Decision-making

A legal minefield in the public sector is the process by which decisions are made. For both public and private interests, the results of incorrect decision-making can be costly, if not disastrous. Where a decision is successfully challenged, it can lead to the process being undertaken again from scratch and the subsequent costs (including court costs) involved in the challenge.

There are a number of factors to take into account when making a decision:

Bias/Predetermination

This is one of the most frequently raised questions for Brookfields public law team. The suspicion of bias or predetermination can create a deep sense of suspicion and ill‑will.

Although the general principle is simple - no one should act in their own interest or in the interests of people they are closely associated with in the conduct of public business - in practice it can be more complicated.

This is never more so than when those elected to public office have well known views on specific issues or projects, as one might expect of politicians. Challenges on the grounds of bias or predetermination are always likely. There are also laws dealing with pecuniary interests.

The problem can be where to draw the line, and often it requires a bright line distinction that only considerable legal expertise will identify.

Brookfields frequently advises on the subtle differences between pecuniary interest, non‑pecuniary interests (such as bias and predetermination) and the effects this may have on decisions made by members acting under one or the other type of influence.

What we do:

  • Help identify areas of members interests/conflicts (or conflict involving public officials)
  • Advise on particular/proposed decisions and the implications of involvement by a decision-maker with an interest
  • Give advice on how to avoid issues arising in the first place or recurring in future
  • Facilitate discussions with members to encourage them to declare an interest and abstain from any matter
  • Client training on decision-making principles
  • Dealing with complaints made against a public authority
  • Negotiation and mediation of disputes
  • Litigation where unavoidable

Meetings and Hearings

Any public body which is involved in holding meetings or hearings will be required to follow a formal process - whether by statute, standing orders, general rules and policies of the organisation, or by the general law decided in previous cases. Compliance with this process is critical to ensure that decisions are validly made. If the process is faulty, the meeting will have been a waste of time and could be costly.

All meetings and hearings must be properly convened and run to ensure fairness to all those affected by the decisions being made. An even higher standard of performance will be required for hearings of a quasi‑judicial nature, such as those held under the Resource Management Act 1991.

Brookfields is familiar with the conventions involved in running a meeting in a constructive and unimpeachable manner. We are alive to issues of sensitivity and privacy, but can advise how to deal with the reality that decisions many need to be made in public meetings, while protecting the wider public interests.

What we do:

  • Advise our client organisations on all aspects of meeting etiquette from preparation of reports and order papers, through the management of the meeting to the production of minutes
  • Advise on issues of sensitivity
  • Advise on issues of privacy
  • Provide strategic insight on potential problems and managing risk

Natural Justice

Decisions made by public organisations that affect the rights or interests of any person are subject to the procedural rules of natural justice. These rules are often summed up as a duty to act fairly and comprise:

  • the rule against bias (nemo iudex in causa sua) and
  • the right to a fair hearing (audi alteram partem) are the foundations of natural justice

No matter what statutory provisions govern the actions of the public sector, the principles of natural justice will apply. Brookfields is pro-active in promoting these rules to the practice of its public sector clients, both in the form of frequent seminars to officers and politicians, and also through its e-flyer, Legal Landscape.

What we do:

  • Advise on best practice in dealing with issues affecting third parties
  • Advise on how to avoid the costs, delays, and resource drain arising from legal proceedings challenging decisions
  • Advising determinations where the rules of natural justice may have been breached

Probity

Probity may be defined loosely as the checks and balances within systems that ensure all parties to a process are treated fairly. It is also used to refer to an independent check or review of a process to ensure legal compliance and fair process that is sometimes referred to as a probity audit.

What we do:

  • Review existing processes and systems used to process applications/consents to ensure compliance
  • Advise on steps to be taken to address risks and deficiencies
  • Check/Review individual transactions where questions have been raised
  • Train/Educate clients on adopting robust processes designed to limit potential litigation or public audit

Complaints to the Ombudsmen

Brookfields can assist public sector clients when complaints have been made about them to the Ombudsmen. We can help prepare reports in response to complaints and allegations, and ensure full compliance with the Ombudsmen Act 1975. We are ideally placed to help, as one of our partners is a former Investigating Officer in the Office of the Ombudsmen.

Complaints to the Ombudsmen can be a valuable alternative to litigation where there is concern about a decision, recommendation made, or any act relating to a matter of administration by public organisations. The complaints reporting process is an opportunity to fully review issues, and to resolve them without costly court proceedings.

However, the process can be time-consuming and occasionally frustrating if not handled efficiently. Brookfields' experience in the past has been that matters can almost always be determined by agreement, and without the need for further action on the part of the Ombudsmen, if the process is well managed from the beginning.

The Brookfields' team can also provide information about complaints under the Official Information Act 1982 and the Local Government Official Information and Meetings Act 1987. We frequently advise on drafting of responses to requests for official information where it is considered that there is good reason for withholding information in whole or in part.

What we do:

  • Review complaint against background
  • Suggest strategy for dealing with complaint
  • Help with preparation of response
  • Negotiate outcomes/settlement
  • Risk management - review procedures to ensure likelihood of future complaints is reduced

Elections and Appointments

The Brookfields' team provides advice to organisations for which elections are held under the Local Electoral Act 2002, including local authorities and licensing trusts. One of the partners in this team is a former Electoral Officer in two local government triennial elections.

The matter of appointments to public sector organisations and committees is also subject to principles of fairness and impartiality that may not be well understood. Brookfields can assist organisations to avoid the pitfalls that can arise if this process is not handled with care.

Brookfields recognises the trend for many elections to be run by professional consultants who produce the voting papers and run the vote count, but not all of the preparatory work or statutory responsibility can be contracted out.

In addition many public sector organisations run elections under a variety of provisions, including common law principles and organisational rules, and assistance can be provided to returning officers in such cases who are often put in that position without training for that role.

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