Hamilton City Councillors and Mayor (“Elected Members”) have an important role representing the people of Hamilton. They agree that the highest standards of behaviour are important for their credibility as city leaders.
This Code of Behaviour (“the Code”) sets out the standards of behaviour expected from all Elected Members and represents a commitment to maintaining high standards of behaviour.
1. Local Government Act
The Council is required by clause 15(1) of Schedule 7 of the Local Government Act 2002 (“LGA”) to adopt a code of conduct.
Elected Members are required by clause 15(4) of Schedule 7 of the LGA to comply with the code of conduct adopted by Council.
This Code of Behaviour is that code of conduct.
The Code applies to Elected Members at all times, including engagement with each other, the Chief Executive, Council staff, and with the general public (including the media).
By signing the Code, Elected Members agree to comply with it.
3. Standards of Behaviour
3.1 Integrity and Honesty
Elected Members will be honest and act with integrity. This includes:
- being fair and consistent in dealings with others and following through on commitments;
- not making statements or doing anything that will or is likely to mislead or deceive;
- being open to constructive feedback;
- complying with relevant legislation and Council policies and procedures;
- behaving in accordance with the trust that the public places in them.
Elected Members will be responsible for their decisions and actions and act in an open and transparent manner. They will ensure Council resources are used prudently and solely in the public interests.
Elected Members may not always get their own way. Elected Members will treat everyone with respect and respect other individual’s points of view and opinions, beliefs, and rights. This includes:
- recognising and encouraging ideas and contributions from others
- being courteous and approachable;
- not engaging in aggressive, offensive, abusive or bullying behaviour;
- not making personal attacks;
- be open to other points of view and listening to what others have to say;
- not interrupting when others are expressing their point of view;
- ensuring that the Council complies with its obligations under section 39 of the LGA and clause 36 of Schedule 7 of the LGA to be a good employer (see Schedule 1 of the Code);
- not publicly criticising Council staff.
3.4 Good Faith
Elected Members will faithfully and impartially perform their powers, authorities and duties in the best interest of the community of Hamilton City.
A breach of this Code could indicate a lack of good faith and could be relevant to assessment of personally liability (see explanation of sections 43 to 47 of the LGA set out in Schedule 1 of the Code).
3.5 Proper Use of Position
Elected Members must not abuse their position, including they must not:
- solicit, demand or request any gift or benefit because of their position;
- claim expenses which are not legitimate;
- fail to declare gifts given to them because of their position;
- use information and/or Council resources for any purpose which is not directly related to Council business, including use of Council resources to promote personal or business interests;
- use directly or indirectly any Council resources and/or branding for the purpose of seeking re-election.
Note: refer to the OAG Guidelines – "Good Practice for Managing Public Communications by Local Authorities".
3.6 Relationships with Staff
Effective performance of the Council requires a high level of co-operation and mutual respect between Elected Members and staff. Elected members will:
- recognise the CEO is the employer (on behalf of the Council) of Council employees and only the CEO may hire, dismiss, instruct or discipline an employee;
- treat employees with courtesy and respect;
- not direct or influence, or attempt to direct or influence, Council staff (other than through the CEO);
- observe the guidelines the CEO puts in place regarding contact with employees;
- raise concerns about employees only with the CEO, and concerns about the CEO only with the Mayor or Review Committee.
3.7 Conflicts of interest
Elected Members must avoid conflicts of interests. To achieve this, Elected Members must:
- familiarise themselves with the good practice guide published by the Auditor-General entitled Guidance for members of local authorities about the Local Authorities (Members’ Interests) Act 1968;
- disclose conflicts of interests as they arise (both pecuniary and non-pecuniary conflicts of interest);
- notify the CEO if any gifts are accepted, and where a gift to the value of $300 or more is offered to a member, immediately disclose this for inclusion in the register of interests maintained by the Council;
- complete a declaration of interest form every six months for inclusion in the register of interests maintained by Council. To comply with this obligation, Elected Members must use the declaration of interests form provided by Council’s Democracy Manager.
If an Elected Member is in any doubt as to whether or not a particular course of action (including a decision to take no action) raises a conflict of interest, he/she must seek guidance from the CEO or request the CEO to seek legal advice. Elected Members may also contact the office of the Auditor-General for guidance.
Elected Members will receive information that may be classified as confidential. This includes information received at meetings which are closed to the public or information that is identified as confidential.
Elected Members may also be provided with, or have the ability to access, confidential information held by Council.
Confidential information includes information that staff has judged there is good reason to withhold under sections 6 and 7 of the Local Government Official Information and Meetings Act 1987 (‘LGOIMA’). This will often be information that is either commercially sensitive or is personal to a particular individual. The CEO is responsible for the release of information under LGOIMA.
Elected Members must not use or disclose confidential information for any purpose other than the purpose for which the information was supplied to the elected member.
Failure to do so may expose the Council to prosecution under the Privacy Act 1993 and/or civil litigation.
A breach of confidentiality could indicate a lack of good faith and could be relevant to the assessment of personally liability (see explanation of sections 43 to 47 of the LGA set out in Schedule 1 of the Code).
Therefore, any breach of this clause will be treated seriously and will immediately be referred for independent resolution in accordance with clause 4 of this Code.
3.9 Contact with the Media
The media plays an important part in local democracy. In order to fulfil this role the media needs access to accurate, timely information about the affairs of the Council. From time to time, individual members will be approached to comment on a particular issue either on behalf of the Council, or as an elected member in their own right. This part of the code deals with the rights and duties of Elected Members when speaking to the media on behalf of the Council or in their own right.
The following rules apply for media contact on behalf of the Council:
- the Mayor is the first point of contact for the official view on any issue. Where the Mayor is absent, any matters will be referred to the Deputy Mayor or relevant Committee or Subcommittee chairperson;
- The relevant Committee chairperson or the CEO may also make comment;
- no other member may comment officially on behalf of the Council without having first obtained the approval of the Mayor.
Elected members are free to express a personal view in the media, at any time, provided the following rules are observed:
- media comments must not state or imply that they represent the views of the Council;
- where an elected member is making a statement that is contrary to a Council decision or Council policy, the member must not state or imply that his or her statements represent a majority view;
- media comments must observe the other requirements of the code of conduct, e.g. not disclose confidential information, or compromise the impartiality or integrity of staff.
3.10 Work Practices
Elected Members are committed to achieving the highest standards of conduct and behaviour at all times and will carry out their role to the best of their skill and judgment. To achieve this, Elected Members should:
- take responsibility for ensuring that they understand their roles and responsibilities and the Code;
- attend all meetings, workshops and any appropriate training opportunities provided by Council;
- come to meetings prepared, including having read relevant material;
- seek personal and skill development opportunities;
- dress appropriately (i.e. wear professional dress at all meetings that are open to the public).
Elected Members must support this Code through leadership and must act in a way that maintains public confidence in the good governance of the Council.
4. Resolving Issues
There is a three step process for resolving Issues:
Step One: Informal Discussion – this applies to minor issues.
Step Two: Internal Resolution – this applies to all formal complaints except when there is a complaint about a breach of confidentiality under clause 3.8 of the Code. Any formal complaint about a breach of confidentiality will be resolved under Step Three.
Step Three: Independent Resolution Panel.
This process applies if Step Two does not resolve the complaint or the complaint relates to a breach of confidentiality under clause 3.8 of this Code.
Formal complaints must be made in writing using the Form in Schedule 2 attached to the Code.
Step One: Informal Discussion
Elected Members are expected to resolve minor issues between themselves through informal discussion and may ask the Mayor or CEO to assist with that discussion. If the minor issue cannot be resolved through informal discussion, a formal complaint may be made using the Form in Schedule 2.
Minor issues raised by the public will be dealt with by the Mayor. If the minor issue involves the Mayor then the Deputy Mayor or CEO will act in place of the Mayor.
Step Two: Internal Resolution
This applies to all formal complaints except those relating to breach of confidentiality.
Formal complaints are investigated and resolved by the Complaints Committee, which is made up of the Mayor, the Deputy Mayor and one elected member who is elected by colleagues for a three year term following the triennial election.
The role of the Complaints Committee is to act as a facilitator to facilitate resolution of the complaint.
If the complaint involves the Mayor or the formal complaint is from a staff member employed by the CEO on behalf of the Council then the CEO will act in place of the Complaints Committee and the process in Step Two will apply with appropriate changes.
If the complaint does not involve the Mayor, but involves any other member(s) of the Complaints Committee, then those members will vacate their position on the Complaint Committee while it deals with the complaint and the Mayor will appoint replacement elected member(s) to the Complaints Committee for the purpose of dealing with the complaint.
The Complaints Committee will convene within 5 days of receiving a formal complaint and will consider the complaint and identify and assess the options that are available to resolve the complaint.
The Complaints Committee has flexibility in deciding which option for resolution of the complaint will apply and may include the following:
- Informal discussion with the Elected Member/s involved
- Written confirmation of the expected standards of behaviour
Elected Members must comply with all procedural directions of the Complaints Committee or CEO.
If the complaint is not resolved to the satisfaction of the Complaints Committee or CEO, they may recommend to the full Council that a sanction be imposed. The sanctions that may be recommended may include but are not limited to:
- Removal of elected member from Council committees or subcommittees
- Removal of elected member from a position as deputy mayor, chair or deputy chair of a committee or subcommittee
The Council (excluding the elected member(s) involved in the complaint) will consider the recommendation from the Complaints Committee or CEO and make a decision on what (if any) sanctions will be imposed.
Step Three: Independent Resolution Panel
The Complaints Committee (or the CEO if the CEO has been appointed to act in place of the Complaints Committee) may establish an independent resolution panel (“Independent Resolution Panel”) for the purpose of resolving the complaint if:
- The Complaints Committee (or the CEO) decide that the complaint would be better dealt with by an Independent Resolution Panel using the process set out in this Step Three; or
- The complaint relates to a breach of confidentiality under clause 3.8 of the Code.
The Independent Resolution Panel must consist of at least two independent persons appointed by Lawyers Engaged in Alternative Dispute Resolution (LEADR NZ).
As soon as practicable following appointment, the Independent Resolution Panel must consider and investigate the complaint and assess the options that are available to resolve the complaint. The Independent Resolution Panel will determine and facilitate its own process and must make its recommendations to resolve the complaint to the Council.
The Council (excluding the elected member(s) involved in the complaint) will consider the recommendation from the Independent Resolution Panel and make a decision on what (if any) actions will be taken to resolve the complaint.
The Elected Member, after consultation with the CEO, may elect to go before the Independent Resolution Panel.
5. Review or Changes to the Code
The Council may by resolution of 75 percent or more, change the Code at any time.
(Brief summary of legislation that has bearing on conduct of Elected Members)
Local Government Act 2002 (‘LGA’)
Elected Members are required by clause 15 of Schedule 7 of the LGA to comply with the code of conduct adopted by Council. Further, Elected Members have a duty to act in good faith and to perform their role to the best of their skill and judgment.
Under sections 43 to 47 of the LGA, Elected Members of a local authority are indemnified (except for any loss found by the Auditor-General) by the local authority for:
costs and damages for any civil liability arising from any action brought by a third party if the member was acting in good faith and in pursuance (or intended pursuance) of the responsibilities or powers of the local authority (or committee, community board, or other subordinate decision-making body of that local authority); and
costs arising from any successfully defended criminal action relating to acts or omissions in his or her capacity as a member.
Therefore, the question as to whether Elected Members have acted in good faith and for a proper purpose is relevant to the assessment of personal liability.
A local authority must act in accordance with the principles set out in section 14 of the LGA. These principles, which are relevant to the conduct of Elected Members, are as follows:
(a) a local authority should—
(i) conduct its business in an open, transparent, and democratically accountable manner; and
(ii) give effect to its identified priorities and desired outcomes in an efficient and effective manner:
(b) a local authority should make itself aware of, and should have regard to, the views of all of its communities; and
(c) when making a decision, a local authority should take account of—
(i) the diversity of the community, and the community's interests, within its district or region; and
(ii) the interests of future as well as current communities; and
(iii) the likely impact of any decision on the interests referred to in subparagraphs (i) and (ii):
(d) a local authority should provide opportunities for Maori to contribute to its decision-making processes:
(e) a local authority should collaborate and co-operate with other local authorities and bodies as it considers appropriate to promote or achieve its priorities and desired outcomes, and make efficient use of resources; and
(f) a local authority should undertake any commercial transactions in accordance with sound business practices; and
(fa) a local authority should periodically—
(i) assess the expected returns to the authority from investing in, or undertaking, a commercial activity; and
(ii) satisfy itself that the expected returns are likely to outweigh the risks inherent in the investment or activity; and
(g) a local authority should ensure prudent stewardship and the efficient and effective use of its resources in the interests of its district or region; and
(h) in taking a sustainable development approach, a local authority should take into account—
(i) the social, economic, and cultural interests of people and communities; and
(ii) the need to maintain and enhance the quality of the environment; and
(iii) the reasonably foreseeable needs of future generations.
Section 39 of the LGA also states that a local authority must act in accordance with the following principles in relation to its governance:
(a) a local authority should ensure that the role of democratic governance of the community, and the expected conduct of Elected Members, is clear and understood by Elected Members and the community; and
(b) a local authority should ensure that the governance structures and processes are effective, open, and transparent; and
(c) a local authority should ensure that, so far as is practicable, responsibility and processes for decision-making in relation to regulatory responsibilities is separated from responsibility and processes for decision-making for non-regulatory responsibilities; and
(d) a local authority should be a good employer; and
(e) a local authority should ensure that the relationship between Elected Members and management of the local authority is effective and understood.
Section 42 of the LGA provides that the CEO is the principal administrative officer of the local authority.
Therefore, it is the CEO, not the Elected Members, who is responsible for implementing decisions of the Elected Members as Council and the employment and management of Council staff.
Schedule 7 of the LGA sets out the statutory provisions for, amongst other things:
- The vacation of office by Elected Members (e.g. disqualification of members if convicted of an offence and ouster provisions);
- Remuneration of Elected Members;
- Conduct of Elected Members;
- Election and removal of chairperson, deputy chairperson and deputy mayor;
- Calling of meetings;
- Conduct of meetings;
- Procedures at meetings;
- Subordinate decision-making structures;
- Delegations; and
- Employment of staff (including an obligation to be a good employer).Local Authorities (Members’ Interests) Act 1968 (‘LAMIA’)
Local Authorities (Members’ Interests) Act 1968 (‘LAMIA’)
Elected Members are prohibited from participating in any local authority discussions or voting on any matter in which they have a direct or indirect pecuniary interest (other than an interest in common with the general public). The same rules also apply where the elected member’s spouse contracts with the local authority or has a pecuniary interest.
LAMIA also provides that no person is to be elected as a member of a local authority or appointed to a committee if he or she has contracts with the local authority exceeding $25,000.00 per annum.
Failure to observe the requirements of LAMIA could leave the elected member open to prosecution. Elected Members convicted of an offence will be removed from office.
Local Government Official Information and Meetings Act 1987 (‘LGOIMA’)
The purpose of LGOIMA is to provide for the availability to the public of official information held by local authorities, and to promote the open and public transaction of business in meetings of local authorities.
The general principle is that information held by local authorities is to be made available unless there is good reason for withholding it. The grounds for withholding information are set out in sections 6 and 7 of LGOIMA.
LGOIMA sets out a number of statutory procedures and requirements for local authority meetings. Meetings are to be publicly notified, and open to the public unless there is good reason for withholding information and excluding the public. The chair has the ability to require a member of the public to leave a public meeting, if the chair believes, on reasonable grounds, that such action is required to maintain order at the meeting.
Secret Commissions Act 1910 (‘SCA’)
It is unlawful for an elected member (or officer) to advise anyone to enter into a contract with a third person and receive a gift or reward from that third person as a result. It is also unlawful for an elected member (or officer) to present false receipts to the local authority.
If convicted of any offence under the SCA, a person can be imprisoned for up to 2 years, or fined up to $1,000, or both. Elected Members convicted of an offence will be removed from office.
Crimes Act 1961 (‘CA’)
It is a crime for any elected member to accept, or solicit for themselves (or anyone else), any gift or reward for acting or not acting in relation to the business of the local authority. It is also a crime for any elected member to use information acquired in his or her official capacity for monetary gain or advantage.
These offences are punishable by a term of imprisonment of 7 years or more. Elected Members convicted of these offences will be removed from office.
Securities Act 1978 (‘SA’)
The SA essentially places Elected Members in the same position as company directors whenever the local authority 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 SA are not met.
Notice of complaint under clause 4 of Hamilton City Council’s Code of Behaviour for Elected Members (‘Code of Behaviour’)
To: The Mayor (or CEO if the complaint involves the Mayor)
Hamilton City Council
I (full name), wish to make a formal complaint under clause 4 of the Code of Behaviour.
The details of the complaint are as follows:
(provide full details of the complaint)
The steps that have been taken to resolve the complaint are as follows:
(provide full details of the steps that have already been taken to resolve the complaint)
I attach the following documents to this notice:
(attach any documents to this notice that are relevant to the complaint (the evidence) and list those documents here).
Contact details: (provide your full contact details here)