Code of Conduct

Approved at a meeting of the Southland District Council held on 28 May 2008 

INTRODUCTION

Requirement For A Code

Clause 15 of Schedule 7 to the Local Government Act 2002 requires a local authority to adopt a Code of Conduct (the ‘Code’) and all members of that local authority are required to comply with the Code. 

This Code provides guidance on the standards of behaviour that are expected from the Mayor and elected members of the Southland District Council (“the Council”).  The Code applies to elected members in their dealings with:
• each other
• the Chief Executive
• staff employed by the Chief Executive on behalf of the Council
• the media
• the general public.

Objective Of The Code

The objectives of this Code are to enhance:
• the effectiveness of the Council as an autonomous local authority with statutory responsibility for good local government within Southland District
• the creditability and accountability of the Council within its community
• mutual trust, respect and tolerance among members as a group and between members and those people with whom members may deal in the course of their duties as members.

Principles Underpinning The Code

The Code is based on the following general principles of good government:
• Public interest.  Members should serve the interests of the district as a whole (not solely the ward that elected them) and should never improperly confer an advantage or disadvantage on any one person.
• Honesty and integrity.  Members should not place themselves in situations where their honesty and integrity may be questioned. 
• Objectivity.  Members should make decisions on merit including making appointments, awarding contracts, or recommending individuals for rewards or benefits.
• Accountability.  Members are accountable to the public for their actions and the manner in which they carry out their responsibilities, and should acknowledge fully and honestly any scrutiny appropriate to their particular office. 
• Openness.  Members should be as open as possible about their actions and those of the Council and should be prepared to justify their actions.
• Personal judgement.  Members can and will take account of the views of others, but should reach their own conclusions on the issues before them, and act in accordance with those conclusions.
• Respect for others.  Members should promote equality by not discriminating unlawfully against any person and by treating people with respect, regardless of their race, age, religion, gender, sexual orientation or disability. 
• Duty to uphold the law.  Members should uphold the law, and on all occasions, act in accordance with the trust the public places in them. 
• Stewardship.  Members must ensure that the Council uses resources prudently and for lawful purposes, and that the Council maintains sufficient resources to fulfil the purpose of local government and the role of the Council. 
• Leadership.  Members should always endeavour to act in the best interests of the community. 

Application Of The Code

This Code applies to:
• all elected members of the Council, namely:  the mayor, and Councillors
• all persons appointed to a committee of the Council or subcommittee.

This Code does applies to all of the Community Boards established within the Southland District who have not adopted a Code of Conduct.  However Community Boards are encouraged to specifically adopt this code at their inaugural meeting.

ROLES AND RESPONSIBILITIES

The roles and responsibilities of elected members, the Mayor and Deputy Mayor and the role of the Chief Executive of the Council are described as follows:

Elected Members

Elected members, acting as the Council, are responsible for:
• the development and adoption of Council policy
• monitoring the performance of the Council against its stated objectives and policies
• prudent stewardship of Council resources
• employment of the Chief Executive
• representing the interests of the residents and ratepayers of the Southland District Council. 

Elected members, as individuals, will:
• comply with the requirements of this Code
• ensure that any actions of the member on behalf of the Council are either within the bounds of approved Council policy or made pursuant to an express delegated authority of the Council.
• in accordance with the Declaration by the member made under Clause 14 of Schedule 7 to the Local Government Act 2002 faithfully and impartially, and according to the best of the member’s skill and judgement, execute and perform, in the best interests of the District, the powers, authorities, and duties vested in, or imposed upon the members as a member of the Southland District Council by virtue of the Local Government Act 2002, the Local Government Official Information and Meetings Act 1987
• comply with those other enactments and rules of law applicable to the conduct of members as referred to in the Appendix to this Code.
• exercise careful judgement when making decisions about the governance of the Council.
• ensure that when acting in a judicial role that the conduct of the member is not open to any accusation of predetermination or bias.

Mayor

The Mayor as one of the elected members shares the same responsibilities as other members of Council.  The Mayor is the ceremonial head of the Council and is deemed a Justice of the Peace while the Mayor holds office.  The Mayor is also:
• the presiding member at Council meetings and ensures the orderly conduct of meetings in accordance with the adopted standing orders
• an advocate on behalf of the community with the knowledge and support of the Council
• responsible for providing leadership to the Council. 

Deputy Mayor

The Deputy Mayor exercises the same role as any other elected member, and if the Mayor is absent or incapacitated, the Deputy Mayor must perform all of the responsibilities and duties, and may exercise the powers, of the Mayor. 

Committee Chairpersons

A Committee Chairperson exercises the same role as any other elected member and in addition presides over all meetings of the relevant Committee and ensures that the Committee acts within the powers delegated to it by the Council and recorded in the Council’s Delegations Manual.  A Committee Chairperson may be called on to act as an official spokesperson on a particular issue.

Chief Executive

The Chief Executive is responsible for implementing and managing the Council’s policies and objectives within the budgetary constraints established by the Council.  In terms of Section 42 of the Local Government Act 2003, the responsibilities of the Chief Executive are:
• implementing the decisions of the Council
• providing advice to the Council and Community Boards
• ensuring that all responsibilities, duties and powers delegated to the Chief Executive or to any person employed by the Chief Executive, or imposed or conferred by any Act, regulation or bylaw are properly performed or exercised
• managing the activities of the Council effectively and efficiently
• maintaining systems to enable effective planning and accurate reporting of the financial and service performance of the Council
• providing leadership for the staff of the Council
• employing staff on behalf of the Council (including negotiation of the terms of employment for the staff of the Council). 

RELATIONSHIPS AND BEHAVIOURS

Relationships With Other Members

Successful teamwork is a critical element in the success of any democratically elected organisation. 

Where elected members work as a team often the best solutions will be achieved after taking account of the views and opinions of individual members. 

No team will be effective unless mutual respect exists between members.  With this in mind elected members will conduct their dealings with each other in ways that:
• maintain public confidence in the office to which they have been elected
• are open and honest
• focus on issues rather than personalities
• avoid aggressive, offensive or abusive conduct
• encourage members to participate and share a point of view
• have understanding and regard for the views and opinions of other members. 

Relationships With Staff

The effective performance of the Council also requires a high level of cooperation and mutual respect between elected members and staff.  To ensure that the necessary level of cooperation and trust is maintained, elected members will:
• recognise that the Chief Executive is the employer (on behalf of the Council) of all staff, and as such only the Chief Executive may hire, dismiss or instruct or censure, an employee
• make themselves aware of the obligations that the Council and the Chief Executive have as employers and observe those requirements at all times
• treat all employees with courtesy and respect avoiding conduct which is aggressive, offensive, abusive or may constitute harassment
• observe any guidelines that the Chief Executive puts in place regarding contact with staff
• not do anything which compromises, or could be seen as compromising, the impartiality of any staff
• avoid publicly criticising any staff in any way, but especially in ways that reflect on the competence and integrity of a staff member
• raise concerns about any staff only with the Chief Executive, and concerns about the Chief Executive only with the Mayor or the Performance Review Committee.

Elected members should be aware that any failure to observe this section of the Code may compromise the Council’s obligations to act as a good employer and may expose the Council to civil litigation and audit sanctions.  

Relationships With The Community

Productive relationships between elected members and the community at large need to be encouraged and supported. 

Elected members should act in a manner that encourages and values community involvement in local democracy.  When interacting with members of the public, elected members should show a willingness to listen and ensure any concerns or issues tendered by individual citizens receive careful deliberation.  

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 Council, or as an elected member 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 Chairperson
• the Mayor may refer any matter to the relevant Committee Chairperson, a member, or to the Chief Executive for their comment
• no other member may comment on behalf of Council unless authorised to do so by resolution of the Council or of a Committee of the Council.

Elected members are entitled 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 a Council policy, the member must not state or imply that his or her statements represent a majority view
• where an elected member is not sure of the background to an issue which has given rise to a media query the member may decide to refer any such query to the Chief Executive
• media comments must observe the other requirements of the Code of Conduct, eg not to disclose confidential information, or compromise the impartiality or integrity of staff.

Confidential Information

In the course of their duties members will occasionally receive information that may need to be treated as confidential.  This will generally be information that is either commercially sensitive or is personal to a particular individual or organisation.  Such confidential information might include trade secrets, processes, financial information about a business or personal information about members of the community. 

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. 

Any failure to observe these provisions may affect the performance of the Council by prejudicing information flows and undermining public confidence in the Council.  It may also expose the Council to a breach of the Privacy Act 1993 and/or potential civil litigation.

Information From External Sources

Occasionally an elected member may be offered information, including documents, in his or her capacity as an elected member which relates to the ability of the Council to give effect to the provisions of the Local Government Act 2002 or any other enactments which confer responsibilities on the Council.  Any such information received by an elected member shall be deemed to be ‘official information’ and shall be referred to the Chief Executive in the first instance. 

If such information is offered subject to an obligation of confidence the elected member must:
• advise the provider of the information that the information will become ‘official information’ in the possession of the Council
• advise the provider of the information that such information will be subject to the disclosure requirements of the Local Government Official Information and Meetings Act 1987 and may be made available to the public without the consent of the provider unless it qualifies as being exempt from disclosure.

Conflicts Of Interest

Elected members must be careful that they maintain a clear separation between their personal interests and their duties as an elected member.  This is to ensure that people who fill positions of authority carry on their duties free from bias and in good faith with impartiality (whether real or perceived).  Members therefore need to familiarise themselves with the provisions of the Local Authorities (Members’ Interests) Act 1968 which concerns financial interests, and with other legal requirements concerning non-financial conflicts of interest. 

The provisions of the Local Authorities (Members’ Interests) Act 1968 have important consequences for elected members namely:
• an elected member is disqualified from office, or from election to office, if that member is concerned or interested in contracts under which payments made by or on behalf of the Council exceed $25,000 in any financial year.
• additionally, elected members are prohibited from participating in any Council discussion or vote on any matter in which they have a pecuniary interest, other than an interest in common with the general public.  The pecuniary interest may be direct or indirect and involve either financial gain or financial loss.

The same rules also apply where the member’s spouse contracts with the Council or has a pecuniary interest.  Members must declare their interests at a meeting of the Council and its Committees where matters in which they have a pecuniary interest arise. 

If the 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, then the member should seek guidance from the Chief Executive immediately. 

Members may also contact the Audit Office (phone (04) 917 1500 or email reception@oag.govt.nz) for guidance as to whether that member has a pecuniary interest.  If there is a pecuniary interest, the member may seek an exemption to allow that member to participate or vote on a particular issue in which they may have a pecuniary interest.  The latter must be done before the discussion or vote.  The Chief Executive must also seek approval from the Audit Office for contractual payments to members, their spouses or their companies that exceed the $25,000 annual limit. 

Where a conflict of interest is declared or established an elected member must take no part in the discussion of the matter nor the decision.  Where an elected member has a pecuniary interest at any meeting then the elected member:
• must declare that interest (without saying what that interest is or might be)
• should ensure that the minutes of the meeting record the facts of the declaration and the abstention from discussion and voting. 

Failure to observe the requirements of the Local Authorities (Members’ Interests) Act 1968 could potentially invalidate the particular decision made, or the action taken by the Council.  Failure to observe these requirements could also leave the elected member open to prosecution under the Local Authorities (Members’ Interests) Act 1968.  In the event of a conviction elected members can be ousted from office. 

Register Of Interests

The Council will keep and maintain a ‘Register of Interests’ to be regularly updated as and when required to help minimise those situations which can give rise to a ‘conflict of interest’ situation. 

All elected members are required to complete a general declaration of interests declaring the nature and extent of any interests.  The declaration made by an elected member should include details of:
• any employment, trade or profession carried on by the member or the member’s spouse for profit or gain
• any company, trust, partnership etc for which the member or their spouse is a director, partner, trustee or beneficiary
• the address of any land in which the member has a beneficial interest and which is in the Southland District Council
• the address of any land where the landlord is the Southland District Council and:
 - the member or their spouse is a tenant, or
 - the land is tenanted by a firm in which the member or spouse is a partner, or a company of which the member or spouse is a director, or a trust of which the member or spouse is a trustee or beneficiary
• any other matters which the public might reasonably regard as likely to influence the member’s actions during the course of their duties as a member.  

Standing Orders

Elected members shall act in accordance with the standing orders adopted by the Council under the Local Government Act 2002.  

Ethics

The Southland District Council encourages all elected members to have and exercise high standards of ethical conduct and in this regard elected members will:
• claim only for legitimate expenses as laid down by any determination of the Remuneration Authority then in force, and any policy of the Council developed in accordance with that determination
• not influence, or attempt to influence, any employee of the Council to take actions that may benefit the member, or the member’s family or business interest
• not use the Council resources for personal business (including campaigning)
• not solicit, demand, or request any gift, reward or benefit by virtue of their position
• notify the Chief Executive if any gifts are accepted by an elected member in an official capacity for recording in a Council Gift Register and always treat with caution any offer, gift, favour or hospitality made to a member personally.

Disqualification From Office

Elected members are automatically disqualified from office if they are convicted of a criminal offence punishable by two or more years imprisonment, or if they cease to be or lose their status as an elector or of certain breaches of the Local Authorities (Members’ Interests) Act 1968. 

Elected members can also be disqualified from office:
• if they are absent without leave of the Council from four consecutive ordinary meetings of the Council
• if they become a mentally disordered person within the meaning of the Mental Health (Compulsory Assessment and Treatment) Act 1992.

Declaration of Bankruptcy

Under the Local Government Act 2002 a Council must consider, when adopting a Code of Conduct whether they will require members to declare whether they are an “undischarged bankrupt”.  When a person is declared bankrupt it can raise questions about the soundness of that person’s financial management skills, and their judgement in general.  Therefore whenever an elected member is declared bankrupt, they must notify the Chief Executive of this as soon as practicable after being declared bankrupt. 

COMPLIANCE AND REVIEW

Compliance

There must be a Code of Conduct for the Council which is effective at all times and all elected members are bound to comply with the provisions of this Code of Conduct adopted by the Council. 

Compliance will be monitored by the Conduct Review Committee.  This function is delegated to the Council Executive Committee.

All alleged breaches of the Code will be reported to the above Committee.  Any allegation of a breach of a Code of Conduct must be in writing, make a specific allegation of a breach of the Code of Conduct, and provide corroborating evidence. 

The Committee will investigate the alleged breach and prepare a report for the consideration of the Council.  Before beginning any investigation, the Committee will notify the elected member(s) in writing of the complaint and afford the member/s a full and proper opportunity to respond to the complaint.  In any case where a member of the Committee is either the complainant or the subject of the complaint, he or she will be suspended from membership of the Committee. 

The Council will consider the report in open meeting, except where the alleged breach relates to the misuse of confidential information or could impinge on the privacy of a member of staff or of the general public. 

Responses To Breaches Of The Code

The exact nature of the action the Council may take will depend on the nature of the breach and whether there are statutory provisions dealing with the breach. 

Where there are statutory provisions:
• breaches relating to members’ interests render members liable for prosecution by the Auditor-General under the Local Authority (Member’s Interests) Act 1968
• breaches which result in the Council suffering financial loss or damage may be reported on by the Auditor-General under the Local Government Act 2002, which may result in the member having to make good the loss or damage
• breaches relating to the commission of a criminal offence may leave the elected member liable for criminal prosecution.

In these cases the Council may refer an issue to the relevant body, any member of the public may make a complaint, or the body itself may take action of its own initiative. 

Where there are no statutory provisions, the Council may take the following action:
• censure of the member, by letter and/or in open meeting
• removal of the elected member from a Council committee/s and/or other representative type bodies
• removal of the elected member from a position such as Deputy Mayor or Chair of a Committee.

A decision to apply one or more of these actions requires a Council resolution to that effect. 

For the avoidance of doubt a breach of the Code of Conduct does not constitute an offence under the Local Government Act 2002. 

Review

Once adopted, a Code of Conduct continues in force until amended by the Council.  The Code can be amended at any time but cannot be revoked unless the Council replaces it with another Code.  Once adopted, amendments to the Code of Conduct require a resolution supported by 75% or more of the members of the Council present. 

Council will formally review the Code as soon as practicable after the beginning of each triennium.  The results of that review will be presented to Council for its consideration and vote. 

APPENDIX TO THE CODE

This Appendix identifies some specific legislative provisions relevant to the conduct of elected members and provides a general explanation of some relevant enactments as appropriate. 

Local Authority (Members’ Interests) Act 1968

This Act regulates situations where a members’ personal interests impinge, or could be seen as impinging on their duties as an elected member. 

The Act provides that an elected member is disqualified from office if that member is concerned or interested in contracts under which payments made by or on behalf of the local authority exceed $25,000 in any financial year. 

Additionally, elected members are prohibited from participating in any Council discussion or voting on any matter in which they have a pecuniary interest, other than an interest in common with the general public.  The same rules also apply where the member’s spouse contracts with the Council or has a pecuniary interest. 

Members may also contact the Audit Office for guidance as to whether that member has a pecuniary interest, and if so, may seek an exemption to allow that member to participate or vote on a particular issue in which they may have a pecuniary interest.  The latter must be done before the discussion or vote.  The Chief Executive must also seek approval from the Audit Office for contractual payments to members, their spouses or their companies that exceed the $25,000 annual limit.

Failure to observe these requirements could also leave the elected member open to prosecution under the Local Authority (Members’ Interests) Act 1968.  In the event of a conviction elected members can be ousted from office. 

Local Government Official Information And Meetings Act 1987

The Local Government Official Information and Meetings Act 1987 sets out a list of meeting procedures and requirements.  Of particular importance for the roles and conduct of elected members is the fact that the Chair has the responsibility to maintain order at meetings, but all elected members should accept a personal responsibility to maintain acceptable standards of address and debate.  No elected member should:
• create a disturbance or a distraction while another Councillor is speaking
• be disrespectful when they refer to each other or other people
• use offensive language about the Council, other Councillors, any employee of the Council or any member of the public.  

Secret Commissions Act 1910

Under this Act 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, or to present false receipts to Council. 

If convicted of any offence under this Act a person can be imprisoned for up to two years, or fines up to $1,000 or both.  A conviction therefore would trigger the ouster provisions of the Local Government Act 2002 and result in the removal of the member from office. 

Crimes Act 1961

Under this Act it is unlawful for an 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 Council
• use information gained in the course of their duties for their, or another person’s monetary gain or advantage.

These offences are punishable by a term of imprisonment of seven years or more.  Elected members convicted of these offences will also be automatically ousted from office.

Securities Act 1978

The Securities Act 1978 essentially places elected 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.