How a scolding email exposed tensions at the heart of local government

Saturday, 13 May 2023

A scolding email exposed tensions at the heart of local government. Andrea Vance reports on what some see as the creeping absurdity of local government.

Councillor (now mayor) Phil Mauger fined for digging a trench, without permission, to ease a long-running flooding problem for Christchurch locals.

Wellington councillors kept in the dark for five years by officials about the risk of every single one of Wellington’s 17,000 street lamps at risk of falling and killing residents.

And this week, one of the city’s councillors chided by CEO Barbara McKerrow for daring to circulate an unsanctioned consultation form to allow residents to give feedback on the capital’s annual budget. This, she threatened, could compromise Ray Chung’s very ability to vote on a plan that will impose 12.3% rate rises on the city. (The rise came off the back of 13.5% then 8.8% increases in the past two years.)

Those in local government circles point to a common theme: the creep of bureaucratic power, where councillors are kept away from the day-to-day running of their council – and expected to be compliant to unelected officials.

Instinctively, ratepayers recognise this, even if they don’t fully understand the reasons for it.

For example, a resident might complain to a councillor about an ever-widening pothole in their street.

The councillor can elevate the problem, perhaps lending more weight or urgency to the complaint. But beyond that, they can’t direct officials to fix the hole – and as Mauger found to his cost, they can’t get a shovel out and do it themselves.

The result is that they bear the frustration of residents, who turn away from local democracy, driving low participation rates.

And it is now a baked-in culture, stemming from nationwide restructuring of local government in 1989, in which councils shifted from traditional public administration to more corporate-style structures.

Since then voter turnout has declined from 57% to 36% in last October’s election.

The tensions between Chung and McKerrow, in particular, highlighted this friction.

And now local body politicians, past and present, are speaking out about a system where unelected chief executives hold all the cards and councillors (especially those who go against the grain) have no resources, levers or allies.

The email, the threat and the backlash

Chung doesn’t fit the typical mould of a squeaky wheel. The son of a Chinese immigrant, the former telecom engineer-turned businessman was elected last year on a fairly typical conservative platform of prudence with public money.

The council is required by law to consult on its annual plan – or budget. Mindful of criticism that official surveys are often complex, and seemed to be designed to produce pre-determined outcomes, Chung and a handful of other councillors drafted an additional, shorter feedback form.

It was largely focused on the rate hike.

“Our form only included specific topics not covered off by the council’s form,” councillor Diane Calvert said.

“It was designed to gather feedback on known topical issues from within the community in a structured way and to make it easier to gather the information in a consistent format.

“In the past, the council have willingly accepted feedback on ‘post-it” notes, postcards and even drawings on a variety of topics.”

Not this time. Chief executive Barbara McKerrow wrote to Chung to say “intervening in the process in this way is not appropriate”. (At that point, she didn’t know other councillors were involved.)

She asked the council’s lawyers for advice on whether this could compromise his ability to take part in future debate and decisions (ie vote) on the budget.

This was the tipping point: an unelected official policing how an elected member communicated with constituents, and questioning their ability to participate in the democratic process, was seen by some as beyond the pale.

The email was leaked to The Post.

McKerrow doubled down. “Local authority elected members have never been able to design their own submission forms to elicit feedback on the issues of political significance for them, and we have not experienced this previously,” she said in a statement.

“It puts an elected member at risk of perception of bias or pre-determination. The risk for Cr Chung is that he may have compromised his ability to take part in some aspects of the decision-making because of having done so.”

Chung was nervous about the story going to print. Although his gut told him something wasn’t right, as a first-term councillor, he was reluctant to challenge senior, experienced officials. He didn’t want the correspondence made public.

That morning, as he boarded the bus from his home in the city’s Broadmeadows, he was greeted with a cheer from passengers who’d read the story.

He also had the backing of colleagues. One, speaking on condition of anonymity, said: “It reflects very much the tone of the CEO, very much a command-and-control style.”

Calvert said the row had “far-reaching impacts”.

She pointed out that how elected members conduct themselves is governed by a code of conduct, presided over by the mayor. “The mayor provides leadership to the elected members, not the CEO.”

Former Wellington Airport boss Tim Brown is also a first-term councillor. “I’m quite a big fan of sticking by the rules,” he said. “I read through the handbook, and I was struggling to find exactly what the problem was that Barbara was alluding to.

“If Ray has done something in transgression of the rules, then stick to an explanation of which rule has been broken. If Barbara feels the rules are inadequate and need to be amended to stop Ray doing whatever it is she disagrees with, then let's have a look at that.

“But, to create a general legal threat thing? It’s just so amateur.”

The Post asked for the legal opinion on which McKerrow based her original comments.

The council responded with a statement from its lawyer Beth Keightley. “The Chief Executive is correct when she states that Cr Chung may have compromised his ability to take part in some aspects of the decision-making,” she said.

But she concluded the statement with this remark: “However, based on these facts, this does not necessarily exclude him from the process.”

This pertinent information was left out of McKerrow’s first statement. Wasn’t that misleading, The Post asked? The council is yet to answer that question.

So, what does the law say?

Well, it’s not really what the law says, but how councils interpret it.

McKerrow claimed to be relying on a clause in the Local Government Act 2002 which says: “that the views presented to the local authority should be received by the local authority with an open mind.”

She said: “Councillors make a declaration that they will execute their legal duties impartially. This is also reflected in the common law which restricts decision makers acting with bias and/or predetermination.”

But who is the arbiter of whether Chung had acted with bias and predetermination? In this case, it was McKerrow – and his fellow councillors say that is over-reach.

Dean Knight, one of the country’s leading experts in public and government law, agrees.

“I worry that suggestions of bias or predetermination that might disqualify the councillor from being involved in decision-making on the annual plan are legal scaremongering,” he said.

“The law only requires an open mind, not an empty mind. And the business of the annual plan is where councillors are expected to wear their colours and express their ideologies.

“I would be astonished if inviting ratepayers to express views in that forum was found to be legally problematic; any risk is so low that it can be discounted, in my view.”

Knight said the councillors’ alternative submission form was “utterly benign”.

“Inviting folk to say whether they support or oppose potential changes to annual plan is the business of local democracy,” he said.

“The job of councillors is to lead debates in their community about priorities and planning.

“The fact the councillor is inviting submissions that are politically inconvenient, because they don’t fit neatly into the tidy boxes of officially-sanctioned conversations, should be celebrated, not condemned.”

Knight pointed to another clause in the legislation which says that hearing the voice of the community gives effect to the statutory purpose of local government “to enable democratic local decision-making and action by, and on behalf of, communities”.

Another section sets out the key principle that local authorities should make themselves aware the views of all their communities.

“Democracy is – and should be – sparky, with different views and ideas. It’s politics at its heart, and friction is inevitable,” Knight said.

A former councillor, who served on a North Island district council, shares Knight’s opinion.

“It feels like [McKerrow] has overstepped the mark,” he said. “It doesn't feel like it's the role of the chief executive. The idea is when you are inducting councillors you make them aware of the risks and periodically remind them in a general sense throughout the triennium … I think Ray has quite rightfully said: he doesn’t work for the chief executive.

“The role of the chief executive is to try and minimise the legal risk for the organisation. But for the life of me, I can’t think of a case where someone's gone and judicially reviewed a council decision on the basis that a councillor has been predetermined about it.

“It seems like the CE’s risk radar is a bit sensitive, but that’s not unique to Wellington council.”

Predetermination

In national body politics, the system treats our MPs like grown-ups. We trust them to make public declarations about their views and then participate in the consideration and debate of legislation they have advocated or opposed.

In Parliament, no concept of predetermination can be applied to disqualify members from carrying out their duties.

“No parliamentarian would be able to vote on anything if this extended to the Parliament,” said a former mayor, with more than a quarter-century’s experience in local government. “It seems to be very selectively used for local government.”

The former councillor agreed that officials’ warnings about predetermination were “selectively applied”.

“It’s plain absurdity because you could argue that people campaigning during an election on issues have predetermined themselves … or that when you are a councillor you can’t go out there and share your perspective on an issue.”

This “creep of control” is stifling discussion, the ex-mayor warned. “It is a bureaucratic mechanism for control of policy positions and the relationship between elected representatives and the people who elect them.

“But elected members are asserting themselves less over the people they employ to manage their council organisations. And those people have found ways of stifling discussion on things that are ‘pesky’ to them in their job.”

One way is the control of information. Councillors ‘set direction’ – in the form of annual or long-term plans – based on advice from officials. They have little say in the implementation.

“Council officials run the show,” the ex-mayor says.

“A council gets elected thinking it can make decisions, like budgetary decisions that will have an impact on rates – and they [senior officials] have all these ways of putting a stop to it.

“The main one is they'll say: here’s 1% of this year's annual budget, you choose what happens here, but everything else is locked down unless you want to cut libraries or slash jobs. It's this sort of binary decision-making that’s designed to scare councillors. And that is really the way that control has been asserted.

“The council that I was first elected to just had better political debates, it felt like we were driving the agenda of the city more. There was real questioning of what the staff put in front of us. It wasn't a negative environment, and it produced really good results.”

Calvert, Chung and Brown and fellow councillor Tony Randle all said they have experienced issues with getting access to information.

“I would have to say that after six months [I’ve found] the quality of information which councillors get to make their decisions is grossly inadequate,” Brown said. “It’s a mixture of far too much information but also a lack of focus on what actually matters.”

He gives the example of Frank Kitts Park, which saw a cost blow-out for a new playground on the city’s waterfront.

“It started life as $2.5 million project and somehow morphed into $10 million … what we were told was: don't worry this is not going to be rates-funded, this is going to be debt-funded – as if debt somehow doesn’t affect the rates.

“Ratepayers are going to be locked into paying $750,000 a year for that children's playground over the next 25 years.

“I just find it fascinating and very disconcerting that a critical factor to our decision-making – what is this going to mean for ratepayers – is not in these [council] papers.”