by Christopher Ruthe

A damning Performance Review Report is the only reasonable inference that can be drawn from the extraordinary steps the Mayor has taken to stop its publication of the MartinJenkins review of the council undertaken between November 2019 and February 2020. My article of 13 May on Waikanae Watch — “Mayor claims dictator-like powers to quash efficiency review report” — disclosed:

[the Mayor] had ordered the writer to stop the review. These were the Mayor’s instructions:

“I am now issuing new instructions to you as the Project Lead in respect of the Martin Jenkins Independent Organisational Review.  Those instructions are:

“Do Not provide me with your final report.”

His justification for unilaterally cancelling the contract was “I am of the personal opinion that receiving your report during these troubled times would be an unnecessary distraction for Council from the considerably higher priorities that we are facing as civic leaders.” He did not disclose what these purported priorities were that were higher than trying to fix a seriously inefficient council.

The article, previously sent to Councillors, had an immediate effect. On 14 May the Council resolved: “That Council directs Martin Jenkins to release the Organisation Review Report within the next 30 days”. That is, on or before 12 June.

Mayor’s legal extravagance and expense to stop the review 

To stop publication the Mayor had to have the Council revoke its previous resolution. He had to conjure up a legal reason that the Council resolution was invalid. How it could be, beggars belief. One would have expected that the two (highly paid) in-house lawyers would have gone through the resolution with a fine tooth comb, particularly in the light of the Mayor’s determination to stop disclosure.

Someone, whether the Mayor or under fire, the CEO, immediately took further steps apparently asking the in-house lawyer Tim Power to come up with something… Mr Power came up with the extraordinary idea that Health and Safety was an issue.

He wrote that publication could be halted because “there was no opportunity for advice to be taken from officers or to obtain legal advice on the Council’s good employer obligations as the employer of the Chief Executive and the obligations of Councillors and the Chief Executive as office holders under the Health and Safety at Work Act 2015.”

Armed with in-house legal advice, someone from KCDC ran to big law firm Simpson Grierson of Auckland without consulting councillors. We do not know the exact questions asked. However, in-house lawyer Power reported back saying: “As a result of that advice, Simpson Grierson identified some potential issues with the proposed process for the release of the report as reflected in the current set of resolutions.”

In non-lawyer-speak this means Simpson Grierson found nothing wrong with the resolution that had been passed. “Potential” issues are not serious factual legal issues. However, the elected councillors will not appreciate this. On Thursday they are considering whether to vote for the Report to be vetted by Simpson Grierson. There could be nothing worse.

CEO to review the Report

Mr Power has recommended on Page 7 at paragraph [9] “that time is allowed for…the Chief Executive to review the report before it is released to the public.” In other words, a  Report that reviews the performance of the council is to be reviewed by the CEO, for his approval. And what if he objects to giving his approval?

Simpson Grierson to “Whitewash” the Report?

Mr Power has strongly recommended at [10] “It is also proposed that as a first step the report be released to Simpson Grierson so that any employment related legal issues can be brought to the attention of Councillors.”  Simpson Grierson may  recommend severe redactions. One shudders at the expense the Mayor is putting ratepayers to.

This is a Performance Report. What KCDC staff are suggesting is that there can be no publication of any report that may be critical of staff performance as it will make them psychologically unwell and thus they will be in an unsafe work environment.

Councillors: show some spine, please

It is to be hoped Councillors will see through these smoke-screens. The timetable set out in the proposed replacement resolution is a mere charade. Inviting the CEO to review the report is actually an invitation to block it. Simpson Grierson could make a suggestion requiring further delay. The councillors should firmly reject the advice coming from Mr Power, who has recommended rescission without a single solid argument justifying his recommendation. Because there is nothing more than conjecture in something “potential” and as a former practising lawyer I know that conjuring legal issues out of thin air is a specialty for some in the profession.

Will this all turn out to be the Theatre of the Absurd? Or will our Councillors do what they were elected to do and keep to their decision, and deal with the consequences, should any arise?