The Watchdog

Keeping citizens in the loop

PRESENTATION TO FINANCE AND STRATEGY COMMITTEE OF AUCKLAND CITY COUNCIL RE: IOSEFA HOME SALE

17 March 2010

Rosslyn Noonan
Chief Commissioner
NZ Human Rights Commission

OPEN LETTER

Dear Rosslyn,

I presented to the Auckland City Council Finance and Strategy Committee this morning, evidence of Metrowater’s failure to act in a lawful and ‘socially responsible’ manner, by singling out a Samoan family, and attempting to sell their family home to pay a disputed Metrowater account.

The reasons, law and evidence are provided in the attachment.

This has been an absolute DISGRACE.  In my opinion – unbridled abuse of monopoly power by a supplier of the most essential of all public services – water and wastewater – to date unchecked by those who have statutory duties to ‘monitor’ their performance as a ‘Council Controlled Organisation’ – CCO.

This is the first time Metrowater have initiated proceedings in the High Court to obtain a ‘Writ of Sale’ – so they are NOT treating the Maria and Luapo Iosefa the same as other Metrowater customers, in the provision of goods and services – a breach of s44 of the Human Rights Act 1993.

I have included the following ‘Outcomes Sought’ from this presentation:

If both Metrowater and Auckland City Council fail to act in a ‘socially responsible’ manner – in accordance with their statutory duties – I will be making a complaint to the HRC and seeking your assistance to achieve these outcomes.

OUTCOMES SOUGHT:

PLEASE CONFIRM BY 5PM FRIDAY 19 MARCH 2010 THE FOLLOWING:

1) In the first instance, the unlawful persecution of the Iosefa family will cease forthwith. Metrowater has been instructed to immediately withdraw any proceedings from the High Court for any further ‘Writ of Sale’ or the like, over their family home at 89A Canal Rd Avondale.

Metrowater will fully reimburse Maria and Luapo Iosefa for any costs incurred as a result of Metrowater’s lawyer’s unlawful actions.

2) A full investigation will be carried out, INVOLVING DISCUSSIONS WITH MYSELF AND MEMBERS OF THE WATER PRESSURE GROUP AS DIRECTLY-AFFECTED PARTIES,  as part of  the ‘audit process’ into Metrowater’s debt management processes and actions, given the now proven highly unprofessional style of work of Metrowater’s (former?) lawyer, Michael Tolhurst, and current ‘Legal and Compliance Officer John Hilario; including, but not limited to;  proven discriminatory political bias against myself and fellow WPG members; failure to follow lawful due process in the serving of court documents; lies being told me in order to destroy my credibility (including a complaint against me – authorised by Metrowater’s CEO, to the NZ Law Society); the use of ‘standover’/’extortionist tactics’ to enforce payment of disputed accounts; Metrowater’s failure to follow its disputes process.

(EG: How many legal proceedings initiated in the Auckland District Court by Metrowater’s ‘law’ firm City Law, ended up as ‘Judgments by Default’ – because the Defendants didn’t file a ‘Statement of Defence’, or attend the hearing?

HOW MANY OF THESE CASES WERE AS A RESULT OF LAWFUL ‘DUE PROCESS’ NOT BEING FOLLOWED BY METROWATER’S LAWYERS, AS WAS THE NOW PROVEN  CASE WITH MARIA AND LUAPO IOSEFA?

3) In the interim, ALL current legal proceedings against WPG members will be withdrawn FORTHWITH.

PLEASE BE ADVISED THAT IF THE ABOVE-MENTIONED OUTCOMES ARE NOT ACHIEVED, THAT  THE MINISTER FOR LOCAL GOVERNMENT, RODNEY HIDE, WILL BE REQUESTED TO INITIATE A REVIEW OF THE FAILURE OF AUCKLAND CITY COUNCIL TO ENSURE METROWATER’S COMPLIANCE WITH POLICIES OUTLINED IN THE STATEMENT OF INTENT REGARDING ‘DEBT MANAGEMENT’.

The powers of the Minister of Local Government, in such a matter are set out as follows:

Local Government Act 2002

256 Minister may appoint person to act on behalf of local authority, or initiate review

(1) If the Minister considers that the grounds in subsection (2) exist, the Minister may, by notice in the Gazette,—

(a) appoint a person to perform and exercise a local authority’s responsibilities, duties, and powers either generally or to the extent specified in the notice; or

(b) appoint a person to review, consider, and report on the performance of a local authority, either generally or in respect of any particular matter specified in the notice

(2) The grounds are—

(a) that the local authority is wilfully refusing or substantially refusing to perform and exercise its duties and powers under this Act or any other enactment; and

(b) the refusal—

(i) is impairing, or likely to impair, the good local government of the local authority’s district or region; or

(ii) endangering, or likely to endanger, the public health or safety of the local authority’s district or region.

(3) Before exercising his or her powers under subsection (1), the Minister must—

(a) give the local authority notice in writing of his or her intention to do so, including the reasons; and

(b) give the local authority not less than 20 working days to satisfy the Minister—

(i) that the grounds do not exist; or

(ii) that steps have been taken to rectify the situation.”

I do hope that this will not be necessary.

Yours sincerely,

Penny Bright

Media Spokesperson

Water Pressure Group

Judicially recognised ‘Public Watchdog’ on Metrowater, water asnd Auckland regional governance matters.

“Anti-corruption campaigner”

Ph (09) 8469 825

021 211 4 127

PRESENTATION TO THE AUCKLAND CITY COUNCIL FINANCE AND STRATEGY COMMITTEE WEDNESDAY 17 MARCH 2010.

RE: AUCKLAND CITY COUNCIL’S LACK OF  ‘CONTROL’ OVER COUNCIL CONTROLLED ORGANISATION (CCO) METROWATER LTD REGARDING THE CONTINUED UNLAWFUL PERSECUTION AND DISCRIMINATION AGAINST WATER PRESSURE GROUP MEMBERS MARIA AND LUAPO IOSEFA;

A) Metrowater are continuing their  unlawful persecution of the Iosefa family over disputed Metrowater accounts, including further proceedings filed in the High Court to sell their family home at 89a Canal Rd Avondale.

(A copy of the ‘Letter of Dispute’ for 89A Canal Rd, Avondale, faxed to Metrowater on 30 June 2003 is attached as APPENDIX “A” )

B) Both Metrowater and Metrowater’s  ‘monitoring body’, as a Council Controlled Organisation (CCO) have failed to uphold statutory duties under the Local Government Act 2002, pertaining to Metrowater’s Statement of Intent:

1) METROWATER’S STATUTORY DUTIES AS A COUNCIL-CONTROLLED ORGANISATION UNDER THE LOCAL GOVERNMENT ACT 2002 INCLUDING:

59 Principal objective of council-controlled organisation

(1) The principal objective of a council-controlled organisation is to—

(a) achieve the objectives of its shareholders, both commercial and non-commercial, as specified in the statement of intent; and

(c) exhibit a sense of social and environmental responsibility by having regard to the interests of the community in which it operates and by endeavouring to accommodate or encourage these when able to do so;  “

2) METROWATER STATEMENT OF INTENT 2009  ( Pg 7)

“THE NATURE OF OUR BUSINESS

1. Commercial Reliability

…..

Maintain a robust customer debt management process that is fair and reasonable and audited on an annual basis. “

WHAT IS ‘FAIR’ OR ‘REASONABLE’ ABOUT SINGLING OUT ONE FAMILY FOR DISPUTED ‘DEBT ENFORCEMENT’ ACTION, WHICH IS DIFFERENT TO EVERY OTHER CUSTOMER?

ON WHAT LAWFUL BASIS HAVE THE IOSEFA FAMILY BEEN ‘PICKED ON’?

3) METROWATER’S ‘ACTING’ CEO TIM HAMMOND, HAS CONFIRMED THAT MARIA AND LUAPO IOSEFA, ARE ‘THE FIRST CASE’ WHERE METROWATER HAVE ATTEMPTED TO SELL A HOME, BY AUCTION:

The CEO of Metrowater, Tim Hammond, has confirmed in writing, (email dated Friday 5 February 2010), that Luapo and Maria Iosefa have effectively been singled out, and treated differently from other Metrowater customers, in regards to the ‘debt management’ process been followed in this case.

“Query #2: How is it, then, that the Iosefa family have had proceedings filed in the High Court to sell their house…?

Response #2: The impending auction sale of the property at 89A Canal Rd was necessitated by the size of the accumulated debt incurred by the Iosefas over many years (particulars of which were provided to, and are known by, the family and the lawyer now acting for the family).

The age and level of the debt is now at such a level that Metrowater no longer finds it acceptable to simply protect the debt by holding the charging orders over the property with no sign of any effort or intent by the Iosefas to clear any of the debt.

This is the first case where a Metrowater debtor has reached this relative position of exposure, necessitating such action and Metrowater would take this action for other debtors should they reach this same state, so there have been no exceptions made or different treatments applied.  The previous court actions around this case have established the validity of the debt owed to Metrowater, as evidenced by the grants of Charging Orders over the property.

The move to recover the debt through the sale of the house is a judicially sanctioned debt enforcement process that Metrowater is entitled to apply to customers who fail, or refuse, to pay their debts.  Of course Metrowater’s preference would be for the Iosefas to arrange for settlement of their debt so that the sale of the property did not have to proceed and Metrowater has clearly indicated through the Iosefa’s lawyer that it will consider any realistic settlement proposals the Iosefas may present.” (My underlining)

4) PLEASE BE ADVISED THAT NEITHER MYSELF, NOR THE IOSEFA FAMILY LAWYER HAVE RECEIVED A COMPLETE SET OF METROWATER INVOICES WHICH SUBSTANTIATE THE  ALLEGED ‘SIZE OF THE ACCUMULATED DEBT’.

5) WE ARE DEEPLY CONCERNED THAT THERE MAY HAVE BEEN SOME CONFUSION OVER METROWATER ACCOUNTS FOR 89A AND 89B CANAL ROAD, WHICH MAY HAVE RESULTED, AT SOME POINT, IN THESE ACCOUNTS BEING COMBINED, AND HAVE EVIDENCE TO SUPPORT THIS POSSIBILITY.

(See letter dated 9 September 2003 from Vicki Burnitt     – APPENDIX “B”)

(See letter dated 19 December 2003 from Lee Chambers  – APPENDIX “C”)

(See Metrowater invoice dated 8 December 2003              – APPENDIX “D”)

(See letter 19 October dated 2006 from Rachael Tillart     – APPENDIX “E”)

6) PLEASE BE REMINDED THAT METROWATER HAVE STATED PUBLICLY IN THEIR 2008/2009 ANNUAL REPORT:

“….

Ongoing debt which is still unpaid, after collection and legal process can be secured by Metrowater by obtaining a charging order on the debtors property through the district court.”

( Metrowater Annual Report 2008/2009, Pg 66

NOTES TO THE FINANCIAL STATEMENTS FOR THE YEAR ENDED

30 JUNE 2009)

7) Role of the Finance and Strategy Committee of Auckland City Council

and its ‘DELEGATED AUTHORITY’:

Role of the Finance and Strategy Committee of Auckland City Council

and its ‘DELEGATED AUTHORITY’:

General manager Andrew McKenzie
Chair Councillor Armstrong
Deputy chair Councillor Goldsmith
Members
  • Councillor Bhatnagar
  • Councillor Casey
  • Councillor Donnelly
  • Councillor Northey
Delegations
  • Council planning and reporting
  • Corporate area
  • Commercial matters
  • CCO stewardship
  • Monitor performance against SOI
  • Review performance of boards and directors
  • Appoint and remove directors

C)  The continued unlawful violation of the human rights of the Iosefa family, by being unlawfully discriminated against in the provision of goods and services, as outlined in the Human Rights Act 1993, s 44:

Human Rights Act 1993 No 82 (as at 01 October 2008), Public Act

Discrimination in provision of goods and services

44 Provision of goods and services

(1) It shall be unlawful for any person who supplies goods, facilities, or services to the public or to any section of the public—

(a) To refuse or fail on demand to provide any other person with those goods, facilities, or services; or

(b) To treat any other person less favourably in connection with the provision of those goods, facilities, or services than would otherwise be the case,—

by reason of any of the prohibited grounds of discrimination.

Human Rights Amendment Act 2001

Part 1A
Discrimination by Government, related persons and bodies, or persons or bodies acting with legal authority

  • Part 1A (sections 20I to 20L) was inserted, as from 1 January 2002, by section 6 Human Rights Amendment Act 2001 (2001 No 96).

21 Prohibited grounds of discrimination
  • · (1) For the purposes of this Act, the prohibited grounds of discrimination are—

(j)   Political opinion, which includes the lack of a particular political opinion or any political opinion:”

EVIDENCE OF UNLAWFUL DISCRIMINATION ON THE GROUNDS OF POLITICAL OPINION – EXPRESSED POLITICAL BIAS TOWARDS WATER PRESSURE GROUP MEMBERS GENERALLY, AND MYSELF AS WPG MEDIA SPOKESPERSON:

a)It appears that Metrowater are discriminating against the Iosefa family, in commencing legal proceedings to sell their house, because they are members of the Water Pressure Group.

b) Metrowater’s  discriminatory attitude towards Water Pressure Group members, and myself as Water Pressure Group Media Spokesperson, has been clearly expressed in Court documents presented by Metrowater’s acting Solicitor, Mr Michael Tolhurst from City Law, in the recent above-mentioned case of Metrowater v W Blake – CIV-2008-004-001058,              27 Jan 2010); and in the transcript of evidence of Metrowater’s Legal and Complaince Officer, Mr John Hilario, arising from that same case:

i) “PLAINTIFF’S MEMORANDUM FOR JUDICIAL CONFERENCE ON 22 DECEMBER 2009

5. The other issue about which the Plaintiff is concerned in this matter is the allocation of time at 2 days.  This is a straightforward case. The Plaintiff has provided water under a contract for supply for which the Defendant,    Mr Blake has failed to pay.  The Plaintif’s task is to prove supply and  non-payment.

Mr Blake has an advocate who will no doubt be in Court with him, Penny Bright. Ms Bright is a political activist who is not legally trained. She indicated she would be calling witnesses to attest to Bill of Rights violations regarding the charging for water and general illegalities in regards to the formation of the Plaintiff Company.  Ms Bright made these representations to the Court at the last Judicial Conference.

6. There is nothing pleaded by the Defendant in regards to alleged Bill of Rights abuse and illegality around the formation of Metrowater. It is submitted therefore that any briefs of witnesses appearing for Mr Blake ought only to deal with his defence to the claim ie that he was not ever supplied with water and that Metrowater is unable to charge him for water because Metrowater has no way of knowing what water has been used by him if any. It is submitted that any briefs of evidence which are prepared by Ms Bright or Mr Blake which deal with the political situation surrounding the formation of Metrowater and the right of Metrowater to charge for wastewater ought to be struck out by the Court. Certainly if the Court does not feel that it can take that step at this stage it is submitted that a direction to this effect ought to be given to Ms Bright and Mr Blake. The Plaintiff’s concern is that a straightforward matter of the failure by Mr Blake to pay for his water has been turned into a political sideshow by Ms Bright. This case is a claim for unpaid water but has been estimated to take 2 days only because Ms Bright indicated to the Court last time it came before the Court that she was intending to call people to give evidence re the formation of Metrowater, consequent illegality of that formation and breaches of the Bill of Rights.  None of those matters are dealt with at all in the Statement of Defence which speaks loosely of fraud and harassment but does not deal at any stage with the Bill of Rights or illegalities in Metrowater’s ability to supply and charge for water and wastewater. …………………….

MW Tolhurst Solicitor for the Plaintiff

22 December 2009″

ii) TRANSCRIPT OF THE NOTES OF EVIDENCE

Metrowater v Blake – CIV -2008 – 004 – 001058 (27 Jan 2010)

Cross-examination by Ms Bright of Metrowater’s Legal and Compliance Officer Mr John Hilario:

Pg 12 (Lines 7 – 17)

“A. Based on Metrowater records the reason for charging Mr Blake on an unmetered basis was that on or about 19 May 1999 pursuant to its then policy on dealing with non-paying accounts, Metrowater disconnected Mr Blakes’s property from the public network.  The metre was removed.  Immediately thereafter Mr Blake reconnected his property to the public network without Metrowater’s consent.

By way of background to this action by Mr Blake, he is a member of the Water Pressure Group which is headed by Ms Penny Bright.  In particular this group took exception to the decision by the Auckland City Council to separate the provision of water services from charges which up until the date of separation had been part of the general rates charge paid by ratepayers.

Pg 16  (Lines 7 – 27)

“Q. In terms of Metrowater’s customer terms, is it fair to say that Metrowater is also covered by the Human Rights Act, section 44, provision of goods and services, subsection (1) it shall be unlawful for any person who supplies goods, facilities or services to the public or any section of the public, (a) to refuse or fail on demand to provide any other person with those goods, facilities or services or, (b) to treat any other person less favourably in connection with the provision of those goods, facilities or services than would othersie be the case by reason of any of the prohibited grounds of discrimination.

A. Well I’m not sure what the question is.

Q. Does this legislation apply to Metrowater in your understanding?

A. Well from what I know the Human Rights Act will apply to all entities and persons in New Zealand so in that sense, yes we are covered by that but at the same time our policy is to treat all our customers alike.

Q. Would it be fair to say that one of the prohibited grounds of discrimination under section 21 of the Human Rights Amendment Act 2001, subsection (1) for the purposes of this Act the prohibited grounds of discrimination include (j) political opinion which includes the lack of a particular political opinion or any political opinion.  Do you accept that Metrowater is covered by that legislation?

A. I haven’t memorised the Act but if it’s as you read it then, yes I accept it.

Q. Is it your view that the Water Pressure Group is effectively an organisation with a political aim of being opposed to Metrowater because it’s opposed to user charges which Metrowater support?

A.  I believe the Water Pressure Group has represented itself to be a political organisation.

Q. Is that how a person such as yourself sees the Water Pressure Group?

A. In my personal capacity, yes.

Q.  How about in your official role as the Legal and Complaince Officer of Metrowater – do you see the Water Pressure Group basically as a political organisation with an aim that’s diametrically opposed to Metrowater’s basic reason for being?

A. As Metrowater’s lawyer I basically see the Water Pressure Group as a group of people who don’t pay their water charges.”

__________________________________________________________
D) HARASSMENT AND COERCION IN CONNECTION WITH THE PAYMENT OF GOODS AND SERVICES IS AN OFFENCE UNDER THE FAIR TRADING ACT:

FAIR TRADING ACT 1986
2 Interpretation

(1) In this Act, unless the context otherwise requires,—

Services includes any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges, or facilities that are or are to be provided, granted, or conferred and, without limiting the generality of the foregoing, also includes the rights, benefits, privileges, or facilities that are or are to be provided, granted, or conferred under any of the following classes of contract

(a) A contract for, or in relation to,—

(iv) to avoid doubt, the supply of electricity, gas, telecommunications, or water, or the removal of waste water:

23 Harassment and coercion

No person shall use physical force or harassment or coercion in connection with the supply or possible supply of goods or services or the payment for goods or services.”

E) The failure of the Finance and Strategy Committee to exercise any ‘Council control’ over Metrowater’s unlawful actions, after this was clearly pointed out in items of correspondence from myself, in particular my address to the Auckland City Council meeting in the Auckland Town Hall on Thursday 25 February 2010; (which was filmed);  and supporting documentation was presented to Council and attached to the minutes.

http://www.aucklandcity.govt.nz/council/members/councilmeetings/20100225_1800/CNCL-25022010-OPN-MIN-%2305.2.pdf

1) (AGAIN) – The role of the Auckland City Council ‘Finance and Strategy’ Committee is clearly outlined, as follows:

Finance and Strategy

Role of the Finance and Strategy Committee of Auckland City Council

and its ‘DELEGATED AUTHORITY’:

General manager Andrew McKenzie
Chair Councillor Armstrong
Deputy chair Councillor Goldsmith
Members
  • Councillor Bhatnagar
  • Councillor Casey
  • Councillor Donnelly
  • Councillor Northey
Delegations
  • Council planning and reporting
  • Corporate area
  • Commercial matters
  • CCO stewardship
  • Monitor performance against SOI
  • Review performance of boards and directors
  • Appoint and remove directors

(My underlining)

F) Auckland City Council’s General Manager for Finance, Andrew McKenzie’s  failure to recognise the difference between ‘GOVERNANCE’ and ‘OPERATIONAL MATTERS’, pertaining to Metrowater’s unlawful singling out of Maria and Luapo  Iosefa, and Metrowater’s unlawful failure to comply with its ‘Statement of Intent’ regarding it ‘debt management processes’, regarding these ‘customers’.

1) The letter emailed from Auckland City Council’s General Manager for Finance, Andrew McKenzie, for which, in my considered opinion, he has no lawful or delegated authority to so write; for which he is effectively giving a ‘legal opinion’ (on what lawful basis – given Andrew McKenzie  apparently holds no legal qualification) :

http://www.aucklandcity.govt.nz/council/members/organisation/exec.asp#am

Finance

Andrew McKenzie – BCA and BA (Victoria)

Appointed: August 2005

Andrew McKenzie is General manager of the Finance division.

Andrew was previously with Wellington City Council for six years in a variety of senior management team roles. These included director strategy and planning, director business improvement, director finance and infrastructure and his current role chief financial officer.

Andrew’s career has given him a depth of experience, with roles in both the public and private sector including Ministry of Commerce, Telecom, Bank of New Zealand and AMP.

4 March 2010

Penny Bright

waterpressure@gmail.com

Dear Penny

I refer to your email of 1 March to the Mayor, Chair of the Finance & Strategy Committee and myself regarding court action taken by Metrowater to recover unpaid water and wastewater debts.

Metrowater has kept Auckland City Council informed of this case, and we are aware that the property owners have not paid any water or wastewater charges for a substantial period of time.  Metrowater has advised that they have tried on numerous occasions to obtain payment, including a number of different settlement offers.

As a last resort, Metrowater has taken steps to recover the debt through forced sale of the property.

It is not appropriate for Auckland City Council or individual Councillors to become involved in this legal action.  I am confident from the briefings I have received from Metrowater that the property owners have been given every opportunity to reach an arrangement to settle their outstanding account.

Kind regards

Andrew McKenzie

General Manager Finance

_______________________________________________________________________

2) PLEASE NOTE THAT AT NO TIME PRIOR TO THE WRITING OF THIS LETTER, DID AUCKLAND CITY COUNCIL GENERAL MANAGER OF FINANCE, ANDREW MCKENZIE EVER MAKE CONTACT WITH EITHER MYSELF, OR THE IOSEFA FAMILY LAWYER, MR PETER JACOBSON, TO GET THE IOSEFA’S ‘SIDE OF THE STORY’.
_____________________________________________________________________

3) UPON WHAT LAWFUL ‘DELEGATION’ OF AUTHORITY WAS UNELECTED AUCKLAND CITY COUNCIL GENERAL MANAGER OF FINANCE ANDREW MCKENZIE RELYING BEFORE COMPOSING HIS ABOVE-MENTIONED LETTER?

4) Delegations register – Policies and principles

“High level definitions

‘Principle’ – An overarching statement that guides policy. Can be used as an aid to interpretation where uncertainty arises.

‘Policy’ – A high level expression of how to achieve the principles and rules for the practical application of delegations.

Principles

1. Delegations should be made specifically to the lowest appropriate level, but they may also be exercised by all managers in a direct line above that position.

Delegations should be made directly to the position that will be exercising the authority as part of the role of the position and day-to-day responsibilities. All managers in a direct line of authority above that named position will also be able to exercise that delegation.

2.Delegations should reflect the separate roles of governance and management.

Strategy, policy, governance and major financial decisions are matters for elected representatives. Operational matters are generally the responsibility of staff although certain types of decisions, such as changes to the district plan and funding decisions, are considered to be matters of policy. Council ultimately decides on where the balance lies.”

F) HOW DID AUCKLAND CITY COUNCIL CHIEF EXECUTIVE DAVID RANKIN – ALLOW METROWATER’S UNLAWFUL ACTIONS – FULLY SUPPORTED BY AUCKLAND CITY COUNCIL’S GENERAL MANAGER FOR FINANCE – ANDREW McKENZIE-  TO HAPPEN ON ‘HIS WATCH’?

Chief executive

The chief executive is the only employee of the Council, is the senior executive of the City and the employer of all staff.

The council appoints the chief executive in accordance with section 42 of the Local Government Act 2002. The chief executive is responsible for implementing and managing the council’s policies and objectives within the budget established by the council. In terms of section 42 of the Act, the responsibilities of the chief executive are:

1. implementing the decisions of the council

2. providing advice to the council and community boards

3.ensuring that all responsibilities, duties and powers delegated to the  chief executive or to any person employed by the chief executive, or imposed or conferred by any Act, regulation or bylaw are properly performed or exercised

4. managing the activities of the council effectively and efficiently

5.maintaining systems to enable effective planning and accurate      reporting of the financial and service performance of the council

6. providing leadership for the staff of the council

7.employing staff on behalf of the council (including negotiating terms of employment for council staff)

Under section 42 of the Local Government Act 2002 the chief executive employs all other staff on behalf of the council.

G) HOW MANY BREACHES OF AUCKLAND CITY COUNCIL’S ‘CODE OF CONDUCT’ APPLY IN THIS CASE?

AUCKLAND CITY COUNCIL ‘CODE OF CONDUCT’:

Part one: Introduction

Schedule 7 of the Local Government Act 2002 requires the council to adopt a code of conduct. This code of conduct provides guidance on the standards of behaviour that are expected from the mayor and councillors of Auckland City council. Once adopted, the mayor and councillors are required to comply with the code, which applies to them in their dealings with:

1. each other

2.the chief executive

3.all staff employed by the chief executive on behalf of the council

4.the media

5.the general public

……………..

The objective of the code is to enhance:

1.the credibility and accountability of the council within its community

2.the effectiveness of the council as the autonomous local authority with                                                                                                           statutory responsibilities for the good local government of Auckland City

3.mutual trust, respect and tolerance between the mayor and councillors as a group and between the mayor, councillors and management.

This code of conduct seeks to achieve its objectives by recording:

1.agreed statement of roles and responsibilities (recorded in part two of the code)

2.agreed general principles of conduct (recorded in part three of the code)

3.specific codes of conduct applying to particular circumstances or matters (also recorded in part three of the code)

Part three: Relationships and behaviours

This part of the code sets out the council’s agreed standards of behaviour. Some of the matters described in this part of the code reflect other legislation such as the Local Authorities (Members’ Interests) Act 1968.

Relationships with the community

Effective council decision-making depends on productive relationships between the mayor and councillors and the community at large.

The mayor and councillors will ensure that individuals and groups are accorded respect in their dealings with the council, have their concerns listened to, and deliberated on in accordance with the requirements of the act.

The mayor and councillors will act in a manner that encourages and values community involvement in local democracy.

G) METROWATER’S BOARD OF DIRECTORS ALSO HAVE CLEAR STATUTORY DUTIES ARISING FROM THE COMPANIES ACT, (ALONG WITH STATUTORY DUTIES ARISING FROM THE LOCAL GOVERNMENT ACT 2002) – WHICH HAVE CLEARLY BEEN BREACHED:

The Companies Act 1993

128 Management of company

(1) The business and affairs of a company must be managed by, or under the direction or supervision of, the board of the company.

(2) The board of a company has all the powers necessary for managing, and for directing and supervising the management of, the business and affairs of the company.

(3) Subsections (1) and (2) of this section are subject to any modifications, exceptions, or limitations contained in this Act or in the company’s constitution

131 Duty of directors to act in good faith and in best interests of company

(1) Subject to this section, a director of a company, when exercising powers or performing duties, must act in good faith and in what the director believes to be the best interests of the company.

133  Powers to be exercised for proper purpose

A director must exercise a power for a proper purpose.

134 Directors to comply with Act and constitution

A director of a company must not act, or agree to the company acting, in a manner that contravenes this Act or the constitution of the company

137  Director’s duty of care

A director of a company, when exercising powers or performing duties as a director, must exercise the care, diligence, and skill that a reasonable director would exercise in the same circumstances taking into account, but without limitation,—

(a) the nature of the company; and

(b) the nature of the decision; and

(c) the position of the director and the nature of the responsibilities undertaken by him or her.

138 Use of information and advice

(1) Subject to subsection (2) of this section, a director of a company, when exercising powers or performing duties as a director, may rely on reports, statements, and financial data and other information prepared or supplied, and on professional or expert advice given, by any of the following persons:

(a) an employee of the company whom the director believes on reasonable grounds to be reliable and competent in relation to the matters concerned:

(b) a professional adviser or expert in relation to matters which the director believes on reasonable grounds to be within the person’s professional or expert competence:

(c) any other director or committee of directors upon which the director did not serve in relation to matters within the director’s or committee’s designated authority.

(2) Subsection (1) of this section applies to a director only if the director—

(a) acts in good faith; an

(b) makes proper inquiry where the need for inquiry is indicated by the circumstances; and

(c) has no knowledge that such reliance is unwarranted.”

The fact that the High Court withdrew the ‘Writ of Sale’ and cancelled the auction of the Iosefa’s family home – PROVES that the lawyer upon which Metrowater were relying, acted unlawfully.  Metrowater ignored advice which had brought the invalidity of these proceedings to their attention, for which the Board of Metrowater must take responsibility, and for which they can be held legally accountable.

_____________________________________________________________________________

OUTCOMES SOUGHT:

PLEASE CONFIRM BY 5PM FRIDAY 19 MARCH 2010 THE FOLLOWING:

1) In the first instance, the unlawful persecution of the Iosefa family will cease forthwith. Metrowater has been instructed to immediately withdraw any proceedings from the High Court for any further ‘Writ of Sale’ or the like, over their family home at 89A Canal Rd Avondale.

Metrowater will fully reimburse Maria and Luapo Iosefa for any costs incurred as a result of Metrowater’s lawyer’s unlawful actions.

2) A full investigation will be carried out, INVOLVING DISCUSSIONS WITH MYSELF AND MEMBERS OF THE WATER PRESSURE GROUP AS DIRECTLY-AFFECTED PARTIES,  as part of  the ‘audit process’ into Metrowater’s debt management processes and actions, given the now proven highly unprofessional style of work of Metrowater’s (former?) lawyer, Michael Tolhurst, and current ‘Legal and Compliance Officer John Hilario; including, but not limited to;  proven discriminatory political bias against myself and fellow WPG members; failure to follow lawful due process in the serving of court documents; lies being told me in order to destroy my credibility (including a complaint against me – authorised by Metrowater’s CEO, to the NZ Law Society); the use of ‘standover’/’extortionist tactics’ to enforce payment of disputed accounts; Metrowater’s failure to follow its disputes process.

(EG: How many legal proceedings initiated in the Auckland District Court by Metrowater’s ‘law’ firm City Law, ended up as ‘Judgments by Default’ – because the Defendants didn’t file a ‘Statement of Defence’, or attend the hearing?

HOW MANY OF THESE CASES WERE AS A RESULT OF LAWFUL ‘DUE PROCESS’ NOT BEING FOLLOWED BY METROWATER’S LAWYERS, AS WAS THE NOW PROVEN  CASE WITH MARIA AND LUAPO IOSEFA?

3) In the interim, ALL current legal proceedings against WPG members will be withdrawn FORTHWITH.

PLEASE BE ADVISED THAT IF THE ABOVE-MENTIONED OUTCOMES ARE NOT ACHIEVED, THAT  THE MINISTER FOR LOCAL GOVERNMENT, RODNEY HIDE, WILL BE REQUESTED TO INITIATE A REVIEW OF THE FAILURE OF AUCKLAND CITY COUNCIL TO ENSURE METROWATER’S COMPLIANCE WITH POLICIES OUTLINED IN THE STATEMENT OF INTENT REGARDING ‘DEBT MANAGEMENT’.

The powers of the Minister of Local Government, in such a matter are set out as follows:

Local Government Act 2002

256 Minister may appoint person to act on behalf of local authority, or initiate review

(1) If the Minister considers that the grounds in subsection (2) exist, the Minister may, by notice in the Gazette,—

(a) appoint a person to perform and exercise a local authority’s responsibilities, duties, and powers either generally or to the extent specified in the notice; or

(b) appoint a person to review, consider, and report on the performance of a local authority, either generally or in respect of any particular matter specified in the notice

(2) The grounds are—

(a) that the local authority is wilfully refusing or substantially refusing to perform and exercise its duties and powers under this Act or any other enactment; and

(b) the refusal—

(i) is impairing, or likely to impair, the good local government of the local authority’s district or region; or

(ii) endangering, or likely to endanger, the public health or safety of the local authority’s district or region.

(3) Before exercising his or her powers under subsection (1), the Minister must—

(a) give the local authority notice in writing of his or her intention to do so, including the reasons; and

(b) give the local authority not less than 20 working days to satisfy the Minister—

(i) that the grounds do not exist; or

(ii) that steps have been taken to rectify the situation.”

I do hope that this will not be necessary.

Yours sincerely,

Penny Bright

Media Spokesperson

Water Pressure Group

Judicially recognised ‘Public Watchdog’ on Metrowater, water asnd Auckland regional governance matters.

“Anti-corruption campaigner”

Ph (09) 8469 825

021 211 4 127

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March 28, 2010 - Posted by | Metrowater

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