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Code
of Conduct
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Attachment 1
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However members must note that the Auditor-General may hold
them to account for unlawful actions or expenditure or for breaches of the
Local Authorities (Members’ Interests) Act 1968.
1.5 GENERAL
PRINCIPLES OF GOOD GOVERNANCE:
This Code of Conduct is based on the following
ten principles:
§ Public interest. Members should serve only the interests of the region as a
whole and should never improperly confer an advantage or disadvantage on any
one person.
§ Honesty and integrity. Members should not place themselves in
situations where their honesty and integrity may be questioned, should not behave
improperly and should on all occasions avoid the appearance of such behaviour.
§ Objectivity. Members should make decisions on merit including making
appointments, awarding contracts, or recommending individuals for rewards or
benefits. Elected members should also note that while representing their
constituency, once elected their primary duty is to the interests of the entire
region.
§ Accountability. Members should be accountable to the public for their
actions and the manner in which they carry out their responsibilities, and
should cooperate fully and honestly with the scrutiny appropriate to their
particular office.
§ Openness. Members should be as open as possible about their actions
and those of the Council, and should be prepared to justify their actions.
§ Personal judgment. Members can and will take account of the views of others,
but should reach their own conclusions on the issues before them, and act in
accordance with those conclusions.
§ Respect for others. Members should promote equality by not discriminating
unlawfully against any person and by treating people with respect, regardless
of their race, age, religion, gender, sexual orientation, or disability.
§ Respect for staff. Members should respect the impartiality and integrity of
the Council staff.
§ Duty to uphold the law. Members should uphold the law, and on all
occasions, act in accordance with the trust the public places in them.
§ Stewardship. Members must ensure that the Council uses resources
prudently and for lawful purposes, and that the Council maintains sufficient
resources to meet its statutory obligations.
§ Leadership. Members should promote and support these proposals by
example, and should always endeavour to act in the best interests of the
region.
2.0 PART TWO: ROLES AND RESPONSIBILITIES
This part of the Code describes the
roles and responsibilities of elected members, the additional roles of the
Chairman and Deputy Chairman, and the role of the Chief Executive.
2.1 Elected
Members
Elected members, acting as the Council, are responsible
for:
§ development and adoption of Council policy
§ monitoring the performance of the Council against its stated
objectives and policies
§ prudent stewardship of Council resources
§ employment of the Chief Executive
§ representing the interests of the residents and
ratepayers of the Hawke’s Bay Regional Council. (On election, the primary
responsibility of members is to the Region as a whole.)
Unless otherwise provided in the Local Government Act 2002
or in standing orders, the Council can act only by majority decisions at
meetings. Each member has one vote other than in the situation where there is a
deadlock in voting in which case the Chairman can exercise a casting vote if so
provided. Any individual member (other than the Chairman who has authority to
act on behalf of the Council as reasonable needs require) has no authority to
act on behalf of the Council unless the Council has expressly delegated such
authority.
2.2 Chairman
The Chairman is elected by the members of the Council at
the first meeting following the triennial election. The Chairman may be removed
from office by resolution of Council.
As one of the elected members the Chairman shares the same
responsibilities as other members of Council. In addition to this the Chairman
has the following roles as a:
§ presiding member at Council meetings. The
Chairman is responsible for ensuring the orderly conduct of business during
meetings (as determined in standing orders)
§ advocate on behalf of the community. This role
may involve promoting the community and representing its interests. Such
advocacy will be most effective where it is carried out with the knowledge and
support of the Council
§ ceremonial head of Council
§ provider of leadership and feedback to other
elected members on teamwork and Chairmanship of committees
§ Justice of the Peace (while the Chairman holds
office).
The Chairman is obliged to follow the same rules as other
elected members in regard to making public statements and committing the
Council to any particular course of action, unless acting in accordance with
the rules for media contact on behalf of the Council under a delegation of
authority from the Council.
2.3 Deputy
Chairman
The Deputy Chairman must be elected by the members of
Council, at the first meeting following the triennial election. The Deputy
Chairman may be removed from office by resolution of Council.
The Deputy Chairman exercises the same roles as other
elected members. In addition he or she must perform all the responsibilities
and duties and may exercise all the powers of the Chairman (as summarised
above), if the Chairman is temporarily absent, or is prevented by illness or
other causes from performing duties, or while there is a vacancy in the office
of Chairman.
2.4 Committee
Chairman
The Council may create one or more committees of Council. A
Committee Chairman presides over all meetings of the committee, ensuring that
the committee acts within the powers delegated by Council, as set out in the
Council’s Policy Handbook. A Committee Chairman may be called on to act
as an official spokesperson on a particular issue. A Committee Chairman may be
removed from office by resolution of Council.
2.5 Chief
Executive
The Chief Executive is appointed by the Council in
accordance with section 42 of the Local Government Act 2002. The Chief
Executive is responsible for implementing and managing the Council's policies
and objectives within the budgetary constraints established by the Council. In
terms of section 42 of the Act, the responsibilities of the Chief Executive
are:
§ implementing the decisions of the Council
§ providing advice to the Council and committees
§ ensuring that all responsibilities, duties and
powers delegated to the Chief Executive or to any person employed by the Chief
Executive, or imposed or conferred by any Act, regulation or bylaw are properly
performed or exercised
§ managing the activities of the Regional Council
effectively and efficiently
§ maintaining systems to enable effective planning
and accurate reporting of the financial and service performance of the Regional
Council
§ providing leadership for the staff of the
Regional Council
§ employing staff on behalf of the Regional
Council (including negotiation of the terms of employment for the staff of the
Regional Council).
Under section 42 of the Local Government Act 2002 the Chief
Executive employs all other staff on behalf of the Regional Council.
3.0 PART
THREE: ETHICS, RELATIONSHIPS AND BEHAVIOUR
This part of the Code sets out the Council’s agreed
standards of behaviour. Some of the matters described in this part of the Code
reflect other legislation such as the Local Authorities (Members’ Interests)
Act 1968. The majority of the Code is material that the Council has decided to
include on its own initiative.
3.1 Ethics
Hawke’s Bay Regional Council seeks to promote the highest
standards of ethical conduct amongst its elected members. Accordingly, elected
members will:
§ claim only for legitimate expenses as laid down
by any determination of the Remuneration Authority then in force, and any
lawful policy of Council developed in accordance with that determination
§ not influence, or attempt to influence, any
Council employee to take actions that may benefit the member, or the member’s
family or business interests
§ not use Council resources for personal business
(including campaigning)
§ not solicit, demand, or request any gift, reward
or benefit by virtue of their position
§ where a gift to the value of $100 or more is
offered to a member, immediately disclose this to the Chief Executive for
inclusion in the publicly available register of interests.
§ be respectful when referring to each other or to
other people
§ not use offensive or derogatory language when
referring to the Council, other Councillors, any employee of the Council or any
member of the public.
3.2 Relationships
with Other Members
Successful teamwork is a critical element in the success of
any democratically elected organisation. No team will be effective unless
mutual respect exists between members. With this in mind elected members will
conduct their dealings with each other in ways that:
§ maintain
public confidence in the office to which they have been elected
§ are open
and honest
§ focus on
issues rather than personalities
§ avoid
aggressive, offensive or abusive conduct.
3.3 Relationships with Staff
The effective performance of Council
also requires a high level of cooperation and mutual respect between elected
members and staff. To ensure that level of cooperation and trust is maintained,
elected members will:
§ recognise that the Chief Executive is the
employer (on behalf of Council) of all Council employees, and as such only the
Chief Executive may hire, dismiss, instruct or censure an employee
§ make themselves aware of the obligations that
the Council and the Chief Executive have as employers and observe those
requirements at all times
§ treat all employees with courtesy and respect
(including the avoidance of aggressive, offensive or abusive conduct towards
employees)
§ observe any guidelines that the Chief Executive
puts in place regarding contact with employees
§ do nothing which compromises, or could be seen
as compromising, the impartiality of an employee
§ avoid publicly criticising any employee in any
way, but especially in ways that reflect on the competence and integrity of the
employee
§ raise concerns about employees only with the
Chief Executive, and concerns about the Chief Executive only with the Chairman
or the Executive Committee.
Elected members should be aware that failure to observe
this portion of the Code of Conduct may compromise the Council’s obligations to
act as a good employer and may expose the Council to civil litigation and audit
sanctions.
3.4 Relationships with the Community
Effective Council decision-making depends on productive
relationships between elected members and the community at large.
Members should ensure that individual citizens are accorded
respect in their dealings with the Council, and have their concerns listened
to, and deliberated on in accordance with the requirements of the Act.
Members should act in a manner that encourages and values community
involvement in local democracy.
3.5 Contact
with the Media
The media plays an important part in local democracy. In
order to fulfill this role the media needs access to accurate, timely
information about the affairs of Council. The Hawke’s Bay Regional Council
will continue to be proactive in disseminating accurate and informative
information through the Chief Executive to the media. From time to time,
however, an individual member might be approached to comment on a particular
issue either on behalf of Council, or as an elected member in his or her own
right. This part of the Code deals with the rights and duties of Councillors
when speaking to the media on behalf of Council, or in his or her own right.
The
following rules apply for media contact on behalf of Council:
The Chairman of the Council or of any
Committee of the Council, is able to make media releases on behalf of the
Council or the Council Committees. In order to ensure that:
i) these are factually correct;
ii) they
send a consistent message so there is no confusion in the eyes of the public;
iii) they
reflect Council policy, or are sufficiently qualified where the Council may not
have considered the matter;
all press releases and comments should
be co-ordinated and developed through the Council’s Communications Co-ordinator
who will ensure the appropriate staff input is obtained and where
appropriate the Chief Executive has input into the process.
Where the Communications Co-ordinator is
not available, the Executive Assistant should be the point of contact.
The Councillor spokesman for the
Committees of the Council should be the Chairman of the Committee concerned.
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 Council
§ where an elected member is making a statement
that is contrary to a Council decision or Council policy, the member must not
state or imply that his or her statements represent a majority view
§ media comments must observe the other
requirements of this Code of Conduct. For example, they should not disclose
confidential information, or compromise the impartiality or integrity of staff,
and at all times should demonstrate respect for fellow Councillors and their
views, opinions and lawful actions, and should not use language which might be
deemed offensive, derogatory or embarrassing to the Council, other Councillors,
any employee of the Council or any member of the public.
3.6 Representing
the Council
Elected members who are invited or wish to represent the
Council at an event such as a Seminar or Conference which will have a charge
for attendance, must meet the following conditions:-
§ The Chairman must
approve the request.
§ Following their
attendance and upon request from the Chairman, the member must present a report
to the Council, summarising the event, and including the Councillor’s opinion
of its potential significance to the Hawke’s Bay Regional Council.
3.7 Confidential
Information
Elected members have the responsibility to see whenever
possible that business is conducted in “open” meeting. Powers to exclude
the public should be used only when absolutely necessary and for the reasons
permitted by law. Business conducted where the public is excluded remains
confidential and should not be disclosed to the public until either the Council
decides by resolution to make it public or the Chief Executive determines in
response to a request under the Local Government Official Information and
Meetings Act 1987, or the Privacy Act 1993 that there is no longer good reason
to withhold the information.
In addition during the course of their duties members will
occasionally receive information that may need to be treated as confidential.
This will generally be information that is either commercially sensitive or is
personal to a particular individual or organisation.
Elected members must not use or disclose confidential
information for any purpose other than the purpose for which the information
was supplied to the elected member.
Elected members should be aware that failure to observe
these provisions will impede the performance of Council by inhibiting
information flows and undermining public confidence in the Council. Failure to
observe these provisions may also expose Council to prosecution under the
Privacy Act 1993 and/or civil litigation.
3.8 Conflicts
of Interest
Elected members must be careful that they maintain a clear
separation between their personal interests and their duties as an elected
member. This is to ensure that people who fill positions of authority carry on
their duties free from bias (whether real or perceived). Members therefore need
to familiarise themselves with the provisions of the Local Authorities
(Members’ Interests) Act 1968 which concerns financial interests, and with
other legal requirements concerning non-financial conflicts of interest.
The Act provides that an elected member is disqualified
from office, or from election to office, if that member is concerned or
interested in contracts under which payments made by or on behalf of the
Council exceed $25,000 in any financial year.
Additionally, elected members are prohibited from
participating 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. The same rules also apply where the member’s partner or spouse
contracts with the authority or has a pecuniary interest. Members must declare
their interests at Council meetings where matters in which they have a
pecuniary interest arise.
Members shall annually make a general declaration of
interest as soon as practicable after becoming aware of any such interests.
These declarations are recorded in a register of interests maintained by
Council. The declaration must notify the Council of the nature and extent of
any interest, including:
§ any employment, trade or profession carried on
by the member or the member’s partner or spouse for profit or gain
§ any company, trust, partnership etc for which
the member or their partner or spouse is a director, partner, trustee or
beneficiary
§ the address of any land in which the member has
a beneficial interest and which is in the Regional Council’s area.
§ the address of any land where the landlord is
the Hawke’s Bay Regional Council and:
- the member or their partner or spouse is a
tenant, or
- the land is tenanted by a firm in which the
member or partner or spouse is a partner, or a company of which the member or
spouse is a director, or a trust of which the member or spouse is a trustee or
beneficiary
any other matters which the public might reasonably regard
as likely to influence the member’s actions during the course of his or her
duties as a member.
If the 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 Audit Office for guidance as
to whether that member has a pecuniary interest. If there is a pecuniary
interest, the member may seek an exemption to allow 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. The Chief Executive must
also seek approval from the Audit Office for contractual payments to members,
their spouses or their companies that exceed the $25,000 annual limit.
Failure to observe the requirements of the Local
Authorities (Members’ Interests) Act 1968 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
under the Local Authorities (Members’ Interests) Act 1968. In the event of a
conviction elected members can be removed from office.
3.9 Standing
Orders
Elected members must adhere to any standing orders adopted
by Council under the Local Government Act 2002. These standing orders are
subject to the same legal requirements as a Code of Conduct with regard to
their adoption and amendment.
3.10 Disqualification of Members from Office
Elected members are automatically
disqualified from office if they are convicted of a criminal offence punishable
by two or more years imprisonment, or if they cease to be, or lose their status
as a parliamentary elector or if they are convicted of certain breaches of the
Local Authorities (Members’ Interests) Act 1968.
Under the Local Government Act 2002, local authorities,
when adopting a Code of Conduct, must consider whether or not they will require
members to declare whether they are undischarged bankrupts. This Council
believes that it should not require a member or newly elected member to decide
whether or not the member or newly elected member is an undischarged bankrupt.
4.0 PART
FOUR: COMPLIANCE AND REVIEW
This part deals with ensuring that elected members adhere
to the Code of Conduct and mechanisms for the review of the Code of Conduct.
4.1 Compliance
Elected members must note that they are bound to comply
with the provisions of this Code of Conduct (Local Government Act 2002,
Schedule 7, section 15(4)).
Members are also bound by the Local Government Act 2002,
the Local Authorities (Members’ Interests) Act 1968, the Local Government
Official Information and Meetings Act 1987, the Secret Commissions Act 1910,
the Crimes Act 1961 and the Securities Act 1978. The Chief Executive will
ensure that an explanation of these Acts is made at the first meeting after
each triennial election an that copies of these Acts are freely available to
elected members. A brief explanation about the obligations that each of these
has with respect to conduct of elected members is attached in the Appendix to
this code.
Compliance will be monitored by the Council as a whole.
All alleged breaches of the Code will be reported to the Chairman. Any allegation
of a breach of this Code of Conduct must be in writing, make a specific
allegation of a breach of the Code of Conduct, and provide corroborating
evidence.
The Chairman will investigate the alleged breach and
prepare a report for the consideration of Council. Before beginning any
investigation, the Chairman will write to the elected member(s) involved,
advising about the complaint and will explain when and how there will be an
opportunity to respond to the complaint.
The Council will consider the report in open meeting of
Council, except where the alleged breach relates to the misuse of confidential
information or could impinge on the privacy of an elected member, member of
staff or of the general public.
4.2 Responses to Breaches of the Code
The exact nature of the action the
Council may take depends on the nature of the breach and whether there are
statutory provisions dealing with the breach.
Where
there are statutory provisions:
§ breaches relating to members’ interests render
members liable for prosecution by the Auditor-General under the Local Authority
(Member’s Interests) Act 1968
§ breaches which result in the Council suffering
financial loss or damage may be reported on by the Auditor-General under the
Local Government Act 2002, which may result in the member having to make good
the loss or damage
§ breaches relating to the commission of a
criminal offence may leave the elected member liable for criminal prosecution.
In these cases the Council may refer an issue to the
relevant body, any member of the public may make a complaint, or the body
itself may take action of its own initiative.
Where
there are no statutory provisions,
the Council may take the following action:
§ censure
§ removal of the elected member from Council
committees and/or other representative type bodies
§ dismissal of the elected member from a position
as Deputy Chairman or Chairman of a committee.
A decision to apply one or more of these actions requires a
Council resolution to that effect.
4.3 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 at least 75 per
cent of the members of the Council present.
Council will formally review the Code prior to the end of
each three year term and any suggestions for improvement and recommended amendments
will be noted and referred to the new Council. As soon as practicable after the
triennial election, results of that review will be presented to the new Council
for consideration and adoption.
APPENDIX TO THE CODE OF CONDUCT:
LEGISLATION BEARING ON THE ROLE AND CONDUCT OF
ELECTED MEMBERS
This is a summary of the legislation
requirements that has some bearing on the duties and conduct of elected
members. Copies of these statutes are available from the office of the Chief
Executive.
Local Authority (Members’ Interests) Act 1968
This Act regulates situations where a member’s
personal interests impinge, or could be seen as impinging on, his or her duties
as an elected member.
The Act provides that an elected member is
disqualified from office if that member is concerned or interested in contracts
under which payments made by or on behalf of the regional Council exceed
$25,000 in any financial year.
Additionally, elected members are prohibited
from participating in any Council discussion or voting on any matter in which
they have a pecuniary interest, other than an interest in common with the
general public. The same rules also apply where the member’s spouse contracts
with the authority or has a pecuniary interest.
Members may also contact the Audit Office for
guidance as to whether that member has a pecuniary interest, and if so, may
seek an exemption to allow 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. The Chief Executive must also seek approval from
the Audit Office for contractual payments to members, their spouses or their
companies that exceed the $25,000 annual limit.
Failure to observe these requirements could also
leave the elected member open to prosecution under the Local Authority
(Members’ Interests) Act 1968. In the event of a conviction elected members can
be ousted from office.
(The Office of the Auditor-General publication Guidance
for members of local authorities about the law on conflicts of interest (2007)
provides further guidance on this Act).
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. Of
particular importance for the roles and conduct of elected members is the fact
that the Chairman 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 referring to each other or to other people
§ use offensive
language about the Council, other Councillors, any employee of the Council or
any member of the public.
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.
If convicted of any offence under this Act a
person can be imprisoned for up to 2 years, or fines up to $1000, or both. A
conviction therefore would trigger the ouster provisions of the Local Government
Act 2002 and result in the removal of the member from office.
Crimes Act 1961
Under this Act it is unlawful for elected
members (or officers) to:
§ accept or solicit
for themselves (or anyone else) any gift or 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 also be automatically ousted from office.
Securities Act 1978
The Securities Act 1978 essentially 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.
