An LGNZ adviser says the council cannot rule out Birchfield

A New Zealand local government expert says the West Coast Regional Council has no right to exclude controversial councilor Allan Birchfield from meetings.

Last year, Birchfield was criticized by the city council for allegedly leaking confidential information about former chief executive Heather Mabin’s exit agreement.

He was removed from his position as chairman of the council, he was removed from his position as a member of the majority of council committees and it stayed that way repeatedly evicted from meetings Buller Councilor Frank Dooley presides due to condemnation.

However, he maintains that as an elected councilor he has the right to participate in any council or committee meeting.

Local Government New Zealand’s chief adviser, Mike Reid, says he’s right.

“Under the Local Government Act, an elected member can attend any council meeting unless he or she is lawfully excluded,” Reid told the LDR.

The Act lists a number of penalties that may be imposed if a councilor is punished, including: loss of privileges and suspension from committee work.

However, being banned from attending meetings was not one of them, and being stigmatized was not in itself grounds for exclusion, Reid said.

The relevant part of the Act was Article 19(1). 2 of Annex No. 7.

“Elected members may attend all meetings of the council and its committees unless they are legally excluded,” he said.

Lawful exclusion was interpreted to mean the exclusion of a member with a financial conflict of interest in the industry in question.

Reid said this did not apply to a councilor censured for leaking information.

“Every elected member has the right to attend every meeting. Dot. End of story. Even confidential meetings.”

Birchfield would not have the right to vote on committees of which he was not a member, and it was up to the chairman whether he could join the discussion.

“But he has the right to be present. They can ban him, but it’s against the law,” Reid said.

West Coast Regional Council chairman Peter Haddock, who replaced Birchfield, said the council would consider Reid’s opinion.

“Allan was criticized during subcommittee meetings in line with the recommendations of the independent Code of Conduct investigators.”

The no-confidence letter sent to Birchfield states: “The member is suspended from the committees to which he has been appointed, including the sections of those committees excluded from the public.”

“The letter goes on to state that the suspension will remain in effect until trust is restored between Allan and his fellow councilors,” Haddock said.

The decision was unanimous, but not taken lightly.

“Six elected members voted for it. It should be noted that the previous council attempted to oust Councilor Birchfield.”

Haddock said members have worked hard for two years to get the council back on track and it is now a much better functioning organization.

“We had a legal opinion at the time of the condemnation, but we will review it in light of (Reid’s) opinion.”

Reid, who has been an advisor to LGNZ for 28 years and has written templates for local government codes of conduct, said there could also be an argument that the information allegedly leaked from Birchfield was in the public domain.

Under the act, members can disclose information obtained in confidence if it is reasonable and in the public interest, he said.

“So he revealed information that his colleagues consider confidential, but you can test it: either it is there or it isn’t, and you can go to the Auditor General or the Ombudsman and ask for an explanation.”

Reid stated that an individual’s right to privacy should be weighed against society’s right to and access to official information.

Birchfield told Newsroom before he was condemned that Mabin – with whom he had fallen out – only agreed to remain on the council for another six months if he was removed as chairman.

He also disclosed financial details that he said were part of her severance agreement.

“You want to approach this based on basic democratic principles and see if it’s in the public interest,” Reid said.

In his view, the public probably actually had a legitimate interest in obtaining the information and expected to obtain it.

“The fact that you have to include redundancy information in your annual report means that Parliament believes the public has a right to know these things.”

Reid’s opinion supports his position, and while he has missed committee meetings on orders in the past, he will not do so in the future, Birchfield said.

“I said all along it was illegal. I am an elected member and kicking me out undermines democracy.”

Birchfield said he had complained about his exclusion from work to the Ombudsman and was waiting for a response.

LDR is local journalism co-funded by RNZ and NZ On Air.