Good Time to Check Delegations
Good Time to Check Delegations
Tuesday 1 February, 2022
While any time is always a good time for local authorities to check their delegations, it can become even more critical in an election year such as this year.
Maintaining critical functions during the election hiatus
Critical issues can and do arise after the final council meeting before an election. We have often seen local authorities scrambling to establish who has authority to make decisions in the interim period between that final meeting and the subsequent coming into office of the newly elected members. Also, the scope of that authority is sometimes unclear. At the conclusion of the triennial elections, existing elected members formally vacate their office when the newly elected members come into office. This occurs on the day on which the official result of the election is declared. This means for a period of a month or longer there are no scheduled council meetings and all executive functions come to a halt.
Local authorities often address this hiatus by appointing some form of ‘emergency’ committee, subcommittee, or subordinate decision-making body. Any such committee, subcommittee, or subordinate decision-making body that the council had not resolved to carry over prior to the previous triennial election will be deemed to have been discharged pursuant to clause 30(7) of Sch 7 of the Local Government Act 2002 (LGA). Therefore, it is important to check that an appropriate delegation has been made for the hiatus period between the final pre-election council meeting and the resumption of post-election meetings. In making such a delegation, consideration should be given to the nature of the body to which the delegation is given. Different provisions apply depending on whether it is a committee, subcommittee, or subordinate decision-making body. The limitations on membership in clause 31 of Sch 7 LGA will apply. For example, the requirement of clause 31(4)(b) that an employee cannot act as a member of any committee, but can be a member of a sub-committee, will apply to the common situation where one of the delegates is the chief executive of the council.
In addition, care should be taken with the scope of the delegation. This can be done either by being very specific about the responsibility, duty, or power delegated, or stating the limitations that apply to any more general delegation. Scope is important because the provisions in clause 30 of Sch 7 LGA concerning the appointment of a committee, subcommittee, or subordinate decision-making body do not entitle the council to rescind or amend a decision made under delegation.
Other compelling reasons to check delegations
There are, of course, many good reasons for councils to ensure that their delegations are fit for purpose and current. The principal reason is that any decision or activity purportedly taken or undertaken under an inadequate delegation, or without delegation at all, may be unlawful and liable to be set aside by a court. This can occur in an application for judicial review, regulatory and enforcement actions, and contractual disputes. The failure or absence of a delegation may expose a council to financial costs and liability, or to delays, setbacks or the collapse of plans and projects. At best it may be a temporary inconvenience and at worst a significant setback to the ability of a council to achieve its objectives, not to mention causing major reputational damage.
One obvious trigger for reviewing delegations is changes in and amendments to legislation, regulations, and bylaws. Some councils have schedules of delegations that refer to specific provisions of all the statutory documents under which the councils have responsibilities, duties, and powers. Others make broad reference to those statutory provisions without specifying each of the sections, regulations, or rules applicable. In either case, change to the provisions addressed by the delegations is more likely than not to trigger the need to update the relevant delegations.
The other situation that inevitably requires delegations to be reviewed is a restructuring of positions within the council. The ongoing replacement of one officer by another will not normally affect the validity of delegations, provided the delegation refers to the position holder rather than the named individual holding that position. But where the specified positions themselves change, or where the responsibilities allocated to a position holder change significantly, the delegations held by that position need to be reviewed. Even minor changes in the structure of a council can create a problem if this issue is not addressed and the delegations kept current.
Undertaking a review of all a council’s delegations is a substantial and, for many officers, a daunting process. Unfortunately, there is no one set of ‘model’ delegations applicable to all councils throughout New Zealand, but there are provisions applicable to matters such as the power to delegate and the relevant legislation that are common to all. Tompkins Wake can assist with every type of review, including:
- an across-the-council comprehensive over-haul.
- looking at delegations under a particular piece of legislation.
- drafting one-off delegations for unique circumstances.
Rather than undertake a complete over-haul, the most efficient approach in our experience is to keep the delegations register under constant review. This keeps the review manageable... both in terms of time and cost. But it does mean that the responsibility for maintaining the delegations needs to be assigned to a specific position-holder who takes note of new and amended legislation (Tompkins Wake can also help with this) and changes to council’s structure (human resources could provide regular updates). Minor changes could be incorporated as required, and more substantive changes might need legal advice. To the extent that amendments to delegations require a council resolution there could be a ‘place-holder’ item on every order paper to ensure the necessary reports and recommendations could be inserted when required.
A final note
Once upon a time all councils had people dedicated to those small but important jobs. Someone looked after the file repository, kept the agendas and minutes and all the attachments together and meticulously filed, and kept the delegations up to date. In the larger councils this would have been three different people, with a few others assigned duties perhaps. Those people have long since disappeared under successive waves of changes to the role and structure of councils. However, the small but important jobs haven’t disappeared! Now they are largely overlooked, unassigned, or at the bottom of some very busy person’s ‘to do’ list. This is probably inevitable, and resources need to be targeted to areas of greatest need. But delegations are not a matter that can be overlooked, and Tompkins Wake has both the expertise and resources to help you – either with bringing the delegations up to date, or ensuring you have a reliable process to keep it up to date.