484 Pukehangi Road
0900, 25 May 2020
Ms Jo Brosnahan
Chair, Audit and Risk Committee
Rotorua Lakes Council
By email via Oonagh Hopkins to Chair Jo Brosnahan, Deputy Chair Judith Stanway, Mayor Steve Chadwick, Cr Merepeka Raukawa-Tait, Cr Tania Tapsell and Mr Geoff Rolleston.
RESUBMISSION, CODE OF CONDUCT HEARING 27 MAY, AUDIT AND RISK COMMITTEE
Tena koe Jo me tena koutou katoa.
A Formal Complaint under the Code of Conduct for Elected Representatives (CoC) was lodged by Her Worship the Mayor Steve Chadwick (attachment 1) on 26 January 2020. It had been prefaced by a Notice of Complaint Memorandum to the Chair, A&R, on 22 January 2020 (attachment 15).
The Formal Complaint cited five ‘Background Complaints’ lodged with the Mayor by the Deputy Mayor and three other ‘Background Complainants’. Their complaints concerned two posts published by me at the Rotorua District Residents and Ratepayers (RDRR) Facebook.
I was invited to respond to the Formal Complaint, the five Background Complaints and the report by Barrister Lachlan Muldowney based on his interviews of the five Background Complainants.
The Need for a Resubmission
A resubmission became necessary when the Chair of Audit and Risk (A&R) Committee set aside a direction given in the Information Confirming Order of Business emailed to me 1 May 2020 that lifted restrictions on how I might respond to the complaints.
The Chair did not rule on the legitimacy of those on the A&R Panel who will read my resubmission and hear my Powerpoint presentation. She ruled against my request to have the hearing recorded. I ask that these two issues be reconsidered prior to proceedings by the Panel.
Requests for Recusals
The Formal Complaint by the Complainant elevated alleged breaches of the Code of Conduct (CoC) made by five people for consideration by A&R. In so doing, the Complainant added her considered views as to why her Formal Complaint should be heard by the A&R and that I, the Accused, should be held to account by A&R.
Logically, this resubmission considers the Mayor to be the Formal Complainant (Complainant). It is implausible for the Mayor to take an active role as Complainant, in elevating and supporting the five background complaints and then to help adjudicate the case as an impartial member of the A&R. In my opinion (IMO) her actions have created a conflict of interest (COI). I ask that she be recused from A&R’s Panel hearing this case.
I also request that the Chair of Strategy, Policy and Finance Committee and the Chair of Operations and Monitoring Committee be recused from hearing this case because their positions and remuneration are in the gift of the Mayor, which has created pecuniary COIs.
Additionally, I ask that the Chair of Te Tatau o Te Arawa be recused due to a perceived COI – three of the Background Complaints are clearly speaking on behalf of Central North Island Iwi (CNI) which is a Te Arawa entity.
These recusals are also warranted because my joint Notice of Motion and December FB post (that challenged a tendering process used by Rotorua Lakes Council and its business partner, CNI) were interpreted as a political challenge by Rotorua District Residents and Ratepayers (RDRR) to the co-governance and commercial partnerships between Council and Te Arawa entities. These partnerships are championed by the Mayor, her Deputy, her two chairs and Te Tatau o Te Arawa. This helps explain why this Code of Conduct complaints process is perceived to be a political process launched by the Mayor and her affiliates to silence and punish their critics. Hence, for the A&R Panel to be seen to be neutral, which is critical to its legitimacy and legal standing, the Mayor, and the Chairs of SP&F, O&M and Te Tatau o Te Arawa should be recused.
Request for the Hearing to be Recorded
A resubmission was entailed by the Chair A&R setting aside the direction in the Information Confirming Order of Business emailed to me 1 May 2020 in which it was stated that
You are permitted to supply a written response to the committee prior to the meeting. The response must be directly related to the final report only.
The Chair lifted this restriction and assured me that I would be able to make my presentation on my own terms.
Accordingly, this resubmission and my Powerpoint presentation derived from it asserts my right to natural justice; specifically,
- my right to submit a written response to the charges levelled, with related evidence, by the Complainant and the Background Complainants
- my right to be heard by the A&R on those charges, and related evidence, and only on those charges and evidence, and
- my right not to have my evidence, conclusions and opinions filtered and evaluated by a third party who is, in my experience and opinion, demonstrably not independent.
Hence, I repeat my request that that the ruling in the Information which stated that “The meeting will not be recorded” for two reasons:
- Not recording the Zoom-enabled meeting arbitrarily excludes a legitimate source of evidence in the event of an appeal.
- All councillors-at-large may need to have access to a recording of this test case because it could potentially constrain the rights of elected representatives to freedom of speech and association and access to information in the future.
The Five Background Complaints in Context
Political controversy provided the causal context, and both directly informed and triggered four of the five background complaints. This political context must be considered by the A&R panel to avoid decontextualization that could mask and mobilize bias and enable predetermination.
Cr Peter Bentley and I submitted a Notice of Motion (attachment 2) to Rotorua Lakes Council (RLC) on 27 November 2019. It expressed concerns about the propriety of a closed two-party tendering process used by the RLC and its business partner, CNI.
The motion was referred to a public-excluded (PX) session of Council where it was, IMO, subjected to angry, arrogant and authoritarian denials, and dismissed using the numbers. On reflection I considered this reaction to be an example of a ‘tyranny of the majority’ that had to be challenged publicly.
I raised the matter again by posting to the RDRR Facebook on 15 December 2019 (see attachment 3). None of the content was confidential because it pre-dated the public-excluded session of Council.
Please note that I left New Zealand for my Christmas holidays on 17 December 2019 and returned on 16 January 2020.
The first ‘background complainant’ was from Deputy Mayor Dave Donaldson (attachment 4) dated 16 December 2019. My response (attachment 5) dated 22 January 2020, copied to the Mayor (but apparently not shared with the Investigator), was as an administrator of the RDRR Facebook. I made it clear that my response was intended to address each of his many concerns and thereby meet the requirements of the Harmful Digital Communications Act, 2015 (HDCA).
My responses to the Deputy Mayor’s wide-ranging complaint were polite and systematic. They described in detail each of the several changes that were made to the Facebook post and why the changes has been made. It informed him that the changes had been under the auspices of the HDCA and invited him to make further requests if there were any remaining issues from his perspective. My response was copied to the Mayor but apparently not shared with the Investigator. I heard nothing.
I subsequently learned from the release of correspondence considered by the A&R Committee on 20 January 2020, at my request, that the Deputy Mayor had complained about the HDCA correction process to the Mayor (attachment 6) which confirmed that neither of them had acknowledged the requirements of the Act. This raised the possibility that they had colluded to use the CoC complaint process to exact political retribution for the embarrassment caused by my 15 December 2019 Facebook post.
I still await direct communication of any further concerns from the Deputy Mayor that he may have with a view to making more corrections under the HDCA.
The second background complaint comprised allegations by Mr Takura ‘Tak’ Mutu (attachment 7). It was attached to the Deputy Mayor’s complaint, confirming collusion between these Background Complainants. It was far less specific and included two vague allegations; that my post included “defamatory comments” and “negative rhetoric … filled with damaging mis-information.” It was not clear to me what, in his view, constituted defamation and what rhetoric or misinformation was demonstrably damaging.
My response to Mr Mutu dated 22 January 2020 (attachment 8), copied to the Mayor and Deputy Mayor but apparently not shared with the Investigator, asked him to clarify his concerns so that I could respond under the auspices of the HDCA. That offer still stands.
The third background complaint by Mr John Pakes (attachment 9) was an unsubstantiated opinion about the nature of the post, claiming that it alleged corruption. As a simple matter of fact my post did not allege corruption. It was set aside as vexatious and therefore as not requiring a response.
The fourth background complaint by Mr Alimota Te Pou (attachment 10) dated 17 January 2020 made several strongly held but vague allegations. My response (attachment 11) was dated 23 January 2020. It was copied to the Mayor but apparently not shared with the Investigator. It invited Mr Te Pou to clarify his concerns so that corrections could be considered under the auspices of the HDCA. That offer still stands.
The fifth background complaint by Mr Phill Thomass (attachment 12) was dated 20 January 2020. It concerned my Facebook post on 13 January 2020 (and revised 24 January 2020) about his lying on video about the capability of the Rotoiti Wastewater Treatment Plant (WWTP, attachment 13). It was responded to in full on 24 January 2020 (attachment 14), under the auspices of the HDCA. It was copied to the Mayor but apparently not shared with the Investigator, and included several corrections, each with a systematic rationale.
It is important to note that my 24 January 2020 response to Mr Thomass started by comparing my thorough and respectful response to his complaint with how my recent complaint to the Mayor about his behavior and that of Mrs Shirley Trumper in the Green Room had been treated. My complaint was set aside by the Mayor after a few desultory emails without resolution. Similarly, an earlier complaint by Mrs Debbie Campbell about being bullied by Mrs Trumper was also left unresolved. It is widely known that Mr Thomass and Mrs Trumper are close political affiliates of the Mayor.
I subsequently learned (attachment 6) that Mr Thomass complained to the Mayor about the HDCA correction process. Neither he nor the Mayor had, to that point, acknowledged the requirements of the HDCA. IMO they were intent on using CoC complaint process to exact political retribution for the embarrassment Mr Thomass understandably felt when his lying to the public at the Rotoiti WWTP opening was exposed. Nevertheless, I await direct communication of any remaining concerns with a view to making more corrections, if need be.
The Changing Basis of Complaint
Two days earlier the Mayor’s Notice of Complaint Memorandum to the Chair, A&R, on 22 January 2020 (attachment 15), reported that she “had formed a view” that my behaviour potentially breached the CoC in three areas;
- making misleading statements likely to deceive the public,
- making public comments that could potentially damage the business and reputations of external parties and
- making public a confidential matter of Council.
This formation of “a view” about potential breaches lacked specific evidence. It suggested to me that the formation of the Mayor’s view was driven primarily by an authoritarian reaction when I gave precedence to meeting the requirements of the HDCA, instead of her view being formed by trustworthy evidence of how I had intendedly deceived the public, caused damage to business and reputations, and disclosed confidential matters. It also appears that she had a predetermined outcome in mind when she took the Background Complaints at face value without checking their validity or reliability.
Much instead was made in the Mayor’s Memorandum of my unwillingness to meet informally with her. It is the first stage of the CoC complaint process. The exchange of letters is attached (attachment 16) and shows that I remained polite in the face of what I considered to be increasingly ‘bully-boy’ letters.
The Mayor refused to accept the legislated need for me to satisfy the terms of the HDCA first. It was therefore not a case of refusing to meet with the Mayor but about not being able to accept the increasingly coercive invitations until the background complaints had been addressed under the auspices of the HDCA which has a strict timetable.
My responses to background complaints were completed two days after the Mayor decided to exert her authority and triggered the second part of the complaints process on 28 January 2020 (attachment 1).
Curiously, the new basis for the Formal Complaint was the claim that I “reject the role of the Mayor [which] is to provide leadership”. Not so.
There were five fundamental errors on the Mayor’s part at this point, IMO, that should have given the A&R Committee good cause not to accept her Formal Complaint:
- I implacably reject authoritarianism in our democratic community, as my Facebook post 10 January 2020 (attachment 17) makes clear, not leadership.
- Authoritarianism is also antithetical to the requirement in the Local Government Act for Council to use democratic decision making.
- The basis of the Mayor’s Complaint changed from three alleged behavioural breaches of the CoC on my part to my alleged rejection of her role as leader.
- To sustain the Formal Complaint to the A&R Committee the Mayor was obliged to provide evidence of my rejection of her role as a leader. Since none was provided, and there is none to be provided, the Formal Complaint should now be allowed to lapse.
- The Mayor and her advisors did not to take legal advice on the requirements of the HDCA.
If the A&R Committee now accepts any of these points, then it must set the Formal Complaint aside and suspend the CoC complaints process.
Concerns about the Complaints Process
When I was informed about how the Mayor’s Formal Complaint was to be processed, including the Terms of Reference (TOR, attachment 18), I became concerned at the methodological flaws involved and the risk to natural justice.
I expressed those concerns in detail in a strictly confidential letter to the Chair, A&R dated 26 February 2020 (attachment 19). Her reply dated 6 March 2020 (attachment 20) addressed one of my concerns and indicated to me that I would have to decide what to do with the others, and that the prescribed process was to continue. These rulings were the genesis of the requests made at the outset of this resubmission.
I decided to make both my strictly confidential letter to the Chair, A&R and her reply to me available to the members of the A&R Panel as part of this resubmission because
- There is clear evidence that my request for strict confidentiality was violated, and
- The A&R Committee is obliged to use robust processes to make effective decisions in a way that exhibits natural justice.
Please note that I do not impugn the character of any person while identifying instances where the CoC complaints methodology has been corrupted, either by accident, wilful ignorance, or maladministration. I completely accept the Chair’s assurance that she did not leak my strictly confidential letter to her while providing evidence that it was leaked.
Sadly, this evidence also suggested that I could no longer have confidence that this resubmission or my Powerpoint would remain confidential, and to avoid any further potential disadvantage, they have been placed in the public domain.
This is an important issue because confidence in the CoC complaint process must be sustained for it to retain its effectiveness and to guarantee that elected representatives will remain free to express criticism without fear of political retribution. A critical indicator of process effectiveness is its capacity to produce reliable, relevant and trustworthy information. Again, these are epistemological concerns and should not be taken as personal criticisms.
The Independence of the ‘Independent Investigator’
One of my principal objections concerning natural justice was addressed in the A&R Committee Chair’s 6 March letter, but, for the reasons detailed in my 26 February 2020 letter, I continue to regard the independence of the ‘Independent Investigator,’ as utterly implausible.
IMO, his involvement in this role is demonstrably antithetical to natural justice.
The report by the so-called “Independent Investigator” dated 24 April 2020 was based on interviews of the ‘background complainants’ by a barrister with whom I have some history. He represented the Mayor and several Councillors, including the Deputy Mayor, when I petitioned the District Court for an inquiry into the 2016 local election. The petition was extremely annoying to the Mayor and her political affiliates because it questioned their integrity and legitimacy as the incoming local government.
Despite a non-disclosure agreement negotiated by Barrister Muldowney, when I withdrew my petition, I was subsequently vilified by a PR campaign that blamed me publicly for the Council’s administrative and legal costs. His appointment as an “Independent Investigator” could not have been more provocative or more inappropriate.
Further, his then law firm continues to represent the Council. Other legal service providers in Rotorua familiar with the Investigator’s background and specialisations openly mocked the suggestion that he could be regarded as independent in this case.
IMO, the A&R Committee needs to accept that describing his involvement in this case as “independent” is farcical and will expose them to ridicule.
The Authorised Appointment was Corrupted
The appointment of an ‘independent investigator’ is inconsistent with A&R Committee’s decisions on 29 January 2020, as evidenced in Section 4.1 of the draft minutes (attachment 21):
2. That the chair of the Audit and Risk committee and Chief Executive act to engage an independent facilitator to undertake an investigation of the issues raised in the complaints.
3. That the chair signs off a set of terms of reference to be used to enage (sic) an independent facilitator.
This means that the appointment of an ‘independent investigator’ was not formally authorised. The appointee lacked formal standing. If the A&R Committee now intends to engage an ‘independent investigator’ using the approved TOR, the process will need to start de novo.
The Role of Independent Facilitator was Corrupted
It is crucial that the A&R Committee accept that the terms ‘investigator’ and ‘facilitator’ have vastly different meanings. The Cambridge Dictionary defines an investigator as a person whose job it is to examine a crime, problem, statement, etc., in order to discover the truth. Wikipedia defines a facilitator as a person who helps a group to understand their common objectives and assists them to plan how to achieve these objectives. In doing so, the facilitator remains “neutral”, meaning that he/she does not take a position in the discussion and remains politically neutral.
The former role of ‘investigator’ is consistent with the approach of the CoC complaints process which establishes culpability, adjudges guilt and may impose sanctions. The latter role of ‘facilitator’ is consistent with the approach required by the HDCA process which aims to generate reconciliations. The critical fact is that the A&R Committee decided on 29 January 2020 to appoint an ‘independent facilitator’ not an ‘independent investigator’.
The consequence of this drift from the neutrality of facilitation, into an investigation to arbitrate the truth regarding the Formal Complaint, resulted in the ‘Independent Investigator’ becoming, in sequence, an evidence collector and then a co-prosecutor with the Mayor, with commensurate role conflict.
TOR Corrupted the Quality of Evidence and the Independence of Prosecution
The TOR expected the Investigator to interview the ‘background complainants.’ This meant that ‘background complainants’ were potentially enabled to provide an ‘enhanced’ level of ‘evidence’ by reconstructing their memories.
The interview process in the TOR also meant that I could not hear or see or challenge this potentially reconstructed ‘evidence,’ evidence that could have subsequently informed how the charges brought against me were addressed by the ‘Independent Investigator’. The process offends the two key principles of natural justice; the absence of bias and access to a fair hearing.
The TOR also indicated that the ‘Independent Investigator’ alone would be able to analyse, evaluate, report and make recommendations regarding guilt and sanctions to the A&R Committee panel.
By being empowered by the TOR to make recommendations regarding sanctions, the reach of the Investigator’s role violated the independence of the prosecution decision required in law in order to sustain “freedom from undue or improper pressure from any source, political or otherwise.”
The role of the A&R Committee was thereafter confined by the TOR to an evaluation of the Investigators’ recommendations which were based on the personal and potentially biased views of the five ‘background complainants’ who are all widely known to be political allies and supporters of the Mayor.
In retrospect, it appears that the A&R Committee was badly advised concerning the TOR, especially the role of the Investigator and the potentially biased ‘evidence’ and recommendations concerning guilt and sanctions that it would provide. The TOR are, from my perspective, inconsistent with natural justice, vulnerable to appeal and suggest that, instead of being intended to provide natural justice, they were motivated by a coordinated political campaign intended to damage my reputation while protecting those on the panel.
I was, therefore, saddened that many other objections in my strictly confidential 26 February 2020 letter concerning methodology were not fully addressed in the A&R Chair’s 6 March response. These objections still stand. The A&R Committee is invited to set aside the Investigator’s recommendations on these grounds.
I also have other concerns that are now summarised.
Potential Procedural Injustice through Bad Faith
An additional and impending violation of procedural justice became evident in the Chair’s 6 March letter. The TOR confirm that all communications between the Investigator and the Chair, A&R would remain confidential. However, the Chair’s letter dated 6 March 2020 omitted to confirm that I would be able to read the Investigator’s report before he would appear before the Panel.
It therefore came as a surprise that the Investigator’s Report dated 24 April 2020 was emailed to me on 29 April informing me that “an Audit and Risk Committee is scheduled for 7 May 2020. The meeting will consider the report and any response you may have.” In the interim, the email indicated, the “report remains confidential to yourself, the Audit and Risk Committee and the Chief Executive.”
This meant that I had from 1-3 May 2020 to prepare a response and have it emailed to members of the panel on 4 May 2020 in order to give them required two days pre-reading time before the meeting planned for 7 May 2020.
The implications are serious. It means that the restricted and late access to details of procedure and the compressed deadlines that were initially imposed on me and together constituted bad faith regarding procedural justice.
Further evidence of bad faith, as noted above, was the late attempt to restrict my response to the scope of the Investigator’s report. While this attempt was overturned by the Chair, these indicators of bad faith suggested that there was bias and predetermination in the administrative support systems that flouted two key pre-conditions of natural justice; access to the charges, and evidence, and to be only heard on those charges and evidence. There were other indications of bias and predetermination that are now examined.
Bias and Predetermination
I met with Mayor Steve Chadwick on 9 March 2020. I made it clear that it was a political meeting, meaning that the Chatham House Rule did not apply. I asked her to clarify her ‘bottom line’. I took contemporaneous notes.
Recall, my strictly confidential letter to the Chair A&R dated 26 February 2020 ended by offering an alternative pathway to settlement and closure. When I raised that possibility with the Mayor I was surprised when she informed me that she had already considered the suggestion and had decided not to take up the offer. She was clearly privy to the content of the strictly confidential letter and advised me instead to “let the process run.” This suggested to me that disproportionate weight had already been given against the alternative in a closed-minded and prejudicial manner that favoured a predetermined outcome.
There were three other indications of bias and predetermination.
First, her advice replicated the arguments in the Chair’s 6 March 2020 letter with near absolute precision. The Mayor stressed
- the need for the process to reflect natural justice,
- the need for an independent investigation of the background complaints, and
- then asserted the independence of the ‘Independent Investigator.’
This advice was unconvincing. As argued in my 26 February 2020 letter, natural justice in law requires the absence of bias and the right to a fair hearing.
How could there be no bias when, as the Formal Complainant, she
- Selected background complaints from five political affiliates and deselected two others, an issue which I will come back to,
- Selected material supportive of her case and deselected other materials in a manner prejudicial to my case, indicating predetermination
- Was party to the decision to accept and investigate the Formal Complaint
- Was party to the decision to mobilize an investigation using a barrister with a history of employed advocacy by Council which proved prejudicial to my interests and reputation
- Refused to acknowledge my responsibilities under the Harmful Digital Communications Act (HDCA) in her Formal Complaint, and
- Held a predetermined position that may well have moved the nature of the ‘investigation’ away from neutral facilitation and problem solving promoted by the HDCA to establishing guilt and sanctions as enabled by the CoC complaints process?
How could I be given a fair hearing when there was
- No recognition by the Mayor of my responsibilities under the HDCA
- No possibility of me reading, cross examining and evaluating the potentially reconstructed ‘evidence’ provided by the Background Complainants through interviews,
- No possibility of contesting the validity and reliability of Background Complainants’ potentially revised accounts, and
- No possibility of reviewing the quality of the Investigator’s arbitration and recommendations, other than reading his Final Report?
Second, the Mayor explicitly claimed neutrality in our discussion as the submitter of the Formal Complaint. This claim was and is, IMO, bizarre and unbelievable in context. The selected Background Complainants are all close political affiliates or supporters of the Mayor and she is an active politician, as am I. Hence my emailed request of the Chair A&R on 1 May that the Mayor be invited to recuse herself from the A&R’s decision-making panel.
Further, the political saliency of the Council – CNI partnership at the centre of the Whaka Forest Hub 2 Facebook post remains high and controversial. For example, the Rotorua District Residents and Ratepayer (RDRR) recently consulted members and provided feedback to Council that contested the wisdom of a bid to the Crown Infrastructure Partners (CIP) Programme for another $13.9M to be added to the $14.5M already allocated to the Whaka Forest Hub 2 Project.
Much as predicted in my Facebook post on 15 December 2019, the CIP bid proposed to construct commercial buildings owned by Council on private land at public expense with the profits from leasing retail space going to the tribal landowners while the maintenance costs will stay with Council’s ratepayers in perpetuity. Commercial retail space is to be leased by CNI to tourism operators to offer bike hire, retail shopping and hospitality at a café/restaurant.
The feedback to Council from RDRR also pointed out that the sudden drop in demand for international tourism and persistent public disquiet suggest that the landowners should now revise their business plans and source alternative venture capital without expecting any further public investment.
I presented these ideas to Council on Thursday morning, 30 April. That afternoon the CoC case against me was reactivated. It could have been a coincidence.
The broader point is that, IMO, the Background Complaints may have been originally contrived to achieve political objectives and the CoC complaints process reactivated for the same reason. It can be speculated that the original Background Complaints may also have since been elaborated if the complainants and / or the Investigator were given access to, or even coached in the light of my strictly confidential 26 February 2020 letter.
What is irrefutable is that when the Mayor decided to submit a formal complaint to the A&R Committee, she acted as the equivalent of a ‘chief prosecutor’ using the ‘evidence’ provided by the five Background Complainants, all political affiliates or supporters. I suggest again that the Mayor recuse herself from the A&R Committee’s decision-making panel to avoid the perception of a conflict of interest and a lack of neutrality in this case.
Third, and most alarming to me, the Mayor pointed out an error of fact in my strictly confidential letter to the Chair, A&R dated 26 February 2020 – that Barrister Muldowney is no longer employed by Thomkins Wake. This correction confirmed that the Mayor had read or had been made aware of the content of my strictly confidential letter to the Chair, A&R, by person(s) unknown. This possibility would also explain the highly accurate repetition of its key points by the Mayor.
Potentially worse, this possibility raised another – that my 26 February 2020 letter or key implications may have been shared with the Background Complainants prior to their interviews by the Investigator, to potentially prejudicial effect.
Finally, it also raised the possibility that my 26 February 2020 letter had been shared with the Investigator, potentially confirming his role as a co-prosecutor with the Mayor.
These facts and possibilities are of deep concern because they provide possible avenues for the introduction of bias and political predetermination, which are expressly forbidden by the Auditor-General.
Finally, the formal and sustained separation of roles (the Background Complainants, the Formal Complainant, the Chair of the A&R, the Investigator and Panelist) is essential for me to get natural justice – by eliminating potential avenues for bias and predetermination. That has clearly not occurred, and IMO is morally and legally reprehensible.
The Investigator’s Report
Fourteen factual and judgmental errors and omissions in the Investigator’s report dated 24 April 2020 follow which render it problematic as a source of evidence-based recommendations:
- 1.3 The Notice of Complaint from the Mayor did not include “a full set of documentation” as claimed and included irrelevant material that was prejudicial to my interests, as clarified in my 26 January 2020 letter to the Chair, A&R (attachment 19)
- 2.1 Notes the A&R decision on 29 January 2020 to appoint an “independent facilitator” without realizing the significance
- 2.2 Notes the A&R decision on 4 February 2020 to commission an “independent investigation” either without realizing the problem of not commissioning an ‘independent facilitator’ or that the commissioning process had been highjacked
- 3.1 Claims that the A&R decision 29 January 2020 was to engage an independent investigation when it was in fact to appoint an independent facilitator
- 3.3 It is claimed that A&R had “provided Clr Macpherson with all relevant material” when in fact I had to request all materials considered by the A&R after it made the decision to appoint an independent facilitator, as clarified in my 26 January 2020 letter to the Chair, A&R (attachment 19)
- 4.3 There is no weight given to the fact that, when the mistake of sharing the confidential vote was pointed out, I immediately corrected the post
- 4.3 There is no acknowledgment that I was responding according to the requirements of the HDCA, a point that was raised repeatedly with the Mayor in January 2020 but ignored, suggesting a shared willingness to ignore laws that were inconvenient or that did not enable the achievement of predetermined outcomes
- 5.5 There is no acknowledgement of the reason given by me for not accepting the invitation from the Mayor (attachment 16), particularly the need to satisfy the requirements of the HDCA first because of its tighter time restraints
- 5.8 The existence of the HDCA is finally acknowledged but without any acceptance of its requirements, which is a risky legal position to adopt
- 5.10 The citation indicates that the Investigator is aware of the different purposes of the HDCA and the CoC complaint processes but fails to recognize the significance of the differences and proceeds as if the former set of requirements can be ignored
- 5.13 The response to Background Complainant Te Pou is cited without recognizing that it is compliant with the HDCA and provides a careful and polite explanation of why further details were invited
- 5.14 The response to Background Complainant Mutu is cited without recognizing that it is compliant with the HDCA and provides a careful and polite explanation of why further details were invited
- 5.16 It is acknowledged that I considered Mr Phill Thomass’ complaint, rejected parts, accepted other parts and made corrections but failed to acknowledge that reasoned argument clarified each decision, and
- 5.18 The Mayor’s letter to me is cited without providing a justification for her claim that “You have now inappropriately written overnight to three of the parties who lodged claims with me.” Why was it inappropriate? Their complaints were directed at me, and according to the HDCA, required my response. Were the ‘background complaints’ regarded as owned political assets? Had political ownership of Mr Mutu’s claim, initially lodged with the Deputy Mayor and suggesting collusion, been transferred to the Mayor, suggesting her partisan coordination of the Formal Complaint?
The HDCA requires complaints to be treated expeditiously by the administrator of a Facebook page. There is no constraint on lodgment and routing. The Mayor’s claim of inappropriateness also shows that she had defaulted to the authority given her by the CoC, that she had given it absolute precedence over the requirements of the HDCA, and that the Investigator had uncritically accepted her claim as fact.
The Investigator’s Analysis of the Background Complaints by the Deputy Mayor and Messrs Mutu, Pakes and Te Pou led to specific conclusions that are now discussed.
- 7.15 The allegations of breaches of confidentiality were not sustained by the Investigator and IMO warrant an apology from the Deputy Mayor to me. There was one exception; the disclosure of a vote taken during a PX session that was quickly admitted and remedied.
- 7.17 – 7.20 The allegations of misleading and inaccurate information were partially supported by the Investigator although IMO this finding contradicts evidence cited in the Facebook post and fails to note that corrections were made consistent with the HDCA requirements when errors were identified.
- The chronology of the Whaka Forest scandal, for example, illustrates the persistence and intensity of the controversy that predated my Facebook post and confirms that my description that the project had been ‘dogged by scandal’ was accurate and not a “mischaracterisation.”
- The degree to which the detailed plans of the project are secret or in the public domain remains, IMO, moot. To illustrate, the recent bid to the CIP revealed more details that hitherto had been kept secret from the public, such as the tourist infrastructure proposed for the Hub 2 site.
- The extent to which satirical comment constitutes misleading or inaccurate information also remains, IMO, moot.
- In sum, I do not accept that the much-corrected post (attachment 3) contains statements that are likely to mislead or deceive. I also suggest that every reasonable attempt was made to make corrections wherever appropriate, and that I stand ready to accept further suggestions.
- 7.21-7.26 the allegations of Council corruption were strongly supported by the Investigator.
- The first problem with his position is that the Investigator generalises from a concern about how specific aspects of the tendering process were apparently corrupted by degrees of predetermination, which IMO is a reasonable summary of about two months of adverse public commentary around the facts of the tender process at cited Facebook pages. This problem IMO traces to the tiny and biased sample interviewed and to no other data being collected other than only documentation supportive of the Complainant’s Complaint.
- The second problem is that the Investigator generalises to claiming that my post is an accusation of generic corruption levelled against the Council. It is not. It is highly limited in scope and time and pertains to one decision to which a small number of still-unidentified officials were apparently party. While I am still unaware of the identities of the officials involved, and have no interest in that matter, there is widespread knowledge and criticism of the tender process used in the public domain. This problem IMO reflects focus creep.
- The third problem with the Investigator’s position, especially his demand that the matter should have been raised first with the Chief Executive, is that he did not participate in the PX session that discussed the Notice of Motion submitted 17 November 2019. Had he done so he might have been as appalled as Cr Bentley and I were by the bitterly hostile rejection of any suggestion that the tender process could be improved or that there was a PR problem, despite many weeks of adverse online commentary. Indeed, had our Notice of Motion been treated with respect, prior to being defeated on the numbers, there would have been no need for the follow up post at the RDRR Facebook. This problem IMO is about how to respect feedback from elected representatives, especially minorities, and how to respond with safe organisational learning.
- The fourth problem with the Investigator’s position is that, satire aside, the post was seen by the vast majority of a large number of responders as being fair and accurate, not as pillorying staff, not being offensive, not causing an unsatisfactory relationship with the CE, and not publicly criticising Council employees. This problem IMO is about how to respond positively to adverse perceptions.
- In sum, these allegations were magnified by unwarranted generalisation, a diffusion of focus, failing to recognize that the post was prefaced by a thwarted attempt to have the matter heard and dealt with appropriately with the public excluded, and failing to recognize that the substantive issues were about how to respond positively to widespread negative public perceptions instead of crude and reactionary authoritarianism being allowed to culminate in ‘shooting the messengers’.
- 7.27-7.31 the allegations of defamatory or offensive statements concerning members of the public were supported by the Investigator.
- The first problem with the Investigator’s position is that he equates characterising the tender process as “diluted and corrupted by predetermination” with impugning the integrity of participants. The characterisation coheres with ‘group think’ rather than with malfeasance.
- The second problem with the Investigator’s position is that he is apparently unaware of the vast bulk of sentiment expressed at a local Facebook page about the tender process. This problem reflects the tiny sample he interviewed with supportive documentation and the minimal use of triangulation.
- The general problem with the Investigator’s position is that it uncritically accepts the view of four Background Complainants. They blamed me for causing a deterioration in community respect when the chronology of the scandal pointed to its marked decline being precipitated by the tender process and the Deputy Mayor’s online defence being ridiculed. This problem involved ‘getting the cart before the horse’ and then ‘shooting the messenger.’
- 7.32-7.35 the allegations of a conflict of interest were not upheld by the Investigator and IMO warrant an apology to me by the Deputy Mayor.
- 7.36-7.41 the allegations of racism were not upheld by the Investigator and IMO warrant an apology to me by the Deputy Mayor.
The Investigator’s Analysis of the Background Complaint by Mr Phill Thomass led to specific conclusions that are now discussed.
- 8.4-8.9 The allegations of misleading and inaccurate information were not sustained by the Investigator and IMO warrant an apology from Mr Thomass to me.
- 8.10-8.17 The allegations of deception were supported by the Investigator.
- The first problem with the Investigator’s position (in 8.12-8.13) is that it is limited to distinguishing “between a deceptive statement and an unintentional statement of information,” when determining the fairness of the post, but then departs from this evaluative framework by adding personal opinions about good faith and potential benefits and ignores the wider political context. IMO this exhibits a naïve or wilful reductionism and bonding with the informant.
- The second problem with the Investigator’s position is that (in 8.14) a criticism is mounted (that I offered a generalisation without evidence) only to concede that the comment had already been deleted. There is no recognition that I was compliant with the HDCA and that the purpose of the Act is to generate such resolutions and corrections to posts.
- The third problem with the Investigator’s position is that (in 8.16) he believes that, where I “had a concern about an elected official’s conduct, he should have followed proper channels by reporting it to the Chief Executive.” He was unaware of a prior complaint by me about Mr Thomass’ (and Mrs Trumper’s) conduct in the Green Room, who are elected representatives and not appointed officials. My complaint had been made to the Mayor but deselected for attention. The proper channel to use in such circumstances is to complain to the Mayor, not to the CE. The CE, an appointed official, has no jurisdiction over the behaviour of elected representatives.
- The third problem with the Investigator’s position (in 8.17) is the lack of logical continuity between the findings and his conclusions, and idealised behavioural expectations in a realm of political contestation renowned for its hurly-burly robustness. IMO, rigorous political accountability over lying in public was inaccurately reconstrued as “aggressive, offensive behaviour” and as “personal attacks.”
- The third problem with the Investigator’s position (in 8.17 , and repeated verbatim in 8.21) is that his conclusion, that the I failed “to act in a manner that ensures that individual citizens are accorded respect in their dealings with the Council, and [failed] to act in a manner that encourages and values community involvement in local democracy,” are disconnected from (and do not follow from) any of the preceding sections that present aspects of evidence. They therefore lack logical continuity and are irrelevant to the post which did not raise or comment on these issues.
- 8.18-8.21 The allegations of offensive statements were supported by the Investigator.
- The first problem with the Investigator’s position is that he offers no ‘offensive statements’ that justify his support for the allegations. No evidence means that there is no case to answer.
- The second problem with the Investigator’s position is that he accepted Mr Thomass’ speculation (that my allegation that he lied was “a political tactic” intended to undermine his credibility at face value. He then raised it to the status of being an established fact, instead of considering the possibility that any such damage was a direct result of his own actions once revealed, and that he and I are both constantly engaged in political tactics.
- The third problem with the Investigator’s position is that he extrapolated from one case of revealed behaviours to argue, in effect, that all elected representatives in an organisation should be insulated from critical feedback and accountability.
- The fourth problem with the Investigator’s position is that (in 8.20) he developed a case for considering the possibility of defamation but then admits “I have no evidence before me to make such a finding.”
- The fifth problem with the Investigator’s position is that his conclusion (8.21) replicates 8.17 verbatim and its flaws, as noted above.
The Investigator’s Recommendations follow from his judgment (in 9.2) that the Accused breached his obligations under the Code regarding confidentiality, not to mislead, to treat Council staff and elected members with respect, and not to engage in offensive behaviour.
I refute this judgment and ask the A&R Committee to set it aside because
- The sole example of a breach of confidentiality was immediately rectified
- The additional level of evidence created by interviewing five Background Complainants (who are political allies and supporters of the Complainant) significantly increased the possibility of confirmation bias
- The judgement muddled the distinction between elected representatives and Council officials (who are not a party in this case)
- The Investigator was neither independent nor impartial
- All complaints from the Background Complainants were treated in confidence, promptly and with respect as soon as I returned from Australia in mid-January 2020, according to the requirements of the HDCA, and
- The requirements of the CoC have yet to be reconciled with those of the HDCA.
The Investigator’s recommended actions to remedy the impacts are neither appropriate in the light of my refutations above nor able to remedy impacts in a reasonable and lawful manner.
Accordingly, I request that
- If recommended action 9.5 is adopted, then I be given an opportunity to respond at full Council, and in any case, Ireserve the right to appeal the A&R Committee’s decisions and to issue press releases to counter any adverse publicity
- Recommended action 9.6, that is, to remove, edit and get pre-approval from the A&R Committee for revised Facebook posts, be set aside because it would constitute censorship and be an unacceptable violation of the human right to freedom of speech and expression.
- Instead, it is suggested that the Background Complainants be invited to communicate directly with me about any continuing and specific concerns they have with the content of the two posts, on the understanding that they will be considered carefully and reasonably according to the HDCA.
- Recommendation actions 9.7 and 9.8 that require apologies by me be set aside because, as indicated above, they are not warranted and the HDCA continues to provide a pathway to amicably negotiated settlements.
- I am due a public apology by the Deputy Mayor for his unsupported allegations of a breach of confidentiality, a conflict of interest and racism.
- An apology from the Mayor me is also warranted for using the CoC complaint processes to establish the imagery of guilt and sanctions instead of integrating the reconciliation processes offered by the HDCA.
- More broadly, IMO, political stunts that are intended to damage the reputation of elected colleagues violate the CoC, constitute immoral behaviour and should be countered vigorously.
The Investigator’s recommended sanctions are IMO inappropriate in the light of the refutations above and are unlikely to gain compliance. The Investigator followed the example of the Formal Complainant and ignored the need to reconcile the CoC complaint processes with the requirements of the HDCA. Instead of imposing sanctions I recommend that the A&R Committee establish a Working Party to revise the CoC policy to take account of the HDCA.
The Investigator’s recommended actions to reduce further risk of breach are IMO inappropriate in the light of the refutations above, unlikely to gain compliance and will prevent the reconciliation of CoC complaint processes with HDCA requirements. The proposed drift into greater secrecy is ill-advised IMO with a real danger that Council will further downgrade its transparency and public accountability.
With respect, I suggest that
- a Working Party comprising the Mayor, the CE, Crs Macpherson and Bentley, and to be chaired by the Chair, A&R, be asked to integrate the requirements of the HDCA into the CoC policy, and
- a joint press release to be prepared by the Working Party to clarify its role and to confirm that the CoC policy is being revised to integrate the requirements of the HDCA.
Appendix 1 – List of Attachments
Attachment 1 Mayor’s Formal Complaint 29 Jan 2020
Attachment 2 Notice of Motion to Council Crs Macpherson & Bentley 27 Nov 2019
Attachment 3 RDRR Facebook Page post 15 Dec 2019, revised 22 Jan 2020
Attachment 4 Deputy Mayor’s Background Complaint 16 December 2019
Attachment 5 Response to Deputy Mayor’s Background Complaint 22 January 2020
Attachment 6 Mr Phill Thomass’ Second Background Complaint 24 January 2020
Attachment 7 Mr Tak Mutu’s Background Complaint 16 December 2020
Attachment 8 Response to Mr Tak Mutu’s Background Complaint 23 January 2020
Attachment 9 Mr John Pakes’ Background Complaint 17 December 2019
Attachment 10 Mr Alamoti Te Pou’s Background Complaint 17 January 2020
Attachment 11 Response to Mr Alamoti Te Pou’s Background Complaint 23 January 2020
Attachment 12 Mr Phill Thomass’ First Background Complaint 20 January 2020
Attachment 13 RDRR FB Post re The Problem with Lies 13 January, revised 24 January 2020
Attachment 14 Response to Mr Phill Thomass’ Background Complaint 24 January 2020
Attachment 15 Mayor’s Notice of Complaint 22 January 2020
Attachment 16 Mayor – My Letter Exchange January 2020
Attachment 17 RDRR FB Authoritarianism post 10 January 2020
Attachment 18 Terms of Reference January 2020
Attachment 19 Strictly Confidential Letter to Chair A&R 26 Feb 2020
Attachment 20 Reply from Chair A&R 6 March 2020
Attachment 21 Draft confidential minutes A&R Committee meeting 29 January 2020
 By Section 4, Solicitor-General’s Prosecution Guidelines (Crown Law, 1 July 2013).