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.
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.”
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/