Item 6: Emergency
Provisions for COVID-19
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Council
24 March 2020
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REPORT R15935
Emergency
Provisions for COVID-19
1. Purpose
of Report
1.1 To
consider extraordinary measures for emergency decision making and governance
processes to ensure that Council can continue to make decisions and function
appropriately throughout the COVID-19 pandemic.
2. Summary
2.1 The
Local Government Act 2002 (the Act) requires Council to have a quorum for all
meetings of Council and Committees where decisions are made. The Act requires
meeting attendees to be physically present in the room in order to achieve a
quorum. Clause 23 (2) of Schedule 7 of the LGA states:
“Business
may not be transacted at any meeting unless at least a quorum of members is
present during the whole of the time at which the business is
transacted.”
2.2 Although
the Act allows for attendance by members at meetings by audio or audio visual
links, and the Council’s standing orders provide for this to occur, those
attending by these links do not count toward the quorum (LGA, clause 25A(4) of
Schedule 7).
2.3 This
presents challenges for Council decision-making in light of COVID-19 and the
risks associated with the requirement for urgent decisions whilst meeting in
person.
2.4 While
at Alert Level 4 urgent Council decision making is likely to remain an
essential service, there may be restrictions on smaller gatherings (which may
include Council or Committee meetings) and elected members may be affected by
the outbreak and unable to attend meetings.
2.5 The
Epidemic Preparedness Act 2006 provides for Orders in Council to be made which
modify a restriction or requirement in the LGA. However, that requires
several steps and it is not clear when this process would commence or how it
would address this issue. Accordingly, to ensure Council can take swift
action as necessary throughout this pandemic, some changes to the decision
making processes are required.
2.6 This
report recommends delegating all decision making powers, expect those that
cannot be delegated by law, to an Emergency Committee to ensure that urgent
decisions can be made during the COVID-19 pandemic.
2.7 This
report also recommends a reduction to the Committee quorum, to mirror the Act,
in order that as the recovery process begins, decisions can be made by two
Committee members, notwithstanding that some members may attend and vote via
audio or audio visual link.
3. Recommendation
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That the Council
1. Receives the report Emergency
Provisions for COVID-19 (R15935) and its attachment/s (); and its attachments
Emergency Committee Terms of Reference (A2363612) and Proposed Amendments to
Standing Orders (A2335387); and
2. Establishes an Emergency Committee,
with a membership of three being, in the first instance, the Mayor, Deputy
Mayor and the relevant Committee Chair whose area of responsibility the
matter of urgency falls under; and
3. Provides that where a member of the
Emergency Committee is unable to fulfil their duties for whatever reason,
another Standing Committee Chair will be appointed by the Chief Executive to
undertake the role of Emergency Committee member; and
4. Adopts the Emergency
Committee’s Terms of Reference (A2363612) and
5. Delegates to the Emergency
Committee all Council’s powers, duties, and responsibilities, except
for those that cannot legally be delegated; and
6. Agrees that such delegation shall
take effect if the Chief Executive determines that:
a. An
urgent decision to enable the proper performance of Council functions is
required by Council or a Committee or a Subcommittee; and
b. In
the circumstances it is not possible or it is impracticable to convene a
meeting or obtain a quorum for the Council, Committee or Subcommittee due to
the COVID-19 pandemic, and
7. Agrees that any decision made
pursuant to this delegation will be binding on Council;
8. Agrees that decisions made pursuant
to this delegation will be circulated to all Councillors and the public as
soon as possible and be
reported at the earliest possible Council meeting; and
9. Approves the proposed amendments to
Standing Orders as set out in Attachment 2 (A2335387).
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4. Background
4.1 On
23 March 2020, the Government announced an immediate lift in the COVID-19 alert
status from level two to level three, with a further increase to level four to
be introduced on 25 March 2020. As a result, the majority of Council and
Committee meetings have been suspended.
4.2 This
current and fast-changing situation regarding the COVID-19 virus has prompted
consideration of how to alter Council practices to enable urgent decisions
relating (for example) to the response to COVID-19 and decisions necessary for
the continued operation of Council services.
4.3 Officers
understand that Local Government New Zealand is working closely with the
Department of Internal Affairs to consider the quorum requirements for Council
and Committee meetings in light of the COVID-19 virus.
4.4 The
Epidemic Preparedness Act 2006 provides that an Order in Council can be made
(called a modification order) to change, suspend, or waive any statutory
requirements where COVID-19 makes it impossible or impracticable to comply with
them. For instance, presuming quorum requirements become impracticable to
comply with as a result of COVID-19, a modification order could provide that a
quorum can be constituted from members attending a meeting by an audio or audio
visual link. However, such modifications to statutory requirements would
come into force only once the Prime Minister issues a notice declaring COVID-19
to be an epidemic, and issues a further notice activating a modification
order. These steps have not occurred as yet.
4.5 Currently,
for all meetings, Council’s Standing Orders require a quorum of half of
all members to be physically present where the number of members is even, and a
majority of members to be physically present, where the number of members is
odd.
4.6 Council
can amend Standing Orders, with a 75% majority vote of members present at the
meeting (Standing Order 3.2 and clause 27 of Schedule 7 of the LGA), as long as
any amendments are consistent with legislation.
5. Discussion
5.1 The
ability to continue to make council decisions in a timely manner during the
COVID-19 pandemic, when currently constrained by the legislative quorum
requirements, is an issue that Councils across the country are grappling with
and a range of solutions are being worked on.
5.2 The
challenge for Council is that swift action is required to put plans in place in
order to ensure that Council can make decisions as necessary, including
decisions relating directly to the response to COVID-19, whilst others may be
necessary for the continued operation of essential Council services
5.3 Furthermore,
international experience indicates that measures are required to be put in
place should the Council be unable to meet collectively, either physically or
in a virtual meeting room environment, to consider and make decisions on urgent
matters.
5.4 Clause
32 of Schedule 7 of the Act permits Council to delegate its responsibilities,
duties or powers to Committees, other subordinate decision making bodies,
community boards, members or officers, except those that by law, cannot be
delegated and must remain with Council. These include:
· The power to make
a rate
· The power to make
a bylaw
· The power to adopt
a Long-term Plan, Annual Plan, or Annual Report, including adopting changes to
fees and charges
· The power to
borrow money, or purchase or dispose of assets, other than in accordance with
the long term plan.
5.5 Consequently,
whatever option is chosen, these decisions remain that of Council and cannot be
made under delegated authority.
Proposal
5.6 At
its meeting on 14 November 2019, Council adopted a revised Delegations Register
which introduced a new approach to delegations, delegating broader powers to
both the Chief Executive and committees than in previous trienniums.
5.7 Officers
have identified an option to enable urgent decision making during the pandemic
which aligns with this new approach. This option recommends the
delegation of all of Council’s powers, duties and responsibilities,
except for those that Council cannot legally delegate, to an Emergency
Committee established for the specific purpose to consider and make decisions
on urgent matters during the COVID-19 pandemic
5.8 This
option is considered in greater detail below. Any decision made pursuant
to the delegation would be binding on Council.
6. Establishment
of an Emergency Committee
6.1 Officers
recommend that Council delegate all responsibilities, duties and powers of
Council and all Committees and Subcommittees to an Emergency Committee, except
for any decisions that cannot be delegated by law.
6.2 Officers
recommend that this delegation only take effect if the Chief executive
determines:
6.2.1 That
an urgent decision to enable the proper performance of Council functions is
required by Council, or a Committee or Subcommittee; and
6.2.2 That
in the circumstances it is not possible or is impracticable to convene a
meeting or obtain a quorum of the Council, Committee or Subcommittee due to the
COVID-19 pandemic.
6.3 In
the interest of effective and timely decision making in an emergency
environment, it is proposed the membership consist of three: the Mayor, Deputy
Mayor and the Chair whose area of responsibility the matter of urgency falls
under.
6.4 Where
one of the members is unable to fulfil their duties for whatever reason, an
alternate Committee Chair will be appointed by the Chief Executive to undertake
the role of member.
6.5 The
Chief Executive and officer delegations that are currently in place, and
delegations that cannot be delegated by law, would be unaffected by this
delegation to the Emergency Committee.
Transparency
6.6 It
is important and appropriate that Council decision-making remains transparent.
Given the significant scope of the matters covered by the proposed delegation,
and that not all Councillors are involved in related decision-making, continued
transparency is important.
6.7 Where
an Emergency Committee Meeting has been called, the meeting will be publicly
notified, Councillors will be notified of the details by email and information
will be made available on the Council website.
6.8 Agendas
and Minutes of the Emergency Committee Meeting will also be circulated to
Councillors and made publicly available on the Council website in accordance
with the provisions of the Local Government Official Information and Meetings
Act 1987.
6.9 After
the event for which the Emergency Committee Meeting has been called, Council
will receive a report summarising the Committee’s activity at the
earliest possible Council meeting.
Revocation
6.10 Whilst
Council can, by resolution, revoke the delegation at any time, it is
anticipated that this delegation would remain in force until the emergency
situation relating to COVID-19 has clearly passed.
7. Changes
to Standing Orders
7.1 In
addition to the increased delegations, officers also recommend that changes are
made to Standing Orders to increase the flexibility of elected members’
attendance as the country starts to move out of Alert Level 4.
Reduction to quorum for committee and subcommittee
meetings
7.2 The
options of delegating authority to an Emergency Committee would enable Council
to continue to make decisions and function appropriately throughout the
COVID-19 pandemic.
7.3 Officers
also recommend that Council amends Standing Orders relating to the quorum
requirements for committees and subcommittees to mirror the requirements of the
Act. Doing so will allow greater flexibility for committee meetings to
take place with as few people physically together in one room as
possible.
7.4 The
expectation would be that a majority of committee members would participate in
committee meetings, with decisions made by a majority of members (albeit not
necessarily physically present in the room). The reduction in the quorum
would support committee decision making, particularly as Council transitions
from the emergency provisions back to business as usual.
7.5 Clause
23(b) of Schedule 7 to the Act states that:
(3) The
quorum at a meeting of-
(b) a
committee-
(i) is not
fewer than 2 members of the committee (as determined by the local authority or
committee that appoints the committee); and
(ii) in
the case of a committee other than a subcommittee, must include at least one
local member of the local authority.
7.6 Under
Standing Order 12.7, any members of committees not physically required for
quorum purposes will be able to join the committee meeting via audio or audio
visual link, and be able to vote on any matter raised at the meeting (Standing
Order 12.9).
7.7 Standing
Order 12.11 outlines the conditions for attending meetings by audio or
audio-visual link. It states that the Chairperson may give approval for
attendance by electronic link, and provides examples of situations where
approval can be given. It is suggested that example (c), “where
a member is unable to attend due to an emergency” would be
appropriate to cover situations where committee or subcommittee meetings were
held with only two members physically present (for quorum purposes), and the
remaining members attending via audio and or audio visual link.
7.8 Council
has appropriate technology resources to support multiple committee members to
attend committee members via audio or audio-visual means. Members of the
public attending public forum, or upcoming hearings of submissions will also be
offered the option of providing input via an audio or audio-visual link.
7.9 A copy of the relevant section of Standing Orders
showing the proposed amendment is included as attachment one (A2335387).
Allowing the Chairperson to attend
via audio or audio visual link
7.10 Section 12.10 of Standing Orders outlines the
Chairperson’s responsibilities in respect of facilitating attendance for
members by audio or audio visual link.
7.11 However, this section includes the requirement that
where the Chairperson attends via audio or audio visual link, the chairing
duties are to be undertaken by the deputy chair or a member that is physically
present. This requirement is not included in the Local Government Act
2002.
7.12 Officers recommend that this section is amended to
remove the requirement for the chairing duties to be undertaken by a member
that is physically present. This will allow a Chairperson the flexibility
to attend via audio or audio visual link should the need arise.
7.13 Officers propose that the preferred delegation and
proposed changes to Standing Orders take effect immediately. This
reflects the rapid nature of COVID-19 and will ensure that decisions can
continue to be made, irrespective of any additional formal restrictions that
may be implemented.
8. Options
8.1 Elected
Members have two options – Option 1 – the delegation to the
Emergency Committee and change to the standing orders or Option 2 – the
status quo. Officers recommend option 1.
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a) Option
1: Establish an Emergency Committee to undertake all decision making,
other than those decisions which are not permitted by law to be delegated,
during the COVID-19 pandemic and
b) Change
Standing Orders to reduce the quorum for committees and subcommittees
and permit the Chairperson to attend via audio or audio visual link
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Advantages
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· Decisions
would be made under urgency, as required
· Only
limited members need to be physically present
· Council
decision making would be able to continue
· All
decisions would continue to be made by Elected Members
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Risks and Disadvantages
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· There
is a risk that it may become impossible or impractical for a quorum of two to
be physically present during an Emergency Committee Meeting
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Option 2:
Status quo
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Advantages
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· None
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Risks and Disadvantages
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· Decision-making
may become impossible or impracticable
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9. Next
Steps
9.1 The
majority of Council and committee meetings have already been cancelled. New
meeting arrangements and information will be published on the Council website.
9.2 YouTube
recordings will continue to be made available on Council’s website, with
key messaging advising members of the public, in the interest of public health
to access these recordings rather than physically attend meetings.
9.3 Members
of the public that wish to speak at a Council or Committee Meeting or hearing
will be only be able to do so through a virtual meeting platform.
Author: Mary
Birch, Manager Governance and Support Services
Attachments
Attachment 1: A2363612
- Emergency Committee Terms of Reference ⇩
Attachment 2: A2335387
- Proposed Amendments to Standing Orders ⇩
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Important considerations for decision making
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1. Fit
with Purpose of Local Government
Adoption of the increased delegations and proposed
changes to Standing Orders assists Council in enabling democratic
decision-making as efficiently and effectively as possible.
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2. Consistency
with Community Outcomes and Council Policy
The proposed delegations and amendments to Standing
Orders are consistent with Council’s community outcome of “Our
Council provides leadership and fosters partnerships, a regional perspective,
and community engagement” as they aim to clarify how the decisions
and activities of Council will be managed during the COVID-19 pandemic.
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3. Risk
The proposed
delegations and changes to Standing Orders aim to improve clarity regarding
procedures and decision-making during the COVID-19 pandemic, thereby reducing
the risk of ambiguity or uncertainty.
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4. Financial
impact
There are no obvious financial implications as a
result of the proposed delegation or changes to Standing Orders.
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5. Degree
of significance and level of engagement
The matters considered in this report are of low
significance because they are largely administrative in nature, aimed at
ensuring core Council business can continue during the COVID-19 pandemic.
Therefore no public engagement has taken place regarding these matters.
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6. Climate
Impact
The matters considered in this report do not have
any impact on climate change.
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7. Inclusion
of Māori in the decision making process
No engagement with Māori has been undertaken in
preparing this report.
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8. Delegations
Council retains responsibility for Standing Orders
and the Delegations Register.
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Nelson City Council
