RESOLUTIONS PASSED BY AUDIT & REVIEW COMMITTEE 15 June 2020 Cr - - PowerPoint PPT Presentation

Cr Reynold Macpherson Address to Council 9 July 2020, shared 6 July 2020

RESOLUTIONS PASSED BY AUDIT & REVIEW COMMITTEE 15 June 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

• f 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

• f 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.

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

• riginal complaints, selected documents and possibly reconstructed

views of six complainants.

NATURAL JUSTICE OBJECTIONS

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

• f 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

• bjectives 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

• missions:

 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

INVESTIGATOR’S CONCLUSIONS RE 15 Dec 2019 WHAKA POST

 Alleged breaches of confidentiality were not sustained and warrant an

apology from Deputy Mayor with one exception - disclosure of 8-3 vote

 Alleged provision of misleading and inaccurate information was part

upheld although this ignored evidence in the FB post and my corrections

 Allegations of Council corruption strongly upheld but rebutted due

unwarranted generalisation, a diffusion of focus, failing to recognize that the post was prefaced by a NOM that was treated badly with PX, and failing to recognize that the substantive issues were about how to respond positively to widespread and negative public perceptions, instead of using crude and reactionary authoritarianism to ‘shoot the messengers’.

 Allegations of defamatory or offensive statements concerning members of

the public were supported but rebutted due to group think, a tiny sample, and again, ‘shooting the messenger.’

 Allegations of a conflict of interest and racism were not upheld and warrant

an apology by the Deputy Mayor.

INVESTIGATOR’S CONCLUSIONS RE 13 Jan 2020 ROTOITI POST

 Allegations of misleading and inaccurate information were not

sustained and warrant an apology from Mr Thomass

 Allegations of deception were upheld but rebutted due to naïve or wilful

reductionism, bonding with the informant, no recognition of the HDCA, misunderstanding ‘proper channels’, a lack of logical continuity between findings and conclusions, idealised behavioural expectations, and some irrelevancy.

 Allegations of offensive statements were supported but rebutted due to

no ‘offensive statements’ being cited, speculation about political tactics were given factual status, unwarranted extrapolation used to propose insulating elected representatives from critical feedback and accountability, admitting no evidence of defamation, and repeating flawed conclusions verbatim.

INVESTIGATOR’S RECOMMENDATIONS

His claims that I breached Code of Conduct obligations (regarding confidentiality, not to mislead, to treat elected members with respect, and not to engage in offensive behaviour) have been rebutted. I invite Council to set the recommendations aside because

 The Investigator was neither independent nor impartial, a stooge.  The sole breach of confidentiality immediately admitted and rectified  The additional level of ‘evidence’ created by interviewing five

Background Complainants (unaccompanied, all political allies of the Complainant) significantly enabled confirmation bias

 All complaints from the Background Complainants were treated in

confidence, promptly and with respect as soon as I returned from Australia as per the requirements of the HDCA, and most importantly,

 Both the Code of Conduct and the HDCA apply equally but are

yet to be reconciled in Council policy.

A&R COMMITTEE CODE OF CONDUCT FINDINGS 18June 2020

 Dismissed all “matters of concern from a probity perspective” but did

not address any issues of procedural and natural justice

 Adopted the Investigator’s report regarding breaches of the Code

despite flaws in the appointment, evidential and prosecution process, and him alleging additional violations to the three breaches alleged in the Notice of Complaint (not in Formal Complaint) – over reach

 Recommended apologies to all complainants – (ridiculous c.f. Pakes)  Recommended Council consider taking further action with PX -

presumably to censure - which I would regard as a badge of honour

 However, A&R Committee conceded my argument that Council must

review the Code to take account of the HDCA – this finding logically renders all other recommendations based solely on the Code redundant – to avoid a miscarriage of justice.

MY INTERPRETATION

 The Mayor and her political affiliates have suffered acute political

embarrassment over

 a joint tendering process many consider scandalous  a lie about the capability of the Rotoiti wastewater treatment plant,

and

 my public refusal to be silenced by a ‘tyranny of the majority’

 The Mayor and her political affiliates

 accepted political advice from the CE posing as legal advice, and  weaponised the Code in search of revenge for political

embarrassment

 The A&R Committee over influenced by vengeful ‘group think’ instead

• f accepting that the Code of Conduct now must be reconciled with the

HDCA to avoid a miscarriage of justice and further embarrassment.

ALTERNATIVE OUTCOMES

1.

Find guilty as recommended, censure me, embarrassing publicity

2.

Abstain to indicate not adequately proven or unsurety over process

3.

Find not guilty as charged to avoid a miscarriage of justice

4.

All parties honour a non-disclosure agreement to avoid costly appeal

5.

An inclusive working party be commissioned to review the Code of Conduct to reconcile it with the requirements of the Harmful Digital Communications Act