28 November 2023 Dunedin City Council  Chief Executive Officer/Tumu Whakarae  Sandy Graham  Sandy.Graham@dcc.govt.nz

 Dear Sandy 

Notice of motion 

1 You have requested legal advice on the notice of motion promoted by Councillor Laufiso, dated 20 November 2023. In particular you have asked whether procedurally this can be considered by Council at its meeting on 28 November 2023. 

Legal advice 

2 It is our assessment that the notice of motion is now properly included on the agenda. It is the role of Elected Members to consider and vote on the merits of it at their meeting. 

3 This is because it is the role of the Mayor to supervise the procedure and decide whether to direct to refuse any proposed notices of motion from being included in the Council agenda. This proposed motion has not been refused by the Mayor following discussion of it and advice from the Chief Executive. It is now for Elected Members to consider this motion and make a decision on it. 

Reasons 

4 A notice of motion is a means by which any Elected Member can have a proposed motion included on Council’s agenda. This is addressed under clause 26.1 of the Dunedin City Council Standing Orders. This requires notice of an intended motion to be in writing, signed by the mover, stating the meeting at which it is intended to be considered and delivered to the Chief Executive at least five clear working days before that meeting. Having reviewed the notice by Councillor Laufiso, we consider that it satisfies these procedural requirements. We note it was accepted by you as Chief Executive and was considered to comply with this procedure. 

5 There is a discretion in clause 26.2 of the Standing Orders for the Chairperson (here the Mayor) to direct the Chief Executive to refuse to include a proposed notice of motion on the agenda. Clause 26.2 sets out criteria which may justify the Chairperson to refuse any notice of motion in their discretion. 

6 We note from your instructions that upon receiving the notice of motion you took advice on it from the Governance team, then advised the Mayor. The Mayor has not made any direction to you as Chief Executive to refuse to accept the notice of motion. This means that the proposed motion has not been refused and has rightly been included on the agenda for Elected Members to consider and vote on. 

7 It is clear that this proposed notice of motion is a matter of high political interest at the present time. In this context of a proposed motion on a political topic, we are satisfied that the Mayor having not refused the motion has made a decision reasonably available to him. 

8 We have ourselves now assessed the grounds in clause 26.2 of the Standing Orders. We note that it is the exclusive role of the Mayor to form a judgement about whether any of these criteria are met to inform the exercise of the Mayor’s discretion. The context of that evaluation here is that this matter is of high political interest with limited alternative options, and limited implications (if any) for Council workload or budgets. 

9 We comment below on the more relevant grounds in clause 26.2. We are satisfied that the notice of motion does not obviously contravene any of the criteria that ought to justify the Chairperson to refuse the notice of motion for procedural reasons. In particular:  10 It is for Elected Members to evaluate as part of their decision whether they have a sense of the views of persons likely to be affected or have an interest in the matter. It is for the Mayor to exercise a discretion to control the procedure about whether a notice of motion such as this goes on the Council agenda. Having not directed the Chief Executive to refuse this notice of motion, we consider it has now passed this procedural point and it is for the Elected Members collectively to consider the notice of motion, debate it, and vote on it as proposed.    Yours faithfully nderson Lloyd

Michael Garbett  Partner

d +64 3 467 7173  m +64 27 668 9752  e michael.garbett@al.nz