Part 25: What can we learn from the wastewater project?

Inquiry into the Mangawhai community wastewater scheme.

From our perspective, there were two main reasons for investing so much time and resource into this inquiry. The first was to provide the community and others with an independent description of what happened. The second was to draw out any lessons that can be learned for the sector as a whole. In this Part, we distil those more general lessons in the following areas:

  • accountability;
  • governance;
  • management;
  • PPP arrangements;
  • lessons for auditors;
  • lessons for accountability agencies; and
  • how members of the public can raise concerns effectively.


Public entities should be meticulous about legality

The obligation to act lawfully is fundamental for any public entity. As we discussed in Part 24, a significant failure to comply with the law can have a profound effect on the level of trust between the entity and the community it serves.

Local authorities have many legal obligations, arising from a wide range of legislation as well as general common law obligations. For the most part, the forum for testing whether an entity has complied with the law and for holding it to account for its actions is the legal system and the courts.

As we explained in Section D, all auditors consider some issues of legal compliance as part of their annual audit work, to assess whether there is any obvious legal problem that could affect the reliability of the financial statements. In the public sector, we broaden that consideration to take account of the public sector context. In general terms, this means that we consider generally whether an entity is complying with the core legal requirements affecting how it governs itself, operates, and holds itself accountable.

For the local government sector, the Local Government Act 2002 and the Local Government (Rating) Act 2002 are the obvious touchstones. The Local Government Act 2002 governs how a local authority sets its strategy and plans, operates, makes decisions, interacts with the community, and reports. The Local Government (Rating) Act 2002 sets strict requirements for how local authorities can require ratepayers to pay rates of various kinds.

It is obvious that KDC failed to pay adequate attention to legal matters during this project. The fact that Parliament is currently considering a substantial Validation Bill is enough evidence of that. Throughout this report, we have also noted inadequacies in the attention that KDC paid to legal issues when the project got under way, as well as problems with the ad hoc way it sought legal advice.

The lesson for the local government sector – and for all public entities – is that managing legal risk is vital. We acknowledge that perfection is unattainable in this or any other area of activity. Legal errors can and do occur. However, entities should strive to ensure that such errors are infrequent, are not particularly significant (in terms of risk or harm), and are addressed promptly. In principle, a commitment to legality should be at the heart of the culture of any public entity.

Legislative obligations affect all aspects of a local authority's work: how it operates, how it consults, how it runs meetings and makes decisions, and also what it actually does. At a subsidiary level, internal rules, such as policies and delegations of authority, can also affect the lawfulness of individual decisions and actions.

In our view, a public entity should see being meticulous about legality as a strength, not as nit-picking. The governors of the organisation can and should set that tone.

Good record-keeping is the foundation of effective accountability

Throughout this report, we have made it clear that we consider KDC's records to be inadequate. It did not keep records that would enable it to explain what it had done, and why, for many important decisions. We were particularly concerned with the poor records of what information was provided to Council meetings. One of the principles in the Local Government Act 2002 is that the local authority should ensure that its governance structures and processes are effective, open, and transparent. We doubt that the Council's past practices met this standard.

Good records can help public entities when they are challenged. Without good records, it is very hard for a public entity to show that it has acted carefully, followed good processes, and made decisions for good reasons. Given that public entities can and will be regularly challenged to explain themselves, whether in the media, in the courts, or through some other accountability process, keeping good records should be seen as basic risk management.

As we discuss elsewhere, keeping good records is also a core legal obligation for all central and local government entities covered by the Public Records Act 2005.

Workshops can supplement formal Council meetings, but not replace them

We highlight one particular practice that we regard as undesirable. The Council's elected members received most of their briefings on the wastewater project through informal workshops, held just before formal Council meetings. Although this might be a sensible way of enabling open discussion with those providing the briefing, it cannot be a substitute for submitting formal monitoring reports to Council meetings that go on the record.

As we understand it, most of the briefings were supported by presentations. Elected members were not usually provided with either papers in advance or papers that they could take away and consider later. The workshop briefings did not make it into KDC's files, so there is no formal record of the information that was provided. Decisions were often recorded in the minutes that were hard to understand without seeing the supporting papers or information. One former councillor gave us all of the papers she had accumulated while in office, and we searched through those to see if we could find the information presented in workshops. We could not.

We repeat: workshop discussions and briefings can be a useful way of providing information and enabling discussion. However, they must be in addition to formal reports that form part of the public record, not instead of them. Councils cannot make decisions in workshops; they must be made in formal meetings.

Contractors need to be tied into public sector accountability mechanisms

When a public entity uses contractors to carry out work for it, it must make sure that those contractors are properly bound in to the entity's accountability obligations. We note that the Public Records Act 2005 requires public entities to keep records of the work that contractors have done for them. Both the Official Information Act 1982 and the Local Government Official Information and Meetings Act 1987 also include provisions dealing with the ability of people to access information held by a contractor to a public entity. Similarly, the statutory powers in the Public Audit Act 2001 enable us to require information from "any person" in New Zealand – not just public entities – so that we can follow public money through to contractors and others working alongside public sector entities.

When we reviewed the contracts that the Council made with its various providers, we did not find any provisions that tied those contractors into these various accountability mechanisms. In our view, that should be standard practice for public sector entities. It is particularly important when contractors carry out major projects or activities for a public entity.

We note that the model standard contract published by the Treasury's National Infrastructure Unit includes specific and detailed provisions on record-keeping, access to information, and compliance with public sector accountability obligations. We commend this approach.

We have been told that there can be problems when consultants are used, because they sometimes refuse to provide papers on the basis that they need to protect their intellectual property. This can result in the entity not holding important technical information in its files and needing to re-hire the consultants to access that information. This is obviously an unacceptable outcome. We encourage public entities to focus on information issues when they negotiate the terms of engagement for any contractor. Public entities need to strike a deliberate and appropriate balance between protecting the intellectual property of consultants and ensuring that the entity has ongoing access to the information it needs to function effectively and to meet its accountability obligations.


Understand the role and stick to it

Councillors, as with members of the governing body of any public entity, need to clearly understand their role and that of management. The governance role is about maintaining the broad view. It is about setting direction and policy, making significant decisions, testing advice to ensure that it is sound, monitoring the activities of management to ensure that what is being implemented will achieve the objectives, keeping an eye on risks of all kinds, and safeguarding the overall quality of the relationship between a council and its community. When members of a governing body become too involved in operational matters, the risk is that nobody maintains the broad view for the organisation and checks that the overall direction is still appropriate.

In this case, we consider that the governance and management of KDC were too focused on solving the problem of the day, whether that was the need for a new contractor or a disposal site. The result was that there was no effective "keeper of the long view". The project was set up so that elected members were informed about some day-to-day issues through periodic briefings directly from the project managers. However, no structure was established to provide the Council with strategic advice that focused on the overall objectives and risks.

We acknowledge that sticking to this high-level role can be difficult in small local authorities, where many of the community's problems are immediate and practical. Ratepayers expect to be able to approach their local councillor to get those problems fixed. That representational role and connection with the community is part of the role of an elected member, but so is the responsibility for steering and governing a substantial organisation with complex responsibilities.

A governing body is entitled to information and advice that it can understand and test

Throughout this report, we have commented on the difficulties we had in establishing exactly what information and advice was provided to elected members. Although it is clear that elected members received regular briefings on the project, this was generally done through informal workshops with little information on paper.

In our view, a project of this financial and political significance should be accompanied by much more systematic and comprehensive reporting to the elected members on progress, cost, and risks. This should not be taken as contradicting the previous point, about elected members sticking to the governance role. Effective discharge of the overall governance role requires good information about what is happening.

We have noted several instances when a Council meeting asked the Chief Executive to provide the Council with advice about an issue or an aspect of risk and we could find no record that the advice was provided. In each case, the request was a wise one and it was unfortunate that the Council did not follow up the request and insist that the advice be provided.

The role of a governing body is to test and challenge the advice it is given to satisfy itself that the proposed decisions are appropriate. Part of the function of an elected member is to bring a community perspective to the local authority. This is the democratic oversight and steering of the organisation. If the information provided is overly technical, is incomplete, or simply cannot be easily understood, elected members are entitled to question it and ask for more. It is better for a member to "ask the dumb question" and ensure that they understand what they are deciding than to assume that the technical advice must be appropriate.

Common sense is a legitimate governance tool

In a similar vein, members of any governing body should not hesitate to use their own common sense to check the advice they receive and the decisions they are asked to make. It is not unknown for expert analysis of a complex problem to produce a complex solution. Sometimes, standing back and applying common sense can produce a much simpler solution.

In KDC's case, standing back and applying common sense might have resulted in some different decisions. Examples include proceeding to sign a contract for construction without identifying a disposal site, agreeing to a disposal site that required treated effluent to be piped some 11 kilometres across private land, treating effluent to a high standard before storing it in an open dam for many months so that the quality degrades again, and expecting that there would be a market for reuse of the treated effluent in a region that is not particularly dry.

Understand what assurance is needed and where it can be obtained

Organisations face all sorts of risks. The governing body has to maintain an overview of those risks and have systems or advice streams in place to assure itself that those risks are being appropriately managed. Many organisations establish a dedicated audit committee to help with this task.

When individuals are elected to a local authority, they need to familiarise themselves with the main areas of risk, how those risks are being managed, and how they can get assurance on them. This inquiry has highlighted a particular risk that elected members might not fully appreciate what assurance they can take from the work of their auditor and from an unqualified audit opinion. In our experience, it is common for people to misunderstand the purpose of an audit and to assume that it provides more general assurance about the health of an organisation than it does. We discuss this issue further in Part 26, because we see it as a permanent risk in the local government sector. However, we also record it here as an important lesson for members of governing bodies.

Audit committees can provide useful support

An audit committee can help a local authority carry out its governance duties. The Foreword to our 2008 guide, Audit committees in the public sector, commented that:

Audit committees have a valuable contribution to make in improving the governance, and so the performance and accountability, of public entities. They can play an important role in examining an organisation's policies, processes, systems, and controls. An effective audit committee shows that an organisation is committed to a culture of openness and continuous improvement.

An audit committee does not displace or change proper accountability arrangements. Accountability for good governance rests with the public entity's governing body …

Effective audit committees can provide objective advice and insights into the public entity's strategic and organisational risk management framework. In doing so, they can identify potential improvements to governance, risk management, and control practices.3

Audit committees are a particularly useful way of a governing body managing any gaps in the skills and knowledge of its own members because of the ability to appoint members for their particular expertise and experience. We encourage entities to aim for the following combination of experience in their audit committee:

  • financial reporting;
  • broad governance experience;
  • familiarity with risk management disciplines;
  • understanding of internal controls and assurance frameworks;
  • a good understanding of the roles of internal and external audit; and
  • industry or sector expertise.4


The limits to contracting out

This inquiry provides a clear lesson about the limits of contracting out by public entities. It is not our role to take a view on the ideological debates about the appropriateness of contracting out any particular activity or function. It is our role to take a view on whether any particular contracting arrangement enables a public entity to carry out its responsibilities effectively. In this case, we consider that KDC contracted out too much.

By this, we mean that KDC did not retain enough in-house capacity and capability to effectively control what was being done on its behalf. It did not maintain the capacity and capability to effectively manage and monitor the contracts that it entered into. When contracting out became a feature of public management literature in the 1990s, it was often framed in terms of the metaphor that the public entity needed to steer the boat but could contract someone else to do the rowing. Our caution is that, because the public entity remains responsible and must be able to account back to the community for what is done, the entity must be careful to ensure that it always maintains the capacity to steer.

Financial management

There are two main lessons about financial management from this inquiry. The first is the importance of maintaining in-house capacity and capability in this core area that is appropriate for the size and complexity of the organisation. The second is to confine financial activity to transactions that are within an entity's sphere of competence. The Council's willingness to enter into a PPP arrangement in the first place, and then to follow up with complex swap arrangements, makes the point. We commented in the earlier Sections of this report that we would discourage public entities from engaging in transactions such as swaps if they do not maintain an in-house treasury function or have some other established arrangement for access to specialist treasury advice. These are sophisticated financial transactions that require sophisticated assessment and advice. Entering into these transactions without that advice proved to be expensive for KDC.

We also highlight several other more specific lessons:

  • For a long-term infrastructure project, careful long-term planning and forecasting is essential. That forecasting should allow for different scenarios, including low- and high-growth projections. It needs to be revisited regularly to check whether any decisions need to be reviewed.
  • It is important to choose the right indicators for monitoring how a project is going, including its affordability. In this case, the Council monitored affordability by considering whether the annual cost to ratepayers changed significantly. Using that indicator masked the size of the debt that was accumulating.
  • Financing costs can be a significant part of the cost of a long-term project. It is just as important to check whether the offered financing arrangements provide value for money as it is for ordinary contracts for goods and services. That was not done in this case.

Project management

In the earlier Sections of this report, we have made clear our view that, when the Council first set up the project, it did not properly consider how the project should be managed and monitored. Appointing external project managers was not enough. The scope of their services was limited. The Council needed to make its own arrangements for considering and responding to broader risks, outside the scope of the project managers' work. By default, the Chief Executive became personally responsible for the project, supported by the external project managers. However, there were no clear boundaries around what decisions he would make, what decisions the project managers would make, and what needed to be decided by the Council.

The lesson for the sector is that project governance and management is important. If a project is significant, it is appropriate to invest in appropriate support, advice, and assurance systems for it. Cutting back on these set-up and overhead costs can be a false economy.

Circumstances changed significantly at several points during this project. A good project governance model can ensure that such changes are taken as an opportunity to stand back and assess whether it is sensible to continue. It is a hard decision, but sometimes it can be appropriate to put a project on hold, or even stop it altogether, if the circumstances have changed significantly or critical assumptions have not held up. We did not see this happening with this project. When such changes occurred, how to respond was considered but not whether to continue at all. Those responsible for major public sector projects must always maintain enough overview and distance to be willing to end the project if required.

Public private partnership arrangements

Do not underestimate what is involved in a PPP arrangement

In our view, KDC did not fully understand how complex using a PPP arrangement would be and the additional project management that this approach requires. It appears that KDC thought that using a PPP would make delivery of the project easier for it, especially because it had few internal resources to run a major infrastructure project. In fact, using a PPP arrangement is complex and requires significant technical skills beyond those required for a traditional design/construct project.

Because PPPs are complex undertakings, they require a high level of understanding of the risks involved and how best to manage them:

PPPs are a complex undertaking, and part of a broader set of procurement strategies possible for major infrastructure. Moreover, while they have strengths and weaknesses, they may well apply to only a minority of projects, given the decision to adopt a PPP or not is governed by whether the approach achieves value to the community over the life of the asset. ...

In summary, PPPs can work well in the right situation. However, they are complex and generally require a very large financial transaction, due caution and high levels of expertise.5

Accounting should not drive the decision to enter into a PPP

The research on PPPs is clear that the accounting treatment of a PPP project should not be the main determinant in deciding to use a PPP. As we set out in the report, the Council appears to have had two main reasons for wanting to use a PPP – to have the debt off the balance sheet and to manage the risk that the scheme would not operate as intended once constructed.

With a PPP, the public entity ultimately pays for the project, whether by paying for the infrastructure on completion or by paying for the services that the project provides during the partnering arrangement. The main issue to consider in this regard is whether the project is affordable, not whose books the infrastructure asset and associated debt will appear on:

PPPs are said to offer finance for projects which would otherwise be unaffordable (off-balance sheet financing): PPPs that are financed by service payments from government create a liability to make regular payments over the life of the project. … The provision of private sector finance is therefore only an advantage in so far as it strengthens the incentives to obtain the benefits [of using a PPP].6

Before the Council decided to use a PPP, it was clear that it had limited financial capacity to construct the scheme itself without significantly raising its debt and its revenue. There is no evidence that the Council fully explored the options it had to fund the scheme before deciding to use a PPP.

As we set out above, PPPs are complex undertakings and research shows they do not automatically provide value for money. They will only be a cost-effective way of delivering infrastructure if they are well managed. If an entity cannot afford to construct infrastructure itself, and chooses a PPP to deliver that infrastructure, then it needs to be strongly focused on whether the project will be affordable.

Transfer of risk is not an end in itself

PPPs can offer a number of advantages in terms of providing value for money over traditional procurement. For example, a PPP can result in savings over the whole life of the project and greater certainty about the cost of construction. However, these benefits are likely to arise only when risks have been appropriately allocated between the public entity and the private partner. This is because the careful allocation of risks creates incentives to achieve the overall benefits sought.

Shifting as much risk as possible to the private sector partner was one of the Council's main objectives, alongside affordability. However, experience has shown that the transfer of risk should not be seen as an end in itself:

PPPs are said to offer the advantage that risk is transferred to the private sector. Risk transfer is not an advantage in itself, as it can be expected to be offset by a risk premium in the price for the project. The advantage of risk transfer is that it provides the incentive for obtaining the benefits.…7

PPPs are unlikely to succeed fully if the contract is not for "the complete package"

One of the advantages of using a BOOT8 type of PPP is that the public entity does not need to be concerned about the detail of how the private partner will provide a solution to its problem. The public entity buys services from the private partner to address the problem.

Under a BOOT approach, the private partner is required to provide a complete solution to the problem. Unless the complete solution has been provided, the Council is unable to assess what the overall costs of the solution will be and whether it will provide value for money.

Under the BOOT approach that the Council started the project with, it went to the market seeking an affordable solution to the wastewater problem in Mangawhai. It did not put any restrictions around disposal of the treated effluent, other than noting the preference of stakeholders that it be disposed of to land. With the BOOT approach, the Council did not need to be concerned about how the outcome – the cleaning up of the Harbour – was to be achieved. The private sector partner needed to work out how that outcome could be achieved and provide an appropriate solution for it.

None of the three tenderers provided disposal sites that were acceptable to the Council. Therefore, none of them provided complete solutions to the Council's problem. This should have caused the Council to either tender again or consider whether it needed another project delivery model.

Therefore, the main advantage of using a PPP was undermined when the Council signed the contract in 2005 that left the disposal site unresolved. In effect, it signed a contract for a two-thirds solution to its problem. The Council failed to appreciate that, in signing the contract in 2005 with the disposal site unresolved, it had no way of knowing whether the contract was going to be affordable or whether it would provide value for money. The Council also effectively committed itself to being involved in the practical development of the overall solution. It had lost some of the "hands off" advantage of a PPP. This was exacerbated by the many modifications KDC made during construction.

There is no evidence to suggest that the Council understood quite how big the risk was that costs would increase significantly. As we set out in this report, we estimate that the disposal costs were $14 million, a significant increase on the $361,000 included in the 2005 contract for disposal costs.

The lesson here is that considerable effort is needed to prepare and develop the contract for a PPP. Once the contract is signed, the public entity should be able to rely on the contract to deliver the outcomes it seeks. If the contract is not complete, that will not be possible and further engagement will be needed.

Lessons for public sector auditors

Understand the entity as a whole

In the private sector, the formal work of an auditor is focused on the information presented in the financial statements. Public sector auditors have additional responsibilities:

  • Auditors must audit information that the entity reports on its performance in providing services, as well as the financial information.
  • Local government auditors must audit LTPs, which require an overall understanding of the entity's position, challenges, and strategy;
  • Auditors must maintain a broader awareness of more general issues that may be of interest to the Auditor-General. Auditors are expected to act as the Auditor-General's "eyes and ears" and alert the OAG to anything they encounter that might raise more general questions about whether a public entity is operating appropriately.

Therefore, the Auditor-General expects public sector auditors to look beyond the financial statements and maintain a broad understanding of the entity as a whole. They also need to consider trends and developments in the entity across successive years. In any sector, auditors are able to add more value to the entity when they are able to comment on emerging challenges and risks from this more general perspective.

Assessing the strength of the management control environment is fundamental

The independent review of the work of the auditor identified concerns about the quality of the assessment of the management control environment. All auditors must assess the strength of the management control environment in the entity they are auditing. What this means, in simple terms, is that auditors look at the overall policies and procedures, and the main supporting systems, operating within the organisation. Auditors then need to decide whether the management control environment is likely to produce reliable information for the entity. If auditors consider that it is reliable, then they will test key controls to confirm the reliability of the supporting systems. If a system is weak, the auditor will need to use different techniques to form an opinion on whether the information being produced is reliable. The weaker the system, the more "substantive testing" an auditor will need to do.

This assessment is a basic part of how an auditor plans and carries out an audit. However, it can also provide very useful information for the governors and managers of the entity about how good their systems and controls are. Effectively, it is a perspective on whether the organisation is being well run. A weak management control environment and weak systems could signal a whole range of more general risks.

In the public sector context, this annual assessment of whether the entity is well run can be extremely valuable if it is done well. We encourage public sector auditors to take a broad view of this part of their work. We also encourage them to bear in mind their more general "eyes and ears" role when they assess the strengths and weaknesses of the public entities they are auditing. Although not determinative, this perspective from an auditor can be a useful indicator of risk that the OAG can contribute to the pool of information held by accountability agencies.

We note one other point in this regard. Smaller and apparently stable organisations are often assessed as low risk. The reasoning is that little changes each year, the public entity's staff have been doing their jobs for many years, and the community's issues are well known. This is a relatively shallow assessment of risk. It is equally common for stable organisations to have significant risks or failings that have been embedded in the organisation for many years and have simply not yet come to light. We expect public sector auditors to look more deeply at what each organisation is actually doing when they assess the strengths and capability of its governance, management, systems, and procedures.

Good and open communication between auditor and entity is vital

Throughout this report, we have drawn attention to the lack of good information flows through KDC, both in terms of the information provided to the Council and the information that was stored in files. The quality of information within an organisation also affects the work of auditors.

Auditors have a professional obligation to keep confidential the information they receive from their clients. This obligation is important because an effective audit relationship depends on free and frank communication between the auditor and the entity.

Entities do not always realise that, if they limit the information they disclose, their auditor's work is unlikely to be as effective and provide as much value as it could. When the relationship with an auditor is fully open, and the auditor understands the entity well, the independent perspective and comment of the auditor can provide significant value back to the entity. This value is in addition to the general benefit of being able to receive the assurance that an audit provides about the financial and service performance information reported by the entity.

Auditors need to work to ensure that the entities they work with understand how important it is to maintain good and open communication, so that they can obtain maximum value from their auditor.

Lessons for accountability agencies

The agencies need to talk to one another

We have discussed with the Office of the Ombudsman what we can each learn from our experience with KDC. Both organisations continue to reflect, but we have also each acknowledged:

  • the value that can be gained from pooling our knowledge when we assess the issues correspondents raise with us; and
  • the need to have a clear understanding of the work that we are each doing when we receive correspondence on related issues and when we refer matters to one another.

It is important to keep an eye on the bigger picture

From the OAG's perspective, we have also acknowledged the risks that arise when we focus too much on the individual detailed issues that are raised with us and do not pause to assess the bigger picture and the cumulative effect of the information we are gathering. In simple terms, we need to remember to "join the dots" – within our own organisation and with our colleagues in other parts of the public sector.

Do not assume that people are familiar with an agency's role and how it works

The other lesson we take from the review set out in Part 23 is the need to communicate clearly with the people who contact us. The settings that we and other agencies work under, and the niceties of what we can and cannot do, are not matters of everyday public knowledge. In all our work, we must try to communicate clearly what we are doing and why, as well as what we are not doing.

Particular points that warrant emphasis are that accountability agencies:

  • must always form their own independent view of the issues and are not there to act as advocates for members of the public;
  • will always begin by assessing whether the information suggests that there is a real issue and that the entity is not able to resolve the issue itself; and
  • do not generally have any power to intervene or direct entities about what to do, but can simply investigate and report their findings.

3: Brady, K (26 March 2008), "Foreword", in Office of the Auditor-General, Audit committees in the public sector, page 2.

4: Office of the Auditor-General (2008), Audit committees in the public sector, page 20.

5: Duffield, C, "Different delivery models", in G Hodge, C Greve, A Boardman, eds (2010), International handbook on public-private partnerships, Edward Elgar, United Kingdom, page 213.

6: National Infrastructure Unit of the Treasury (October 2009), Guidance for PPPs in New Zealand.

7: National Infrastructure Unit of the Treasury (October 2009), Guidance for PPPs in New Zealand.

8: Build, Own, Operate, and Transfer.

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