Meeting documents

Abstract (plain text version of the report)
Please click on link above for formatted version

CONSTITUTION COMMITTEE
17th AUGUST 2009
AGENDA ITEM
AMENDMENTS TO THE COUNCIL’S CONSTITUTION
Report of the Assistant Director of Law and Administration
Purpose of the Report
To report to the Committee
a) for information purposes only the amendments to Section 4 of the
Constitution which are set out in the Appendix hereto (Responsibility for
Executive Functions), and to paragraph 5.9 of section 5 (Scheme of
Delegation); and
b) for the Committee to recommend to full Council the remaining
amendments to the Council’s Constitution set out in the Appendix, including
the remainder of Section 5 in so far as it relates to non-executive functions.
These amendments have been made by the Deputy Monitoring Officer under
delegated powers.
Cabinet Responsibilities.
Under the Council’s new executive arrangements it is the responsibility of the
Leader of the Council to allocate the executive functions of the Council. The
Leader has appointed the members of the Cabinet and their portfolios.
Cabinet member responsibilities are contained in Section 4 of the
Constitution and also paragraph 5.9. The Constitution is therefore amended
accordingly and these amendments are reported to the Committee for
information only.
The remaining changes have been authorised by the Deputy Monitoring
Officer and are now brought to Committee for ratification and recommendation
to full Council.
RECOMMENDED THAT:
a) The changes to the Constitution set out in Section 4 of the Appendix
hereto (Responsibility for Executive Functions) and paragraph 5.9 of
Section 5 (Scheme of Delegation) and are noted by the Committee;
and
b) The remaining amendments to the Constitution set out in the Appendix
are noted by the Committee and are now recommended to full Council
for ratification.
Christine Wray
Assistant Director of Law & Administration
11th August 2009
Changes to Gloucestershire County Council Constitution
by the Deputy Monitoring Officer
In the exercise of the powers of the Monitoring Officer set out in Article 15.02.1 of
the Council’s Constitution, in order to: secure the convenient, efficient and effective discharge of any function; and give effect to a decision of full Council; and clarify the effect of the Council’s Constitution;
with effect from 13 July 2009, I make the changes to the Council’s Constitution
referred to below.
1. The Leader of the Council having allocated responsibilities for executive
functions to those members of Cabinet appointed by him on the 24 June
2009 and having confirmed the delegation to officers as set out in the table
headed “Particular Delegations to Officers” which follows paragraph 5.12 ,
Sections 4 and 5 of the Constitution (“Responsibility for Cabinet Functions”
and “Scheme of Delegation”) shall be amended as set out in Annex A
hereto.
2. Throughout the Constitution the term “Lead Cabinet Member” shall be
amended to “Cabinet Member”.
With effect from today’s date I make the following changes:
3. There shall be added to the duties of the Overview & Scrutiny Management
Committee in paragraph 3.10.4 of the Constitution:
“6. Making a report and recommendations to the Council with respect to
local crime and disorder matters.”
The reference in paragraph 14.2 of the Overview and Scrutiny Procedure
Rules to crime and disorder being an excluded matter, shall be deleted,
thus paragraph 14.2 will read:
“ A local government matter is one relating to a local government function
affecting the electoral area of the member or any person who lives or works
in the area, unless it is an excluded matter. An excluded matter is a
planning or licensing matter, one relating to an individual where a right of
appeal exists or any matter which is vexatious, discriminatory or not
reasonable to be included in the agenda or discussed at a meeting of an
overview and scrutiny committee.”
4. In Sections D and E of the Financial Regulations, all references to
“Executive Director” shall be amended to “Group Director”.
5. In paragraph 20 of the Procedural Standing Orders, the reference to the
National Code of Local Government Conduct, shall be deleted.
6. Article 2.02 shall be amended to state that the next regular election will be
held in 2013.
……………………………..
(C.A.L. Wray)
Assistant Director of Law & Administration & Deputy Monitoring Officer
Gloucestershire County Council
August 2009
SECTION 4 – RESPONSIBILITY FOR EXECUTIVE FUNCTIONS
4.1 In accordance with the Local Government Act 2000 (as amended) the Leader of the
Council has determined that executive functions of the Council should be the
responsibility of the Cabinet, individual members of which may take executive
decisions within their area of responsibility, and officers.
4.2 The Cabinet is not responsible for approving the Council’s budget or the policy
framework. It is, however, responsible for leading the development of the budget and
policy framework. The Cabinet is also responsible for making decisions on the
delivery of Council services within the approved budget and policy framework in
respect of any matter that is not reserved by law or under this Constitution to the full
Council or another Council body.
4.3 In Gloucestershire, executive decisions can be taken by the Cabinet collectively, by
Cabinet Members individually and by officers of the Council to whom powers have
been delegated. Decisions will be taken in accordance with the Cabinet Procedure
Rules, Access to Information Procedure Rules and the Policy Framework and Budget
Procedure Rules.
4.4 Every Cabinet Member is assigned areas of responsibility by the Leader of the
Council, as described below.
Area of responsibility
4.4.1 Leader of the Council
1. Overall responsibility for the Council
2. Regional, National and International Affairs
3. Strategic Partnership Relationships and relationships with key partners
4. Corporate Planning
5. Cross cutting policy development and monitoring
6. Customer focus
4.4.2 Deputy Leader and Cabinet Member for Schools
1. Any aspect of the Leader’s responsibilities in his absence
2. Corporate Performance management
3. Schools issues
4. Building Schools for the future
5. National Challenge
6. Home to School Transport
7. Children with Special Educational Needs
8. Gloucestershire Strategic Partnership
9. Local Area Agreement
4.4.3 Cabinet Member – Children and Young People
1. Lead Member for Children’s Services in accordance with Section 19 Children
Act 2004
2. Young People’s Services
3. Commissioning for Young People’s Services
4. Joint Children and Young People’s Strategy
5. Child Poverty
6. Children in care
7. Narrowing the Gap
8. Safeguarding (Children)
9. Capital Finance
10. Adoption and Fostering
4.4.4 Cabinet Member for Youth Services
1. Playbuilder
2. 14-19 year olds
3. Connexions
4. Colleges
5. Early Years and Child care
6. Youth Support
7. Children with Disabilities
8. Children’s Centres
9. Youth Offending
4.4.5 Cabinet Member – Resources
1. The Council’s Finances
2. Business Management:
Human Resources
Information and Communication Technology
Corporate Property Management
Procurement
Legal and Democratic Services
Finance
Corporate Building Services
Audit and Financial Standards
Health and Safety
4.4.6 Cabinet Member – Adult Social Care
1. Services to older people
2. Services to adults with physical and sensory needs
3. Commissioning, Strategy and Finance (social care)
4. Supporting People
5. Corporate Customer services
6. The NHS
7. Voluntary & Community Sector
4.4.7 Cabinet Member – Caring and Community Services
1. Services to adults with learning disabilities
2. Community Services including Libraries, Information and Lifelong Learning
3. Mental Health
4. Safeguarding (Adults)
5. Corporate Community Cohesion & Equalities
6. Operational Delivery & Outcomes
7. Arts, Sport and Culture
4.4.8 Cabinet Member for Highways and Waste
Gloucestershire Highways
Flooding
Waste Disposal (Waste Partnership)
Waste Contract (Project Board)
Road Safety
Capital Programme
Rights of Way
Public/Community Transport
Parking
Traffic Management
Subsidiary responsibility for:
Regeneration projects
LTP3
Local Area Agreement (Environment)
Joint Core Strategy/ SIDP
4.5.9 Cabinet Member for Planning, Regeneration and Communications
Corporate Communications
Strategic Planning (including Minerals and Waste planning)
Joint Core Strategy and Strategic Infrastructure
Development Plans (Strategic Infrastructure Delivery Plans)
Other planning services
Regional issues
Regeneration Projects
Transport – Local Transport Plan and Major Scheme Bids
Climate Change and Sustainability
Local Area Agreement (Environment)
Archaeology and Countryside Conservation
Travellers
Subsidiary responsibility for:
Economic Strategy
Flooding
Capital Programme
4.4.10 Cabinet Member for Community Safety and Economy
Community Safety
Gloucestershire Fire and Rescue Service
Emergency Management
Gloucestershire’s Economy
The Recession (including Council-wide issues)
Europe affairs
Trading Standards
Coroners
Registration Service
Subsidiary responsibility for:
Regeneration projects
Strategic Planning and Transport
Road Safety
4.5 Every area of responsibility shall include the Council’s executive function of
investigating and/or prosecuting suspected or actual criminal and civil acts relating to
the executive functions referred to in the portfolio.
Note: Prosecution of suspected criminal acts are subject to authorisation by the
Director of Law and Administration.
SECTION 5 - SCHEME OF DELEGATION,
5.1 The Council is required to make very many executive and non-executive decisions
every day. It would be quite impracticable to make all or many of these decisions
through full Council, the Cabinet and other Council bodies. The full Council, Cabinet
and, under the Council’s new executive arrangements from June 2009, the Leader,
are able to delegate powers to the Cabinet, individual Cabinet Members and to
officers. Such powers are called “delegated powers” and the distribution of
responsibility amongst the Leader of the Council, Cabinet Members and officers for
making decisions under delegated powers is set out in this Scheme. Such powers
must be exercised in accordance with the conditions specified in paragraphs 5.2 to
5.8 below.
This scheme does not delegate to the Leader of the Council, Cabinet Members and
officers:
5.1.1 Except under delegation CE1 any matter reserved to full Council (see
Tables 1 and 2 of this Part of the Constitution)
5.1.2 Any matter which by law may not be delegated to the Leader of the
Council, a Cabinet Member or officer.
5.2 Delegated powers must be exercised in accordance with:
5.2.1 The law
5.2.2 All of the rules, procedures, codes and protocols contained in the
Council’s Constitution
5.2.3 Council policy.
5.3 Before exercising delegated powers, the Leader of the Council, Cabinet Members
and officers must satisfy themselves that the decision is:
5.3.1 Authorised by law and, if in doubt, will consult with the Director of Law
and Administration
5.3.2 Within budget (allowing for such variance as may be permitted under
the Council’s Financial Regulations) and if in doubt will consult with
the Group Director – Business Management.
5.4 Before exercising delegated powers the Leader of the Council, Cabinet Members
and officers must consider whether it would be advantageous and/or prudent to
consult with the Leader of the Council, another Cabinet Member or any other
members of the Council and/or officer, and whenever they consult with another will
carefully consider any response that they receive. In any event, consultation will
always be required with all persons referred to in the column “Consultation under
paragraph 5.4” in the table below headed Particular Delegations to Officers, and in
accordance with paragraph 5.9.
5.5 Before exercising delegated powers officers will consider whether the use of a power
might be regarded as sensitive or contentious by members of the Council and if it
appears that this will be the case they will:
5.5.1 In respect of any executive function, consult with the Leader of the
Council or Cabinet Member with responsibility for that area
5.5.2 In respect of any non-executive function, consult with the chair and
other political groups’ lead members of the committee having
responsibility for that matter and any member of the Council whose
electoral division will be affected by the exercise of delegated powers.
5.6 In the absence of a Cabinet Member or if a Cabinet Member is unable to or should
not exercise a delegated power, the Leader of the Council may exercise that
delegated power.
In the absence of the Leader of the Council or if the Leader of the Council is unable
to or should not exercise a delegated power or other power under the Constitution,
any Cabinet Member or the Cabinet may exercise those powers
5.7 The officers named in this scheme shall be deemed to include any other officer of the
Council that they authorise in writing to exercise delegated powers on their behalf
provided:
5.7.1 An officer named in this scheme must maintain a written record of any other
officer they have authorised to exercise delegated powers on their behalf, and
any limitation that they have imposed on the extent and duration or other
exercise of those powers in addition to those specified in this scheme.
5.7.2 A copy of the information specified in sub-paragraph (i) of this paragraph
must be given to the Monitoring Officer before another officer exercises a
power on behalf of a named officer, and the Monitoring Officer shall place this
information on a register that, in accordance with section 100G of the Local
Government Act 1972, will be maintained for inspection by the public.
5.8 The Leader of the Council and Cabinet Members in relation to all decisions they take
and officers in relation to key decisions they take in the exercise of delegated powers
must maintain a complete and permanent written record of their decisions, which
must (as a minimum) include:
5.8.1 A dated record of that decision
5.8.2 A record of the reasons for the decision
5.8.3 Details of any alternative options considered and rejected at the time by the
person when making the decision
5.8.4 A record of any conflict of interest declared by any executive member who is
consulted in relation to the decision; and
5.8.5 In respect of any declared conflict of interest a note of any dispensation
granted by the Standards Committee of the Council
Note: These decision records are required to be available for public inspection after
the decision has been taken, in the same way as cabinet papers
5.9 There shall be delegated to the Leader of the Council and each Cabinet Member all
executive functions, duties or powers of the Council within his/her area of
responsibility as specified in paragraph 4.4 of Section 4 of the Constitution. In
exercising such functions, duties or powers, the Leader and Cabinet Members will
consult with the Group Director and Director or Head of any service area affected by
their decision.
5.10 The functions powers and duties identified in the table below headed Particular
Delegations to Officers are delegated to Officers of the Council. Any officer referred
to in the Appropriate Officer column of the table below and to whom powers have
been delegated shall include any other person subsequently taking on that officer’s
responsibilities
5.11 The Group Director of Services to Children and Young People has responsibility for
the statutory functions of the Director of Children's Services in accordance with
section 18 of the Children Act 2004; and
5.12 The Group Director of Community and Adult Care is the officer designated as
Director of Adult Social Services in accordance with section 6(A1) of the Local
Authority Social Services Act 1970 (as Inserted by paragraph 2(2) of Schedule 2 to
the Children Act 2004)
Particular Delegations to Officers
Decision
Category
No
Function, duty or power to be
delegated
Appropriate Officer Consultation
under
paragraph 5.4
CE1 To take any decision that could be
taken by the Council, the Cabinet,
any committee, or any officer
(provided such action is taken in
accordance with the law, Rules on
Access to Information About the
County Council’s Business, and
the Cabinet Procedure Rules)
Chief Executive Council function
– Chairman and
Leader of the
Council
Cabinet
function -
Leader of the
Council or
Cabinet
Member as
appropriate
Committee
function -
chairperson
and lead
members
CE2 To be the Proper Officer of the
County Council: section 270(3) of
the Local Government Act 1972
CE3 To fill casual vacancies on
committees, in accordance with
sections 15-17 of the Local
Government & Housing Act 1989
Group leader of
the political
group entitled
to appoint a
member to any
committee by
virtue of any
vacancy that
has arisen
CE4 To be the Returning Officer for
County Council elections and
undertake the functions of the
Council in relation to elections
CE5 To permanently appoint,
determine the terms of
appointment, and terminate the
appointment of all staff (except
those officers within the
responsibility of the Appointments
Committee) under section 112 of
the Local Government Act 1972
and
to appoint on a temporary or
acting up basis for up to 1 year,
determine the terms of
appointment, and terminate the
appointment of, those officers
within paragraph 2 of the duties of
the Appointments Committee
GDBM1 To be responsible for and do
anything required for the proper
administration of the financial
affairs of the Council
Group Director -
Business
Management
GDBM2 To make arrangements for the
financing of the capital programme
of the Council by borrowing,
leasing or other arrangements
Leader of the
Council or
Cabinet
Member as
appropriate
GDBM3 The functions, duties or powers of
the Pension Committee
GDBM4 To formulate and issue general
guidelines to officers on financial
matters including insurance and
the writing off of debts
GDBM5 To determine arrangements for
treasury management
GDBM6 To make arrangements for the
internal audit of the Council
GDBM7 To manage the County Fund and
all subsidiary accounts and any
reserve or other fund
GDBM8 To operate the Local Government
Superannuation Regulations,
including the exercise of discretion
under those Regulations
GDBM9 To implement national and local
pay awards and increase
payments under the Pension
Increase Act
GDBM10 To determine applications by staff
for car loans under the Assisted
Car Purchase Scheme
GDBM11 To make finance leasing
arrangements and authorise and
make any other financial
transaction including the borrowing
and lending of money
GDBM12 To authorise the writing-off of
stock other than through fair wear
and tear
GDBM13 To manage the provision of
information technology services to
the Council
GDBM14 To publish standards for the whole
of the Council which will secure
the efficient processing of
information
GDBM15 To effect adequate insurance
cover for the Council
GDBM16 To acquire and dispose of any
interest in land and manage the
Council’s estate
GDBM17 The functions of the Safety and
Licensing Committee under
paragraphs 2 and 3 of its terms of
reference
GDBM18 To exercise all other functions
relating to the areas of
responsibility of the Business
Management Directorate This
power shall include the power to
do anything necessary to secure
the proper management of the
Council’s human resources except
for functions falling within decision
category CE5 but shall not include
decision category HLDS1 and 2
GDComS1 The functions of the Safety and
Licensing Committee except those
within paragraphs 2, 3, 4, 6 and 7
of its terms of reference and
decision categories HLDS1 and 2
Group Director
Community Safety
GDComS2 To exercise all other functions
relating to the areas of
responsibility of the Community
Safety Directorate except
decision categories HLDS1 and 2
GDE1 To exercise the functions of the
Commons and Rights of Way
Committee as Local Highway
Authority
Commons and Rights of Way
Committee terms of reference 3 to
18
Group Director –
Environment
GDE2 To be the Proper Officer in relation
to functions under the Highways
Act 1980
GDE3 To exercise the functions falling
within Planning Committee terms
of reference 1 to 14 and 16 to 24,
except decision categories HLDS1
and 2 of this Scheme of
Delegation
Group Director -
Environment
(Note - where the
Group Director is an
officer whose
responsibilities
include any aspect of
the management of
any land or building
to which an
application made by
the Council relates,
or is responsible for
a function (other than
as planning
authority) materially
affected by any
planning matter, this
power is delegated to
the Head of Planning
and Development
Services)
Director of Law
and
Administration
GDE4 To exercise the functions of the
Traffic Regulation Committee
(terms of reference 1 to 12) except
those falling within decision
categories HLDS1 and 2 of this
Scheme of Delegation
Group Director –
Environment
Director of Law
and
Administration
GDE5 The functions of the Safety and
Licensing Committee under
paragraph 6 of its terms of
reference
GDE6 To exercise all other functions
relating to the areas of
responsibility of the Environment
Directorate except decision
categories HLDS1 and 2 (although
in cases when only an officer other
than the Director of Law and
Administration may institute
proceedings the Group Director
Environment may institute a
prosecution once it has been
authorised under HLDS2)
GDCAC1 The functions of the Safety and
Licensing Committee under
paragraph 7 of its terms of
reference
Group Director -
Community and
Adult Care
GDCAC2 To exercise all other functions
relating to the areas of
responsibility of the Community
and Adult Care Directorate except
decision category HLDS1 and 2.
GDCYP1 The functions of the Safety and
Licensing Committee under
paragraph 4 of its terms of
reference
Group Director
Services to Children
and Young People
GDCYP2 To exercise all other functions
relating to the areas of
responsibility of the Children and
Young People’s Directorate
except decision category HLDS1
and 2
HLDS1 To authorise the institution,
defence withdrawal or settlement
of any claims or legal proceedings,
civil or criminal, the issue of
cautions and to authorise the
enforcement of any order made in
those proceedings.
Director of Law and
Administration
Director of any
service area
affected by
such a decision
HLDS2 To authorise officers of the County
Council to prosecute or defend or
appear in any legal proceedings
(NB the Director of Law and
Administration will authorise every
decision to prosecute or defend
such proceedings, including those
which by law may only be
instituted by another officer).
HLDS3 To authorise the withdrawal or
settlement of any dispute between
the Council and any third party,
including those that have been
referred to any statutory or nonstatutory
Tribunal or arbitrator (this
includes authorising ex gratia
payments not otherwise
delegated)
Group Director
and Director of
any service
area affected
by such a
decision
HLDS5 To be the local referee for disputes
under the Local Government
Pension Scheme
HLDS6 To make payments or award other
benefits under section 92 of the
Local Government Act 2000
(payments in respect of
maladministration and related
discretionary payments)
Chief Executive
Group Director
and Director
responsible for
the service in
respect of
which a
payment or
other benefit is
awarded
HLDS7 The functions of the Commons
and Rights of Way Committee
under paragraphs 1, 2 and 19 of
its terms of reference
HLDS8 To amend the Constitution in any
way whatsoever in order to secure
compliance with the law and the
convenient, efficient and effective
discharge of any Council function.
Such amendment shall be
reported to the Constitution
Committee and reported to and
ratified by the full Council (in
respect of any non-executive
function) or the Cabinet (in respect
of any executive function)
Chief Executive
and any Group
Director and
Director whose
service is
affected by any
amendment to
the Constitution
HLDS9 The functions of the Constitution
Committee to advertise for,
interview and appoint persons as
members of an Independent
Remuneration Panel.
Lead members
of the
Constitution
Committee
GEN1 To enter into any contract for
works and the supply of goods and
services
Chief Executive and
the Assistant Chief
Executive, Group
Directors, and
Directors or Head of
Service in relation to
their service areas
GEN2 To take any decision under the
Regulation of Investigatory Powers
Act 2000
Group Directors and
Directors or Head of
Service in relation to
GEN3 To do anything that is required for their service areas
the effective management of staff
and other resources within each
Directorate and Service of the
Council
SECTION 6 - GENERAL STATEMENT OF POLICY BY THE LEADER, THE FULL
COUNCIL AND THE CABINET IN RESPECT OF THE DISTRIBUTION OF FUNCTIONS
TO THE FULL COUNCIL, COUNCIL BODIES, CABINET MEMBER AND OFFICERS
The Council, the Leader and Cabinet intend that officers should be able to exercise any duty
or power that could be exercised by them or any council body. Accordingly, where the law
confers a function, duty or power on the authority, but no officer has been expressly
authorised to exercise that function, duty or power under the Scheme of Delegation, the
Council, the Leader, and Cabinet (in so far as it is within their remit) hereby authorise any
Group Director, Director and any person authorised by any of them, to exercise that function,
duty or power on behalf of the authority.
Note; Where an officer has been expressly authorised to exercise a function duty or power,
only that officer and any other officer authorised in accordance with paragraph 5.7 of
Section 5, can exercise that function, duty or power.