Notice of the Ordinary meeting of
Nelson City Council
Te Kaunihera o Whakatū
Date: Thursday 11 August 2022 Time: 9.00a.m. Location: Council
Chamber |
Agenda
Rārangi take
Chairperson Her Worship the Mayor Rachel Reese
Deputy Mayor Cr Judene Edgar
Members Cr Yvonne Bowater
Cr Trudie Brand
Cr Mel Courtney
Cr Kate Fulton
Cr Matt Lawrey
Cr Rohan O'Neill-Stevens
Cr Brian McGurk
Cr Gaile Noonan
Cr Pete Rainey
Cr Rachel Sanson
Cr Tim Skinner
Quorum 7 Pat Dougherty
Chief Executive
Nelson City Council Disclaimer
Please note that the contents of these Council and Committee agendas have yet to be considered by Council and officer recommendations may be altered or changed by the Council in the process of making the formal Council decision. For enquiries call (03) 5460436.
Council Values
Following are the values agreed during the 2019 – 2022 term:
A. Whakautetanga: respect
B. Kōrero Pono: integrity
C. Māiatanga: courage
D. Whakamanatanga: effectiveness
E. Whakamōwaitanga: humility
F. Kaitiakitanga: stewardship
G. Manaakitanga: generosity of spirit
Nelson City Council
11 August 2022
1. Apologies
An apology has been received from Councillor Y Bowater
2. Confirmation of Order of Business
3.1 Updates to the Interests Register
3.2 Identify any conflicts of interest in the agenda
5. Code of Conduct Independent Investigation Report 6 - 81
Document number R27096
Recommendation
1. Receives the report Code of Conduct Independent Investigation Report (R27096) and its attachments (A1745031, A2765098, A2769002, 200344844-217 and 200344844-215); and a. Agrees with the conclusions of the independent investigation that Councillor Sanson has breached sections 3, 5.1, 5.2 and 6.2 of the Nelson City Council Code of Conduct. 2. Requires the following in accordance with section 13.1 of the Nelson City Council Code of Conduct: a. That the Council, with assistance from the Group Manager Community Services, writes a Letter of Censure to Councillor Sanson, the letter to include: i. A description of the conduct for which Councillor Sanson is being censured; and ii. A formal censure by the Council of that conduct; and iii. An offer of support to Councillor Sanson to engage with a mentor, for the purpose of helping her develop strategies for achieving her aims without further damaging, and potentially improving, the relationships with elected members and staff and ratepayer confidence in Council. 3. Notes that this will be the full and final resolution of this Code of Conduct matter.
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Confidential Business
Recommendation
That the Council
1. Excludes the public from the following parts of the proceedings of this meeting.
2. The general subject of each matter to be considered while the public is excluded, the reason for passing this resolution in relation to each matter and the specific grounds under section 48(1) of the Local Government Official Information and Meetings Act 1987 for the passing of this resolution are as follows:
Item |
General subject of each matter to be considered |
Reason for passing this resolution in relation to each matter |
Particular interests protected (where applicable) |
3 |
Supplementary Report
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Section 48(1)(a) The public conduct of this matter would be likely to result in disclosure of information for which good reason exists under section 7 |
The withholding of the information is necessary: · Section 7(2)(i) To enable the local authority to carry on, without prejudice or disadvantage, negotiations (including commercial and industrial negotiations) |
Item 5: Code of Conduct Independent Investigation Report
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Council 11 August 2022 |
REPORT R27096
Code of Conduct Independent Investigation Report
1. Purpose of Report
1.1 To consider the independent investigation into the Code of Conduct complaint against Councillor Sanson by the Chief Executive.
2. Summary
2.1 An independent investigation into a Nelson City Council Code of Conduct Complaint made by the Chief Executive against Councillor Rachel Sanson in October 2021 has been completed, with a recommendation that Council writes Councillor Sanson a Letter of Censure.
2.2 The independent investigator found that Councillor Sanson breached the Code of Conduct on eight out of 10 incidents listed in the Chief Executive’s complaint.
2.3 This report recommends that Council agrees with the independent investigator recommendation and writes Councillor Sanson a Letter of Censure with the recommended inclusions, and thereby concludes this Code of Conduct matter.
1. Receives the report Code of Conduct Independent Investigation Report (R27096) and its attachments (A1745031, A2765098, A2769002, 200344844-217 and 200344844-215); and a. Agrees with the conclusions of the independent investigation that Councillor Sanson has breached sections 3, 5.1, 5.2 and 6.2 of the Nelson City Council Code of Conduct. 2. Requires the following in accordance with section 13.1 of the Nelson City Council Code of Conduct: a. That the Council, with assistance from the Group Manager Community Services, writes a Letter of Censure to Councillor Sanson, the letter to include: i. A description of the conduct for which Councillor Sanson is being censured; and ii. A formal censure by the Council of that conduct; and iii. An offer of support to Councillor Sanson to engage with a mentor, for the purpose of helping her develop strategies for achieving her aims without further damaging, and potentially improving, the relationships with elected members and staff and ratepayer confidence in Council. 3. Notes that this will be the full and final resolution of this Code of Conduct matter.
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4. Background
The Code of Conduct
4.1 The Nelson City Council Code of Conduct (the Code) (Attachment 1) sets out the standards of behaviour expected from elected members in the exercise of their duties. It was adopted by Council on 31 October 2019. Its purpose is to:
· Enhance the effectiveness of the local authority and the provision of good local government of the community, city, district or region;
· Promote effective decision-making and community engagement;
· Enhance the credibility and accountability of the local authority to its communities; and
· Develop a culture of mutual trust, respect and tolerance between the members of the local authority and between the members and management.
4.2 This purpose is given effect through the values, roles, responsibilities, and specific behaviours agreed in the Code.
4.3 The Code has been adopted in accordance with clause 15(1) of Schedule 7 of the Local Government Act 2002 (LGA 2002) and applies to all members. The Code is designed to deal with the behaviour of members, including towards the Chief Executive and staff.
4.4 An important element of good governance involves the relationship between a Council, its Chief Executive and its staff. The Code requires members to respect arrangements put in place to facilitate this relationship, including:
· Making themselves aware of the obligations that the Council and the Chief Executive have as employers and observe these requirements at all times, such as the duty to be a good employer;
· Treat all employees with courtesy and respect and not publicly criticise any employee; and
· Observe any protocols put in place by the Chief Executive concerning contact between members and employees.
4.5 Elected members should be aware that failure to observe this portion of the Code may compromise the Council’s obligations to be a good employer and consequently expose the Council to civil litigation or affect the risk assessment of Council’s management and governance control processes undertaken as part of the Council’s annual audit.
The Complaint
4.6 On 8 October 2021, the Chief Executive submitted a complaint to the Mayor about Councillor Rachel Sanson’s conduct towards staff (Attachment 2). The complaint documented 10 incidents involving Councillor Sanson’s conduct in public meetings and posts on a Facebook page on which she identified herself as a Nelson City Councillor.
4.7 Due to the breadth of the complaint, the Mayor decided to refer the complaint to an independent investigator via the Chief Executive, instead of undertaking an initial assessment herself.
4.8 The Mayor determined that the Chief Executive had an actual conflict as the complainant and could not play a procedural role in respect to the complaint. The Mayor also determined that no officer named in the complaint could act on the Chief Executive’s behalf. On this basis, and because there is no current or previous Chair/ General Manager direct relationship, the Group Manager Community Services (The Group Manager) was delegated to act in the matter as point of staff contact (a procedural role).
4.9 The Group Manager appointed Bruce Robertson as independent investigator of the complaint from a panel of investigators in February 2022, following the establishment of a panel of investigators by Council decision on 17 November 2021.
4.10 Bruce Robertson undertook a thorough investigation of the complaint and subsequent written and verbal information provided by the Chief Executive and Councillor Sanson. Only the Chief Executive, and Councillor Sanson and her legal advisor were offered the opportunity to contribute to the content of the investigation.
4.11 Bruce Robertson wrote to the Chief Executive and Councillor Sanson on 29 April 2022, advising that he “substantially upheld the Chief Executive’s complaint”.
4.12 Bruce Robertson submitted his investigation report to the Group Manager on 17 May 2022. This report was amended after feedback from the Chief Executive and Councillor Sanson, and a request from the Group Manager Community Services. The Group Manager requested that Bruce Robertson reviewed his recommendation, which was for mediation, to make sure it was consistent with the investigation Terms of Reference (Attachment 3), which includes the Code. Section 13.1 of the Code provides for mediation as an option only if the complaint involves a conflict between two members. Consequently, Bruce Robertson’s final recommendation differs from his recommendation in the previous version.
4.13 Bruce Robertson submitted his amended report to the Group Manager on 13 June 2022 (Attachment 5). This report was also accompanied by a cover letter (Attachment 4), which sets out the Group Manager’s request to review and responses received.
4.14 Bruce Robertson found that Councillor Sanson’s conduct in eight of the 10 incidents raised in the Chief Executive’s complaint breached the Code. He found that the breaches were sufficiently serious to be referred to a Council body for assessing and ruling on complaints.
4.15 Bruce Robertson’s recommendation (paragraph 21 of his Report) is that the most appropriate penalty he can recommend under his Terms of Reference would be a Letter of Censure from Council to Councillor Sanson. He is of the view that a more significant penalty is not warranted, nor would it achieve a better result for Council.
4.16 Bruce Robertson further recommends that the Letter of Censure should:
4.16.1 specify the conduct for which the Councillor is being censured; and
4.16.2 outline future steps should the behaviour continue; and
4.16.3 offer to support Councillor Sanson to consider engaging with a mentor to help her develop strategies for achieving her aims without further damaging, and potentially improving, the relationships with members and staff, and ratepayer confidence in Council.
5. Discussion
Process to complete the Code complaint investigation and consideration
5.1 Sections 12 and 13 and Appendix C of the Code set out the process requirements for the investigation and consideration of complaints.
5.2 The principles in Part 12.1 of the Code provide important context to the process - these include applying concepts of natural justice and fairness, having privacy respected, taking an approach that is proportionate to the seriousness of the breach and keeping the roles of complaint, investigation, advice and decision-making separate as appropriate to the nature and complexity of the alleged breach.
Consideration of the Independent Investigation Report
5.3 Under the Code, the Chief Executive (in this case the Group Manager) is required to prepare a report for Council, or an adjudicative body with delegated authority, which meets to consider the findings of the independent investigation and determine whether or not a penalty, or some other form of action, will be imposed. An adjudicating body has not been established in this instance, and the matter is to be considered by Council.
5.4 Appendix C Step 5 of the Code states that members with an interest in the proceedings, including the complainant and the respondent, should not take part in these proceedings in a decision-making capacity. The participation of elected members in the Council decision-making on this matter should reflect this requirement. Any members with an interest in the matter that prevents them from approaching with an open mind should not participate in consideration of the matter. Further advice on this will be available at the meeting.
6. Options
6.1 Council has the option of agreeing to the penalty recommended in this report or considering and agreeing other outcomes for the Code of Conduct process.
Option 1: (Recommended Option) Complete the code of conduct process as proposed by the independent investigator |
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Advantages |
· Consistent with findings and recommendations of the independent investigation |
Risks and Disadvantages |
· None obvious |
Option 2: Decide to apply no penalties or to apply penalties other than those recommended |
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Advantages |
· Council may consider other options available within the Code of Conduct are more appropriate |
Risks and Disadvantages |
· Not consistent with the findings and recommendations of the independent investigation · Conclusion to the process may be delayed |
7. Conclusion
7.1 The independent investigation into the complaint lodged against Councillor Sanson has now been completed and Council must consider the findings and whether the application of penalties or actions is believed appropriate.
8. Next Steps
8.1 The matter will be considered concluded on completion of any penalties or actions imposed on Councillor Sanson.
Author: Andrew White, Group Manager Community Services
Attachments
Attachment 1: A1745031 - Nelson City Council Code of Conduct - 31 October 2019 ⇩
Attachment 2: A2765098 - Code of Conduct Complaint Letter - 8 October 2021 ⇩
Attachment 3: A2769002 - Terms of Reference - Independent Investigation of Code of Conduct Complaint against Councillor Sanson ⇩
Attachment 4: 200344844-217 - Cover Letter to Report of Investigation of Code of Conduct Complaint against Councillor Sanson - 8 June 2022 ⇩
Attachment 5: 200344844-215 - Report of Investigation into Code of Conduct Complaint against Councillor Sanson - 13 June 2022 ⇩
Important considerations for decision making |
1. Fit with Purpose of Local Government The Local Government Act 2002 requires that a Council adopt a Code of Conduct for its elected members. The Code forms a charter of agreed expectations on members and provides a process for when these expectations are not met. The Code supports democratic decision-making through the maintenance of relationship and behavioural expectations amongst members. |
2. Consistency with Community Outcomes and Council Policy Addressing Code of Conduct complaints aligns with the following community outcome: “Our Council provides leadership and fosters partnerships, a regional perspective and community engagement”. |
3. Risk The risk of successful legal challenge in relation to the Code of Conduct complaint is considered to be low given the process outlined in the policy has been followed. |
4. Financial impact There is no financial impact associated with the consideration of the independent investigation report. |
5. Degree of significance and level of engagement The Code of Conduct process as a whole does not trigger any express obligation on Council to undertake consultation. While the matter is considered to be of moderate significance (given the high importance of these processes to the effective conduct of Council), the outcome of this matter is internal for Council to determine as the decision maker. It is not considered a matter for which community views would appropriately be sought, particularly when considering the privacy interests involved. |
6. Climate Impact This decision will have no impact on the ability of the Council to proactively respond to the impacts of climate change now or in the future. |
7. Inclusion of Māori in the decision making process No engagement with Māori has been undertaken in preparing this report. |
8. Delegations This is a matter for Council. |