Part 5: Experiences of councils that have used their code

Local authority codes of conduct.

In this Part, we discuss the experiences of councils that have used their code. Much of the material in this Part is drawn from our interviews with council and sector personnel.

As discussed in Part 2, most people we spoke to regard their code as valuable, and most believe it is better to have a code than not to have one. There will occasionally be cases where resorting to a formal disciplinary process for a wayward member is regrettably unavoidable.

A minority of councils have had to make formal use of their code, and some of them have found the process difficult.

Use of codes

Most councils use their code only rarely, if at all. Many told us they have never had to refer to it.

In most councils, if conduct issues do arise they are usually dealt with informally and privately. As a result, it is not possible to give a meaningful indication of exactly how many councils have had to use their code, or how often they have done so.

People we spoke to commonly said that the most usual, and most effective, method of dealing with a conduct issue is for the mayor (or sometimes the deputy mayor, or the chief executive – especially if the matter involves a staff member) to act as mediator or counsellor and call in the member concerned for a “quiet chat”. Frequently, the matter is able to be resolved without explicit reference to the council’s code, even though it might be able to be classified as something technically covered by the code. Often, we were told, people do not even think to turn to their code when an issue arises. Even if the code is specifically mentioned, many councils will still attempt to keep the matter at a private and informal level, without resorting to the formal enforcement process specified in their code. Those people invariably said that this approach was usually far preferable to resorting to formal enforcement processes, and that formal enforcement should be avoided if at all possible. Some said that progression of a matter to a formal stage is a sign that it is already out of control.

Only very occasionally does a matter reach a stage where a formal enforcement process is invoked. We are aware of 11 councils that have had code matters progress to a formal stage.1 There could well be more, because sometimes a formal process is undertaken entirely out of the public domain.2

In our view, a lack of frequent use of codes is not an indication that they are of no value. They are the sort of document that probably work best by their mere presence in the background, as part of the council’s governance framework. As one commentator has said –

It would be quite a good sign if council members were not constantly bringing [their code] off the shelf. If the Code is being continuously called on to influence behaviour, relationships probably have deteriorated already.3

Councils that manage conduct well often have a mayor (or deputy) who takes a strong leadership role and who regards the proactive management of relationships with and between members as an important part of their job.

Some councils have struggled

Some members and officers who have been through a formal enforcement process end up bitter and frustrated about their code. This feeling is not limited to those who were the subject of a complaint. The process can be stressful, time-consuming, expensive, exhausting, and inconclusive. Relationships between members, and between members and staff, can be put under heavy strain (particularly while the process remains uncompleted). It is common for the parties to feel that nothing really resulted from the whole process because the matter is never fully resolved, or because the penalty able to be imposed is insignificant or ineffective. People often end up feeling the process was a waste of energy. The matter can absorb huge amounts of the time and energy of members and senior staff. Some councils end up being “put off” their code, and in future go out of their way to avoid using it again (and, in one case, rewriting their code in an attempt to effectively prevent complaints from being able to be made at all). All of this causes the credibility of codes to suffer.

Taking disciplinary action against an elected member of a council is a serious matter. To some extent, it can be expected that it will be a difficult process. It should certainly not be an action to be taken lightly. Some level of discomfort with such a process may be unavoidable.

Also, those councils that have been early users of their code have had to learn as they go. It is understandable that some of them may have been unsure how best to proceed, or may have been especially tentative in pushing the process along, or may have made a poor choice of investigator. In addition, we consider that some councils – because of the way their code was written – felt themselves to be under an obligation to proceed with a formal enforcement process for matters that may not really have warranted it. We look at some of these matters later in this Part.

The behaviour of members

Most people we spoke to told us that codes have not had a significant overall effect on the behaviour of elected members, either for better or for worse.

Yet, in those places that had dealt with formal complaints, we gained the impression that the experience had often softened the subsequent behaviour of the member who had been the subject of the complaint. As a result of the experience, other members of those councils also had a higher awareness of their code and the potential for complaints to be made, and so were perhaps more cautious in their behaviour.

We do not consider that code complaints necessarily indicate that a council is dysfunctional. It takes only one disruptive person to create difficulties. It is not uncommon for a complaint to be about the acts of only one individual, who may often be regarded by many others as a “maverick” or rebel member.

Wayward members can be particularly unsettling in a local government setting. The structures of local government are not designed in the same adversarial way as national politics. Rather, both the prevailing culture and the law of local government expect politicians to operate as a team, and to take collective responsibility for decisions. Collegiality is critical to the effective operation of councils. As one commentator has said –

… on entering office councillors are now morally obliged to take a wider perspective of community issues and leave behind any single-issue crusades. … Every councillor has a responsibility towards the council. They all have to make the council succeed.4

Whether problems arise, and whether they are dealt with effectively or not, may often be determined largely by the personalities of the particular individuals involved. Most members regard themselves as wholly independent (and therefore not subject to controls, such as the ministerial, caucus, and party whip disciplines that exist in Parliament). A small minority of members will not accept the standards and roles expected of them, and are not prepared to work with their colleagues as part of a team. They are unmoved by the contents of their code or the judgement or persuasion of their peers, and are unlikely to change their behaviour after disciplinary proceedings. For such individuals, having formal action taken against them may simply provoke them into behaving even more disruptively (and this likelihood means that councils will sometimes, as a deliberate tactic, refrain from taking formal action against such a member). As some of our interviewees said to us, unwilling people cannot be forced to be polite to each other.

Types of situation where codes are used

Common types of alleged breach

The 2 most common types of alleged breach of a code are:

  • offensive or disparaging remarks, or improper allegations, made about other members or staff; and
  • leaking confidential information.

From our interviews, it appears that councils are often most quick to react when the matter affects staff, such as complaints from staff about bullying or public criticism of them by a member. In some councils, the chief executive will effectively “adopt” a complaint made by one of their staff, and take the place of the complainant, acting on their behalf.

By contrast, other elected members, and members of the public who engage in political debates with elected members, usually understand that they are choosing to participate in an environment where vigorous debate can be expected. Some allowance needs to be made for that.

Inappropriate use of a code

We found that some matters that have been dealt with under a code may not truly be matters of conduct, and do not really warrant the use of the code. Code enforcement is a disciplinary process, not a general dispute resolution or inquiry tool. For instance, some complaints seem to be primarily about:

  • disputes between people in a context of mutual animosity; or
  • inquiries into operational matters.

Such matters may come to be regarded as “code of conduct” matters because someone has taken exception to the way a member has expressed themselves, but the subsequent investigation or hearing may range well beyond strict conduct issues. Conversely, some matters that possibly were legitimate matters of conduct have been dealt with outside the process set down in the council’s code – see paragraph 5.51 below.

To a large extent, whether or not the code procedure is followed depends simply on whether the complainant (or, sometimes, the member who is the subject of the complaint or the mayor or chief executive) expressly asserts that the complaint is made “under” the council’s code.

Sometimes a council’s code is invoked for matters that may seem petty or trivial. These may be such things as:

  • a single usage of coarse language that some people would find offensive;
  • disparaging remarks made about a person in the heat of debate; or
  • “tit for tat” complaints made by and against the protagonists of a political or personal dispute.

One commentator has emphasised that –

Members … need to realise that the complaints procedure is separate from politics and thus not the arena for scoring political points.5

The credibility of codes will be undermined if they are trivialised or abused, or overly politicised. Participants in local government need to accept that they are operating in a political environment. Allowances need to be made for the fact that the cut and thrust of debate can often be robust and blunt. We doubt that a code enforcement process should ordinarily be undertaken, for example, on the basis of a single instance of a member expressing themselves impolitely. And disagreements over personal or political style may often be best left to be resolved by the electoral process. (Although, once the code is invoked, it is important for the matter to be addressed fairly, and free of political bias.)

Many codes do not expressly permit petty or trivial complaints to be dismissed at an early stage, and so we consider some councils may have felt themselves to be under an obligation to undertake a full formal enforcement process for a matter that, on an objective view, may not really be significant enough to justify being taken so far. Yet, in our view, an enforcement process does not have to be entirely driven by a complainant. We consider that it may be useful for codes to allow for some sort of preliminary assessment of complaints, with a discretionary power to dismiss those that do not warrant being taken further. Councils would need to consider whether this power should be given to the mayor (or deputy, where the mayor is the subject of the complaint), or to an independent external person.

Complaints from members of the public

As noted in paragraph 4.13, few codes expressly say whether or not members of the public are permitted to make a complaint under a council’s code. One case involving the Mayor of Wanganui, which received a large amount of media coverage, arose from complaints from members of the public, but very few complaints have in fact arisen in that manner.

Accordingly, many councils have not yet considered whether they would permit a complaint under their code to be made by someone outside the council. Most, when asked, said that they probably would. After all, some aspects of a code are likely to relate to the public. The Act requires that, among other things, a code must cover members’ “behaviour toward … the public”.6

Some people expressed concern about the risk that their code might become widely abused by members of the public as a means of pursuing political or personal arguments. This could lead to council processes becoming gridlocked. These people thought that more traditional methods of political action (such as private lobbying, speaking at meetings, writing to newspapers, and – of course – voting) ought to be sufficient, without the establishment of a practice of code complaints as an easy but potentially obstructive tool, where lengthy code investigations and hearings will be used as a forum for relitigating political decisions.

Councils may be able to prevent the abuse of their code’s procedures if they ensure that their code contains some preliminary assessment step with a discretion as to whether a code complaint is allowed to proceed to a full enforcement process (see paragraph 5.27). A code does not have to grant members of the public (or any other complainant) the right to insist that any and every complaint must lead to the full enforcement process being commenced. A council could legitimately take into account the extent to which a complainant has a direct personal interest in the matter complained about.

Enforcement processes

Informality as a first step

Many codes appear to imply that the making of a complaint must always, and automatically, cause the formal enforcement process to be invoked. This seems unfortunate, because it may lead to many matters being dealt with in a very full, legalistic and drawn-out way, when there may be no need for them to be escalated to such a solemn and significant level. Many issues – especially where their effect or significance does not extend beyond the member concerned and the complainant – may be able to be satisfactorily dealt with informally and privately at a low level, through a quiet discussion with the mayor (or another senior member or chief executive) or some other negotiated or mediated resolution. Some councils have a practice of holding regular informal get-togethers of members, where members can “get things off their chest” privately; or the mayor or an outside facilitator may sometimes run a “members only” session when there is a need for members to be reminded about particular rules in response to an issue that has arisen (such as a leak of confidential information).

In our view, it may be useful for more codes to explicitly encourage issues to be raised and resolved at the lowest possible level. As noted in paragraph 5.6, many councils consider this to be the most successful and constructive way of resolving most issues. The initial objective is to defuse the situation quickly, because if it advances to a formal stage the stakes will be raised considerably.

Under this approach, the full, formal enforcement process (with an investigation and/or hearing, and the possibility of penalties) would be reserved for only the most serious cases. There will occasionally be cases that require this level of gravity, and where a broader public interest is at stake than simply the alleged hurt to the complainant. But this stage should be kept in reserve, for use if all else fails. Some people we spoke to said it should be regarded as a “backstop”.

Investigation processes

Once a formal investigation or hearing is commenced, councils need to be very careful to ensure that the member who is the subject of the complaint is treated fairly. A failure to act consistently with the expectations of procedural fairness – also called “natural justice” – can leave a council open to legal challenge. Whatever constitutes a “fair” process depends on the circumstances, and so can vary from case to case. In essence, the underlying principles are that:

  • each affected party must be allowed a full opportunity to be heard; and
  • the decision-maker must avoid any bias or appearance of bias.

It may be prudent for councils to have legal expertise on the investigating committee, or access to legal advice before and throughout the process.

Councils also need to deal with the matter promptly. Some complaints become bogged down for extended periods of time, because of:

  • arguments over natural justice and other procedural issues; or
  • a lack of co-operation from the member who is the subject of the complaint;7 or
  • an apparent lack of political will to deal with the matter.

The balance between fairness and timeliness can be difficult to achieve. Yet, where a member is unco-operative, a council should not be afraid to advance the process through to its conclusion. A member who is the subject of a complaint is not entitled to delay the matter interminably through unresponsiveness or other delaying tactics. Allowing the process to drag on can be exhausting and costly, and can make the situation worse in the meantime for a complainant who has a legitimate grievance.

Many codes provide for an investigation to be undertaken by a committee or person. Where this process exists, councils need to pay special attention to the selection of personnel. If elected members are used, they need to be people who cannot be reasonably accused of having made up their minds about the matter or person in advance. If independent external persons are used, some codes encourage councils to use people with mediation or dispute resolution skills. This may not necessarily be the most helpful skill-set for this role. If the matter has proceeded to a formal enforcement process, it is probably already beyond the stage of being resolved amicably; it now requires a quasi-judicial process that leads to a clear finding. Other types of people sometimes used include senior lawyers, investigators (such as retired policemen), and experienced local government practitioners (such as retired chief executives). Some councils report that, with hindsight, they prefer people with a sound understanding of local government. We agree. We also consider that legal expertise may often be desirable too.

The fairness of the process followed by Wellington City Council in relation to one complaint, where the Council had censured a member for public criticism of a Council employee, was recently challenged in the High Court.8 The Court rejected the challenge. The process followed by the Council was detailed in the Court’s judgment.

The Court also dismissed arguments that various members of the Council were biased, although its discussion is a useful reminder of the need for other members to avoid conduct that may give the appearance of pre-determination. Members need to be very careful about the risk of bias.

The Wellington case can give councils confidence in the processes they are using. However, this is only one example, and there is no single correct process to follow for all cases. The fairness of a council’s hearing or decision-making process is always amenable to judicial review. In acting fairly, councils will need to ensure that they follow the specified process in their own code, which may have different requirements from those outlined in the Wellington case.9 They may also have to consider any special requests from the member who is the subject of the complaint, or other unforeseen issues that arise in the circumstances of their own case.

Determination that a code has been breached

The Wellington case can also give councils a considerable degree of confidence in their substantive decisions about whether or not their code has been breached. The Court indicated that it will not lightly assume the role of second-guessing the correctness of the merits of a council decision. The Court said –

It is not for the Court to judge the merits of the Council’s decisions that the applicant (whether impliedly, inadvertently or otherwise) had criticised [the Council employee] and that he should be censured for that. Those were decisions for the Councillors to make, on balance and in light of the spirit and meaning of their own Code of Conduct. The Code is in the nature of an internal regulatory manual so that whether there has been any transgression of its guidelines is very much a matter for the Council to assess. On that basis, the Court would not readily intervene in any decision by the Council unless that decision were demonstrably unreasonable.10

The Court took the view that the decision was a political one that elected members were in the best position to make.

The Court also provided guidance on the inter-relationship between codes and the right of freedom of expression under the New Zealand Bill of Rights Act 1990, which is something that is often claimed to be a defence to a complaint under a code. Freedom of expression is certainly a relevant factor to be considered, and will often mean that behaviour of which others disapprove should nevertheless not be penalised, but it is not a complete defence. On this matter, the Court said –

… the entitlement of a Council member to freely and publicly express an opinion is subject to the limitation that “media comments must observe the other requirements of the Code of Conduct”. As it is appropriate to regard the Code as a lawfully promulgated set of guidelines or rules, issued under s 48 (and Schedule 7) of the Local Government Act, this limitation on public criticism of any Council employee in any way can be regarded as a justified and reasonable limit on the entitlement of a Councillor to freely express his or her personal view in the media at any time.11


From our research, it seems that councils do not readily impose penalties. In general, they do so sparingly, and with reluctance. The penalties imposed have usually been light.

The most common types of penalty imposed, in those cases of which we are aware, are:

  • a request for an apology; and
  • a resolution of censure.

In a few cases, a member has been stripped of a chairpersonship, or removed from a committee altogether. Yet this appears to be rare. Some councils even told us they would regard this as an extreme move, which they would not envisage ever using.

We are unaware of any councils purporting to impose any more serious penalties.

Enforcement outside a code

If a conduct issue arises in the context of a meeting, often it will be able to be dealt with immediately, under powers that exist in standing orders (such as through a point of order, personal explanation, withdrawal and apology, or expulsion from the meeting). Some mayors told us they use this method a lot. This may be an effective way to resolve many minor matters immediately, without them having to go further and escalate into lengthy disputes. Some people expressed to us the view that, because of the ability to apply standing orders in meetings, a code should apply only to matters arising outside the confines of a meeting.

Some councils have, at times, bypassed their code process altogether and dealt with a conduct issue summarily without considering any preceding complaint, investigation or hearing. The council simply passes a resolution which censures the member or removes them from some position. Where the decision involves removing someone from a position as chair or member of a committee, it is rationalised as being treated as a simple political question of losing “confidence” in the person in that role. This has sometimes been effective in resolving an issue quickly. We consider it carries risks, though. A dissatisfied member might contest the outcome, arguing that because a specified process exists for conduct issues, the council is obliged to follow it.

Our conclusions

Most councils use their codes only rarely, if at all. But a code ought to be a document that is not used frequently. In most councils, if conduct issues do arise, they are usually dealt with informally and privately.

Alleged breaches of codes commonly related to offensive or disparaging remarks, or leaks of confidential information. Councils are most quick to react when the matter relates to staff. The penalties imposed have been light.

Some members and officers who have been through a formal enforcement process end up bitter and frustrated about their code. We do not consider that code complaints necessarily indicate that a council is dysfunctional.

Many councils have not yet considered whether they would permit a complaint under their code to be made by someone outside the council. Most, when asked, said that they probably would. However, some people expressed concern about the risk that their code might become widely abused by members of the public as a means of pursuing political or personal arguments.

Sometimes a code is invoked for matters that may not truly be matters of conduct, or that may be petty or trivial. Councils may have felt themselves to be under an obligation to undertake a full, formal enforcement process for a matter that may not really be significant enough to justify being taken so far. We consider that it may be useful for codes to allow for some sort of preliminary assessment of complaints, with a discretionary power to dismiss those that do not warrant being taken further.

It may be useful for more codes to explicitly encourage issues to be raised and resolved at the lowest possible level. Many councils consider this to be the most successful and constructive way of resolving most issues. The full, formal enforcement process can then be reserved for only the most serious cases.

Managing the process effectively

For a council attempting to manage an enforcement process through to a just result, with as little disruption as is necessary, maintaining the balance between fairness and timeliness can be critical.

Some complaints become bogged down for extended periods of time. However, the processes councils have followed in the early days of using their code are not fundamentally flawed. Recent case law can give councils confidence in their processes, and in their substantive decisions. In our view, councils can afford to have confidence in their codes, and in their enforcement processes, should they have to deal with enforcement matters.

We consider that the key factors for councils to bear in mind when dealing with future code complaints (or in reviewing their codes) are:

  • attempting to resolve issues informally and privately wherever possible, and reserving use of the formal enforcement mechanism for only the most serious cases;
  • providing in their code some method of preliminary assessment of complaints, with a discretionary power to dismiss those that do not warrant being taken further;
  • where applicable, carefully selecting the personnel to be involved, to ensure that they have the appropriate skills and experience for the task required of them;
  • paying careful attention to following a fair process (including, but not necessarily limited to, whatever steps or entitlements are specified in their code), and seeking legal advice if necessary; and
  • proactively managing the process, to ensure that the matter is dealt with promptly (without compromising the need to act fairly).

1: Six of them have had this occur more than once.

2: Formal enforcement processes can sometimes remain wholly confidential, even after the event. This may be entirely appropriate if the matter is especially sensitive, such as in the case of a sexual harassment complaint.

3: Barrington, Rosemary, September 2003, Good behaviour can’t be determined by rules, NZ Local Government, page 2.

4: Shaw, Robert, January 2004, New era demands new attitudes, NZ Local Government, pages 26-27.

5: Sheppard, John, May 2004, Codes of Conduct, Brookfields Newsletter.

6: Clause 15(2)(a)(i) of Schedule 7.

7: Or, in one case, a reluctance to co-operate on the part of some other witnesses whose evidence was considered to be critical to the inquiry. The investigating committee has become frustrated at not having any legal power to compel co-operation.

8: Goulden v Wellington City Council (unreported, High Court, Wellington, CIV-2004-485-1, 21 April 2006, Goddard J).

9: For instance, the Wellington code is different to many others in that it does not provide for the main investigation of the complaint to be undertaken by a committee or independent external person. Wellington’s code specifically empowers the mayor to consider the complaint, and then to decide whether the matter is sufficiently serious to warrant referral to a meeting of the full Council.

10: At paragraph 59.

11: At paragraph 73.

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