A vote returning fluoride to Hamilton’s water risks becoming a lawyers’ feast, with two city councillors rejecting advice to stand down, while others plot to stop it in its tracks.
The city council will on Thursday consider a referendum overwhelmingly supporting a return to fluoridation, just months after eight elected members voted 7-1 to end it.
But clashing lawyers’ advice over city councillors’ conflicts of interest, and a lurking legal threat from anti-fluoride campaigners threaten to derail any decision-making.
The city’s major anti-fluoride group has gone public asking for free legal help for a last-minute bid to halt the council making a decision that’s expected to be pro-fluoride.
Earlier this year councillors Martin Gallagher, Ewan Wilson and Pippa Mahood, all also health board members, declared a conflict of interest on city council lawyers’ advice and removed themselves from the tribunal that halted fluoridation.
But district health board lawyers have rejected the council’s advice that Wilson and Gallagher were still conflicted because of the board’s fixed position on fluoridation.
Chief executive Barry Harris told councillors in a general email update three weeks ago that his earlier legal advice was still applicable for councillors Gallagher and Wilson.
Then last weekend, Mayor Julie Hardaker told councillors in an email that she had asked Mr Harris to provide “written clarity” around any conflicts associated with the fluoride item, set down for debate at the first substantial meeting of the new term.
Two days later, he responded, saying the earlier advice still stood, and the two health board member councillors would need to exclude themselves.
Mr Harris, on the advice of city solicitors Tompkins Wake, previously asserted that a conflict existed because the health board supported fluoridation.
DHB lawyers Buddle Findlay said the Crown Entities Act did not provide that health board duties applied to board members acting in other capacities, and the pair were not bound to support the board’s objectives on fluoridation in their city council role.
Buddle Findlay also concluded that if those councillors were not to agree to exclude themselves, the council could exclude them both from participating.
Mr Gallagher yesterday said he had heard no talk of moves to exclude them being considered, and ruled out excluding himself from council’s debate on Thursday.
“The test [for a conflict of interest] in the act is that the member must arrive at the council chambers with an open mind, and that test applies to all elected members, and whether they participated in the fluoride tribunal or not.”
Mr Wilson also said he would take part on the back of the Buddle Findlay advice.
“I believe I have an open mind, I am not predetermined and I will be participating.”
Health board spokeswoman Mary Anne Gill noted the fresh legal advice matched its earlier verbal advice, and confirmed it was passed on to the city council on Friday. She said Buddle Findlay recommended caucusing the issue with Tompkins Wake.
Mr Harris yesterday said he had passed the DHB advice to Tompkins Wake, who he was meeting today, after which he would respond to all councillors on the matter.
Ms Hardaker was also waiting on Tompkins Wake’s response, but said elected members had to make their own decisions on matters of conflict.
However, she said all councillors had a responsibility to protect council by ensuring their actions did not create risk, and she expected all councillors to consider that.
Meanwhile, a post on the Fluoride Free Hamilton website said legal action was now its only tactic after council ignored their requests to wait for the outcome of judicial reviews of fluoride decisions in Taranaki and Kapiti, awaiting High Court hearings.
FFH spokeswoman Pat McNair was unable to be reached for comment on either the likely involvement of the health board councillors, or its plans to stop any decision.