HAWKE’S BAY REGIONAL
COUNCIL
26 October
2022
Subject: The Election of the
Chairperson
Reason for Report
1. This item provides the
means for the election of the Chairperson as required by the Local Government
Act 2002 (LGA) Schedule 7.
Officers’
Recommendations
2. Officers recommend that
System B is resolved for this election due to its simplicity and because historically
there have not been more than 2 nominees for Chair.
Executive
Summary
3. The LGA prescribes the
voting requirements for the election of the Chairperson, including that
Council’s choice of voting system to be used must be determined by
resolution. This means that Council needs to resolve the system of voting
before the election of the Chair can take place.
Background
4. The Chief Executive is
required to call for nominations for election to the office of Chairperson as
outlined in LGA Schedule 7, clause 21. If a vote is required the Chief
Executive must follow the provisions which state:
Section
24(3)
“An
act or question coming before the local authority must be done or decided by
open voting.”
Section
25
“Voting
systems for certain appointments—
(1) This
clause applies to—
(a) the election or
appointment of the chairperson and deputy chairperson of a regional council;
and
(b) ….
(c) the election or
appointment of the chairperson and deputy chairperson of a committee; and
(2) If
this clause applies, a local authority or a committee (if the local authority
has so directed) must determine by resolution that a person be elected or
appointed by using one of the following systems of voting:—
(a) the voting system in
subclause (3) (`system A'):
(b) the voting system in
subclause (4) (`system B').
(3) System
A —
(a) requires that a person
is elected or appointed if he or she receives the votes of a majority of the
members of the local authority or committee present and voting; and
(b) has the following
characteristics:—
(i) there
is a first round of voting for all candidates; and
(ii) if
no candidate is successful in that round there is a second round of voting from
which the candidate with the fewest votes in the first round is excluded; and
(iii) if
no candidate is successful in the second round there is a third, and if
necessary subsequent, round of voting from which, each time, the candidate with
the fewest votes in the previous round is excluded; and
(iv) in
any round of voting, if 2 or more candidates tie for the lowest number of
votes, the person excluded from the next round is resolved by lot.
(4) System
B —
(a) requires that a person
is elected or appointed if he or she receives more votes than any other
candidate; and
(b) has the following
characteristics:
(i) there
is only 1 round of voting; and
(ii) if
2 or more candidates tie for the most votes, the tie is resolved by lot.”
Options
Assessment
5. If System A is adopted the
actual vote will be conducted as follows.
5.1. Nominations for the
position of Chairperson will be called for, which must be supported by a
seconder (being a different person). A Councillor may nominate or second themselves, and
may also nominate more
than one person.
5.2. Once the call for nominations
results in no further nominees, nominations will be closed.
5.3. Each nominee may then be allowed up to 10 minutes
to make a presentation.
5.4. The first round of voting
will then be undertaken by show of hands and with only one vote per Councillor
(i.e. 11 in total).
5.5. If there are three or more
nominees and a majority of Councillors (i.e. 6) does not support one nominee
then the candidate with the fewest votes will be excluded from the next round.
5.6. If 2 or more candidates tie
for the lowest number of votes, the person excluded from the next round will be
resolved by lot. In this instance the names of the tied candidates will be
placed in a suitable container and the Council’s Electoral Officer will
draw a name from the container and this person will be excluded from the next
round of voting.
5.7. A second and further
round(s) of voting will be conducted if necessary in the same way as described
above.
6. If System B is adopted the
actual vote will be conducted as follows.
6.1. Nominations for the
position of Chairperson will be called for, which must be supported by a
seconder (being a different person). A Councillor may nominate or second
themselves, and may also nominate more than one person.
6.2. Once the call for
nominations results in no further nominees, nominations will be closed.
6.3. Each nominee may then be allowed up to 10 minutes
to make a presentation.
6.4. The only round of voting
will then be undertaken by show of hands and with only one vote per Councillor
(i.e. 11 in total).
6.5. If 2 candidates tie for the
most votes, the tie is resolved by lot. In this instance the names of the tied
candidates will be placed in a suitable container and the Council’s
Electoral Officer will draw a name from the container. The candidate
whose name is NOT drawn will be declared to be elected Chairperson.
Decision Making Process
7. The election of the
chairperson is specifically provided for under Schedule 7, Part 1, Sections 21
and 25 of the Local Government Act 2002.
Recommendations
That Hawke’s Bay Regional
Council:
1. Resolves to adopt voting
system A or B for the election of the
Chairperson of Council as detailed in Schedule 7 Part 1 Section 25(3) of the
Local Government Act 2002.
2. If system
A is adopted,
confirms that in the case of determination by lot if 2 or more candidates tie for the
lowest number of votes the method used shall be for the Electoral Officer of
Council (Leeanne Hooper) to draw the name of the person to be excluded from the
next round of voting from a suitable container with the Group Manager,
Corporate Services acting as scrutineer during this process.
3. Confirms that in the case
of determination of Chairperson by lot if 2 candidates tie for the most votes
the method used shall be for the Electoral Officer of Council (Leeanne Hooper)
to draw one name from a suitable container with the Group Manager, Corporate
Services acting as scrutineer during this process. The candidate whose name
remains in the container will be declared elected Chairperson.
Mover/Seconder
CARRIED
4. ___________ nominates
______________, which is seconded by ________________
5. ___________ nominates
______________, which is seconded by ________________
6. ___________ nominates ______________,
which is seconded by ________________
__
votes for ______________
__
votes for ______________
__
votes for ______________
7. Elects Councillor
_____________________ as Chairperson of Hawke’s Bay Regional Council.
8. Councillor _______________________
makes his/her oral declaration and attests their written declaration.
The Chairperson then assumes the Chair
for the remainder of the Council meeting.
Authored by:
|
Leeanne Hooper
Team Leader Governance
|
|
Approved by:
|
James Palmer
Chief Executive
|
|
Attachment/s
|
1⇩
|
Declaration by Chairperson
|
|
|
HAWKE’S
BAY REGIONAL COUNCIL
26 October
2022
Subject: The Election of the Deputy
Chairperson
Reason for Report
1. This item provides the
means for the election of the Chairperson as required by the Local Government
Act 2002 (LGA) Schedule 7.
Officers’
Recommendations
2. Officers recommend that System
B is resolved for this election due to its simplicity and because historically
there have not been more than 2 nominees for Chair.
Executive
Summary
3. The LGA prescribes the
voting requirements for the election of the Chairperson, including that Council’s
choice of voting system to be used must be determined by resolution. This means
that Council needs to resolve the system of voting before the election of the
Chair can take place.
Background
4. The Chairperson is required
to call for nominations for election to the office of Deputy Chairperson as
outlined in LGA Schedule 7, clause 21. If a vote is required the Council must
follow the provisions which state:
Section
24(3)
“An
act or question coming before the local authority must be done or decided by
open voting.”
Section
25
“Voting
systems for certain appointments—
(1) This
clause applies to—
(a) the election or
appointment of the chairperson and deputy
chairperson of a regional council; and
(b) ….
(c) the election or
appointment of the chairperson and deputy chairperson of a committee; and
(2) If
this clause applies, a local authority or a committee (if the local authority
has so directed) must determine by resolution that a person be elected or
appointed by using one of the following systems of voting:—
(a) the voting system in
subclause (3) (`system A'):
(b) the voting system in
subclause (4) (`system B').
(3) System
A —
(a) requires that a person
is elected or appointed if he or she receives the votes of a majority of the
members of the local authority or committee present and voting; and
(b) has the following
characteristics:—
(i) there
is a first round of voting for all candidates; and
(ii) if
no candidate is successful in that round there is a second round of voting from
which the candidate with the fewest votes in the first round is excluded; and
(iii) if
no candidate is successful in the second round there is a third, and if
necessary subsequent, round of voting from which, each time, the candidate with
the fewest votes in the previous round is excluded; and
(iv) in
any round of voting, if 2 or more candidates tie for the lowest number of
votes, the person excluded from the next round is resolved by lot.
(4) System
B —
(a) requires that a person
is elected or appointed if he or she receives more votes than any other
candidate; and
(b) has the following
characteristics:
(i) there
is only 1 round of voting; and
(ii) if
2 or more candidates tie for the most votes, the tie is resolved by lot.”
Options
Assessment
5. If System A is adopted the
actual vote will be conducted as follows.
5.1. Nominations for the
position of Chairperson will be called for, which must be supported by a
seconder (being a different person). A Councillor may nominate or second themselves, and
may also nominate more
than one person.
5.2. Once the call for
nominations results in no further nominees, nominations will be closed.
5.3. Each nominee may then be allowed up to 10 minutes
to make a presentation.
5.4. The first round of voting
will then be undertaken by show of hands and with only one vote per Councillor
(i.e. 11 in total).
5.5. If there are three or more
nominees and a majority of Councillors (i.e. 6) does not support one nominee
then the candidate with the fewest votes will be excluded from the next round.
5.6. If 2 or more candidates tie
for the lowest number of votes, the person excluded from the next round will be
resolved by lot. In this instance the names of the candidates will be placed in
a suitable container and the Council’s Electoral Officer will draw a name
from the container and this person will be excluded from the next round of
voting.
5.7. A second and further
round(s) of voting will be conducted if necessary in the same way as described
above.
6. If System B is adopted the
actual vote will be conducted as follows.
6.1. Nominations for the
position of Deputy Chairperson will be called for, which must be supported by a
seconder (being a different person). A Councillor may nominate or second
themselves, and may also nominate more than one person.
6.2. Once the call for
nominations results in no further nominees, nominations will be closed.
6.3. Each nominee may then be allowed up to 10 minutes
to make a presentation.
6.4. The only round of voting
will then be undertaken by show of hands and with only one vote per Councillor
(i.e. 11 in total).
6.5. If 2 candidates tie for the
most votes, the tie is resolved by lot. In this instance the names of the 2
candidates will be placed in a suitable container and the Council’s
Electoral Officer will draw a name from the container. The candidate
whose name is NOT drawn will be declared to be elected Deputy Chairperson.
Decision Making Process
7. The election of the deputy
chairperson is specifically provided for under Schedule 7, Part 1, Sections 21
and 25 of the Local Government Act 2002.
Recommendations
That Hawke’s Bay Regional
Council:
1. Resolves to adopt voting
system A or B for the election of the
Deputy Chairperson of Council as detailed in Schedule 7 Part 1 Section 25(3) of
the Local Government Act 2002.
2. If system
A is adopted,
confirms that in the case of determination by lot if 2 or more candidates tie for the
lowest number of votes the method used shall be for the Electoral Officer of
Council (Leeanne Hooper) to draw the name of the person to be excluded from the
next round of voting from a suitable container with the Chief Executive acting
as scrutineer during this process.
3. Confirms that in the case
of determination of Deputy Chairperson by lot if 2 candidates tie for the most
votes, the method used shall be for the Electoral Officer of Council (Leeanne
Hooper) to draw one name from a suitable container with the Chief Executive
acting as scrutineer during this process. The candidate whose name remains in
the container will be declared elected Deputy Chairperson.
Mover/Seconder
CARRIED
4. ___________ nominates
______________, which is seconded by ________________
5. ___________ nominates
______________, which is seconded by ________________
6. ___________ nominates
______________, which is seconded by ________________
__
votes for ______________
__
votes for ______________
__
votes for ______________
7. Elects Councillor
_____________________ as Deputy Chairperson of Hawke’s Bay Regional
Council.
Authored by:
|
Leeanne Hooper
Team Leader Governance
|
|
Approved by:
|
James Palmer
Chief Executive
|
|
Attachment/s
There are no attachments for this report.
HAWKE’S BAY REGIONAL
COUNCIL
26 October
2022
Subject: Relevant Legislation
affecting councillors
Reason for Report
1. This item provides a
summary of relevant legislation affecting members, as required for the first
meeting of the Local Authority by the Local Government Act.
2. All of the legislation
referenced is available to councillors online and in Stellar in the Councillor
Resources folder.
Local
Government Act 2002
3. This is the principal piece
of legislation which establishes the Council and determines its role and
functions. The purpose, role and powers of local authorities (City Councils,
District Councils, Regional Councils, Unitary Authorities and Community Boards)
are set out in Part 2 of the Act.
4. Under section 10, the
purpose of local government is to:
4.1. enable democratic local
decision-making by and on behalf of communities; and
4.2. to promote the social,
economic, environmental, and cultural well-being of communities in the present
and for the future.
5. Part 4 of the Act
identifies the principles and requirements for the governance and management of
local authorities and specifies where members are liable for certain actions and
able to be indemnified.
6. Section 14 stipulates
“principles” for the governance and management of local
authorities. These principles and other provisions are intended to ensure that
members are responsible, open, transparent, and democratically accountable in
their decision making, as well as making clear the role of the Chief Executive.
7. Schedule 7 sets out
numerous issues of relevance to members including remuneration, code of
conduct, meeting procedures and conduct, subordinate decision-making structures,
delegations and other matters.
8. Legislative reform for the
LGA is currently before the House. The Bill seeks to implement the
Government’s Better Local Services reform package, which intends to
deliver better public services and build a more productive and competitive
economy. Proposed key changes include flexibility for joint services and
infrastructure; stronger accountability arrangements for council-controlled
organisations; a more proactive role for the Local Government Commission; changes
to local government reorganisation processes; and delegated law-making powers.
Local
Government Official Information and Meetings Act
9. The purposes of LGOIMA
(stated in Section 4 of the Act) are—
(a)
to increase progressively the availability to the public of official
information held by local authorities, and to promote the open and public
transaction of business at meetings
of local authorities, in order—
(i) to enable
more effective participation by the public in the actions and decisions of local
authorities; and
(ii) to promote the
accountability of local authority members and officials,—
and
thereby to enhance respect for the law and to promote good local government in
New Zealand
(b)
to provide for proper access by each person to official information relating to
that person
(c)
to protect official information and the deliberations of local authorities to
the extent consistent with the public interest and the preservation of personal
privacy.
Official
and Personal Information
10. Official Information
includes virtually all information held by a local authority, or by any of its
members, officers or employees in their official capacities. It includes
files, records, letters, documents, manuals, written instructions, plans, photographs,
diary notes, computer data, audio recordings and anything else that records
some aspect of the authority’s activities.
11. The over-riding principle
of the Act is that information will be made available unless there are:
6.
Conclusive reasons for withholding official information
Good
reason for withholding official information exists, for the purpose of section 5, if the making available
of that information would be likely—
(a)
to prejudice the maintenance of the law, including the prevention,
investigation, and detection of offences, and the right to a fair trial; or
(b)
to endanger the safety of any person.
Or
7.
Other reasons for withholding official information
(1)
Where this section applies, good reason for withholding official information
exists, for the purpose of section 5, unless, in the
circumstances of the particular case, the withholding of that information is
outweighed by other considerations which render it desirable, in the public
interest, to make that information available.
(2)
Subject to sections 6, 8, and 17, this section applies if,
and only if, the withholding of the information is necessary to—
(a) protect the
privacy of natural persons, including that of deceased natural persons; or
(b) protect
information where the making available of the information—
(i)
would disclose a trade secret; or
(ii)
would be likely unreasonably to prejudice the commercial position of the person
who supplied or who is the subject of the information; or
(ba) in the case only of an application
for a resource consent, or water conservation order, or a requirement for a
designation or heritage order, under the Resource Management Act
1991,
to avoid serious offence to tikanga Maori, or to avoid the disclosure of the
location of waahi tapu; or
(c) protect
information which is subject to an obligation of confidence or which any person
has been or could be compelled to provide under the authority of any enactment,
where the making available of the information—
(i)
would be likely to prejudice the supply of similar information, or information
from the same source, and it is in the public interest that such information
should continue to be supplied; or
(ii)
would be likely otherwise to damage the public interest; or
(d) avoid prejudice
to measures protecting the health or safety of members of the public; or
(e) avoid prejudice
to measures that prevent or mitigate material loss to members of the public; or
(f) maintain
the effective conduct of public affairs through—
(i)
the free and frank expression of opinions by or between or to members or
officers or employees of any local authority, or any persons to whom section 2(5) applies, in the course of
their duty; or
(ii)
the protection of such members, officers, employees, and persons from improper
pressure or harassment; or
(g) maintain legal
professional privilege; or
(h) enable any local
authority holding the information to carry out, without prejudice or
disadvantage, commercial activities; or
(i) enable any
local authority holding the information to carry on, without prejudice or
disadvantage, negotiations (including commercial and industrial negotiations);
or
(j) prevent the
disclosure or use of official information for improper gain or improper
advantage.
12. Any refusal to provide
official information requested must include the reason for its refusal and
advice of the applicant’s right to complain to the Ombudsman.
13. The Office of the Ombudsman
provides useful guidance for responding to LGOIMA and OIA requests, available
online at http://www.ombudsman.parliament.nz/resources-and-publications/guides/official-information-legislation-guides
14. Section 42 of the Act authorises
the delegation to any officer or employee of all or any of the local
authority's powers under the Act, except the power to decide upon an
Ombudsman’s recommendation.
15. Requests for information
are considered by the staff recipient in the first instance and dealt with in
accordance with HBRC’s Official Information Request staff policy
(attached).
16. Requests for information
that may be held by elected representatives themselves are considered in
accordance with the Council’s adopted “Protocol for CE Response to
LGOIMA Request for Councillors’ Communications” as attached.
Meetings
of Local Authorities
17. Decision making meetings of
councils and their committees are open to the public and must be publicly
notified (s.46), including start times and places they will be held, with
agendas and associated reports to be considered available to the public
beforehand (s.46A).
18. Councils may only exclude
the public from all or part of a meeting for good reason, as specifically
provided for by the Act.
Public
Records Act 2005
19. The Public Records
Act’s purpose is to provide a framework to keep central and local
government organisations accountable by ensuring records are full and accurate,
well maintained and accessible. The Public Records Act 2005 provides for the
continuity of the National Archives and the role of the Chief Archivist. The
Act enables accountability by ensuring that full and accurate records of the
affairs of local government are created and maintained. It also provides a
framework within which local authorities create and maintain their records and
has a role in enhancing public confidence in the integrity of local authority
records.
20. The definition of a record
includes information, whether in its original form or otherwise, and is not
limited to just written information. The definition also includes (but is
not limited to) a signature, a seal, text, images, sound, speech, or data in
any medium and recorded or stored by any electronic device or process.
21. In the conduct of their
affairs elected members may receive information directly, for example from
constituents. Members will need to consider whether that information meets the
definition of a local authority record and if so will need to ensure it is
included in the Council’s records.
Local
Authorities (Members’ Interests) Act 1968 (LAMIA)
22. The LAMIA provides rules
about members discussing and voting on matters in which they have a pecuniary
interest and about contracts between members and the council. LAMIA has two
main rules.
23. The contracting rule
prevents an elected member from having interests in contracts with the local
authority that are worth more than $25,000 per year, unless the Auditor-General
approves the contracts. Breach of the rule results in automatic
disqualification from office (s.3 LAMIA)
24. The participation rule
prevents an elected member from participating in a decision in which they have
a financial interest, other than an interest in common with the public. The
Auditor-General can approve participation in limited circumstances. Breach of
the rule is a criminal offence and conviction results in automatic
disqualification from office (s.6 LAMIA).
25. More guidance can be found
in the Elected Members’ Conflict of Interest Guidelines and Office of the
Controller and Auditor-General publications: “Guidance for members of local authorities
about the Local Authorities (Members’ Interests ) Act 1968” and
“Managing conflict of interest: Guidance for Public
entities” on the Office of the Auditor General’s website.
Crimes
Act 1961
26. Under sections 99, 105, and 105A of this Act it is unlawful
for an elected member to:
27. Accept or obtain, or agree
or offer to accept or attempt to obtain, any bribe for himself or herself or
any other person in respect of any act done or omitted, in their official
capacity.
28. The definition of bribe
includes any money, valuable consideration, office, or employment, or any
benefit, whether direct or indirect.
29. Corruptly use of disclose
any information acquired in their official capacity, to obtain, directly or
indirectly, an advantage or a pecuniary gain for himself or herself or any
other person.
30. These offences are
punishable by a term not exceeding seven years. Elected members convicted of
these offences will also be automatically ousted from office.
Secret
Commissions Act 1910
31. This Act sets out corruption type offences
associated with either giving or receiving gifts or other consideration by
elected members (deemed agents of the council) to act in a certain way in
relation to council business.
32. The definition of
“agent” includes the agent’s family and partners or
employees. The scope of the act also extends to a child of a spouse or a civil
union partner or a de facto partner of an elected member.
33. “Consideration”
means valuable consideration of any kind. The nature of the consideration not
only includes discounts, commissions, payment of money but also postponing or
refraining from demanding the repayment of any money or valuable thing owed.
34. The Act also addresses the
duty of elected members to disclose any pecuniary interest which the council
may have in the making of a contract. Such disclosure must be at the time of
making the contract or as soon as possible thereafter.
35. Under this act it is
unlawful for an elected member (or officer) to advise anyone to enter in to 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.
36. These offences are
punishable by a term not exceeding seven years. Elected members convicted of
these offences will also be automatically ousted from office.
Financial
Markets Conduct Act 2013
37. The Financial Markets
Conduct Act (FMCA) 2013 imposes on elected members the same responsibilities as
company directors whenever council offers securities (debt or equity) to the
public. Members may be personally liable if investment documents, such as a
disclosure statement, contain untrue statements and may be liable for criminal
prosecution if the requirements of the Act are not met.
38. The FMCA also prohibits any
elected member who has information about a listed company that is not generally
available to the market, from trading in that company’s shares or from disclosing
that information.
39. The penalties for certain
offences under the FMCA (false or misleading statements in disclosure documents
= 10 years; or insider trading = 5 years) are such that if an elected member
were convicted that conviction would result in ouster from office.
Health
and Safety at Work Act 2015
40. On 4 April 2016, the Health
and Safety at Work Act 2015 (HSWA) came into force. The HSWA provides a
significant change to New Zealand’s recent health and safety legislation
and is a response to the scrutiny placed on New Zealand’s health and
safety practices following the Pike River tragedy.
41. The Act allocates duties to
those people who are in the best position to control risks to health and safety
as appropriate to their role in the workplace, and for the person conducting a
business or undertaking (PCBU) (i.e. the Council) to ensure, as far as is
reasonably practicable, the safety of workers and others who may be impacted by
the work the business undertakes.
42. One of the significant changes
is the introduction of “Officers”, who is any person occupying a
position in relation to the business or undertaking, that allows the person to
exercise significant influence over the management of the business or
undertaking.
43. Officers have obligations
of due diligence, which are:
43.1. to acquire, and keep
up-to-date, knowledge of work health and safety matters; and
43.2. to gain an understanding of
the nature of the operations of the business or undertaking of the PCBU, and
generally of the hazards and risks associated with those operations; and
43.3. to ensure that the PCBU has
available for use, and uses, appropriate resources and processes to eliminate
or minimise risks to health and safety from work carried out as part of the
conduct of the business or undertaking; and
43.4. to ensure that the PCBU has
appropriate processes for receiving and considering information regarding
incidents, hazards, and risks and for responding in a timely way to that
information; and
43.5. to ensure that the PCBU has,
and implements, processes for complying with any duty or obligation of the PCBU
under this Act; and
43.6. to verify the provision and
use of the resources and processes referred to in paragraphs (c) to (e).
44. The duties of the Officers
and of the PCBU are independent of each other. This means if a PCBU has failed
to meet its duty but the Officers exercised due diligence then they would not
be personally liable for the health and safety failings.
45. For the purposes of the
HSWA, elected Council members and the Chief Executive are by default
identified as “Officers”. Elected members are exempt from
the liabilities of failure to meet the due diligence duty. The focus of
any liability is on the Council as the PCBU. The Chief Executive is understood
to have significant personal liability in this capacity.
46. A specific briefing on
Health & Safety obligations for councillors is scheduled on 9 November as
part of the orientation programme for the incoming Council.
Decision Making Process
47. As this report is for
information only and no decision is to be made, the decision making provisions
of the Local Government Act 2002 do not apply.
Recommendation
That Hawke’s Bay Regional
Council receives and notes the Relevant legislation affecting councillors
staff report.
Authored by:
|
Leeanne Hooper
Team Leader Governance
|
|
Approved by:
|
James Palmer
Chief Executive
|
|
Attachment/s
|
1⇩
|
SP034 Official Information Requests
- LGOIMA and OIA
|
|
|
|
2⇩
|
Protocol for CE response to LGOIMA
request for councillors communications
|
|
|
