Introduction Page

1. LEGISLATION

1.1 PURPOSE OF DELEGATIONS POLICY

This Delegations Policy sets out:

· The legal basis for delegations and sub-delegations

· The guiding objectives behind the policies

· The policies for achieving those objectives

· Council Committees

· Financial authorisations

· The Delegations Register

In doing so, this Delegations Policy provides a reference for each of the delegations and sub-delegations within Council and the legal basis for each delegation and sub-delegation.

1.2 LOCAL GOVERNMENT ACT 2002

Schedule 7, clause 32 of the Local Government Act 2002 states that:

“32. Delegations -

(1) Unless expressly provided otherwise in this Act, or in any other Act, for the purposes of efficiency and effectiveness in the conduct of a local authority's business, a local authority may delegate to a committee or other subordinate decision-making body, community board, or member or officer of the local authority any of its responsibilities, duties, or powers except -

(a) the power to make a rate; or

(b) the power to make a bylaw; or

(c) the power to borrow money, or purchase or dispose of assets, other than in accordance with the long-term plan; or

(d) the power to adopt a long-term plan, annual plan, or annual report; or

(e) the power to appoint a chief executive; or

(f) the power to adopt policies required to be adopted and consulted on under this Act in association with the long-term plan or developed for the purpose of the local governance statement.

(h) the power to adopt a remuneration and employment policy.

(2) Nothing in this clause restricts the power of a local authority to delegate to a committee or other subordinate decision-making body, community board, or member or officer of the local authority the power to do anything precedent to the exercise by the local authority (after consultation with the committee or body or person) of any power or duty specified in subclause (1).

(3) A committee or other subordinate decision-making body, community board, or member or officer of the local authority may delegate any of its responsibilities, duties, or powers to a subcommittee or person, subject to any conditions, limitations, or prohibitions imposed by the local authority or by the committee or body or person that makes the [original] delegation.

(4) A committee, subcommittee, other subordinate decision-making body, community board, or member or officer of the local authority to which or to whom any responsibilities, powers, or duties are delegated may, without confirmation by the local authority or committee or body or person that made the delegation, exercise or perform them in the like manner and with the same effect as the local authority could itself have exercised or performed them.

(5) A local authority may delegate to any other local authority, organisation, or person the enforcement, inspection, licensing, and administration related to bylaws and other regulatory matters.

(6) A territorial authority must consider whether or not to delegate to a community board if the delegation would enable the community board to best achieve its role.

(7) To avoid doubt, no delegation relieves the local authority, member, or officer of the liability or legal responsibility to perform or ensure performance of any function or duty.

(8) The delegation powers in this clause are in addition to any power of delegation a local authority has under any other enactment.”

1.3 LEGAL BASIS

ACTS

Permitted Delegations

The following legislation contains specific sections permitting delegations to officers:

(a) Building Act 2004 - Section 232

(b) Civil Defence Emergency Management Act 2002 - Section 12

(d) Local Government Official Information

and Meetings Act 1987 - Sections 42, 43

(e) Privacy Act 1993 - Sections 124, 125

(f) Public Bodies Contracts Act 1959 - Section 4

(g) Resource Management Act 1991 - Section 34A(3)

(h) Sale and Supply of Alcohol Act 2012 - Section 198

(i) Health Act 1956 - Section 23

In addition the Local Government Act 2002 Schedule 7, Clause 32 contains a general delegation and various restrictions that also cover other enactments.

Limitations on Delegations

Local Government (Rating) Act 2002

There are no officer delegations in the Local Government (Rating) Act 2002. Under Section 132 (2) a local authority must not delegate a) the power to delegate, and b) any function, power or duty conferred by subpart 2 of Part 1 or subpart 1 of Part 5 of the Act. The subparts relate to determining what is rateable land, and the replacement (or re-setting) of rates. This means that unless the Act mentions the Principal Administrative Officer or duly authorised officer etc. (who can be readily identified in this Delegations Register), then a Council action (other than an administrative task) must be delegated directly by Council unless specifically barred by virtue of Schedule 7, Section 32 of the Local Government Act 2002.

Reserves Act 1977

There are no officer delegations in the Reserves Act 1977. This means that unless the Act mentions the Principal Administrative Officer or duly authorised officer etc. (who can be readily identified in this Delegations Register), then a Council action (other than an administrative task) must be delegated directly by Council unless specifically barred by virtue of Schedule 7, Section 32 of the Local Government Act 2002.

Local Government Act 2002

Schedule 7, Section 32 of the Local Government Act 2002 states that the Council cannot delegate any of the following powers:

(a) the power to make a rate; or

(b) the power to make a bylaw; or

(d) the power to adopt a long-term plan, annual plan, or annual report; or

(e) the power to appoint a chief executive; or

(f) the power to adopt policies required to be adopted and consulted on under this Act in association with the long-term plan or developed for the purpose of the local governance statement.

(g) the power to adopt a remuneration and employment policy.

Resource Management Act 1991

Under the Resource Management Act 1991, the Council cannot delegate any of the following matters to officers:

(a) The approval of a policy statement or plan or any change to a policy statement or plan.

(b) The making of a recommendation on a requirement for a designation or a heritage order under Part VIII.

(c) The granting of a resource consent for a non-complying activity in respect of any application which is notified in accordance with Section 93.

(d) The power to hear and determine notified applications for Resource Consent.

Local Government Official Information and Meetings Act 1987

The Local Government Official Information and Meetings Act 1987 the Council cannot delegate any of the following matters to officers:

Pt 7 Local Authority Meetings

S32 Recommendations made to the Council by the Ombudsman

REGULATIONS

Housing Improvement Regulations 1947

Regulation 22 of the Housing Improvement Regulations 1947 provides for the general or particular delegation of powers to officers, other than those to be exercised by special order or by resolution.

BYLAWS

Council has a wide range of bylaw making powers derived mainly from the Local Government Act 2002 and the Bylaws Act 1910. Specific bylaw making powers in accordance with other statutes may also be conferred to Council from time to time eg. Reserves Act 1977, Land Transport Act 1998, Health Act 1956, Dog Control Act 1996 and Prostitution Reform Act 2003.

While some of these statutes do not have powers of delegation to officers, it is possible, by promulgating bylaws, to empower officers to make discretionary decisions (refer to Section 13 Bylaws Act 1910). However, the discretion left by the bylaw to an officer must not be so great as to be unreasonable.

The procedure for making bylaws is set out in Part 8, Sections 143 158 of the Local Government Act 2002.

2. DELEGATIONS OBJECTIVES & POLICIES

2.1. OBJECTIVES

2.1.1 Delegations should be made specifically to the lowest appropriate level, but they may also be exercised by all managers in a direct line above that position.

Delegations should be made directly to the position that will be exercising the authority as part of the role of the position and day-to-day responsibilities. All managers in a direct line of authority above that named position will also be able to exercise that delegation.

2.1.2 Delegations should reflect the separate roles of governance and management.

Strategy, policy, governance and major financial decisions beyond budgeted allowances are matters for elected representatives. Operational matters, not involving changes to policy are generally the responsibility of staff. Council ultimately decides on where the balance lies.

2.1.3 Delegations should provide for clear accountability and reflect the lines of responsibility in the organisation.

Greater powers and responsibilities should be held and exercised at progressively more senior levels of the organisation.

2.1.4 Delegations should be broadly defined to ensure flexibility whilst being sufficiently prescriptive so that the extent and nature of the authority is clearly defined.

Where possible, a principled approach should be taken in the drafting of delegations. However, sufficient detail should be given so that it is clear what the power, duty or function does and does not cover.

2.1.5 Delegations should be interpreted in a manner consistent with these objectives.

2.2. POLICY

2.2.1 Delegations shall be in writing.

The Delegation Policy, including the Delegations Register, shall record delegations made by council or committee and sub delegations from the Chief Executive.

2.2.2 Delegations shall be to defined positions.

Delegations will not be permitted to named officers or persons so that currency is maintained and to enable a person acting in a position to exercise delegated functions.

2.2.3 Delegations should be standardised, where possible, across classes of positions and bodies eg. all Department Directors should have similar financial signing limits and HR authorities.

2.2.4 Where powers, duties or functions are delegated to a specified position, the same authority applies to any person acting in that specified position. By default the direct manager of a person in a specified position may act on behalf of that person.

This provision allows for notified and non-notified absence of officers and chairpersons. Officers should record in writing that they have exercised the delegated authority in an acting capacity.

2.2.5 Officer delegations must first be delegated by Council to the Chief Executive. This does not apply to powers or authorities where such delegation is prohibited by law.

Council will not be permitted to delegate directly to officers (except where otherwise required by legislation) in order that the Chief Executive is able to manage delegations to staff.

2.2.6 The Chief Executive may delegate to any officers or persons, except where otherwise required by legislation.

The Chief Executive can delegate to specified staff positions and other persons. If delegating to a person outside of council extra care is to be taken to ensure that the person is appropriately qualified and suitable.

2.2.7 Officers, other than the Chief Executive, do not have the power to sub-delegate.

Clause 32B, Schedule 7 to the Local Government Act 2002 states that an officer cannot delegate the power to delegate under that clause. This has been interpreted as meaning that a power that has been sub delegated by the Chief Executive cannot be further delegated by an officer. There are similar provisions in other statutes, including the Resource Management Act 1991 and Local Government Rating Act 2002 which prevent sub delegation by any officers.

2.2.8 Any delegation to a committee or member or officer of the local authority does not restrict the power to do anything precedent to the exercise by the local authority (after consultation with the committee or body or person) of any power or duty specified in Section 32 (1) of the Local Government Act 2002 (those powers and duties which cannot be delegated).

2.2.9 An entity or person in a specified position with delegated authority may seek advice from others on the exercise of that delegated authority in a particular case but ultimately must either exercise the power themselves or refer the matter back to the delegator or a manager in the direct line above their position to exercise the power.

In some circumstances, for example where there would be significant public interest in a matter or there is a potential conflict of interest, an officer may decide not to make a decision and refer to the matter back to the delegator or to a manager in the direct line above their position.

2.2.10 The power to exercise a function that has been delegated is held by the entity or person that delegated it and also by any manager in a direct line above a specified position to which a function has been delegated. However, such entities and persons should only exercise that function in cases where particular circumstances make that appropriate or when requested to do so by the delegation holder.

To allow for clarity and consistency a function should generally be exercised by the entity or position that has been specifically delegated responsibility for that function. But there may be occasions where the circumstances of the case make it more appropriate for the delegator or a more senior position to carry out a function.

2.2.11 Unless expressly provided in law, delegation or rules, a decision made under the exercise of a delegated authority cannot be overturned by another holder of that delegation. A new decision may be made if additional information is received.

Some legislation, including the Resource Management Act, and the Stratford District Council bylaws allow for appeal of certain decisions. Council also provides the ability to appeal a decision in delegations and/or, policy. Unless the ability to appeal a decision has been expressly provided, a decision cannot be overturned by a person or body senior to the delegate. However, if additional information is received, a new decision can be made, although it still must be made only by those who have delegated authority.

2.2.12 Delegations should not be exercised where a conflict of interest or perceived conflict of interest exists.

A person with either a personal prejudicial interest in a matter, or what would appear to be such an interest, must not be involved in decisions on that matter.

2.2.13 A delegate may exercise any ancillary powers necessary to give effect to a given delegation.

For example, a delegation to undertake financial transactions of up to a specified limit would include the ability to negotiate price, terms and conditions, authorise the contract, sign the contract etc.

2.2.14 Where a matter has not been delegated, a decision on that matter must be made by Council. The Chief Executive shall determine whether or not the matter is covered by a delegation.

Matters that do not appear to be delegated should be notified to the Chief Executive so that consideration can be given to whether it is covered by some other delegation or if a new delegation is required.

2.2.15 Unless specifically time-limited, a delegation continues in force until revoked, altered or varied by the delegator or Council.

For example, delegations may be required in relation to specific matters, where no broad delegation to deal with the type of matter exists. These delegations would be limited to eg. the time span of the project or contract. Individual delegations do not have to be specifically revoked where a subsequent delegation is made which alters or varies the previous delegation.

2.2.16 Decisions to make, revoke, alter or vary delegations by Council must be expressly stated in a Delegations report to the Policy and Services Committee.

2.2.17 A matter must be referred to the Chief Executive where:

· there is an apparent conflict of delegations; or

· the delegation is not clearly defined or does not appear to exist for a given matter; or

· a delegate's ancillary powers need to be clarified.

For clarity and consistency, it is best that there be a single point of interpretation of the delegations. In the absence of judicial consideration of the delegations the Chief Executive is the most obvious position to do this within Council.

2.2.18 Where the description of a delegated legislative function is ambiguous or appears to conflict with the wording of the legislation the wording of the legislation will prevail.

The wording used in the description of a delegated function is only a guide to the exact nature of the function and does not limit or expand the wording used in the legislation.