Former Prime Minister Sir Bill English described Codes of Conduct as a threat to democracy a good 15 years ago, but we didn't heed his warning. Today they are being used by Councils as a tool to silence our elected representatives - blocking criticism by councillors. This is undermining the democratic process.
Codes of Conduct are designed to ensure the reputation of the Council is upheld within the community. They are not meant to be used as a means of preventing elected members from expressing their views. However, it appears this is happening to an alarming degree.
According to the NZ Herald, almost a third of our Councils (24 of 78) have investigated Code of Conduct Complaints this term, including Auckland Council, Buller District Council, Central Hawke's Bay District Council, Christchurch City Council, Dunedin City Council, Gisborne District Council, Hamilton City Council, Hutt City Council, Invercargill City Council, Manawatu District Council, Northland Regional Council, Queenstown District Council, Rotorua Lakes Council, South Waikato District Council, Taranaki Regional Council, Tauranga City Council, Tasman District Council, Taupo District Council, Timaru District Council, Waitomo District Council, Wellington City Council, Western Bay of Plenty District Council, Whanganui District Council, Whangarei District Council.
The Free Speech Union is also concerned about the damage to free speech and democracy of councillors living under the threat of the Code of Conduct being used against them. They recently published a roundtable discussion with Jackie Elliot of Kapiti Coast District Council, Peter Schulte of South Waikato District Council, and Nobby Clark, Deputy Mayor of Invercargill City Council.
Jackie Elliot’s advice to newly elected Councillors is to refuse to adopt the LGNZ supplied Code of Conduct agreement – a contract that allows any employee of the Council to make a complaint against a Councillor through the Chief Executive. She suggests that Councils should scrap Codes of Conduct altogether and rely on existing employment legislation to resolve disputes between Councillors and Council employees. This would leave Councillors free to inform the public of matters of concern and ensure that they are able to speak on behalf of the communities they are elected to represent.
No one appears to have more experience with Code of Conduct complaints than Cr Reynold Macpherson of the Rotorua Lakes District Council.
In April last year, Mayor Steve Chadwick received three complaints from council officers and elected members concerning actions by Cr Macpherson that related to information shared by him through three social media posts on the Rotorua Residents and Ratepayers Facebook page.
The complaints concerned posts sharing his view that underinvestment in the maintenance of water infrastructure was due to over-investment in iwi partnership projects; concerns about the organisational restructures undertaken by the Council; criticism over a new contract with a consortium of Trility, Fulton Hogan and Stantec for the provision of wastewater services across the district; and that the Council was involved in bussing the homeless into Rotorua.
These posts were the subject of official complaints by the Council’s Chief Executive and two of his fellow Councillors. They were referred to the Audit and Risk Committee, as per Council’s Code of Conduct process, to determine whether or not any breach of the Code had occurred.
The Audit and Risk Committee then appointed an Independent Panel (the Panel) to review the allegations and to provide recommendations for remedy. In all three cases, the Panel “was satisfied that the complaint is valid and that Cr Macpherson has breached the Code particularly the guiding principles of Collective Responsibility, Integrity and Honesty, and Respect”.
The Panel’s recommendations were received by and voted on during the public excluded part of the Council Committee meeting on 16 December. The recommendations included directions for Cr Macpherson to undertake a refresher course on the Code of Conduct of elected members; that he be required to provide a formal apology and retraction to the community, “recognising the reported harm that the respective posts had caused”; and that he be removed from the two Council committees that he is a member of (the Operations and Monitoring Committee and the Strategy, Policy and Finance Committee).
The report also recommended that the Council release the Independent Panel’s report to the public, and that the Council publicise the costs incurred in dealing with the complaints.
Cr Macpherson responded to the process and outcome via a post on the Rotorua Residents and Ratepayers Facebook page on 18 December (a post that appears to have disappeared).
WHY APOLOGIZE FOR SPEAKING TRUTH TO POWER?
Mayor Chadwick’s ‘kangaroo court’ went exactly as scripted, behind closed doors. Not a word was changed. Six out of ten elected members accepted the advice of the Audit and Risk Committee that an ‘independent’ Investigation Panel had found that I had breached the Code of Conduct in my posts at the RDRR Facebook page.
Three complaints were selected out of eight to prosecute me. Those deselected were from Mrs Trumper (a fishing expedition), from the Chief Executive (which misconstrued a complaint against Council by Justin Adams), and two secret complaints I was not allowed to see.
Those selected for prosecution were from the Chief Executive had complained of ‘misinformation’ when I linked sewage leaks to under investment in infrastructure maintenance due to over investment in iwi partnership projects. Mrs Shirley Trumper had complained about my criticism of organisational restructures and the Trility contract. Cr Fisher Wang said I lied when I reported that Council was involved in bussing homeless into Rotorua. Apparently, the truth hurts.
The Mayor and Crs Dave Donaldson, Merepeka Raukawa-Tait, Trevor Maxwell, Mercia Yates and Fisher Wang (a complainant who admitted a conflict of interest but then was allowed to speak and vote) conspired to ban me from the Strategy, Policy and Finance Committee and the Operations and Monitoring Committee for 2022. They gave reasons for suspending my human rights to freedom of speech and access to information, and for denying my democratic duty to represent my constituents. I had to be banned for peddling ‘misinformation’, not being on the Mayor’s team, being a bully (by the bully-in-chief herself), spelling mistakes, and for not apologizing and showing sincere remorse. For revealing the truth?
My careful documentation of many due process errors and maladministration were ignored. Crs Sandra Kai Fong, Tania Tapsell and Raj Kumar noted that the punishment did not fit the ‘crime’ when they abstained. Cr Peter Bentley was absent. The Chief Executive recused himself.
I won’t be apologizing for telling the truth about the sewage leaks, the reorganisations and outsourcing, and the assisted migration of the homeless. They must be stopped if we are going to restore Rotorua as a fit place to live. Criticism of this Council won’t be stopped by a purchased ‘investigation’, an elaborate and orchestrated show trial, and blaming the whistle blower for the appalling waste of ratepayers’ money.
So, a muted Merry Christmas but a Happy New Year of more revelations of waste and incompetence as I watch SP&F and O&M committees online. There are no more sanctions available to the Mayor’s power bloc wanting to stop my back chat to stay in power. I expect that, on 8 October 2022, Rotorua’s citizens will rid themselves of this Soviet-style regime.
Dr Reynold Macpherson
District Councillor and Chairman of RDRR
Rotorua Daily Post - 30 June 2020: Reynold Macpherson's code of conduct complaint: ‘I take any censure as a badge of honour’
NZ Herald -11 January 2021: In-house fighting costs ratepayers thousands of dollars in investigations
Rotorua Daily Post - 30 April 2021: Rotorua councillor Reynold Macpherson facing three new code of conduct complaints
Rotorua Lakes District Council -16 December 2021: Code of Conduct decisions released