Rotorua district councillor Reynold Macpherson. Photo / File
Rotorua councillor Reynold Macpherson may be removed from two council committees if he does not apologise for three code of conduct breaches.
The code of conduct investigation has cost ratepayers almost $46,000.
The code of conduct complaints relate to social media posts by Macpherson.
But Macpherson is refusing to apologise, says he was telling the truth, and is being denied freedom of speech and "democratic duty" to represent constituents.
A former mayor says the council's move is, in his view, an "attack on democracy" but a constitutional law expert says sanctions for the behaviour may be in proportion.
On Thursday evening, the council released a statement on its website regarding the outcome of the code of conduct process into Macpherson's posts.
It said in the confidential part of Thursday's council meeting, the council had considered the recommendations from its Audit and Risk Committee, which had itself commissioned an independent investigation into five complaints alleging code of conduct breaches by Macpherson.
Two further, unrelated complaints were added to the investigation, it said.
The three main complaints, according to the independent report, were from council chief executive Geoff Williams, councillor Fisher Wang and Rural Community Board chairwoman Shirley Trumper.
They were about social media posts on wastewater, the homeless and the council's management restructure. The complaints were between April 14 and 15 this year.
In the meeting, the council resolved to direct Macpherson to do a refresher course on the code of conduct and give a formal apology and retraction which must be approved by a committee including the mayor, the council statement said.
The apology had to be published through formal council channels.
The council had also agreed if Macpherson did not provide the apology by January 28, 2022, it would remove him from the council's Operations and Monitoring Committee, and Strategy, Policy and Finance Committee.
The two committees provide recommendations to the council, which the council ultimately debates and provides final decisions on. The committees consist of all councillors as well as representatives from the Lakes and Rural community boards and Te Tatau o Te Arawa.
In the statement, Rotorua mayor Steve Chadwick said it was a "fair and robust process and the council had taken Macpherson's responses into account in the decision".
"These types of matters are always difficult and we have taken all relevant factors into account.
"We've made our decision, the ball is now in councillor Macpherson's court and it's my hope he will honour the process and the outcome to bring these matters to a close."
The Audit and Risk Committee had also recommended the council make the report on the investigation public, as well as the costs associated with it, the statement said.
The investigation had cost $45,890, which was made up of $27,794 for the investigation and delivery of the independent report, done by local government consultants Equip.
Disbursements and administration costs added $3146, and the Audit and Risk Committee meetings costs were $14,950.
In response to the council's statement, Macpherson said on Friday that the confidential meeting was, in his opinion, a "kangaroo court" and "went exactly as scripted".
He alleged three complaints out of eight had been selected to, in his opinion, "prosecute" him.
He claimed two of those complaints were "secret" and he was not allowed to see them.
Of his social media posts, he said, in his opinion, "apparently the truth hurts".
He said the mayor and councillors had, in his view "conspired to ban" him from the committees.
"They gave reasons for suspending my human rights to freedom of speech and access to information, and for denying my democratic duty to represent my constituents.
"I had to be banned for peddling 'misinformation', not being on the mayor's team, being a bully ... spelling mistakes, and for not apologising and showing sincere remorse. For revealing the truth?"
He said his documentation of "many due process errors and maladministration were ignored", and some councillors had noted the "punishment did not fit the 'crime' " and abstained.
"I won't be apologising for telling the truth about the sewage leaks, the reorganisations and outsourcing, and the assisted migration of the homeless. They must be stopped if we are going to restore Rotorua as a fit place to live."
He said criticism of the council would not be stopped by what was, in his view: "a purchased 'investigation', an elaborate and orchestrated show trial, and blaming the whistleblower for the appalling waste of ratepayers' money".
He said it was a "muted Merry Christmas but a Happy New Year of more revelations of waste and incompetence" as he watched the committee meetings online.
"There are no more sanctions available to the mayor's power bloc wanting to stop my back chat to stay in power."
He said, in his opinion, he expected Rotorua's voters would "rid themselves of this Soviet-style regime" at the 2022 local election.
On Friday, former Rotorua mayor Grahame Hall told Local Democracy Reporting he supported standards of behaviour and expected to see respect of various viewpoints.
"I'm very disappointed to see the current situation.
"In 27 years in local government I never experienced staff bring code of conduct complaints against an elected representative and incurring huge costs."
He said the time and expense was "unbelievable" and, in his view "inappropriate".
"To be perfectly honest I wish that they would just get on with their jobs.
"The voters are the ones that have the final say if people have been inappropriate. To go through this procedure is madness."
He said people were entitled to their opinions and if they were incorrect "they should just be corrected".
Hall believed the suggestion of removing a councillor from committees was, in his view, "an attack on democracy".
"People are entitled to have their say. Just because other people disagree that isn't a reason to hassle them and put them through this process.
"The code of conduct is important but there's a far better way to deal with [issues]."
He said that way was face to face and if Macpherson had not engaged in an offer to resolve it informally, Hall believed it was because there was not a genuine approach to hear Macpherson's point of view.
"It's 'my way or the highway'."
Macpherson and Hall's views were put to the council organisation and Chadwick for the right of reply.
Chadwick said there were no "secret" complaints.
The council organisation declined to comment further.
Victoria University of Wellington constitutional law expert Dean Knight said he was normally "nervous" about code of conduct processes being used against elected members for allegations of untruths, mischaracterisation or "not speaking the party line".
"Weaponising codes of conduct against the squeaky wheel in this way risks chilling democratic discourse and weakening accountability. Debate and dialogue around and beyond the council table usually ensures the truth prevails and daft concerns are batted away.
"However, based on the snippets of information still on the public record, this case sounds like it might be one of the rare cases where the claims are so hyperbolic or fanciful that censure was inevitable."
Knight said the removal of a councillor from committee roles was one of the few sanctions available to councils.
"However, as a duly elected member, a councillor always has the right to participate at full council meetings, regardless of any censure.
"The ultimate judgment on a councillor's conduct, and whether they should continue in office, lies with the voters at the ballot box every three years."
In response to Knight's comments, Macpherson said Knight was rightly concerned about codes of conduct being weaponised "to undermine transparency and accountability".
"Perhaps he might also be concerned about the extent to which debate is actually permitted and manipulated meeting procedures determine 'truth'."
Macpherson said he could provide detailed data about 13 complaints against him to date "if a researched appreciation of the situation is preferred to impromptu judgments".
Macpherson was found to have breached the code of conduct in June 2020, in a separate investigation.
In that case, the investigation cost ratepayers almost $60,000.
Equip's investigation panel reviewed the complaints against Macpherson and found:
Williams' complaint:
"Macpherson ... has full access to ... and must therefore be cognisant of, the background ... to infrastructure and asset decisions … two statements made by Cr Macpherson in his ... post of 3 March 2021 … were made knowing them to be false.
"Councillor Macpherson's defence states ignorance of the fact in not having read an email ... he has the facts along with a duty to represent these fairly and truthfully. Ignorance is therefore not a defence."
Wang's complaint:
"Macpherson states that his statements cannot qualify as a lie because 'it was my honestly held belief at the time', however council debate and discussion will not support that.
"It must be an expectation that Councillor Macpherson maintain respect for Councillor Wang as his peer. To dispel Councillor Wang's concerns through the subsequent and retrospective altering of media content ... is unacceptable behaviour from any elected member."
Trumper's complaint:
"It is not Councillor Macpherson's duty or right as a councillor to comment or critique the structure of the organisation or the role of management. That right is delegated to ... the chief executive.
"Macpherson will be aware of that through the induction process.
"He will also be aware ... of the channels available to him to raise any concerns.
"Further issues around collective responsibility and lack of respect are reflected in the responses to the initial ... post.
"Councillor Macpherson describes ... 'corrupted decision making'. The rider 'in my opinion' fails to remedy this breach.
"Inflammatory and derisive commentary appear to further incite a lack of confidence in council as evidenced by offensively racist comment with this seemingly delivered to undermine both the political and operational aspects of [the] council.
"While Councillor Macpherson attended discussions prior to the Trility hearings, his engagement in the debate and decision-making process was purposefully withdrawn to the extent of near silence.
"Later commentary via [social media] on the proposed venture turned to vehement negativity.
"Macpherson has been elected to represent the community at large and to engage in robust debate and decision-making. It would appear, through his actions, that he cannot rationalise these matters.
"Trumper's concern regarding receipt of Cr Macpherson's email ... does constitute, we believe, a level of behaviour designed to intimidate and unduly influence."
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