing the policy matters raised by the affected member through the former Chair of the Motueka Community Board with LGNZ. Clarity around these matters is important to establish the lawfulness of the process Mr Hughes was subjected to. What is even more concerning is that despite a legal background, the Council’s Legal Services Manager who also gets involved with LGNZ on the matter, confidently states to LGNZ

“I am very familiar with all the LGA (Local Government Act 2002) provisions in relation to conduct.“

but then needs to be educated by the LGNZ’s Senior Policy Advisor about certain provisions in the Act, namely that the adoption of any code of conduct is voluntary for a community board.

Tasman District Council’s Legal and Democracy Services Manager acknowledges towards LGNZ that it is good practice to review and adopt a code at the beginning of each triennium, but highlights that there are a “multitude of other tasks councils need to do to get set up and running after an election”.

After comparing the Council’s past practice around community boards and their Codes of Conduct it became apparent that the previous Motueka Community Boards were presented with a policy and voted on adopting one at the beginning of their triennium. They were also informed that this was voluntary. The agenda for the 2022 Motueka Community Board was different - no policy was presented, or voted on. Nor were the members informed that it was voluntary to adopt such policy as it was done after previous elections. 

For the Motueka Community Board meeting 01/11/2013 the Code of Conduct report from Pamela White says:

“A community board is not required to adopt a code of conduct but it is recommended that you do.”

For the Motueka Community Board meeting 21/10/2016 the Code of Conduct report MCB16-10-03 from Robyn Scherer says:

“A Community Board is not required to adopt a code of conduct but it is recommended that you do.”

For the Motueka Community Board meeting 05/11/2019 the Code of Conduct report RMCB19-11-3 from Richard Kirby says:

“A Community Board is not required to adopt a code of conduct but it is recommended that you do.”

Why was that practice and the agenda changed in 2022 instead of simply continuing to use the same practice?

Back in October 2023, the Legal Services Manager contacted LGNZ presenting information why the Code of Conduct policy from previous boards continues to apply for the current Motueka Community Board and tries to show that the board did know about the policy in place, including its implications.

This manager provided LGNZ with information that a workshop with the Motueka Community Board was organised earlier in 2023 to brief the community board about a code of conduct. However, the briefing workshop was held in February 2024. 

Further, this manager also informed LGNZ that all community board members were presented with a copy of the Code of Conduct policy and were briefed on it during an “housekeeping and overview” session. As no opposition to this code was received, it was assumed members are accepting of it.

An official information request confirmed that:

“Council has located one record that the current code of conduct was provided to the Board on the 26 of January 2024”.

The housekeeping session in question for all newly elected people was held two weeks before any member had taken their oath of office. None of them were in any position to make decisions as a community board member at the time of this housekeeping session.

The correspondence between TDC staff and LGNZ was not shared with Mr Hughes. It was only obtained in March 2024 through an official information request.

What is Council’s current position on the Code of Conduct for Motueka Community Board members?

Mr Hughes’ position on the policy matter was communicated formally to Council weeks before LGNZ was first contacted on the matter.  Council was asked to provide him with a formal statement on the matter, which did not happen until today.

When asked again by a member of the public in a request for official information, Council’s Legal and Democracy Services team confirmed “the requested document does not exist, or the information is not held“. This has got a huge implication - “information“ extends to any recollection in a person’s mind. Council has confirmed that they haven’t got any information as to why there is a code of conduct policy in place for the current Motueka Community Board.

Conclusion

What this story shows is that there were significant issues raised right at the beginning of the process as well as during the process which were simply ignored. It shows that the Tasman District Council was determined to follow the process through, no matter what. It demonstrates this determination even going as far as to pressure someone who was consulted for advice. This raises serious concerns how the TDC responds to procedural matters and the integrity and respect shown towards those who bring issues and concerns to their attention. It raises the question of accountability, fiscal responsibility and liability as it is the Council’s duty to ensure that appropriate procedures are in place and are fit for purpose. It is not the LGNZ or anybody else’s responsibility to retrospectively fix such problems.

The Council’s reputation has suffered, no doubt. This is completely separate from what Mr Hughes posted or wrote or whether there is a policy in place or not. The damage is created by a disregard for facts and democratic principles. What has been exposed is a deeply dysfunctional organisation lacking any consideration regarding genuine concerns brought to their attention as well as a willingness to engage. We should all be concerned and the TDC’s officers and staff need to be held to account.

In this case, the remedy is relatively straight forward in my view: revoke Council’s resolution on the code of conduct investigation, tender an apology to Motueka Community Board member Hughes and determine who has got financial liability for the spending of almost $40,000 on this complaint investigation.

Further reading on code of conduct complaints in local government:

https://localgovernmentmag.co.nz/code-of-conduct/

https://www.democracyaction.org.nz/council_codes_of_conduct_a_tool_for_muzzling_councillors

https://www.listennotes.com/podcasts/free-speech-unions/council-codes-of-conduct-jsaktwIg_4i/

https://www.nzherald.co.nz/nz/local-government-code-of-conduct-complaints-have-turned-into-a-monster/JN5N45IQ2VDURNG2NAALKG4EYU/

Community Board made resolution about 8-weeks-rule

During the February Motueka Community Board meeting a historic decision has been made: the Board made a resolution to recommend to Council to have the TRMP’s famous 8-weeks-rule changed. The three Councillors on the Board abstained from voting, so that they will be able to partake in the discussion when this matter will be before Council. The remaining Motueka Community Board members voted to support the change. Board Member David Armstrong voted against it.

The 8-week-rule is Council’s discretionary figure to determine whether an accommodation is considered temporary or permanent. This effects people living in various arrangements around the district, including Tiny Homes. This matter was tabled at the Community Board since latest 2019 clearly acknowledging the community’s request for more clarity around the matter and the impact this 8-week-rule is currently having on various members of the community. During the meeting Board Member Hughes was highlighting the vulnerability of such determination. When a CEO takes on a role somewhere else for a year, this is called temporary.

One could have hoped to have access to the recording of that meeting to make sure the quotes used are correctly. However, at the time of writing, no recording has been uploaded so my recollection is based on memory rather than on the recording. Yet, there was already Council’s Policy and Strategy committee meeting held last week where Councillor Walker and Councillor Maru talked about this resolution and made clear this needs to be put before the Council soon for discussion. Staff was not able to commit to a date when this will happen as the matter was considered “not a straight-forward process”. Both Councillors were expressing their frustration about that, as this rule is currently effecting a number of people in their community.

Here are some comments from the Policy and Strategy committee meeting:

Councillor Maru:

I am not sure if it has come yet, but the Motueka Community Board has proposed a minor change to the TRMP in terms of how long a temporary tiny home or structure becomes a dwelling in terms of 8 weeks. When do we get to have a discussion about that what’s that process?

Staff response:

I don’t want to raise expectation here. We have received the resolution and the recommendation through the minutes. I think it has been explained on a number of occasions that this is not straight-forward process and in fact it is quite difficult. I know some barriers, list of things to do and respond to, but it has to come back into Council for discussion. I want to set expectations that is not a thing that can happen overnight if at all under the current legislation.

Councillor Walker:

That response has thrown me a little. I grapple with the fact we have a Cat Bylaw coming up when we get a response like that and please don’t take it that personally because I know that’s coming from your sector. The implication that we have in our community currently around the current TRMP and the effects that it is having widely across not just Motueka ward but further afield. I grapple. I grapple with how many times the Community Board have raised this and the process they have been through to get it to where it is and then this big kind of caution question mark you now it’s not going to happen overnight. Yet, this Council is prepared to spend copious amounts of money on the Cat Bylaw. I am lost the words. And I am going to stop now before I regret what I say.

Staff response:

What we are really keen to do is have a proper conversation in here and explain the challenges of changing this. We will come back to you. […] There are some wider TRMP conversation we need to have. So this is going to be part of a package. Please don’t think I am offended by your passion on the issue.

Councillor Maling:

Could you email the timeline to them so that they have got some idea?

Staff response:

We will respond to that in some shape or form whether or not it will be this time or next time. We just need to get our wording right.

Councilor Maru picked up the topic again:

We are currently displacing people from properties in tiny homes because of some discrete legislation or bylaw and we are actively saying we don’t go looking for this. In our town there is a lot of people that could be displaced if somebody like somebody who has just come to me. Not a neighbour, not somebody who lives closely, but someone who doesn’t like them made a complaint and we have got to act. To leave this and have it sitting here, just absolutely frustrates me, because we know this occurs everywhere, but we don’t look for it. We don’t do anything unless there is a complaint which tells me there is a part belief from staff that in some cases don’t even go looking for this, because this is silly. It sounds like a silly rule, it is having consequences in terms of displacing people and I am just frustrated. I look forward to the paper and I really hope it comes sooner rather than later.

Council has various Activity Management Plans, one for managing the environment. In regards to the 8-week-rule it is worth highlighting the following from page 14 of this plan.

from Environmental Management Activity Management Plan 2021-2051.pdf

In addition, there will be case heard before the Environment Court on 10 and 11 June in Nelson which will provide more clarity on the issue as well. As a result from the judgment, we will get to know about the aspects of something being considered fixed to land, therefore falling under the definition of a building. This is crucial for the 8-week-rule, as a dwelling, what this rule relates to, must be a building first.