Wellington City Council blocks councillors seeing airport legal advice
Monday, 17 June 2024
Wellington City Council staff are refusing to show elected councillors ratepayer-funded external legal advice about selling the city’s stake in the airport.
It comes after revelations that council boss Barbara McKerrow has a new code, dubbed “unlawful and unconstitutional” by a law expert, blocking some information given to councillors about past decisions.
The information blockade has found an unlikely critic in pro-sale Mayor Tory Whanau, who on Sunday confirmed she told staff that as much information as possible should be released on the airport share sale issue. But its release was a decision for staff, she said.
Selling the council’s 34% stake in the airport, has divided Whanau’s traditional left-leaning voting bloc and created unlikely alliances between many on the left who oppose asset sales and some on the right who are worried the money from the sale will be frittered away.
The issue stands to disrupt Whanau’s once-a-triennium long-term plan with seven councillors looking to vote against it when they vote to adopt or reject the full long-term plan on June 27, mostly because it includes the sale, and others still prone to lobbying to vote it down. They could form the numbers to delay the entire plan with its 18% rates hike, plans to fix more pipes, and setting up a fund to help the city after a big quake.
Councillors Ben McNulty, Nureddin Abduraham and Nīkau Wi Neera all claimed that behind closed doors on May 23 they were warned a no-sale would put them personally at risk of legal prosecution. That was ahead of a committee meeting when the long-term plan, including airport sale, was sent to auditors. The June 27 vote at council was expected to be a rubber stamp exercise but could now prove decisive.
McNulty last week requested from the council, under the Local Government Official Information and Meetings Act (LGOIMA), copies of external legal advice about the airport share sale issue.
“I can confirm that no formal legal opinions were received on this issue,” council chief strategy and governance officer Stephen McArthur responded.
“No advice was received regarding ‘risk to councillors’ except the advice provided to councillors in the public excluded question and answer briefing session.’
There was “limited email communication” with legal advice between in-house lawyers and an external law firm about the upcoming vote, he said. Public interest was outweighed by maintaining legal privilege, he said.
Dean Knight, a Victoria University expert in public and government law, said elected councillors needed information to do their job properly and should not have to rely on processes, such as the LGOIMA, to get it.
“In my view, that includes legal advice tendered to and paid for by the council as an institution and I can’t see how it can legitimately be withheld from the governing body of that institution.”
It was “entirely proper” for councillors to ask to see legal advice, especially after some appeared “spooked” by the risk of personal liability.
“It’s a very real example of the democratic risks at stake when officers withhold so-called confidential information from elected representatives on their governing body,” Knight said.
Council spokesperson Richard MacLean confirmed the council paid for the external legal advice.
McKerrow has previously confirmed legal advice was given in the May 23 closed-door session but cast it in a different light:
“Councillors were advised that there were very high grounds to be met before any councillor would ever be personally liable in any decision-making process and therefore any such liability was extremely tenuous in these circumstances.
“Councillors were advised instead to focus on their liability as a collective including their statutory obligation to ensure prudent stewardship of the city’s assets.”