New code restricting advice to councillors is “unlawful and unconstitutional.”

Saturday, 15 June 2024

Wellington City Council chief executive Barbara McKerrow has drafted a new code which councillors believe restricts the official advice they are allowed to see.

The protocols, seen by The Post, mean the Capital’s elected representatives are only allowed to seek information from officials on upcoming decisions.

It prevents them asking for advice on previous votes — such as the controversial Reading cinema deal or on reducing business rates — that they might want for background reading or research.

Councillors say they weren’t consulted on the code. It was introduced in October, but councillors were only briefed in mid-April.

It comes amid a breakdown in trust between the council and some councillors over a plan to sell a 34% stake in Wellington Airport. Officials paid consultants KPMG $222,000 to investigate the share sale, but never considered the alternatives, The Post revealed this week.

Councillor Nureddin Abduraham said it was “arrogant, undemocratic and predetermination” to only seek advice about one option. Ben McNulty said it was “simply not sufficient for a key proposal.”

Dean Knight, a leading expert in public and government law, said the code was “unlawful and unconstitutional.”

“[It] is democratically problematic,” the Victoria University law professor said.

“The idea that the chief executive gets to make the call on what the councillors on the governing body see tips the institutional relationship upside down.

“The chief executive is not elected, nor directly accountable to the public. The chief executive serves councillors, not the other way around. Just imagine the uproar if officials in central government agencies started blocking requests from Cabinet and their ministers about matters relating to their portfolios.

“This is democratic governance 101. Councillors need to be fully informed about matters they are deliberating on and matters they are accountable at the ballot box for.”

In response to questions from The Post, McKerrow said officials had been working on the document since the previous council term.

She said: “This followed some tension and debate over whether elected members should have access to any and all confidential information, including legally-privileged opinions.”

She added: “Council must be able to undertake its business in accordance with good commercial practice and privacy law. To disclose confidential information in an unmanaged way would significantly impact on the Council’s ability to handle sensitive situations, legal proceedings or issues of security. Release of confidential information in this way would also detrimentally impact on other organisations and individuals.”

The aim was to “fast track the supply of confidential information…and save them from having to go through LGOIMA channels,” she said.

“LGOIMA gives the Chief Executive the statutory responsibility for determining requests for confidential information. The law also provides grounds for withholding confidential information, including legal advice. These protocols do not place any restrictions on elected members other than is already stated in the law.”

McKerrow said the Office of the Ombudsman was consulted and “is supportive of the initiative.” A letter from Chief Ombudsman Peter Boshier in October shows he expected a draft of the protocols to be “socialised” with councillors.

Knight said it was a mistake to insert the information watchdog into the middle of a governance relationship. “The Ombudsman’s' functions and experience relate to the provision of official information to the public in order to promote transparency and accountability.

“That's a very different context to the provision of information to the governors of a democratic state institution. Councillors shouldn't have to rely on request processes designed for lay folk in the community in order to competently discharge their functions of office as a democratically elected representative.”

A number of councillors voiced objections when contacted by The Post.

Councillor Ben McNulty said: “I am deeply concerned about the protocols as they in my view do not accurately reflect the role of councillors and are at contradiction with established legal opinion around accessibility of information.”

Tony Randle said he is concerned the protocols don’t meet the requirements in freedom of information laws. “I'm not satisfied they're they're even legal,” he said.

Diane Calvert said she has written to Boshier. “This is a common thread about access, making information confidential when it shouldn't be, and limiting what is provided to councillors. It points to a culture and does need intervention because it's stopping democracy.”

Mayor Tory Whanau confirmed councillors had raised concerns. “Some of these, such as the definition of the role of elected members, are legitimate concerns and officers were asked to go away and review the protocols and provide answers to the questions raised.”

A follow-up discussion is scheduled for next week, she said.