Blocked by the boss: Wellington advisers can’t see legal advice on big issues

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Legal experts have questioned the Wellington City Council boss’s claim that she is within her rights to refuse outside legal advice to councilors on some of Wellington’s thorniest issues.

Councilor Iona Pannett has confirmed in recent days that she was denied legal advice, held by the council, as she sought to block an airport expansion. Councilwoman Diane Calvert said she was blocked from getting legal advice as she questioned city rates, and Fleur Fitzsimons used her own money in 2020 after being denied legal advice in the plans of the central library.

The council’s chief executive, Barbara McKerrow, maintains that the legal right to release information belongs to her and that councilors do not necessarily have the legal right to consult with the council’s outside legal counsel.

But Dr Dean Knight, an expert in local government at Victoria University of Wellington, said councilors’ access to unfiltered legal advice was “a valuable right that derives from their office and role as local governors”. .

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Wellington City Council chief executive Barbara McKerrow said it was her choice to decline legal advice in these cases.

MONIQUE FORD/Stuff

Wellington City Council chief executive Barbara McKerrow said it was her choice to decline legal advice in these cases.

Sharing legal advice within an organization did not waive legal professional privilege or create other legal difficulties, Knight said.

“Legal advice is commissioned on behalf of the organization, not individual officers, and it follows in my view that legal advice can be sought and seen by elected members.”

Wellington barrister Graeme Edgeler said there were cases where legal advice could be withheld from the public, but only a few – such as employment matters – when it could rightly be withheld to councillors, who were actually members of the council’s board of directors.

The issues in question apparently fell within the scope of information that could be presented to advisers, he said.

Councilor Iona Pannett was prevented from obtaining council's legal opinion.

Provided

Councilor Iona Pannett was prevented from obtaining council’s legal opinion.

McKerrow said that under government law, she had a role in determining the release of information. It was up to her to ensure that councilors were properly briefed and that the council protected its legal position.

“In these circumstances, I have made the decision not to provide written external advice to advisers, but to ensure that advisers are well informed of the legal and other risks through the reports and advice of our lawyer. general,” she said. .

Councilor Diane Calvert tried to get legal advice on the rates.  It was refused.

Kevin Stent / Stuff

Councilor Diane Calvert tried to get legal advice on the rates. It was refused.

“This advice stands on its own.”

The decision whether or not to share legal advice changed depending on the circumstances, she said.

Pannett, along with Deputy Mayor Sarah Free, table a notice of motion at Thursday’s Planning and Environment Committee meeting calling for opposition to airport expansion in light of the climate emergency and the impact of carbon emissions from flights. The municipality is a 34% shareholder in the airport.

Councilor Fleur Fitzsimons paid her own money for legal advice after council refused to share her advice.

KEVIN STENT / Stuff

Councilor Fleur Fitzsimons paid her own money for legal advice after council refused to share her advice.

Council documents show that it sought outside legal advice on the advice which “may be unlawful and may subject the Council to judicial review”. It was also “arguably illegal” for the council to accept the advice that would remove support for the expansion.

Pannett confirmed that she had tried to get this legal opinion from the council – only paraphrased in the council documents – and it was denied.

Calvert said the board twice in April denied its requests for independent legal advice received in response to its interpretation of the scoring policy by staff and Mayor Andy Foster.

Fitzsimons, also a barrister, was in 2020 embroiled in a battle with council and Foster over what to do about Wellington Central Library, which closed due to earthquake fears. His request to obtain counsel’s legal opinion was denied.

“The starting point should be that legal advice is shared with advisers,” she said.

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