29 September 2007

Wellington City Council, IntensCITY and electoral influence

[Updated 1/10/2007] The present "IntensCITY" celebration being run by the Wellington City Council is a great idea and showcases our city's urban environment really well. The IntensCITY week "celebrates the vibrancy and cosmopolitan nature of life in Wellington, and how the City's investment in quality urban design contributes to that vibrancy." As Mayor Prendergast says:
"Wellington – it's the greatest little Capital in the world, and arguably the most advanced city for urban design in New Zealand. The vibrancy, diversity and buzz of Wellington are partly a result of our amazing geography of harbour and hills. The city's buzz is a result of good urban design – the network of quality public spaces the city enjoys as well as the buildings that front them and the way they are used.Good urban design allows our stunning city to sparkle and shine – and that's something worth celebrating!..."
But... the timing of the celebration is outrageous and, in my view, potentially unlawful. It falls right in the middle of the voting period, two weeks before the close of the local election. I am particularly concerned that, although the initiative is a Council campaign, it has the potential to influence the election or give the perception of Council expenditure being used to influence the election. It might not change the ultimate outcome – at least not in the contest for Mayor, which seems like a "one horse" race. But that's not the point. Local authority resources and initiatives – particularly such a major initiative – should not be used in ways that might influence the democratic process. First, the "celebration" of the city environment and its urban design has the potential to favour the incumbent Mayor and councillors. It is akin to a Council-sponsored publication of councillor accomplishments. Secondly, it deals with a political matter which is a live issue within the campaign, that is, the merits of "urbanisation". The positive vibe associated with urbanisation has the potential to influence voter support in favour of candidates supporting urban development of this kind. Thirdly, and probably the most objectionable element, the celebration is prefaced and commended by the Mayor. Now, this is entirely orthodox. But in the pre-election period, has the potential to give the impression of improper bias. This is exacerbated by the Mayor's use of her campaign slogan "The greatest little Capital in the world" in her introductory remarks in the celebration booklet. Improper activity like this has the theoretical potential to amount to an election irregularity that could invalidate the election. (The District Court in Aukuso v Hutt City Council [2004] DCR 322 gave a broad interpretation to the term "irregularity" and ruled that, amongst other things, the use of public funds by the council to mount a publicity campaign that was non-neutral and advocated one particular poll answer (in a local poll about STV) amounted to an irregularity; however, it did not invalidate the poll because, on the evidence before it, it was not satisfied that the irregularities materially affected the poll result.) There's also an argument - albeit a weak one - that the use of those words mean the remarks should not be treated as being given in her role as Mayor, should be treated as being remarks given as a candidate for Mayor, and therefore the (apportioned) value of the costs associated with the remarks in the booklet should be reported by the Mayor as her election expenses under s 109 of the Local Electoral Act 2002. The celebration appears to breach the Controller and Auditor-General guidelines on local authority communications during pre-election periods:

Good Practice for Managing Public Communications by Local Authorities (Controller and Auditor-General, April 2004)

COMMUNICATIONS IN A PRE-ELECTION PERIOD Principle 12 A local authority must not promote, nor be perceived to promote, the re-election prospects of a sitting member. Therefore, the use of Council resources for re-election purposes is unacceptable and possibly unlawful. 4.45 Promoting the re-election prospects of a sitting Member, directly or indirectly, wittingly or unwittingly, is not part of the proper role of a local authority. 4.46 A Council would be directly promoting a Member’s re-election prospects if it allowed the member to use Council communications facilities (such as stationery, postage, internet, e-mail, or telephones) explicitly for campaign purposes. 4.47 Other uses of Council communications facilities during a pre-election period may also be unacceptable. For example, allowing Members access to Council resources to communicate with constituents, even in their official capacities as members, could create a perception that the Council is helping sitting Members to promote their re-election prospects over other candidates. 4.48 For this reason, we recommend that mass communications facilities such as- Council-funded newsletters to constituents; and - Mayoral or Members’ columns in Council publications –be suspended during a pre-election period. 4.49 Promoting the re-election prospects of a sitting Member could also raise issues under the Local Electoral Act 2001. For example: - Local elections must be conducted in accordance with the principles set out in section 4 of the Local Electoral Act – see Appendix 1 on page 27. The principles apply to any decision made by a Council under that Act or any other Act, subject only to the limits of practicality. A breach of the principles can give rise to an “irregularity” which could result in an election result being overturned.14 - The publication, issue, or distribution of information, and the use of electronic communications (including web site and e-mail communication), by a candidate are “electoral activities” to which the rules concerning disclosure of electoral expenses apply. 4.50 “Electoral expenses”15 include:- the reasonable market value of any materials applied in respect of any electoral activity that are given to the candidate or that are provided to the candidate free of charge or below reasonable market value; and - the cost of any printing or postage in respect of any electoral activity. 4.51 A Member’s use of Council resources for electoral purposes could therefore be an “electoral expense” which the Member would have to declare – unless it could be shown that the communication also related to Council business and was made in the candidate’s capacity as a Member. Principle 13 A Council’s communications policy should also recognise the risk that communications by or about Members, in their capacities as spokespersons for Council, during a pre-election period could result in the Member achieving electoral advantage at ratepayers’ expense. The chief executive officer (or his or her delegate) should actively manage the risk in accordance with the relevant electoral law. 4.52 Curtailing all Council communications during a pre-election period is neither practicable nor (as far as mandatory communications, such as those required under the LGA, are concerned) possible. Routine Council business must continue. In particular:- Some Councils publish their annual reports during the months leading up to an October election, which would include information (including photographs) about sitting Members.- Council leaders and spokespersons need to continue to communicate matters of Council business to the public. 4.53 However, care must be taken to avoid the perception, and the consequent risk of electoral irregularity, referred to in the commentary to principle 12. Two examples are: - journalistic use of photographic material or information (see paragraph 4.42 on page 21) that may raise the profile of a Member in the electorate should be discontinued during the pre-election period; and - access to Council resources for Members to issue media releases, in their capacities as official spokespersons, should be limited to what is strictly necessary to communicate Council business. 4.54 Even if the Council’s Communications Policy does not vest the power to authorise Council communications solely in management at normal times, it should do so exclusively during the pre-election period.

The State Services Commission guidance of communication campaigns and programme launches also serves as a useful comparison:
State Servants, Political Parties and Elections: Guidance for the 2005 Election Period (State Services Commission, March 2005): Communication Campaigns In the run-up to an election, agencies should consider whether communication campaigns generally, and advertising specifically, could be seen as 'party political', even if they might be unexceptionable at other times. This does not mean that communication campaigns that inform people of their rights and obligations should stop. If there are any doubts about how an advertising or public information campaign might be perceived, consideration should be given to waiting until the new Government is formed ... Programme Launches Similarly, the launch of a new programme or initiative may take on a 'party political' character in an election period. State servants should work with Ministers as usual, but take care to avoid association with the political aspects of any such event, or with the preparation of supporting material which has a political character.


Graeme Edgeler said...

"Improper activity like this has the theoretical potential to amount to an election irregularity that could invalidate the election. There's also an argument that the use of those words mean the remarks should not be treated as being given in her role as Mayor, should be treated as being remarks given as a candidate for Mayor, and therefore the (apportioned) value of the costs associated with the remarks in the booklet should be reported by the Mayor as her election expenses under s 109 of the Local Electoral Act 2002."

A pretty poor argument for that.

1. The definition of electoral activity in s 104 requires that electoral activities "relate[] exclusively to the campaign for the election of the candidate".

2. The apportionment provisions (s 112) relate solely to the apportionment of expenses that occur partly outside the 90-day period, or the apportionment of expenses that relate exclusively to the campaigns of two or more candidates.

Dean Knight said...


Point taken. It's not a strong argument. And really has as it's cornerstone an argument that, because of the electioneering element, the remarks cannot and should not be treated as being given by the Mayor in her mayoral capacity; if you accept that and strip out the public office element, you're left with a pitch for election by an electoral candidate, which then might trigger the electoral activity and expenses definitions. It's stretching the text a bit, but the purpose and principles of the Act might assist.

Alternatively, if the expenditure is unlawful (because it supports or appears to support the election of particular candidates) it might also trigger the surcharge provisions in s44(1)(a) of the LG Act 2002, that is, elected members who knew about it or voted for it, might be liable for the costs of the expenditure.

And I've modified the original post slightly accordingly and added some more detail about "irregularities".

Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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