RESOLUTIONS PASSED BY AUDIT & REVIEW COMMITTEE 15 June 2020 Cr Reynold Macpherson Address to Council 9 July 2020, shared 6 July 2020
PUBLIC EXCLUSION Section 14 of the LGA requires a local authority to conduct its business in an open, transparent, and democratically accountable manner. Nothing in Council’s Code of Conduct complaint processes enables or requires public exclusion (PX), suggesting that it has been arbitrarily imposed to limit the public accountability of members Hence, to prevent the suppression of my views about the resolutions passed by the A&R Committee, by being deemed confidential, this Address was placed in the public domain on 6 July.
SOUTHSTAR FACEBOOK FACTS Social media commentary at Southstar Shuttles Facebook went viral in late October 2019. By 12 November over 37,000 views with 116 shares and 648 comments that indicated A crisis in confidence in the joint tendering criteria and process Southstar Shuttles’ loss of intellectual capital, goodwill and mana Rejection of the Deputy Mayor’s explanations, and Many were now actively considering alternatives to Rotorua’s mountain biking attractions.
NOTICE OF MOTION 27 Nov 2019 That Council consult with CNI with a view to 1. Reassuring mountain-bike communities over the treatment of Southstar Shuttles 2. Avoiding any loss of confidence by being party to closed two-party tender criteria and processes in the future 3. Avoiding any damage to Rotorua’s reputation as an investment destination 4. Reasserting Council’s primary role in governance - as representing the interests of all ratepayers - when helping manage implementation with partners, such as CNI, and 5. Providing appropriate returns to taxpayers and ratepayers for their investment in Forest Hub 2 infrastructure, at the very least to having CNI fund public asset maintenance and replacement in future.
MY FACEBOOK POST 15 Dec 2019 Post reiterated concerns in the public domain based on the 648 comments that pre-dated the PX session. Post at RDRR FB achieved 4,505 reaches and 1,861 strongly supportive engagements that were very critical of Council, CNI and the Deputy Mayor Takeway: It’s not OK for Council to favour partners and treat others badly I was overseas on holiday 17 Dec 2019 - 16 Jan 2020
BACKGROUND COMPLAINTS Deputy Mayor’s complaint 16 Dec 2019 was given comprehensive response 22 Jan 2020 with many edits to my post. Fully compliant with the Harmful Digital Communications Act 2015 (HDCA). Copied to the Mayor but apparently not shared with the Investigator. Mr ‘Tak’ Mutu’s complaint coat-tailed on Deputy Mayor’s complaint. Collusion. Vague allegations. Invited 22 Jan to clarify under HDCA. Copied to the Mayor and Deputy Mayor but apparently not shared with the Investigator. Mr John Pakes’ complaint claimed that my FB post alleged corruption. It did not allege corruption. Deemed vexatious. Mr Alimota Te Pou’s complaint 17 Jan offered several but vague allegations. Invited 23 Jan to clarify under HDCA. Copied to the Mayor but apparently not shared with the Investigator.
MY FACEBOOK POST 13 Jan 2020 Mr Phill Thomass’ complaint 20 Jan about my post on 13 Jan in which I pinged him for lying about the ability of the Rotoiti WWTP to “strip out all Nitrogen and Phosphorous” when he know it could not. My post was revised 24 Jan with a comprehensive response under the HDCA. Copied to the Mayor but apparently not shared with the Investigator. Takeway: It’s not OK for elected representatives to tell lies
MAYOR’S FORMAL COMPLAINT Mayor’s Notice of Complaint 22 Jan stressed three potential breaches; I had made misleading statements likely to deceive the public, made public comments that could potentially damage the business and reputations of external parties, and made public a confidential matter of Council (the 8-3 vote in PX, immediately corrected) The Notice stressed my unwillingness to meet informally as required in Stage 1. I did not refuse to meet with the Mayor. I was unable to immediately accept her invitations until all background complaints had been addressed under the HDCA (which has tight deadlines). My responses to background complaints were completed two days after the Mayor decided to exert her authority, by triggering Stage 2 on 22 Jan, thus precluding an informal meeting. The new basis for the Formal Complaint on 28 Jan was the claim that I “reject the role of the Mayor [which] is to provide leadership”. Not so.
RECUSALS REQUESTED FROM THE AUDIT AND RISK PANEL The Mayor had a conflict of interest as the Complainant and being on the Panel. Attended, spoke and apparently withdrew. Symbolic recusal. The Chairs of SP&F and O&M had pecuniary COIs because their positions and remuneration are in the gift of the Mayor. Did not recuse. The Chair of Te Tatau o Te Arawa had a perceived COI and potentially lacked impartiality - three of the background complaints are on behalf of CNI which has Te Arawa affiliations. Recused by not attending. Interpretation: My joint NOM and FB post were treated as political challenges to the co-governance and commercial partnerships between Council and Te Arawa entities. Partnerships championed by the Mayor, her Deputy, and the Chairs of SP&F, O&M and Te Tatau o Te Arawa. So, criticism had to be suppressed for political purposes. But, for the A&R Panel to be seen to be neutral, critical to its legitimacy and legality, the Mayor, and the three Chairs had to recuse themselves. 2/4 did, sort of.
NATURAL JUSTICE OBJECTIONS My Audit & Risk Hearing violated my rights to a fair hearing by Violating the confidentiality of letter to the Chair of A&R on processes Denying my right to use Powerpoint, same today Refusing to record the Zoom hearing - denied right to information that could be needed for an appeal – same today Prevented from facing the Complainant and Background Complainants, hearing their charges and evidence, and being able to challenge their testimony before the Panel Forced me to refuse to have my evidence, conclusions and opinions filtered and evaluated by a third party who was demonstrably not independent, potentially prejudicing the Panel against me, and Exposing me to potentially biased legal opinion based solely on the original complaints, selected documents and possibly reconstructed views of six complainants.
INVESTIGATOR’S TERMS OF REFERENCE FLAWED A&R Committee and the TOR authorised the appointment of an “independent facilitator” which invalidated the role of the so-called ‘independent investigator’. The TOR failed to prevent the appointment of an investigator who was demonstrably not independent. Was the process highjacked? The Investigator was alone empowered to interview the ‘background complainants’ which potentially enabled them to reconstruct their memories and brief the Investigator as their advocate The TOR empowered the Investigator alone to analyse interview and documentary data and then recommend regarding guilt and sanctions. This prevented the validation of the data, any test of reliability, and violated the independence of the prosecution decision required in law. Interpretation: Instead of providing natural justice, the TOR were part of a coordinated political process intended to outsource justice and damage my reputation while protecting those on the A&R Panel.
‘INDEPENDENT’ INVESTIGATOR V.S FACILITATOR Investigator defended Mayor, the CE and some Councillors when I petitioned the District Court for an inquiry into 2016 local election. Despite a non-disclosure agreement negotiated by the Investigator, Council’s PR campaign then vilified me for their administrative and legal costs. Describing him as “independent” is farcical. He has long been the Council’s advocate. In this role he was a Council stooge. An investigator examining a problem to discover the truth is consistent with the Code of Conduct complaints process which establishes culpability, adjudges guilt and may impose sanctions. But, A&R decided 29 Jan to appoint an ‘independent facilitator’ not an ‘independent investigator’. A facilitator helps a group to achieve their objectives with others on common ground, remains politically neutral. Since appointment of an ‘independent investigator’ was not authorised, his report is therefore invalid. If an ‘independent investigator’ appointment was intended, then the process would need to start de novo.
BIAS AND PREDETERMINATION Natural justice in law requires the absence of bias. Bias and predetermination were indicated by the Formal Complainant’s actions: Advancing complaints from five political affiliates without due diligence Selected material supportive to her case
INVESTIGATOR’S REPORT Fourteen factual and judgmental errors and omissions: The Notice of Complaint from the Mayor did not include “a full set of documentation” as claimed. It included irrelevant and prejudicial material, such as my FB critique of the CE’s reappointment process and criteria. The Report failed to realize the significance of the formal decision to appoint an “independent facilitator” and that the commissioning process may have been highjacked
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