Legal advice for Rotorua councillors on Te Arawa partnership proposal decision-making

Rotorua councillors have been advised they should stand down from decision-making on the proposed Te Arawa Partnership Model if they can’t bring an open mind to the process.

They have been urged to assess whether they can be part of deliberations and decision-making on the matter following legal advice which was sought to examine the risk of judicial review.

Concerns that some councillors’ actions, both for and against the proposal, could amount to predetermination and put the decision at risk of judicial review have been raised during the course of consultation on the proposed partnership model.

Advice from Tompkins Wake and a report from Rotorua Lakes Council Chief Executive Geoff Williams were presented to councillors at today’s [Wed 20 May] Strategy, Policy & Finance Committee meeting during a public-excluded discussion.

Councillors resolved that the report and legal advice be made publicly available following the meeting.

In his report Mr Williams emphasised the need for decision-making on the Te Arawa Partnership Model to be legally robust. “In this regard, issues concerning councillor predetermination, bias and the need for an open mind, are particularly relevant,” his report stated.

Having monitored and reviewed the actions of councillors and sought legal advice in respect of those actions, Mr Williams said the decision-making process carried some risk, particularly in respect of councillors who were also members of the Rotorua Pro-Democracy Society.

“Those councillors have a conflict of interest between their obligations as elected members of Council to keep an open mind in respect of decision-making and as members of that society.

“In order for those councillors to resolve this conflict, I recommend that they consider either resigning their membership of the Rotorua Pro-Democracy Society, or stand down from deliberations and final decision-making in respect of the [Te Arawa Partnership Model].”

Mr Williams’ advice echoed the legal advice. He said other councillors may have associations and affiliations with interest groups in the community which had either submitted on or expressed an interest in the proposal and whether they might also have a conflict of interest could require further examination. He urged all councillors to “turn their mind” to the issue.

“Ultimately, all councillors will need to be able to establish, with credibility, that they have an open mind leading into deliberations and decision-making,” Mr Williams’ report stated.

“If any councillor with a predetermined view and closed mind participates in the final decision-making, that participation will put the decision at risk of being judicially reviewed. Accordingly, it is incumbent on each individual councillor to take the responsible step of ensuring they do not put Council at risk.”

Mr Williams recommended that all councillors take a number of steps to assess whether they could be involved in final deliberations and decision-making.

Tompkins Wake concluded Council’s decision on the proposal “will never be completely risk free” with most, if not all, councillors having strong views about it.

“Each councillor should understand their legal obligations in terms of predetermination, and satisfy themselves that they bring an open mind to decision making. Those that cannot should stand down from participating in the decision-making.”

The report from Tompkins Wake stated it was for each councillor to determine whether they could meet the legal test. If judicial review of the ultimate decision eventuated councillors’ actions would be scrutinised by the High Court to determine whether their declaration of an open mind was credible and could be upheld.

While the law recognised elected representatives may take public stances and be allied with causes, they were not permitted to bring a closed mind to decision-making.

“Once they move into the decision making itself, they must do so with an open mind, and be prepared to change their mind if sufficiently persuaded,” the Tompkins Wake report stated.

An analysis of councillors’ actions concluded councillors Glenys Searancke, Mike McVicker, Rob Kent and Peter Bentley, all members of the Pro-Democracy Society which has lobbied and submitted against the proposal, and all having made statements against the proposal and the council process, faced a potential conflict of interest and that “resolving this conflict is challenging”.

“The most effective means would be for each councillor to either resign their membership of the RPDA, or not participate in Council’s final decision making.”

The legal advice concluded all councillors would need to carefully consider whether they were bringing an open mind to the decision-making, despite their predispositions.

[Ends]

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