Don't believe the Herald: councillors can have real power
Written by Peter McKinlay on October 11th, 2016.
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"The council has looked to be ...unable to exert much influence on the largely autonomous "council-controlled organisations" Auckland Transport, Watercare, Auckland Trade, Events and Economic Development and others.
"But even more seriously, as Goff and other candidates acknowledged during the campaign, the elected council has seemingly struggled to impose its will on its own officers and staff.... The constitution of the council reflects a theory of governance that gives "operational" decisions to the officers as an executive body and restricts the right of elected representatives to "interfere" in its operations. It can only ask questions of the chief executive, and fire him if it comes to that."
Neither assessment is correct. Both reflect what may be the real failing of the supercity in its first six years, a real lack of understanding by elected members of what their powers actually are.
Both also reflect a real threat to the exercise of local democracy. When one of the country's most authoritative sources tells councillors they are relatively powerless, don't be surprised if most councillors actually believe this to be the case. This is very much misinformation undermining the role of elected members.
Look first at the governance of the Council. The local government act is not especially helpful in the way in which it is drafted but go through it carefully and the power of elected members becomes quite clear. Section 41 (3) states: "A governing body of a local authority is responsible and democratically accountable for the decision-making of the local authority."
There's plenty of authority looking at the role of public sector entities to make it clear that decision-making certainly encompasses at least anything which impacts on the quality of the service which citizens receive. To take recycling as an example,decisions about how many bins, when collections will take place, whether they are from the back door or from the pavement are all part of the decision-making of the local authority and thus the responsibility of elected members.
The role of the chief executive is spelt out in section 42. It includes "implementing the decisions of the local authority" and "providing advice to members of the local authority and to its community boards, if any". Again to take recycling, this gives the chief executive discretion to decide whether the service should be provided by the Council in-house, contracted out to one or more providers, or simply left to the market with residents and recycling contractors required to meet Council standards (and even this latter option would become a decision of the Council as it would require a Council bylaw) but in each case so long as the arrangement the Chief Executive chooses to implement delivers the nature and quality of service which the Council has decided people should receive.
The same applies to any other Council service. On any question of whether or not a particular service should be available, of the service level standards to which it should be delivered, or of how it is paid for (rates, user charges), then that is a decision for the Council not executive management.
The waters are muddied a little by the provision that the chief executive is responsible for providing advice to members of the local authority. There can be an inherent conflict of interest if the chief executive is being asked to provide advice on (say) how best the Council can exert its authority over management, or where to draw the boundary between what constitutes decision-making and what constitutes implementation.
The answer, which few or no councils actually apply, is for elected members to establish a clear policy themselves and ideally establish what we would think of as a business committee responsible for overseeing how these questions are resolved, how business comes to the Council (what kind of agenda for example) and generally how the elected member/executive management relationship is managed.
This should include the opportunity for elected members to decide whether and in what circumstances they should be able to seek and receive independent advice. for a council the size of Auckland, and with the responsibilities it exercises, it's close to intolerable that elected members (other than the Mayor with the resources of the mayoral office) have no independent source of advice to assist them assess the recommendations placed before them by management regardless of the scale of the expenditure involved, or the risks which the Council might be assuming.
Similar issues arise with Council controlled organisations. The Herald view of these as autonomous organisations quite likely reflects the common view but it does not reflect what the Local Government Act provides. The boards of Council controlled organisations are required to manage them in accordance with their statement of intent. Councils have a great deal of discretion regarding what should go in the statement of intent and the real issue is whether or not elected members actually understand the extent of their power and have the capability (and advisory support) which allows them to properly exercise the powers which they have.
As a separate issue, councils also need to properly monitor how CCO's behave, and insist on compliance with statements of intent. In the case of the Ports of Auckland Ltd, both Auckland Council Investments Ltd (at the time the holding company for the Ports of Auckland Ltd) and the Ports of Auckland Ltd had requirements in their statements of intent to apply a no surprises policy which they clearly failed to do in respect of the Britomart expansion proposal. A question worth considering is why those boards of directors were not held to account for a clear and serious breach of the statutory obligation to manage in accordance with the statement of intent.
The new Council in Auckland, and councils elsewhere in New Zealand, should make their first priority understanding just how strong their governance role actually is and how best to exercise it.
