Term of office of elected members and extraordinary vacancies

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1 Term of office of elected members and extraordinary vacancies Code of Good Practice for the management of local authority elections and polls 2016

2 OBJECTIVE OF PART All electoral officers are familiar with the statutory requirements and recommended procedural practices relating to terms of office for elected members and filling of extraordinary vacancies so as to assist the achievement of the Local Electoral Act principle of public confidence in and understanding of electoral processes. KEY MESSAGES Electoral officers: need to be familiar with statutory requirements and recommended good practices relating to when elected members come into and leave office, and how extraordinary vacancies can arise and how they are filled. 2

3 Contents Introduction... 4 Legislation Requirements and recommended practices

4 Introduction 19.1 This Part of the Code deals with the term of membership of elected members and the filling of extraordinary vacancies. The rules for both differ between the different types of local authorities. Electoral officers need to be aware of these differences. A good understanding of these provisions will assist achievement of the Local Electoral Act 2001 (LEA) principle of public confidence in, and public understanding of, local electoral processes This Part sets out the requirements of the Local Electoral Act 2001 (LEA), the Local Electoral Regulations 2001 (LER) and other relevant legislation relating to terms of membership and extraordinary vacancies and addresses the following issues including recommended good practices: (a) when members come into and leave office (b) how extraordinary vacancies arise (c) filling extraordinary vacancies. Legislation 19.3 The key legislative provisions relating to terms of office for elected members and the filling, or otherwise, of extraordinary vacancies on the various local authorities are: Local Government Act 2002 Section 48 Further provisions of Schedule 7 Schedule 7: Clause 1 Disqualification of members Clause 2 Ouster of office of member Clause 4 Member s right to resign Clause 5 Extraordinary vacancies Local Electoral Act 2001 Section 4 Principles Section 5 Interpretation Section 64 Vacancies remaining unfilled to be extraordinary vacancies Section 87 Death or incapacity of elected candidate before declaration of result of election Section 88 What happens if same person elected as Mayor and another member Section 88A What happens if same person elected to both territorial authority and community board Section 88E What happens if no amended declaration can be made Section 88F What happens if member of community board becomes member of territorial authority Section 115 When members come into office Section 116 When members leave office Section 117 Extraordinary vacancy in local authority or community board Section 117A Power to fill by appointment extraordinary vacancy in community board Section 118 Notice of intention to fill vacancy by appointment Section 119 Notice of intention to leave vacancy unfilled Section 120 Election to fill extraordinary vacancy 4

5 New Zealand Public Health and Disability Act 2000 Section 29 Membership of boards Schedule 2: Clause 8 Elections governed by Local Electoral Act 2001 and regulations made under that Act Clause 10 No by-elections Clause 14 When elected members come into office Clause 17 Certain persons disqualified from membership Schedule 3: Clause 7 Vacation of office Clause 8 Removal from office Clause 9 Reasons for removal from office Sale and Supply of Alcohol Act 2012 Section 304 Section 309 Section 315 Section 316 Section 320 Section 322 Section 323 Section 324 Section 325 Section 326 Section 327 Section 328 Alteration of trust boundaries Qualification to be elected or appointed member Governor-General may appoint members to make up required number Term of Office Minister may appoint deputy of member Disqualification from election or appointment as member of licensing trust Disqualification from continuing to be member of licensing trust Offence of acting as member of licensing trust while disqualified Vacation of office by members Extraordinary vacancies District Court may issue removal summons District Court may remove member from office. 5

6 Requirements and recommended practices (a) When members come into and leave office 19.4 Section 115 LEA provides that for local authority elections (including for community/ local boards/licensing trusts but excluding district health board (DHB) elections): (a) all candidates at a triennial election who are declared to be elected come into office on the day after the day on the official result of the election is declared by public notice under section 86. (b) a person appointed to fill an extraordinary vacancy comes into office at the time (i.e. on the day) of their appointment For DHB elections, elected members come into office on the 58th day after polling day (clause 14 schedule 2, New Zealand Public Health and Disability Act 2000). An appointed member comes into office on the date specified in the notice appointing the member. If no date is specified in the notice, the member comes into office on the date on which the notice is published in The Gazette (clause 15, schedule 2, New Zealand Public Health and Disability Act 2000) In the ordinary course of events, the term of office ends and members leave office: (a) in the case of an election (including for DHBs), when the members elected at the next election come into office (section 116) (b) in the case of an appointment, when the member s successor comes into office (section 116) (c) in the event of a member s resignation, on the date on which the member s resignation is delivered to the chief executive of the local authority or president/ secretary of the licensing trust concerned (d) for a member appointed or elected to fill an extraordinary vacancy, at the end of the unexpired portion of his or her predecessor s term Section 116(2) provides that:... if a member s office is the subject of an election, and neither the member nor any other person is elected at the election to that office, the member vacates office at the same time as any other member of the local authority who is not re-elected at the election. 1 Recommended good practice on the term of office of members is that electoral officers (i) are familiar with statutory requirements relating to the term of office (i.e. when members come into and leave office) for the various types of local authority (ii) ensure that both members and candidates are made aware of the term of office of members (i.e. when members come into and leave office) for particular positions and in particular circumstances, and that this subject be included in the candidate information pack (refer Part 7 of Code). 6

7 (b) How extraordinary vacancies arise 19.8 The LEA, Local Government Act 2002, New Zealand Public Health and Disability Act 2000 and Sale and Supply of Alcohol Act 2012 set out the different ways in which an extraordinary vacancy can occur. In summary an extraordinary vacancy can arise in a number of ways: there may be insufficient nominations for an election to fill all of the vacancies at an election a candidate at a triennial election may have been elected both as mayor and as a member of the same territorial authority and there is no other candidate to fill the consequential vacancy that is created for a member of the territorial authority a candidate at a triennial election may have been elected both as a member of a territorial authority and one of its community boards and there is no other candidate to fill the consequential vacancy that is created for a member of the relevant community board a sitting community board member may be elected as a member of the territorial authority at a by-election of the territorial authority (thereby creating a vacancy on the community board) a member may: - be disqualified from office - be removed from office by the Minister of Health (applies to DHBs only) or by the District Court (applies to licensing trusts only) - resigns of vacates office (vacation of office in terms of licensing trusts) - die - become subject to a property order under section 31 Protection of Personal and Property Rights Act be ousted from office - be absent without leave from the local authority for four consecutive ordinary meetings of the local authority. 2 Recommended good practice on extraordinary vacancies is that electoral officers be familiar with the various legislative provisions relating to how extraordinary vacancies arise. (c) Filling extraordinary vacancies 19.9 The table over the page summarises how extraordinary vacancies are to be filled, or left vacant in some cases, by local authorities (excluding DHBs) and community/local boards. Legislation prohibits most local authorities (councils and licensing trusts) from holding a by-election within 12 months of the next triennial election. However, members may be appointed within this period if the local authority chooses. 7

8 Summary showing how extraordinary vacancies filled Type of vacancy Parameters How filled Ref Elected member of a local authority/ governing body (including mayor), community/ local board or licensing trust If vacancy occurs more than 12 months prior to the next triennial election (i.e. before 8 October 2015 in relation to 2016 triennial elections) An election must be held to fill the vacancy. If the vacancy is for the position of mayor, and a current member of the territorial authority is elected to the position, the successful member is treated as having vacated the office of member and the resulting vacancy (in the office of member) is an extraordinary vacancy and must be filled in accordance with section 117 and sections 118 to 120 apply. ss117(1) and (6), LEA s326, Sale and Supply of Alcohol Act 2012 Elected member of a community/ local board If an extraordinary vacancy occurs more than 12 months prior to the next triennial elections (i.e. before 8 October 2015 in relation 2016 triennial elections) and is unable to be filled by election in compliance with sections 117(1) and 120 LEA (i.e. no nominations received) The community/local board may determine (by resolution) that the vacancy is to be filled by an appointment by the community/local board of a person named in the resolution who is qualified to be elected as a member of the board (refer to Part 9 of the Code for the relevant qualification details). s117a LEA Mayor If the vacancy occurs 12 months or less before the next triennial election (i.e. on or after 8 October 2015 in relation to 2016 triennial elections). The vacancy must not be left unfilled. The territorial authority must appoint one of its existing members as mayor. The resulting vacancy (in the office of member) is an extraordinary vacancy and can be filled by appointment or left vacant. ss117(5) and (6) LEA 8

9 Elected member of a local authority (excluding Mayor) or a community/ local board If the vacancy occurs 12 months or less before the next triennial election (i.e. on or after 8 October 2015 in relation to 2016 triennial elections). The chief executive of the local authority must give immediate notice of the vacancy to members of the local authority or community/local board. On receipt of that advice, the local authority or community/local board must, at its next ordinary meeting or, if that is not practicable, at its next subsequent ordinary meeting, determine by resolution whether the vacancy: - is to be filled by the appointment by the local authority or community/local board concerned, of a person named in the resolution who is qualified to be elected as a member, or - is not to be filled. If for any reason the person specified in the resolution is unavailable, or otherwise unable to be notified of the appointment, a further vacancy occurs in that office. If the local authority or community/local board resolves that the vacancy is to be filled by the appointment of a qualified person, it must immediately give notice of: - the resolution, and - the process or criteria by which the person named in the resolution was selected for appointment. The local authority or community/local board must, at a meeting held no later than 30 days after the date on which public notice is given, by resolution confirm the appointment of the person concerned. The person appointed is to be treated as having been elected to the position on the date on which the confirming resolution is made. Again if the person specified in the resolution is unavailable, or otherwise unable to be confirmed in the appointment, a further vacancy occurs in that office. If the local authority or community/local board resolves not to fill the vacancy, it must immediately give public notice of its decision. ss117(2), (3) and (4), 118, 119 LEA 9

10 Elected member of a licensing trust If the vacancy occurs 12 months or less before the next triennial election (i.e. on or after 8 October 2015 in relation to the 2016 triennial elections) Either: The vacancy must remain unfilled until the next triennial election; or The trust may, by resolution, appoint a person qualified to be elected as a member to fill the vacancy (refer to Part 8 of Code for the relevant qualification details). Any member appointed to fill an extraordinary vacancy holds office only for the remainder of the previous member s term. s326 Sale and Supply of Alcohol Act If a by-election is to be held then: the chief executive of the local authority must give notice of the vacancy to the electoral officer the election must be held not later than 82 days after the electoral officer receives the notice the election must be conducted in accordance with the LEA and LER an election must be held at the same time to fill every extraordinary vacancy that is: - unfilled at the time the extraordinary vacancy occurred, or - created after the extraordinary vacancy occurred but before the election commences If an electoral officer receives notice of a subsequent extraordinary vacancy before the commencement of voting at the election for the first extraordinary vacancy, then the electoral officer may re-start the election process. Any nominations already received remain valid and any qualified person not nominated for the first election may be nominated for the substitute election In the case of DHBs, clause 10 of schedule 2 New Zealand Public Health and Disability Act 2000 prohibits the holding of any by-election or poll for the purpose of electing a member to a board. If vacancies arise in a board s elected membership, the Minister of Health has the authority to fill these vacancies by appointing members to the board. 3 Recommended good practice on extraordinary vacancies is that electoral officers: (i) be familiar with the different ways of treating extraordinary vacancies and that they maintain close liaison with the chief executive whenever an extraordinary vacancy occurs (ii) in the event that an appointment to fill an extraordinary vacancy on a local authority or community board is to be recommended, confirm with the prospective appointee that they are qualified, interested and available to be appointed to the position before any resolution is passed. 10

11 Professional excellence in local government New Zealand Society of Local Government Managers (SOLGM) 8th Floor, Civic Assurance House 114 Lambton Quay, Wellington PO Box 5538 Wellington 6145 Phone Fax

PART 7. Electoral rolls. Code of Good Practice for the management of local authority elections and polls 2016

PART 7. Electoral rolls. Code of Good Practice for the management of local authority elections and polls 2016 Electoral rolls Code of Good Practice for the management of local authority elections and polls 2016 OBJECTIVE OF PART All electoral officers are familiar with the statutory requirements and recommended