Part 12: Local authority elections - issues to watch out for

12.1
Local authority elections are a time of robust debate and political contest. That is as it should be. But the heightened political environment of an election creates a number of challenges for the administration of local authorities. The Auditor-General usually receives a range of requests for advice and inquiries on election-related issues. We do not have a role in regulating the general conduct of candidates during an election – that is a matter for the political sphere. However, we do have a role in commenting on the use of local authority resources, whether financial or staff.

12.2
Because local authority elections will be held in October 2010, we considered it timely to include in this report some advice on election-related issues that have arisen in the past. In this Part, we discuss our general approach to three issues that regularly arise:

• communication in the pre-election period;
• election candidates and the Local Authorities (Members' Interests) Act 1968 (the Act); and
• decision-making by councils after the election.

Communication in the pre-election period

General principles

12.3
The general practice in the local government sector is to treat the three months before the election as the pre-election period, during which additional protocols may be needed. There are some simple principles that need to be balanced in any pre-election period:

• Council staff need to maintain their neutrality.
• The public funds that councils administer should not be used for electioneering or to benefit one candidate over another.
• Councillors are still in office during the election campaign and remain responsible for the activities of the organisation.
• Ordinary business has to continue despite the election, which includes ongoing communication with the (voting) public.

12.4
Balancing these principles in practice can be difficult. New and detailed issues can arise where the right response is not obvious, and councils may need to judge the risks involved carefully. Also, the political context means that the level of scrutiny and potential for challenge is often very high. From an administrative perspective, the election period is a time for caution.

Learning from previous issues

12.5
We reported on the issues that arose in the last local authority elections in our 2006/07 report on local government issues.⁷⁷ In particular, we were pleased to note that we received no complaints about the content of the annual reports and summaries released around the time of the elections. These reports can generate complaints if they are perceived as too heavily promoting existing office holders. We encourage all local authorities to continue to take particular care with the content of these documents.

12.6
We noted four issues that resulted in complaints to the Auditor-General, where local authorities could usefully consider their level of risk before the next election. They are:

• collaborative community relationships;
• public events and launches;
• councillor and mayoral columns and other communication channels; and
• communication from council staff.

Collaborative community relationships

12.7
One local authority had a collaborative arrangement between the council and a community centre that included assistance to publish a regular community newspaper. The newspaper's electoral coverage in one edition excluded some candidates, and the council was criticised for its role in the publication. This issue highlights the risk when local authorities support community communication processes where they do not control the content. We encourage authorities to consider their range of collaborative activities to ensure that they understand and manage this risk as much as possible.

Public events and launches

12.8
The use of council resources for public events, such as opening ceremonies or project launches, can be a regular cause of complaints. In the pre-election period, such events can be perceived as a publicly funded platform for the incumbent mayor or councillors to promote their achievements. We inquired into one such complaint during the last election and concluded that the approach that had been taken was reasonable. Nonetheless, we encourage councils to consider the risks around large events in the pre-election period. We are aware that many councillors try to reduce the number of major events that they attend during the election campaign.

Councillor and mayoral columns and other communication channels

12.9
It is common for mayors and councillors to prepare regular columns or commentary on their activities for council newspapers, websites, or other council-funded communication channels. Councils may also provide a measure of support for public communication by the mayor and other nominated spokespeople.

12.10
During an election period, these communication channels can create risk, as the political significance of the commentary will be higher. A column can change from being a useful vehicle for communicating ordinary council business to something that is seen as a vehicle for political campaigning by the current office holder.

12.11
Many councils have policies that suspend such columns during a defined pre-election period. This is a very simple way of removing the risk. However, to ensure that ordinary council business continues, it may be necessary for council staff to take responsibility for ongoing communication during this period. Other councils find other ways of managing the risks, including having the content of such columns checked by a senior staff member.

12.12
We encourage councils to address this issue directly and decide how they will manage the need to maintain ordinary business and continue to carry out their responsibilities, while ensuring that council resources are not used, or perceived to be used, to give electoral advantage.

Communication from council staff

12.13
Communication from council staff is another risk area. During the last election, we saw one example of such communication that we thought was inappropriate. The communication in this case was perceived by many to be a staff member contributing directly to the political debate and supporting one side. We encourage chief executives to make sure that staff are well briefed on the risks and any special or temporary procedures that may be introduced during the period of the election campaign. Although staff may, at other times, have a fairly free hand in providing information directly to the public or the media, additional constraints may need to be put in place during this period.

12.14
Another difficulty can be in managing contact between staff and those who are working on election campaigns. Candidates and their staff may seek a range of information from the council about current activities, policies, and costs. Responding to these requests can be a fraught activity because it is important that election candidates are treated equally and that the information they receive is manifestly neutral and factual. Writing protocols to ensure equal treatment of requests from current office holders and other candidates can be an important protection. We are aware that some authorities are already considering how they will manage this type of risk for the forthcoming elections.

Our overall advice

12.15
Most local authorities are familiar with our 2004 publication, Good Practice for Managing Public Communications by Local Authorities. The overall advice in that report stands. We encourage each local authority to adopt its own clear policy and set of working rules that it agrees to abide by as a way of managing the issues of communicating during election periods. The policy and working rules should have regard to the principles identified in our good practice guide. A clearly agreed approach of this kind helps councillors and staff, and enables the council to respond easily to any concerns raised by ratepayers.

12.16
As explained in this Part, we also encourage councils to think separately about three different areas of potential risk that may require some management:

• councillors communicating with the community;
• staff communicating with the community; and
• staff communicating with candidates.

Election candidates and the Local Authorities (Members' Interests) Act 1968

12.17
The Act contains some complex rules for election candidates. For example, the contracting rule can sometimes mean that a person would need to rearrange their financial and business affairs to be able to stand as a candidate. The basic rule in section 3 of the Act is that you cannot be elected to a local authority if you have current contracts with the authority under which you will be paid more than $25,000 in that financial year. The same rule applies to people who are appointed to local authorities, and to people elected or appointed to committees of local authorities.

12.18
The Act contains a series of exceptions, which are designed to remove the prohibition if there is unlikely to be any real opportunity to influence the value of the contract once you are elected. A current contract will not disqualify a candidate if:

• the obligations under the contract have been completed (that is, the goods or services have been provided) and the price is already fixed;
• the obligations under the contract have not been completed, but the price that will be paid is already fixed, subject to any amendments or additions allowed for in the contract;
• the obligations under the contract have not been completed, and the amount to be paid is not fixed, but the contract is for less than 12 months; or
• the obligations under the contract have not been completed, the amount to be paid is not fixed, and the contract is for more than 12 months, but the candidate agrees with the authority to relinquish the contract within a month of being elected.

12.19
The Auditor-General has no power to give retrospective approvals for contracts that are in place at the time of the election and would disqualify the candidate at that point. If the value of a current contract only exceeds the $25,000 some time after the election, it is possible for us to give an approval, including a retrospective approval, in the usual way.

12.20
We encourage council staff and all potential candidates to consider the rules of the Act carefully. If potential candidates have ongoing contracts with the authority that may cross the financial threshold, they should seek advice on whether these rules will prevent them from standing for office. They can also refer to our good practice guide on the law of conflicts of interest⁷⁸ for further guidance.

Decision-making by councils after the election

12.21
After the last local authority elections, we received several complaints about newly elected councils deciding to immediately change or reverse decisions of the previous council. We reported on the approach we took to these complaints in a previous report to the sector.⁷⁹ We regarded them as raising important issues about the relationship between the decision-making requirements of the Local Government Act 2002 and the democratic and political context of local authority decision-making.

12.22
We commented that:

Councillors and mayors will have opinions, will have campaigned on those opinions, and will wish to implement decisions consistent with their opinions and campaign messages. They will take office with publicly stated views on a wide variety of policy issues, and may have a sense of obligation to honour what they may see as commitments made to voters. In practice, the ability of any individual to implement their policies and commitments will depend on their ability to influence the collective decision-making of the local authority, and on the status of any existing decisions or commitments by the local authority.

12.23
In each case, we concluded that the relevant council was able to make the decision under the Local Government Act. However, there were steps that the councils could have taken to make the decision-making process more transparent. This would have enabled the community to more easily see and understand the basis on which the council was making the decision.

12.24
Similar issues may arise after the next election. We encourage councils and staff to consider what steps they can take to promote transparent decision-making, accountability, and community understanding, while helping newly elected authorities to make appropriate decisions. It may also be helpful to address the requirements of the Local Government Act in any papers being prepared, so it is clear how they are being met.

77: Local government: Results of the 2006/07 audits, June 2008, Part 11.

78: Guidance for members of local authorities about the law on conflicts of interest, June 2007.

79: Local government: Results of the 2007/08 audits, June 2009, Part 5.