Agenda of Report to Tasman District Council Meeting

Tasman District Council Tasman District Council Agenda – 27 October 2022

8.2 Election of Deputy Mayor 2022 - 2025 and Adoption of Voting System

Decision Required

Report To:	Tasman District Council
Meeting Date:	27 October 2022
Report Author:	Elaine Stephenson, Democracy Services Advisor
Report Number:	RCN22-10-3

1 Summary

1.1 The business of the inaugural meeting is required to include the election of the Deputy Mayor unless the Mayor exercises his powers under S41A(3)(a) of the Local Government Act 2002 (LGA) and appoints the Deputy Mayor.

1.2 At the Council meeting, the Mayor, once sworn in, will indicate his preference for this process.

1.3 If the Mayor declines to exercise his powers provided under the LGA to appoint a Deputy Mayor, it will mean the Deputy Mayor is to be elected by Council. In this situation, the LGA requires the Council to determine by resolution which voting system is to be used for the election of the Deputy Mayor (and chairpersons and deputy chairperson of committees).

1.4 Two voting systems are available under the LGA:

· System A requires the successful candidate to get the majority of the votes of the members present and voting. It is like a transferable voting system and only works if there are three or more candidates in the contest for one position. Multiple voting rounds may be needed.

· System B is a majority vote system like ‘first past the post’ and requires the successful candidate to get more votes than any other candidate during a single voting round. This is the recommended option if the Mayor declines to exercise his powers to appoint a Deputy Mayor.

1.5 It should be noted that:

1.5.1 the voting system that is chosen will also apply to the appointment of chairpersons and deputy chairpersons of Council committees.

1.5.2 if the Mayor exercises his powers to appoint the Deputy Mayor, the words ‘Deputy Mayor’ will be removed from recommendation 2.

1.5.3 if the Mayor declines to exercise his powers to appoint the Deputy Mayor, the voting system agreed in recommendation 2 will remain in recommendation 3 and the other option will be removed.

2 Draft Resolution

That the Tasman District Council

1. receives the Election of Deputy Mayor 2022 - 2025 and Adoption of Voting System report RCN22-10-3; and

2. adopts Voting System A / Voting System B, outlined in Clause 25(4) of the Local Government Act 2002 for the election or appointment of the Deputy Mayor, Chairperson and Deputy Chairperson of a committee and a representative of a local authority; and

EITHER

3. notes that the Mayor has declined to exercise their powers under S41A(3)(a) of the Local Government Act, and by majority vote of Council under Voting System A / Voting System B, elects as Deputy Mayor of Tasman District Council.

3. notes that the Mayor has exercised their powers under S41A(3)(a) of the Local Government Act and has appointed as Deputy Mayor of Tasman District Council.

3 Purpose of the Report

3.1 To advise on the two systems of voting available for the appointment of the Deputy Mayor, chairpersons and deputy chairpersons and other appointed representatives of Council.

3.2 To appoint a Deputy Mayor, either by vote or Mayoral appointment.

4 Background and Discussion

Legislation

4.1 The LGA sets out the role of a Deputy Mayor and how they may be appointed and includes the following:

17 Election of deputy mayor or deputy chairperson

(1 ) A territorial authority must elect 1 of its members to be its deputy mayor in accordance with clause 25.

(2) A regional council must elect 1 of its members to be its deputy chairperson in accordance with clause 25.

(3) The deputy mayor or deputy chairperson must perform all the responsibilities and duties, and may exercise all the powers, of the mayor or chairperson,—

(a) with the consent of the mayor or chairperson, at any time during the temporary absence of the mayor or chairperson:

(b) without that consent, at any time while the mayor or chairperson is prevented by illness or other cause from performing the responsibilities and duties, or exercising the powers, of his or her office:

(c) while there is a vacancy in the office of the mayor or chairperson.

(4) In the absence of proof to the contrary, a deputy mayor or deputy chairperson acting as mayor or chairperson is presumed to have the authority to do so.

(5) A deputy mayor or deputy chairperson continues to hold his or her office as deputy mayor or deputy chairperson, so long as he or she continues to be a member of the territorial authority or regional council, until the election of his or her successor.

41A Role and powers of mayors

(1)  The role of a mayor is to provide leadership to —

(a) the other members of the territorial authority; and

(b) the people in the district of the territorial authority.

(2)  Without limiting subsection (1), it is the role of a mayor to lead the development of the territorial authority's plans (including the long-term plan and the annual plan), policies, and budgets for consideration by the members of the territorial authority.

(3)  For the purposes of subsections (1) and (2), a mayor has the following powers:

(a) to appoint the deputy mayor:

(b)  to establish committees of the territorial authority:

(c)  to appoint the chairperson of each committee established under paragraph (b), and, for that purpose, a mayor —

(i)  may make the appointment before the other members of the committee are determined; and

(ii)  may appoint himself or herself.

(4)  However, nothing in subsection (3) limits or prevents a territorial authority from —

(a)  removing, in accordance with clause 18 of Schedule 7, a deputy mayor appointed by the mayor under subsection (3)(a); or

(b)  discharging or reconstituting, in accordance with clause 30 of Schedule 7, a committee established by the mayor under subsection (3)(b); or

(c)  appointing, in accordance with clause 30 of Schedule 7, 1 or more committees in addition to any established by the mayor under subsection (3)(b); or

(d)  discharging, in accordance with clause 31 of Schedule 7, a chairperson appointed by the mayor under subsection (3)(c).

(5)  A mayor is a member of each committee of a territorial authority.

(6) To avoid doubt, a mayor must not delegate any of his or her powers under subsection (3).

(7)  To avoid doubt, —

(a)  clause 17(1) of Schedule 7 does not apply to the election of a deputy mayor of a territorial authority unless the mayor of the territorial authority declines to exercise the power in subsection (3)(a):

(b)  clauses 25 and 26(3) of Schedule 7 do not apply to the appointment of the chairperson of a committee of a territorial authority established under subsection (3)(b) unless the mayor of the territorial authority declines to exercise the power in subsection (3)(c) in respect of that committee.

(b)  clauses 25 and 26(3) of Schedule 7 do not apply to the appointment of the chairperson of a committee of a territorial authority established under subsection (3)(b) unless the mayor of the territorial authority declines to exercise the power in subsection (3)(c) in respect of that committee.

Voting Systems

4.2 If the Mayor chooses not to appoint the Deputy Mayor, then that decision must go to a vote at today’s meeting. Clause 25, Schedule 7 of the LGA stipulates that local authorities must determine by resolution which voting system they will use for the election of the deputy mayor and for various other appointments.

4.3 The two systems are as follows (Clause 25(3) and (4), Schedule 7 of the LGA):

System A

a) Requires that a person is elected or appointed if he or she receives the votes of a majority of the members of the local authority or committee present and voting; and

b) Has the following characteristics:

i. There is a first round of voting for all candidates; and

ii. If no candidate is successful in that round there is a second round of voting from which the candidate with the fewest votes in the first round is excluded; and

iii. If no candidate is successful in the second round, there is a third, and if necessary subsequent round of voting from which, each time, the candidate with the fewest votes in the previous round is excluded; and

iv. In any round of voting, if two or more candidates tie for the lowest number of votes, the person excluded from the next round is resolved by lot.

System B

a) Requires that a person is elected or appointed if he or she receives more votes than any other candidate; and

b) Has the following characteristics:

i. There is only one round of voting; and

ii. If two or more candidates tie for the most votes, the tie is resolved by lot.

4.4 For clarity, ‘by lot’ means by drawing lots, e.g., name drawn from a hat.

5 Options

Appointment of Deputy Mayor

5.1 The Mayor has the option of either exercising his powers under Section 41A of the LGA for the appointment of a Deputy Mayor or may ask the Council to elect a Deputy Mayor with the option of using System A or B. The Mayor may choose to make a recommendation to Council on his preference for Deputy Mayor.

5.2 If the Mayor intends to appoint a member as Deputy Mayor, that will need to occur after the Mayor makes and attests his declaration. In that case, the noting clause in the draft resolution would be selected, rather than the appointing clause. However, the Council still needs to decide on a voting system for electing committee chairpersons (at the first ordinary Council meeting) and deputy chairpersons (at the first meeting of the committees and subcommittees). It is therefore appropriate to make a decision on the voting option in accordance with this report.

System of Voting

5.3 The options are outlined in the following table.

Option	Advantage	Disadvantage
1.	System A – this is a form of transferable voting	Does provide for the candidate to have the majority of votes at the final vote	More complex
2.	System B – this system is simple and has been used in the past	Person with the greatest support at first vote is elected	Person elected may not have the support of a majority of councillors

Option

Advantage

Disadvantage

System A – this is a form of transferable voting

Does provide for the candidate to have the majority of votes at the final vote

More complex

System B – this system is simple and has been used in the past

Person with the greatest support at first vote is elected

Person elected may not have the support of a majority of councillors

5.4 Option two (System B) is recommended.

6 Strategy and Risks

6.1 The Council is required to have a Deputy Mayor and to adopt a voting system in accordance with the LGA.

7 Policy / Legal Requirements / Plan

.7.1 A Deputy Mayor, whether appointed by the Mayor, or elected by the Council, can only be removed in accordance with clause 18, Schedule 7, of the LGA. Only Council has the authority to remove the Deputy Mayor and Clause 18 covers the process for removal.

7.2 The adoption of a voting system fulfils the requirements of Clause 25, Schedule 7 of the LGA.

8 Consideration of Financial or Budgetary Implications

8.1 There are no budgetary implications. Council is required to have a Deputy Mayor and elected members remuneration is the subject of a future report to Council for allocation of the governance pool, following the Remuneration Authority’s 2022/2023 determination.

9 Significance and Engagement

9.1 Adoption of a System of Voting is a procedural matter of low significance to the public.

9.2 Council is required to have a Deputy Mayor under the LGA, this is not a decision that the public can vote on. The Deputy Mayor can only be appointed by the Mayor or elected by Council.

Issue		Level of Significance	Explanation of Assessment
1.	Is there a high level of public interest, or is decision likely to be controversial?	Low	The system of voting is a procedural matter to fulfil the requirements of the LGA. It simply provides clarity of the method that will be used. The Deputy Mayor can only be appointed by the Mayor or elected by Council
2.	Are there impacts on the social, economic, environmental or cultural aspects of well-being of the community in the present or future?	No
3.	Is there a significant impact arising from duration of the effects from the decision?	No
4.	Does this activity contribute or detract from one of the goals in the Tasman Climate Action Plan 2019?	No
5.	Does the decision relate to a strategic asset? (refer Significance and Engagement Policy for list of strategic assets)	No
6.	Does the decision create a substantial change in the level of service provided by Council?	No
7.	Does the proposal, activity or decision substantially affect debt, rates or Council finances in any one year or more of the LTP?	No
8.	Does the decision involve the sale of a substantial proportion or controlling interest in a CCO or CCTO?	No
9.	Does the proposal or decision involve entry into a private sector partnership or contract to carry out the deliver on any Council group of activities?	No
10.	Does the proposal or decision involve Council exiting from or entering into a group of activities?	No
11.	Does the proposal require inclusion of Māori in the decision making process (consistent with s81 of the LGA)?	No

10 Conclusion

10.1 The Council is required to resolve a system of voting to enable the election of the Deputy Mayor and other appointments, and then to have the Deputy Mayor, either appointed by the Mayor or elected by the Council using the preferred voting system.

10.2 The preferred voting system will be used for the appointment of committee and subcommittee chairpersons at the first ordinary Council meeting. This system will also be used for the appointment of deputy chairpersons at the first meetings of the committees and subcommittees.

11 Next Steps / Timeline

11.1 The appointment or election of the Deputy Mayor will be released via a Council media statement, following the decision.

12 Attachments

Nil

Tasman District Council Tasman District Council Agenda – 27 October 2022

8.3 Explanation of the Laws Affecting Elected Members and their Conduct

Information Only - No Decision Required

Report To:	Tasman District Council
Meeting Date:	27 October 2022
Report Author:	Leith Townshend, Acting Legal and Democracy Services Manager; Leonie Rae, Acting Chief Executive; Elaine Stephenson, Democracy Services Advisor
Report Number:	RCN22-10-4

1 Summary

1.1 The business that must be conducted at the first meeting of a local authority following the triennial local government election is set out in Clause 21, Schedule 7 of the Local Government Act 2002 (LGA).

1.2 The LGA requires the Chief Executive, or their nominee, to give a general explanation of the Local Government Official Information and Meetings Act 1987 (LGOIMA) and the other laws affecting elected members. This information is provided to support elected members to meet their statutory obligations whilst serving on Tasman District Council.

1.3 The other specific laws affecting members that the Chief Executive is required to explain to elected members are:

(a) the appropriate provisions of the Local Authorities (Members’ Interests) Act 1968;

(b) sections 99, 105, and 105A of the Crimes Act 1961;

(d) Financial Markets Conduct Act 2013.

2 Draft Resolution

That the Tasman District Council receives the Explanation of the Laws Affecting Elected Members and their Conduct report, RCN22-10-4.

3 Purpose of the Report

3.1 To inform the incoming members of the Tasman District Council about the relevant provisions of the LGOIMA and other laws affecting members, to meet the requirements of Clause 21, Schedule 7 of the LGA.

4 Background and Discussion

Introduction

4.1 The LGA requires the following laws to be explained at the first meeting of a local authority after each triennial general election:

· LGOIMA;

· The Local Authorities (Members’ Interests) Act 1968;

· Sections 99, 105 and 105A of the Crimes Act 1965;

· The Secret Commissions Act 1910; and

· The Financial Markets Conduct Act 2013.

4.2 This report provides an overview of these laws and is intended to inform elected members of the type of legislation that may directly affect their actions. The conduct of meetings and elected members’ relationships with each other and with Council employees is also covered by Tasman District Council Standing Orders and the Code of Conduct.

4.3 The conduct of the Council’s business is subject to the law. Despite the empowering nature of the LGA, at least compared to the Acts that predate it, councils are still statutory bodies. Most of Council’s powers, duties and responsibilities are set out in the law. Where Council has discretion in its decision making there are prescribed processes to follow, including to consult and consider the views and preferences of communities before making key decisions.

4.4 This report meets the statutory requirements under the LGA. However, elected members will also be provided with more details over the coming weeks on these and other statutory requirements and their implications through our Elected Member Induction Programme.

Local Government Official Information & Meetings Act 1987

4.5 LGOIMA deals with the disclosure or otherwise of information by a local authority; and conduct of meetings including giving notice, public attendance, reasons for excluding the public and availability of agendas and reports.

4.6 Council’s Standing Orders contain the provisions of LGOIMA which affect meetings. The disclosure of information arising from formal information requests is not something that elected members generally get involved in. Requests for information are responded to by staff within the parameters laid down under the Act and any delegations given by Council. Where elected members are affected by a request for information, they are consulted about the decision whether to release it. There may be occasions on which elected members will be requested to use LGOIMA to obtain official information, for instance, during the elections period. This is to ensure the protection of both elected members and Council staff and ensure compliance with the Local Electoral Act 2001.

4.7 The fundamental principle underpinning LGOIMA is that all information held by a local authority should be publicly accessible unless there is good reason for withholding it. While the existence or otherwise of a good reason to withhold information will ultimately depend on the facts, the two most relevant reasons are those relating to the conduct of negotiations – primarily commercial negotiations – and the privacy of natural persons.

4.8 The section of LGOIMA relating to meetings applies the same principles of openness and availability. Agendas are to be available to members and to the public at least two working days prior to meetings. Council aims to have agendas made available to elected members five working days prior to meetings and will try to meet this commitment wherever possible. This is to provide elected members the opportunity to read agendas prior to receiving any enquiries from the public on matters contained in them.

4.9 A meeting must be open to the public unless there are good reasons for excluding the public. These reasons are to be stated by resolution at the time the decision is taken to exclude the public. The reasons for excluding the public are generally the same as those applying to the withholding of official information except that you cannot exclude the public to have a ‘free and frank’ discussion.

4.10 Decisions on the release of information or exclusion of the public taken by local authorities under LGOIMA can be referred to the Office of the Ombudsman for review. Should either party not accept the Ombudsman’s decision, the matter may finally be escalated to the High Court.

Local Authorities (Members’ Interests) Act 1968

4.11 Further information on the Act and conflicts of interest will be provided in elected members’ induction material and as part of the elected member induction programme. The key presumption is that any formal business dealings that members have with the Council may fall within the scope of the Act. These can be discussed with the Chief Executive to ensure that no breach of the Act occurs.

4.12 Council is required to appoint a Registrar and maintain a Register of Interests for pecuniary (financial) interests with non-pecuniary interests also recorded as a useful risk management approach. Audit NZ usually requests access to the Register as part of its audit processes. A summary of the information provided on interests is also accessible on Council’s website.

4.13 Elected members can be disqualified from office if they are ‘concerned or interested’ in contracts with the Council if the total payments made, or to be made, exceed $25,000 in any financial year. A pecuniary interest still exists below that threshold.

4.14 As a rule, elected members may take part in a debate and may vote on any issue in which their interest is no greater than that of a member of the general public. If their personal interest is greater than that of the general public, they should ‘declare an interest’ at the relevant item, this will be recorded in the meeting minutes, and they should take no further part in the debate nor vote on the matter.

4.15 Section 6(1) of the Act prohibits members of a local authority from discussing or voting on a matter if they have a financial (or “pecuniary”) interest in it. Section 6(4) enables the Auditor-General to give a declaration that this prohibition will not apply if its application impedes the business of the local authority or is against the interests of electors.

4.16 Managing conflicts of interest is an elected member’s individual responsibility and while staff will assist, an elected member cannot rely upon staff to advise them of a possible breach. The induction information provided to elected members contains further information on non-pecuniary conflicts and bias.

Crimes Act 1961

4.17 Sections 99, 105 and 105A of the Crimes Act cover corruption and bribery of and by officials and the corrupt use of official information by officials, which includes members of local authorities. Section 105 indicates that the misuse of any official’s power in these respects can result in the imprisonment of the official for up to seven years. Section 105A indicates that similar penalties are possible for the corrupt use of official information.

Secret Commissions Act 1910

4.18 The Secret Commissions Act defines an officer or member of a local authority as an agent of that local authority. It then specifies that the corrupt giving of gifts or other consideration to an agent for favours, or acts being done or not being done, is an offence. Reasonably enough, the acceptance of gifts or other consideration in such circumstances is also an offence. An offence is committed even if the reward is obtained for another person. An agent who makes a contract on behalf of the principal (the Council) and fails to disclose a financial interest the agent has in the making of the contract, commits an offence.

4.19 The giving of false or misleading receipts, invoices, or accounts to an agent with intent to deceive the principal is an offence. So too is the delivery or presentation of such documents to the principal by the agent. The receiving of secret rewards for procuring contracts is an offence.

4.20 Council’s Gifts Received Policy requires elected members to notify the Chief Executive if any gifts are accepted and, where a gift the to the value of $250 or more is received by virtue of an elected member’s position, elected members are required to immediately disclose this to the Chief Executive for inclusion in the publicly available register of interests.

The Financial Markets Conduct Act 2013

4.21 Financial Markets Conduct Act 2013 (previously the Securities Act 1978) essentially places members in the same position as company directors whenever Council offers stock to the public. Elected members may be personally liable if investment documents, such as a prospectus, contain untrue statements and may be liable for criminal prosecution if the requirements of the Act are not met.

4.22 Should elected members require further information on any of these issues, staff will be happy to provide assistance.

5 Attachments

Nil

Mayor	Mayor T King
Councillors	Councillor S Bryant	Councillor C Butler
	Councillor G Daikee	Councillor B Dowler
	Councillor J Ellis	Councillor M Greening
	Councillor C Hill	Councillor M Kininmonth
	Councillor C Mackenzie	Councillor K Maling
	Councillor B Maru	Councillor D Shallcrass
	Councillor T Walker