Wellington City councillors are faced with the "tricky" call of whether to replace one of their colleagues, or leave a seat at their table vacant, which could mean giving themselves a pay rise.
Malcolm Sparrow announced earlier this month he was resigning from his role as a northern ward councillor due to a health scare.
His resignation came less than a year out from the 2022 local body elections, meaning there is no statutory requirement for the council to hold a byelection.
Instead, councillors are faced with the decision to either appoint someone to replace Sparrow, or leave the seat vacant.
Victoria University of Wellington associate law professor Dr Dean Knight said the legislation gave the power back to elected councillors to decide what to do, without giving parameters to guide them.
Knight said it was a "tricky" call because appointing someone or leaving the position vacant had democratic consequences either way.
"Leaving the position vacant leaves a particular community undervalued in terms of representation, as well as perhaps nudging the balance of ideology and workload around the council table.
"But appointing someone could be used to overegg the power of a particular bloc on the council and raises eyebrows democratically as the person appointed doesn't get minted by the community they represent and are ultimately accountable to."
Knight said sometimes councils opted to appoint the next highest polling candidate to get around this, but that might not always be practical and opened up a "different can of worms".
This issue arose as recently as 2016 when Fran Wilde resigned from Greater Wellington Regional Council (GWRC).
Her resignation came seven months before local body elections were scheduled.
Daran Ponter, who is now chairman of GWRC, was appointed.
He had already served one term as a councillor representing the Wellington constituency, but had failed to get re-elected.
Ponter said as soon as he was aware the council was meeting about the vacancy, he jumped into action.
The paper being tabled at the meeting outlined options available to the council without recommending any specific person to be appointed in Wilde's place.
Feeling he had unfinished business at the council, Ponter hit the phones to build support for his appointment.
"I expressed my interest in being appointed and 12 hours later I was appointed", Ponter said.
"I was as surprised as anybody."
In a statement announcing the appointment, then GWRC chairman Chris Laidlaw said councillors voted to appoint Ponter to maintain representation for the Wellington constituency.
Wilde's resignation meant there were four councillors representing the constituency instead of five.
Ponter had already represented the area previously in his first term. He was also the next highest polling candidate in the 2013 election, albeit under a Single Transferable Vote system.
"Mr Ponter's previous experience in the public transport space will be invaluable to the council as we have a busy public transport agenda between now and October", Laidlaw said.
Little did Laidlaw know just how valuable Ponter would be once the council landed itself in the bustastrophe.
Prue Lamson, who was a councillor at the time and remains so to this day, recalls Ponter being appointed because he was the next highest polling candidate and he had experience.
"I can just remember from the first term when I came on, it's always a bit of a challenge because the council can't wait for you to catch up. You're right there doing it right from day one.
"For somebody new to come in without reasonably relevant local government experience, it would be difficult to pick up and be able to contribute for such a short time period."
Ponter said on reflection, having a local voice was increasingly important at a time when the likes of three waters reform and local government reform were on the table.
"We need to balance this and make sure local participation is strong within our councils.
"We need to make sure that the voices of Tawa, of Johnsonville, of Newlands continue to come through in a council. It's not the end of the world if the city council doesn't vote a member on, but it would be desirable in order to give the northern suburbs the representative they deserve under the system that we have."
"The people of the northern suburbs of Wellington will be missing a representative and while it's only for a year, the city council is going to make big decisions in that time."
A Local Government New Zealand spokesperson said it was up to each council to decide.
"Most choose to appoint to ensure communities don't lose representation and a voice around the table."
The issue is on the agenda of a private meeting between Wellington mayor Andy Foster and city councillors today.
Foster said they were required to make a final decision by the next full council meeting.
"We are considering all options for how to progress at this time", he said.
But one option has already seemingly been taken off the table.
The next highest polling candidate in the northern ward, Peter Gilberd, has said he is "unavailable".
That has prompted Wellington City councillor Jill Day to write to Wilde, who is now chairwoman of the Remuneration Authority, for advice on what could happen to Sparrow's pay cheque if he is not replaced.
Day has asked whether the money could be removed from the remuneration pool and reallocated into council funds.
The Remuneration Authority allocates a pool of money to each council. It is the total amount that must be paid in remuneration to councillors in each individual council.
But each council decides on how they divvy this up through a base rate and any extra money for positions of responsibility.
The authority sets out that each pool must be fully allocated to protect councils from pressure to keep rates down by paying councillors less.
Foster has also sought advice on what the rules mean for Sparrow's portion of the pool of money.
If councillors don't appoint anyone to replace him, they could all end up with pay rises if the money has to be distributed between them.
Foster said he expected advice on the matter in coming days.
Day said she supported the funding being allocated to the council community grants pool.
"There is significant need in the community with the impacts of Covid being felt by many."
The council has faced a similar issue before when elected members wanted to take pay cuts in solidarity with many of their constituents at the beginning of the Covid-19 outbreak.
Except they didn't have the ability to reduce their pay, which is determined by the authority and set in legislation.
As a way around this, Wellington City Council elected members decided to donate 10 per cent of their pay to charity instead.
Some councillors gave their portion to the Wellington City Council Community Grant Fund.
Something similar could work for any re-distribution of Sparrow's pay to avoid the awkwardness councillors might feel of voting to give themselves a pay rise with no obvious choice for replacement.
Councillors will vote on what to do at a full council meeting on October 28.