Governance Manual

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10.3.3 Delegation of decision-making functions and powers

 

  1. The governing body and local boards do not (and could not practically) make all the decisions they are responsible for. Many decision-making functions are delegated for efficiency and effectiveness [1].

  2. These include:

    • the governing body delegating certain functions to governing body committees or members , local boards and to the chief executive

    • local boards delegating certain functions to their committees or members and to the chief executive

    • the chief executive delegating certain functions to council staff

    • the governing body and local boards delegating certain functions to external people or bodies such as independent hearings commissioners and CCOs.

  3. As a general rule, most of the council’s day-to-day functions and powers are delegated to council staff. However, elected members will generally make significant decisions relating to the council’s governance, especially significant policy decisions.

  4. When a function or power is delegated:

    • The delegated function or power can be performed or exercised in the same way and to the same legal effect as if the governing body or local board performed or exercised it [2].

    • The governing body or local board that made the original delegation remains legally responsible for the performance or exercise of the function or power [3].

  5. Functions that can and cannot be delegated

    • As a general rule, a decision-making function or power can be delegated unless there is a rule to prevent this [4].

    • There is a group of decision-making responsibilities that cannot be delegated for both the governing body and local boards. These restrictions apply only to delegating the actual decision; they do not prevent the governing body or local boards from delegating preparatory work to inform the actual decision [5]. For example, the governing body can delegate the functions of drafting a bylaw and conducting public consultation but cannot delegate the decision to make the bylaw.

    • The governing body cannot delegate [6]:

      • the power to make a rate

      • the power to make a bylaw

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

      • the power to adopt a long-term plan, annual plan or annual report

      • the power to appoint a chief executive

      • the power to adopt policies under the Local Government Act 2002 in association with the long-term plan or developed for the purpose of the council’s local governance statement

      • the power to adopt a remuneration and employment policy.

    • Local boards cannot delegate [7]:

      • the duty to identify and communicate the interests and preferences of their communities in relation to council strategies, policies, plans and bylaws

      • the power to propose a bylaw or an amendment to a bylaw

      • the power to confirm a bylaw or modify a proposed bylaw

      • the power to propose the revocation of a bylaw

      • the duty to adopt the local board plan for its area

      • the duty to enter into a local board agreement for its area with the governing body

      • the power to apply to the Local Government Commission for a binding determination if there is a dispute between the local board and the governing body

      • any statutory responsibility, duty or power that expressly may not be delegated.

  6. Sub-delegation

    • A function or power can generally be sub-delegated, subject to any conditions imposed by the person or entity that made the original delegation [8]. (Note that a person making a delegation can specify that it may not be sub-delegated.)

 

  

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