Cracking the Code: Challenges to Council Codes of Conduct

Tuesday 11 October, 2022

Two local councils’ processes for dealing with breaches of Codes of Conduct for elected members (COC) have recently been subject to legal scrutiny, emphasising the importance of due process and natural justice in council controlled complaints mechanisms. 

Under the Local Government Act 2002, all local councils are required to have a COC that regulates the conduct of elected members. The COC sets out council’s expectations as to how elected members conduct themselves, including in their behaviour to staff, other members and the public, disclosure of information, and  setting out their legislative obligations in general.  As an internal regulatory manual, it is for each individual council to agree to what their behaviour expectations are, how breaches of the COC are determined and any potential sanctions for a breach.

In June, the Court of Appeal considered the process undertaken by the Dunedin City Council in relation to COC complaints, in an ongoing saga that began with a $19 parking ticket and culminated in an application for judicial review. In dismissing Councillor Vandervis’ appeal, the Court of Appeal upheld the lower court’s findings that the complaints made against Councillor Vandervis were validly made, and the COC investigation complied with the principles of natural justice.

The Court of Appeal also found that, under the Dunedin City Council’s COC, the Chief Executive’s role on receipt of a COC complaint from its staff, is to exercise a narrow, gatekeeping inquiry to determine whether to instigate the formal investigation process. It also determined that once the full investigation had commenced, Councillor Vandervis was given sufficient opportunity to respond to the complaint made against him.  While this is a fact-specific finding, many Council COCs have similar initial review processes.

After a final attempt to appeal the decision, the three-year legal dispute finally ended in September after the Supreme Court found no "appearance of a miscarriage of justice" and declined Mr Vandervis leave to appeal.

While applications for judicial review related to COC processes are not new, an aggrieved councillor from Nelson City Council has recently brought her case before the Human Rights Commission (HRC). After an independent investigator upheld COC complaints made against Councillor Sanson, Councillor Sanson complained to the HRC about the COC process, alleging “poor treatment at the hands of leadership.” The HRC has since invited the parties to engage in mediation, while the council is due to make its decision on any penalties or sanctions in relation to the original COC complaint.

These two instances highlight the importance of compliance with internal COC procedures and wider principles of natural justice when dealing with complaints against elected members. While councils have the power to regulate their own procedures according to the terms of the COC, councillors subject to complaints procedures are able to bring challenges via external legal mechanisms such as judicial review or the HRC.

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