LGNZ Advisor Says Council Cannot Exclude Birchfield

Sunday, 3 November 2024, 10:12 pm
Article: Lois Williams - Local Democracy Reporter

A New Zealand expert on local government says the West Coast Regional Council has no right to exclude controversial councillor Allan Birchfield from meetings.

Birchfield was censured by the council last year for allegedly leaking confidential information about its exit deal with former chief executive Heather Mabin.

He was deposed as council chair, dumped as a member of most council committees, and has been repeatedly evicted from meetings chaired by Buller councillor Frank Dooley, on the grounds that he is censured.

But he maintains he has a right as an elected councillor to attend any meeting of the council or committee.

And the principal advisor to Local Government New Zealand, Mike Reid, says he is correct.

"Under the Local Government Act, an elected member can attend any meeting of the council, unless he or she is lawfully excluded," Reid told LDR.

The Act lists a number of penalties that can be imposed when a councillor is censured, including the loss of privileges and suspension as a member of committees.

But being barred from attending meetings was not one of them, and being under censure was not in itself grounds for exclusion, Reid said.

The relevant part of the Act was Clause 19(2) in Schedule seven.

"Elected members can attend all meetings of the council and its committees unless they're lawfully excluded, " he said.

Lawful exclusion was interpreted as barring a member with a financial conflict of interest in the business under discussion.

It did not cover a councillor censured for leaking information, Reid said.

"Every elected member is entitled to attend every meeting. Full stop. End of story. Even meetings in confidence. "

Birchfield would not have voting rights in committees of which he was not a member, and it was up to the chair to decide if he could join in the discussion.

"But he has a legal right to be present. They can ban him, but it's against the law," Reid said.

West Coast Regional Council chair Peter Haddock, who replaced Birchfield, said the council would consider Reid's opinion.

"Allan was censured from sub-committee meetings in accordance with the recommendations of independent Code of Conduct investigators."

The letter of censure sent to Birchfield states: "The member is suspended from committees to which he has been appointed including the public excluded sections of these committees."

"The letter goes on to say that the suspension would apply until trust was restored between Allan and other councillors," Haddock said.

The decision was unanimous but had not been taken lightly.

"Six elected members voted for it. It should be noted the previous council had tried to overturn Councillor Birchfield."

Members had worked hard for two years to get the council back on track, and it was now a much better functioning organisation, Haddock said.

"We had a legal opinion at the time of the censure but we will review it, in the light of this (Reid's) opinion. "

Reid, who has been a LGNZ advisor for 28 years, and wrote the templates for local government Codes of Conduct, said there might also be an argument that the information Birchfield allegedly leaked, belonged in the public domain.

Under the Act, members could disclose information acquired in confidence if it was reasonable and in the public interest to do so, he said.

"So he's released information his colleagues think is confidential, but there's a test for this: it either is or it isn't and you can go to the Auditor General or Ombudsman and ask for clarification."

An individual's right to privacy had to be weighed against the public's right to know and to access official information, Reid said.

Birchfield told Newsroom before he was censured, that Mabin - with whom he had fallen out - had agreed to stay on at the council for another six months only if he was removed as chair.

He also revealed financial details he said were part of her severance deal.

"You would want to approach this from basic democratic principles, and whether that was in the public interest," Reid said.

In his view, the public probably did have a legitimate interest in the information and an expectation to know.

"The fact that you have to put severance information into your Annual Report implies Parliament believes the public has a right to know these things."

Reid's opinion vindicates his stance and although he has left committee meetings in the past when ordered to do so, in future he will not, Birchfield said.

"I've said all along it's illegal. I'm an elected member and it's undermining democracy to kick me out."

Birchfield said he had filed a complaint about his exclusion with the Ombudsman and was awaiting a response.

LDR is local body journalism co-funded by RNZ and NZ On Air.

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