The Watchdog

Keeping citizens in the loop

Request for speaking rights at AkCC Finance and Strategy Cttee meeting 17 March 2010

12 March 2010

Doug Armstrong
Chair
Finance and Strategy Committee
Auckland City Council

Dear Doug,

Under the ‘Urgency’ and ‘Public Interest’ provisions of Auckland City Council Standing Orders, both myself and the  lawyer for the Iosefa family, Mr Peter Jacobson, request speaking rights at the next meeting of Auckland City Council’s Finance and Strategy Committee, to be held on Wednesday 17 March 2010 at 9.30am.

SUBJECT MATTER:

AUCKLAND CITY COUNCIL ‘CONTROL’ OVER COUNCIL CONTROLLED ORGANISATION
(CCO) METROWATER LTD:

A) Metrowater’s continued unlawful persecution of the Iosefa family over disputed Metrowater accounts, including further proceedings filed in the High Court to sell their family home.

B) The failure of both Metrowater and Metrowater’s  ‘monitoring body’, as a Council Controlled Organisation (CCO) 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?

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

3) METROWATER’S ‘ACTING’ CEO TIM HAMMOND, CONFIRMS 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.

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“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).Â

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.Â

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.

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.”

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( 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’:

General manager  Andrew McKenzie
Â
Chair  Councillor Armstrong
Â
Deputy chair  Councillor Goldsmith
Â
Members Â
  • Councillor Bhatnagar
  • Councillor Casey
  • Councillor Donnelly
  • Councillor Northey
Â
Delegations Â
  • 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

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(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.

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 ___________________________________________________________

D) 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

General manager  Andrew McKenzie
Â
Chair  Councillor Armstrong
Â
Deputy chair  Councillor Goldsmith
Â
Members Â
  • Councillor Bhatnagar
  • Councillor Casey
  • Councillor Donnelly
  • Councillor Northey
Â
Delegations Â
  • 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)

E) 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.

_______________________________________________________________________-

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4 March 2010

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Penny Bright

waterpressure@gmail.com

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Dear Penny

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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.

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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.

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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.

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Kind regards

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Andrew McKenzie

General Manager Finance

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_______________________________________________________________________

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.

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  1. 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

This code does not apply to members of the Avondale, Eastern Bays, Eden/Albert, Great Barrier, Hobson, Maungakiekie, Mt Roskill, Tamaki, Waiheke or Western Bays Community Boards, unless they choose to specifically adopt it, or an adapted version of it.

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.

OUTCOMES SOUGHT:

1) In the first instance, the unlawful persecution of the Iosefa family to cease forthwith. Metrowater to be 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.

2) A full investigation to be carried, INVOLVING DISCUSSIONS WITH MYSELF AND MEMBERS OF THE WATER PRESSURE GROUP AS DIRECTLY-AFFECTED PARTIES,  as part of ‘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 to be withdrawn FORTHWITH.

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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