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Case Number: 2081 Cr DIRK SIELING AGAINST THE INFORMER

Council Meeting AUGUST 2009

Introduction
The New Zealand Press Council has upheld a complaint by Cr Dirk Sieling, of the Thames Coromandel District Council (TCDC), against The Informer, a weekly newspaper in Whitianga.

The Article
On January 6, 2009, a front-page article written by the paper’s editor, Gerry Church, and headlined TCDC: The silence is deafening, said 2008 had not been a good year for ratepayers seeking information about decisions the council made which will have a significant effect on ratepayers’ “lives and livelihoods for the next three years, to the tune of $13.5 million.”
This was because the council leased land to Cr Sieling that it said could have been leased to a promoter of a festival called Bluesfest for more than three times the amount that the Service Delivery Committee (SDC) had agreed to with Cr Sieling. This had led to a loss of “up to $13.5 million in local revenue potential.”
The article noted a sale of land to the TCDC at Moewai Park for a sports centre for Mercury Bay included a clause that allowed the family selling to graze land not needed by the council at no charge for five years ending April 1, 2006.
In 2003, before he was a councillor, Mr Sieling bought adjacent land from the family in 2003 and the council agreed to his request that the free grazing be transferred to him. No formal lease or written acceptance were ever drawn up.
After January 1, 2006, Mr Sieling continued to graze the land at no cost, at some point entering into a two-year sub-lease with a local sharemilker. There was still no formal lease.
In late 2007, the Bluesfest promoter wanted to hold a festival on the land that “now Councillor Sieling was subleasing.” Council staff told the promoter to pay $40,000 plus GST as rental directly to Cr Sieling, which he did. The festival was held and the promoter estimated revenue to Mercury Bay was $2.5 million.
The promoter also offered the council to lease the land for three years for $65,000 a year plus GST. He wanted to hold three concerts each year, each one worth a conservative $1.5 million in revenue to Mercury Bay, or $13.5 million in total.
The article said the lease offer was given to the SDC, of which Cr Sieling was a member, although he had since resigned. In the meantime, council staff had recommended to the full council that the promoter’s offer be accepted, believing there was no lease with Cr Sieling, only a month-by-month grazing arrangement.
The council delegated the decision to the SDC, giving the deputy mayor authority to deal with the issue. The committee wanted to put the land out for tender, but that led to Cr Sieling threatening legal action.
The article said Cr Sieling made a written submission saying he could match or come close to matching the financial return to the community if the concerts were to proceed in the way he suggested. But the promoter wanted nothing more to do with Cr Sieling.
The committee entered into a deal with Cr Sieling for a rent of less than $20,000 a year, the committee chair saying they had relied on staff and legal advice. “That’s an interesting comment when TCDC staff had already recommended taking the promoter’s offer,” the article said.
Minutes of a SDC meeting of June 25, 2008, said “it appears to us that the council may be at risk of a claim” brought by Mr Sieling for specific performance of a letter dated April 7, 2003, as “constituting an agreement to grant a lease” and/or a claim for damages.
The article said the council would not release the legal opinion. “As this is a $13.5 million dollar issue for the community, it is a very important opinion for the ratepayers to have access to, but the silence continues,” it said. The Mayor had not responded to questions on the issue.

The Complaint
Through his barrister Cr Sieling complained to the editor on March 23 saying the article breached the Press Council’s Statements of Principles, notably those relating to accuracy, fairness and balance, relating to five main points.
- As the paper well knew, it was “far from the case” that the land could have been leased to the Bluesfest promoter for the amount of money claimed because the promoter had chosen for his own reasons to stop negotiating for the return of the festival to Whitianga. He had publicly criticised the ground as “marshy” which was causing him to look outside Whitianga.
It was inaccurate and unfair to blame the council and Cr Sieling for the departure of the festival.
- By saying that council staff had directed the promoter to pay rental to Cr Sieling, the article implied Cr Sieling had sought the money and kept it. The article did not mention Mr Sieling had nothing to do with the directive and had passed most of the money to the council, less money for the sharemilkers and a small sum for cleaning the land.
- The article said information from the promoter’s lease offer had been passed to Cr Sieling as a member of the SDC, and that he had since resigned.
That was true but it was extremely unfair in that it failed to report Cr Sieling left the room and took no part in the discussions affecting his personal interests and that when he addressed the committee subsequently, he did so in a personal capacity, using information provided to him in that capacity.
The newspaper must have known this because it had earlier published email correspondence between the council and promoter dated well before the SDC meeting which contained much of the information.
- The article had said that council staff had recommended to the full council that the promoter’s offer be accepted, and believed the lease with Cr Sieling was a month-to-month grazing arrangement.
Yet the paper itself had recently reported this and then apologised because this belief on the part of the council staff was mistaken.
In “snidely” questioning the SDC chair’s explanation that the committee relied on staff and legal advice in allocating the lease to Cr Sieling and adding that staff had already recommended taking the promoter’s offer, there was a suggestion the council was acting against the advice of its staff. The article did not mention that the legal advice was received after the staff’s initial advice, and that had been instrumental in changing it.
Cr Sieling, through his barrister, said the whole thrust of the article was that he had improperly used his position as a councillor to gain a lease of land on favourable terms and at the expense of an offer that would have brought millions of dollars into the community.
At no time had Cr Sieling been contacted for his side of the story, and would have been happy to provide his views had they been sought.

The Response
In response, the editor said there was no criticism in the article, just facts. The council would not release the legal opinion, and councillors had refused to answers his questions.
It was correct that council staff had told the promoter to pay the $40,000 rental fee to Cr Sieling, and there was no implication in the article that the councillor had sought the money. The editor said Cr Sieling had paid $24,000 of that to the council, some $12,500 to the sharemilker and had kept $3500 for his expenses.
The editor said that if any information was given to Cr Sieling in his private capacity, “one would have ask why,” as that information was given by the promoter to a council officer who said the information would be submitted to the committee under the “Public Excluded” category.
It was fact that council staff had recommended to the council that the promoter’s offer be accepted, and the editor showed how he had clarified that the grazing arrangement applied to a different piece of land to the one referred to by the council.
The editor also denied he had been snide about the SDC chair’s explanation of relying on staff and legal advice. The thrust of the article, and all articles published before and after, was to provide the readership with facts and let them decide.
The editor said if Cr Sieling was concerned, he could have written a letter to the editor. The councillor had had options to provide his views. Some he had chosen not to exercise and some he did, which provided little, if any, additional information other than what had been printed.

Discussion
Both parties to the complaint produced a large amount of supporting documentation on an issue which is also being investigated by the Office of the Auditor-General.
It is not the Press Council’s role to decide the rights or wrongs of what transpired with regards to the land, or to comment on the council processes involved. It is the Council’s role to determine the complaint based on what appeared in the article of January 6, 2009, and events directly related to that publication.
The editor of The Informer rightly sees his role as a community advocate, bringing to the attention of readers issues of concern. That is to be applauded. But the editor also needs to ensure that in doing so he is being fair and accurate.
The essence of the story was that Cr Sieling and the council had deprived the Mercury Bay community of about $13.5 million in revenue opportunities because a committee of the council had decided to continue with a leasing arrangement with Cr Sieling and not take up a more lucrative one from the concert promoter.
The Informer had published previously on the issue of the festival and the land, including correspondence from Cr Sieling to the committee and council, and the January 6 article could be regarded as a follow-up. The matter was of public interest and the allegation was serious and worthy of investigation.
The editor relies on documentation including emails and reports to back up what has been written. Much of what was published is emphatically expressed and has not been challenged.
But while documents can provide evidence, they can lack context or alternative explanation. The Press Council believes that the editor should have sought comment from the councillor before the January 6 article was published.
Further, documents and statements are not necessarily proof, as the editor found when he relied on the council’s incorrect description of a parcel of land and Cr Sieling’s leasing arrangements.
Reproducing emails and documents – or sending an email to elicit comment from the Mayor – is no substitute for sheer journalistic hard work –asking questions directly and recording answers, putting the issues to the appropriate parties and writing articles clearly and accurately, taking into account all relevant factors.
It also seems only fair that the article should have recorded that Cr Sieling was speaking as an individual and not as a councillor when he spoke about the grazing land to the committee, and it should also have clarified the mistake it had previously corrected.
It was remiss above all in not reporting that $24,000 of the $40,000 the promoter paid to Cr Sieling was subsequently repaid to the council.
The editor’s pursuit of the council’s legal opinion is worthy in that, had he been successful, some additional detail might have been provided, and the council’s lack of response to the editor’s questions, as detailed in the January 6 article, is poor and its errors regrettable.
But the editor still had a duty to approach Cr Sieling on every occasion he proposed to publish in the hope of, at best, providing valuable information for readers or, at worse, recording his lack of response.

Decision
The complaint is upheld on the grounds of inaccuracy and a lack of fairness and balance.

Press Council members considering this complaint were Barry Paterson (Chairman), Pip Bruce Ferguson, Kate Coughlan, Sandy Gill, Penny Harding, Keith Lees, Clive Lind, John Roughan, Lynn Scott and Stephen Stewart.

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