Delegations & Trustee Eligibility
Delegations are covered in the Sixth Schedule, clauses 17 and 30 of the Education Act 1989: Schedule 6 Boards of trustees. This came into force on 19 May 2017. Sections 66 and 66A are now repealed. There is one change from section 66, which is that open-ended delegations no longer automatically remain in force until revoked.
Board authority to delegate functions or powers
A board can delegate functions or powers of the board to the following
a. A trustee or trustees
b. The principal or any other employee or employees, or office holder or holders of the board
c. A committee consisting of at least two persons. At least one person must be a trustee
d. Any other person or persons approved by the Minister
e. Any class of person made up of any of those listed in a. – d.
Note: Boards sometimes delegate their power to a “subcommittee”. This is an incorrect term because a board is a crown entity under the Crown Entities Act 2004, not a committee.
Resolution and in writing
Delegations must be made by resolution and written notice to the person or persons. The delegate must not sub-delegate the power or function without the written consent of the board. The board is not able to delegate the general power of delegation. The delegation can be revoked at any time by resolution and written notice to the delegate(s) or by any other method provided for in the delegation.
Delegations to employees
Each delegation must be specified, approved by the board and set out in writing. See an example of the delegations recommended by the Ministry from their finance resource.
No delegation of the power to borrow
Clause 30 replaces the now repealed section 66A and prohibits boards from delegating the power to borrow money
Records and renewal of delegations
It is recommended that board keep a current delegations folder. Boards and delegates should retain written notice of a delegation.
Under now-repealed section 66, sub-section (12) stated that a delegation continued in force until it is revoked, even if the membership of the board changed. This provision is not in clause 17. The effect of this change is that it continues to be good practice for a schedule of all the delegations made by the board to be tabled at the first meeting of the board each year or following an election. This is so that all trustees are aware of them and any changes, if felt necessary, can be discussed.
Confirming eligibility to become a trustee or appointee to a committee
Before a person is elected, co-opted, or appointed as a trustee, the person must confirm to the board that they are, to the best of their knowledge, eligible to be a trustee, having regard to the grounds of ineligibility in section 103. A specified form has been promulgated as "Application for consideration for appointment or co-option as a Trustee." (Look for the link to Eligibility Attestation Form.)
If a non-trustee is appointed as a member of a committee they must first disclose to the board the details of any financial interest that would disqualify them from being a trustee under section 103A: Here
Existing committees without delegations
A board may have a long-established committee which has been dealing with matters such as personnel or student discipline (suspensions/expulsions etc.). It should ensure there is a resolution in place with an explicit written delegation to the committee. A delegation of powers/functions can be general or specific. This would minimise the risk of a legal action against the board or committee for acting without authority.
Board quorum and the use of delegations
A board must have a quorum before it can hold a meeting that can make any decisions. A quorum is more than half of the trustees presently holding office.
There are times when a meeting quorum is destroyed when one of more trustees has a conflict of interest and must exclude themselves from the meeting. We suggest that in this case the board resolves to form a committee of the board with the delegated authority to complete the business under discussion. The resolution can also be passed electronically ahead of, for instance, a suspension meeting of the board if there is not already a Student discipline committee. In that case the resolution must be agreed to unanimously.
For further information contact the Advisory and Support Centre:
0800 782435 (options 1)
Page updated 28 July 2017