Delegation of functions to the General Manager
The agenda for the meeting scheduled for 11 April – being the only meeting for April – can be expected to be another huge one. In addition to the big ticket items of the Delivery Program and the Community Strategic Plan – both to go on exhibition for community feedback – I would hope to see other big items such as the Code of Meeting Practice and a report on the review of the delegations of functions to the General Manager.
Appropriately, in my view at least, the delegations matter is not one for public exhibition. While the review of delegations is an exercise of fundamental importance to the functioning of council, it is, if done thoroughly, a complex one - that needs to be overseen and facilitated by someone with expertise in this area.
The following excerpt is taken from Council Matters of 11 January and provides an overview of ‘delegations’.
“All of the authority provided by the LGA [Local Government Act] and other legislation relevant to local government rests with the governing body – the mayor and the other councillors. Of course, it would be nonsense to think that nine councillors could do all that needs to be done to oversee the shire. And so, almost all of the functions enabled by the relevant legislation needs to be delegated by the governing body to the General Manager, who in turn sub-delegates to subordinate staff as necessary. This process is permitted by section 377 of the LGA. At page 11 of the OLG’s Guidelines on General Managers the following brief description of the delegations process is given:
A governing body of council may delegate certain functions to the general manager. A delegation of a council function must be made by a council resolution (Chapter 12 Part 3 ss 377-381 of the Act). A governing body of council cannot delegate the functions set out in section 377(1) of the Act. A council’s governing body may not delegate the adoption of a Code of Meeting Practice, a Code of Conduct, or the endorsement of Community Strategic Plans, Resourcing Strategies, Delivery Programs and Operational Plans. Each governing body of council must review its delegation of functions during the first 12 months of each term of office (s.380). To assist with this review, it is recommended that, within the first 6 months of the new term, the governing body of council reviews what functions have been delegated and to whom they have been delegated to determine if the delegation and the policies guiding those delegated decisions have been working effectively. It should be noted that the general manager may sub-delegate a function delegated to him/her by the governing body of council (s378). However, the general manager still retains responsibility to ensure that any sub-delegated function is carried out appropriately.
So, before the middle of this year we should expect the current Register of Delegations to be reviewed – and possibly having some regard to the way they are organised at the Bega Valley Shire Council: Parts 1 and 2. However, the delegations for the previous term of council were not reviewed at any time during that term [in breach of s380 – and without consequences]. Those delegations, for the term 2012 to 2016 – as provided by the previous council (2008 to 2012) - were simply adopted, in ignorance of the process, by the then new council with a few other delegations ‘approved’ – including one to a staff member other than the General Manager, which is not permitted.
Worse than that, in February 2013 council passed a resolution to review the delegations but that was not acted upon! Refer to page 6 of the 26 February 2013 meeting agenda and to pages 9 and 40 of the minutes of that meeting. The agenda and the minutes reveal that a very thorough Notice of Motion put by Councillor Schwarz for a review of the delegations, was watered down by Councillor Pollock – but nonetheless a resolution to review the delegations as a matter of priority did result. Again, there have been no consequences for this non-compliance. Let us hope that a proper review is undertaken during this term - and in the very near future.”
I am hopeful that the agenda for 11 April will include a report by staff to councillors on the review of delegations. I look forward to seeing just what form of review is recommended and am further hopeful that the review will take place by way of workshops that will be available to the public to attend – and thus allow the community to be better informed of the way in which its council functions. I can think of no justifiable reason for not making the process open in this fashion.
There is however one important step that needs to be completed before the review process gets under way and that concerns the selection of the facilitator (if it is decided to go down that path). The facilitator will need to be a suitably experienced lawyer with expertise in this area of local government. I believe that when Paul Anderson was General Manager, the legal firm Sparke Helmore provided that expertise. In my view there is a real need for an overhaul of just who council calls upon for its legal advice. Time for a clean slate; and that needs to happen before the review of delegations gets underway.
For interest, attached is a copy of the Register of Delegations to Paul Anderson. You will see that it is a much better presentation than the current one in that it sets out delegations clearly under the headings of the respective legislative instruments and the all-important conditions and limitations placed on the delegations are made very clear. In fact, in having a quick look through the current register, I can’t see any (obvious) conditions or limitations having been placed on the delegations. As well, I can see immediately what seem to be some wrongly quoted references to the Environmental Planning and Assessment Act 1979, concerning “power of entry”.
Let us hope that our councillors take control of the process of delegating their authority to the General Manager.