Report urges censure over note sharing

An independent report has recommended Wellington Mayor Andy Foster be censured for attempting to disclose confidential information to councillors before a crucial vote on the planned Shelly Bay redevelopment.

The report, released to councillors yesterday and obtained by The Dominion Post was commissioned following a code of conduct complaint from councillor Jenny Condie.

Foster has been contacted for comment but is yet to respond

The investigation found Foster acted inappropriately when he tried to share the information with Condie and at least one other councillor before a vote on selling and leasing council land for the development.

Stopping the $500 million development on Wellington’s Miramar Peninsula was one of his key election pledges when he ran for mayor in 2019, and the report found he had frequently told councillors he had information that could scupper the project.

It turned out that information, which Foster tried to share with at least two councillors shortly before the November vote, was confidential and potentially defamatory notes taken from a phone call with a former staff member in April 2019.

The conversation related to what Foster described as an ‘‘abrupt’’ change in the council’s views about safety concerns relating to the narrow Shelly Bay Rd.

It included allegations from the former staffer that council officers had been placed under ‘‘great pressure’’ by another staff member to deem the road suitable for the development.

The same allegations against that staff member were thrown out by the High Court in 2018 following a challenge from business group Enterprise Miramar.

Condie said yesterday that she had always maintained her complaint involved potentially serious misconduct by Foster.

‘‘The findings of the report have confirmed my concerns about the mayor’s poor judgment in sharing the file note with me and some of my fellow councillors.’’

She was disappointed the report, to be considered by councillors at a meeting next Thursday, might end up being debated behind closed doors.

As well as Condie, Foster tried to share the notes with councillor Laurie Foon shortly before the vote, and had already shown them to councillor Diane Calvert, the report said. He may have also shown them to other councillors.

Report author Susan Hornsby-Geluk, a Wellington-based employment lawyer, found Foster’s actions breached the obligations of elected members.

‘‘In particular, relying on a file note that contained irrelevant, inaccurate, and discredited information to lobby other councillors on an important council decision is likely to undermine public confidence in good quality decision making.’’

The report said Foster’s notes could have damaged the reputation of the former staff member, whose identity she said should be kept confidential. The notes could also have created potential legal risks for the council, Hornsby-Geluk found.

During the investigation, Foster told Hornsby-Geluk he had ‘‘simply recorded words that were spoken to him’’, and did not consider the notes suggested improper pressure had been placed on staff.

He also said he had not considered whether the High Court decision clearing the former staff member was relevant.

But the report said Foster’s notes clearly implied staff had been put under inappropriate or improper pressure, and that people he showed it to would ‘‘reasonably assume that the mayor endorsed the contents of it, or at least considered it worthy of consideration’’.

Hornsby-Geluk also found it ‘‘surprising’’ Foster was not aware of the High Court decision’s relevance, given his interest in the matter.

She said it was ‘‘not in itself inappropriate’’ Foster showed the notes only to some councillors, and he was free to lobby colleagues.

However, the mayor needed to ensure he was not using privileged information as a means of influence, she said.

She recommended Foster be censured and apologise to the former staff member. Those recommendations will be considered by councillors on Thursday.