Conflict of Interest - the limited exception to the imperative to vote
6 September 2023
Conflict of Interest – the limited exception to the imperative to vote
There appears to, again, be some confusion about the limited exception to the requirement that a Member who is present at a council (or committee) meeting must vote on a ‘question’, as per section 86(5) of the Local Government Act 1999 (the Act).
We provide clarification and advice on this issue.
Subsection 86(5) of the Act provides that each Member present at a meeting of a council:
… must, subject to a provision of this Act to the contrary, vote on a question arising for decision at that meeting. (our emphasis)
Section 75B of the Act is one such ‘provision to the contrary’. It operates for a Member who is dealing with a general conflict of interest and who may choose to deal with that interest in a number of ways.
Non-participation in (or absence from) the meeting for the particular agenda item, whilst being one option, is not a legal requirement. Rather, the obligation on a Member with a general interest is to deal with it in a transparent and accountable way under section 75B of the Act.
The Act also recognises that where a quorum cannot be formed (maintained), because a Member with such an interest proposes to exclude him/herself (i.e. not participate) the Member will not be taken to contravene section 75B of the Act by participating in the meeting, ‘including whether the member intends to vote’ on the matter under 75B(1)(c)(i) of the Act.
Our advice, therefore, is that a Member with a general interest may choose to exclude him/herself from the meeting as a demonstration of dealing with the interest in a transparent and accountable way. Alternatively, however, the Member may remain in the meeting provided they are able to demonstrate that they can deal with the interest in a transparent and accountable way, whilst being present. In this latter scenario, this might be by simply remaining but not participating by not debating and/or voting in the item.
Notably, this is the only limited exception under the Act to the imperative of subsection 86(5) of the Act (as above) ‘[e]ach member present at a meeting of a council must, subject to a provision of this Act to the contrary, vote on a question arising for decision at that meeting’.
This is because the provisions within section 75B operate ‘to the contrary’, as envisaged by section 86(5) of the Act.
It is subsection 75B(3)(c) which requires that the Minutes include an explanation of the manner in which the Member dealt with their general interest, including, under 75B(3)(d) if the Member voted on the matter, the manner in which he/she voted.
The clear intent of these provisions is to confer a discretion on a Member with a general interest as to the manner in which they deal with that interest. If they choose not to exclude themselves from the meeting, they may remain in the meeting (including for the purposes of maintaining quorum) but they may choose not to participate in the debate and/or the vote. Therein is the statutory exception to the duty to vote.
As always, whether a Member has a conflict of interest in an Agenda item (and whether it is of a material or general nature) remains a matter for each member to address, on a case-by-case (and meeting-by-meeting) basis.
Do not hesitate to contact us if we can assist further.
Michael Kelledy on 08 8113 7103 or firstname.lastname@example.org;
Tracy Riddle on 08 8113 7106 or email@example.com;
Natasha Jones on 08 8113 7102 or firstname.lastname@example.org