A Masterton councillor at the centre of a conflict of interest row has agreed to stay silent when his colleagues come to make their big decision on the town's rates-crippling Homebush wastewater plant upgrade in August.
But David Holmes says he will keep taking part in Masterton District Council deliberations on Homebush until then, which he says his lawyer advises he is entitled to do.
The council has consent to build a border-strip treatment system, for which costings are being sought.
It has also commissioned a preliminary assessment of an alternative treatment, via centre pivot irrigation, a method backed by Mr Holmes and others. The information will come back to councillors before their decision on whether to change the current $23 million scheme.
After Mr Holmes' position was questioned by colleagues twice last month _ first in a closed meeting and then during a tense row in the open section of the last policy and finance meeting _ the council sought legal advice on what involvement he could have in making the decisions.
The council released that advice to the Times-Age after a confidential council discussion on Wednesday night.
Council solicitors Simpson Grierson gave advice with the understanding that the member owned land near the plant, that he had a business association with another nearby landowner and that he had appealed the decision to grant the council consent.
The solicitors were also of the understanding that the member had been active in advocating for particular technical disposal solutions and that certain decisions relating to treatment options, potentially affecting the value of his land and that of his business associate, would be made shortly.
The firm gave advice on bias in these four categories _ ''direct pecuniary interests'', or when there was a personal financial interest in the outcome of a case; ''indirect pecuniary interests'', where an interest was held by a family member, business associate or a company of the person; ''non-pecuniary interests'', where there was a ''personal or professional relationship'' with a party interested in the outcome or prejudice or preference for one party; or ''predetermination'', where there were previous actions or statements by the person which suggested impartiality.
The firm said it was ''very likely, in fact inevitable'' that decisions which could directly impact on the value of an elected member's property in the present case would lead to a finding of bias.
It was also very likely that a discussion in which a member participated where the value of their land was directly affected would, therefore, be quashed.
A decision would also likely be overturned if it was found a person had an indirect pecuniary interest.
Referring to non-pecuniary interests, the firm said in its opinion there was a ''high risk'' that the court would find a sufficient possibility of apparent bias in the present case, if the member participated in decisions that affected the land of a close business associate and partner.
Advising on predetermination, the firm said members did not have to come to matters with blank minds.
''However, any previous action that suggests that the member is not open to persuasion when the matter comes before him or her'' would create a risk, the lawyers said.
Council chief executive Wes ten Hove allowed Mr Holmes to read the advice. In a letter in reply, Mr Holmes said he would not participate in the either the final deliberation or at the voting stage.
''I make this decision because I would hate to think that my participation could create a basis for some other person or party to take proceedings to set aside the council's decision if they disagreed with it,'' he said.
Contacted by the Times-Age, Mr Holmes said he had read the letter, accepted the opinions within it and reaffirmed that he would not speak at the August deliberations.
But he said his lawyer's advice that ''any issue would be confined to voting where you might have a conflict'' meant he was fully entitled to speak in review meetings and workshops.
Mr Holmes said he had never voted on Homebush matters, having ''always honoured that agreement''.
AdvertisementAdvertise with NZME.
Latest from New Zealand
Claimants want Children’s Minister to front up kanohi ki te kanohi (face to face)
High Court decision to set aside summons issued by Tribunal will be appealed.