Legal advice backs councillors expressing opinions about plans for quake-prone central library

Tuesday, 21 July 2020

Wellington Mayor Andy Foster and councillor Fleur Fitzsimons exchanged blows over legal advice relating to the city's central library in July.

A Wellington City councillor has been blocked from tabling a legal opinion that says she is allowed to state her opinion.

Days after being warned over expressing opinions about Wellington’s central library, Wellington City councillor Fleur Fitzsimons has received legal advice supporting her right to make comments.

It comes after Wellington Mayor Andy Foster on Friday sent councillors an email with legal advice he had sought after some councillors voiced their opinions about strengthening options for the quake-prone central library.

Wellington City councillor Fleur Fitzsimons has received legal advice supporting her statements on plans for the city’s earthquake-prone central library. (File photo)

The email took special exception to councillor Fleur Fitzsimons’ comments to Stuff questioning why council staff had put forward the most-expensive, $200 million option, when councillors had asked for cheaper options to be prioritised.

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Fitzsimons, who holds the council’s libraries portfolio, then sought a legal opinion of her own, which vindicated her comments and expressed surprise the council had taken objection to them.

She attempted to reveal the legal advice to councillors at a meeting on Tuesday, while also formally asking for the council to recommend the quickest and cheapest option for the library upgrade.

Wellington Mayor Andy Foster has been accused of trying tp stop councillors expressing views about the library.

However, following a short adjournment, the council agreed to prevent the legal advice from being tabled.

Chief executive Barbara McKerrow said advice from the council’s legal counsel was that the document contained legally privileged information, and was not relevant to the topic of debate.

Fitzsimons said the decision was “very unfortunate” and was another example of the council being “deeply undemocratic”.

Foster urged Fitzsimons to apologise and retract the accusation, which she did.

Speaking at the meeting, Foster told councillors the Local Government Act bound councillors to encourage public feedback, and that should be their focus.

It was not encouraged for councillors to explicitly state their preferred option, he said.

“We can’t do that because we need to go out there using two ears.”

The library, which opened in 1991, has been closed since March last year because of significant structural concerns. (File photo)

The option Fitzsimons is supporting is a “low-level” strengthening project costing about $91m and coming with a November 2023 reopening date.

The legal advice she attempted to table said her comments to Stuff were in line with Local Government Act (LGA) obligations, which required councillors to be open and transparent about council decisions.

“Far from breaching these obligations, public expression of concerns about the processes following council decisions would appear to uphold the principle of openness and transparency, and present an example of the council seeking to ensure that the relationship between elected members and management is understood,” lawyer Graeme Edgeler said.

Edgeler also expressed surprise the council had sought legal advice over Fitzsimons’ comments, describing the move as “unexpected”.

The LGA also requires councillors to keep an open mind, but that did not prevent them expressing an opinion, Edgeler said.

“The requirement is to have an open mind, not an empty mind.”

In May, councillors agreed for staff to prioritise cheaper strengthening options for the library – overturning a proposal for base isolators to be a necessary part of the upgrade.

The preferred upgrade is the most expensive of three options out forward, costing up to $199.8m.

“Expressing a view, even if done forcefully, on what proposal should be put out for consultation, does not mean that a councillor has closed their mind to the result of the consultation … It is, indeed, something that is expected,” Edgeler said.

“It is difficult to see how restating this position, or expressing concern that the proposal prepared for the council by management does not in your view accord with this decision, could undermine this process.”

Edgeler went on to say that potentially disqualifying a councillor from taking part in decision-making was “concerning”.

“Councillors are not functionaries for council management, and should not be pressured to not take part in decisions which are their responsibility.”

Councillors will vote on the proposals to go out for public feedback at a meeting on Tuesday.

A “mid-level” strengthening project has also been proposed, costing up to $152m and scheduled to be completed by September 2024.

Both of the cheaper options would make the building safe but vulnerable to significant damage in the event of a major earthquake.

A new building was projected to cost up to $160m.

However, no concept designs were developed for a new-build, with council officers preferring strengthening the existing building.