Auditor General Must Prosecute

Council Watch spokesperson Jim Candiliotis is calling for four Councillors to be prosecuted, fined, and sacked from their positions in the Canterbury Regional Council after an investigation by Auditor General Lyn Provost found that the four individuals had broken the law by acting in conflict with their official role[1].

The Local Authorities (Members’ Interests) Act states that any elected official failing to declare a conflict of interest that leads to a financial benefit can be fined up to $100 and, upon receiving that conviction… sacked from their job, pending an appeals process.

“The Pacific Island community hung its head in shame earlier this year as Taito Phillip Field was convicted and imprisoned for using his position as a Member of Parliament to gain pecuniary advantage,” says Mr. Candiliotis, “We want to know why four Canterbury farmers can get away scot-free for their actions in this instance.”

The information released by the Auditor General’s Office this week stated they would not prosecute based on the assumption that a conviction would not be forthcoming, a decision supported by the Crown Law Office. However this decision prevents the justice system from making that decision on behalf of the country, to reflect the standards expected of the country’s elected officials.

The Auditor General has given seven reasons for not prosecuting. Council Watch staff have reviewed each reason and provided a counterpoint where appropriate:

1. ‘The councillors all relied on legal advice that they could participate in discussing and voting on the proposal.’

Council Watch says: We understand that one Councillor sought a legal opinion and he shared this with his colleagues. If any Councillor had enough doubt to seek a legal opinion, then they should have withdrawn as a matter of principle.

2. ‘This is the type of situation where we would have given careful consideration to an application to participate, if one had been made at the right time.’

Council Watch says: We cannot see how this impacts at all on the prosecutorial decision.

3. ‘The councillors co-operated with our investigation.’

Council Watch says: This is a mitigating factor that the courts can take into account if they so choose.

4. ‘There are no aggravating factors in terms of a history of breaches or warnings from us.’

Council Watch says: Holding public office affords privilege over and above that of an ordinary citizen. Therefore the standard the public can expect of those people must be higher. The lack of any previous history or breaches surely must be weighed against the alleged abuse of power and trust that these Councillors have undertaken – an abuse that the piece of legislation in question was specifically drafted for.

5. ‘The potential financial effect of the decision was unlikely to be particularly significant for the councillors concerned.’

Council Watch says: The law appears to be written to allow the Courts to remove people from public office who are untrustworthy or unfit to manage public affairs. The amount of pecuniary advantage is a moot point – it is the act of breaching the law that is what is important here. This is evident in the fact that the law allows only a fine of up to $100 but, upon conviction, forces the removal of the individual from public office.

6. ‘Previous court decisions have shown that courts are reluctant to impose a conviction in situations of this kind and will consider options such as discharging without conviction.’

Council Watch says: We would like to refer once again to the recent conviction of Taito Phillip Field. But we would also be interested to see the Auditor General’s records on past prosecutions they have taken under this Act (unfortunately we cannot request them as the Auditor General’s Office is not subject to the Official Information Act).

7. ‘Other sanctions are available, in particular the sanction of a public report by the Auditor-General.’

Council Watch says: What the local government sector needs is a greater level of oversight and transparency. The ratepayers and taxpayers of this country will not be served by another 300-page doorstop sitting in the archives of parliament. These four elected officials must be held to account, not only for their actions but also to send a clear message to the rest of the sector.

Jim Candiliotis adds that Council Watch has documented numerous breaches of the Local Government Act and Local Government Official Information and Meetings Act this year.

“The Auditor General and Office of the Ombudsmen publish clear guidelines for Councillors and council staff, and there is no reason in our opinion that the courts should show any leniency to breaches of the law by local authorities. There is precious little oversight of the sector at the moment.”

Current research by Council Watch indicates a widespread and systemic lack of compliance with the law by councils. This is due to be published in early 2010. Previous research is available online at www.councilwatch.org.nz.

ENDS

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