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Administrative Law Case Analysis
Administrative Law Case Analysis
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InstitutionAdministrative Law Case Analysis
A by-law can be defined to mean rules and regulations set enacted by a local government authority or a corporation with an aim of governing only that area. Bylaws can also be defined as laws enacted or passed by the local authority. The paper seeks to investigate the legality of the by-law enacted in the facts provided, and rise legal issues identified in the problem, as well as resolving the particular issues identified. Lastly, the paper is also meant to devise the remedies to the infringed parties and the situation.
Brief facts
Tabitha, a business lady ventures into the transport business, a gesture which is welcomed by the society because of the advantages the business promises to offer. First of all her single horse chariot reduces traffic jam in the city, it also attracts more tourists to the city. Abner Kravitz, a brother to the city mayor, convinces the mayor to pass a by-law stopping Tabitha to carry on her business because Abner Kravitz is engaged in the same business therefore he is fearing competition. Another by-law is created and it aids the city authority to take land which has been used to rear the horses.
Legal issues
Whether the bylaws enacted are valid and legally acceptable
Whether there possible remedies available for Tabitha
Whether the judge who was an animal activist will be on the bench that will hear the matter
What would be the possible defense for the decisions of the local authority?
Law applicable
The Canadian Constitution
The municipal government Act
Canada corporations Act part II
Common principals
Resolution of issues
Whether the bylaws enacted are valid and legally acceptable
Basically, there are several requirements that have to be conformed to for the by-law to be valid, of which failure would render the law a nullity. In every municipal, there must a body of authority governing the enactment of by-laws and the implementation of those laws enacted by the legislature of the nation. Section 151 of the municipal government Act provides for the procedures of passing a by-law by the municipal authority, it provides for a number of people or members who are required to be present. Failure to conform to the provision of this particular section, the passed by-law stands the chances of being challenged under section536 of the same Act.
In the instant facts, the council had “a closed door” meeting, thus no one can check the provisions that were violated. The Act does not provide for a closed door meeting, the number should not be below that required by the Act breach of which renders the resolution of such an authority invalid. Section 149 provides that for a by-law to be considered valid, it must be at least 180 days before the general meeting from which it will take effect and subsection 3 of the same Act provides that such a by-law must be advertised. From the facts provided, the by-law was not advertised andTabitha was caught unaware of any law regarding her business. Therefore, this by-law at common and in accordance with the municipal government Act is regarded a nullity.
Whether there possible remedies available for Tabitha
In common law, there is no wrong that goes without a remedy. Any infringement must have a remedy or else the doctrines of equity have to devise a probable remedy. Section 536 of the municipal government Act gives a provision for challenging a by-law that an individual does not feel comfortable with. Subsection 1(a) the same section states that any person may apply to the Queens bench that the by-law or the any kind of resolution passed is a nullity or invalid. (b) Also provide for a different remedy of repealing the law or amending it basing on what the court deems fit for the problem to be resolved. Therefore, in the facts provided and depending on the observations made above, it is clear that the process of passing the by-laws is full of irregularities, which are inconsistent with the municipal government Act.
The most appropriate remedy to apply in judicial review for the facts is prohibition. Prohibition is a court order which renders a given law or resolution of any authority or public officer invalid. This order implies that no subject is bound by the quashed order. With the facts provided it means that once the Queen’s Bench court issues this order, Tabitha will not be bound by the by-law.
Whether the judge who is an animal activist will be on the bench that will hear the matter
The other question that would arise is whether the judge who is an animal activist will be on the bench that will hear the matter. Any qualified judge can adjudicate any matter brought before him in the chambers or court of law. However, there are various issues that can be put forward that can disqualify a judge from hearing a matter. The standard for any trial in court is natural justice, and one of the principals of natural justice is fair hearing and being impartial. In the facts, it is established that one of the judges who are going to hear the application is a former activist for animals’ rights. As such, he cannot sit on the bench since he is biased to the application or he already has a side in the case.
The other remedy for Derwood Bay First Nation is section 15 of the municipal government Act this section provides that any one infringed by the municipal bylaws can apply to the land board to issue an order the vacation of the particular land or compensating the land owner. This is because with the facts provided, a piece of land occupied by Derwood Bay Nations is being taken over by the city authority under a new by-law enacted.
What would be the possible defenses for the decisions of the municipal authority?
In conclusion, the municipal authority would have some defence though in the end it will be the court to decide whether the defence will be successful. First, the authority will advise court not to rely on Tabitha’s claim of lack of knowledge because it is a general rule at common law that ignorance of the law is not a defense, it is her duty to know where to find the law as good citizen. Secondly, since the meeting was a closed door meeting how would one allege closed door meeting the irregularities yet know one attended. In summary, those are the few probable defenses the municipal authority would afford in the courts of law.
Administrative Decentralization
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Administrative Decentralization
Administrative decentralization refers to the redistribution of responsibility, authority and financial resources in an organization, taking on three forms: devolution, delegation and deconcentration (Dubois & Fattore, 2009). In devolution, authority when it comes to decision making, management and finance are actually transferred to quasi autonomous units. Deconcentration on the other hand entails redistributing management and decision making authority amongst different levels of management, with the overall supervision being done by the central management. The final form, delegation, entails the transfer of administration and decision making responsibility to semi autonomous units, which are ultimately accountable to the central government. In local emergency services, administrative decentralization has a number of potential benefits and pitfalls. The benefits however outweigh the pitfalls, making administrative decentralization a necessity in emergency services (Cohen & Peterson, n.d).
Foremost amongst the benefits is the potential it has to improve efficiency and effectiveness. Emergency services usually entail important decision making situations that require the quick, effective and efficient choices, as in most cases, lives are saved based on whether or not decisions were made in a timely manner. It is no different when it comes to administrative decisions, as the need to have a number of independent units capable of functioning on their own cannot be overemphasized.
In cases where the type of emergencies to be dealt with are known and clearly outlined, deconcentration may serve as the best model to adopt, as with uniform guidelines, operations at all the various units can be harmonized, due to the management chain being one, with particular protocols being put in place. Decentralization in this case, could actually improve effectiveness and efficiency in the sense that operations can be ran from the point of service, making the unit more effective when it comes to acquisition of required infrastructure and human resources, which may vary from one point to another. A good example would be the fire fighting department, after setting up uniform recruitment, operation and procurement procedures, each individual fire station would then be allowed to operate independently, and procure equipment or recruit according to its needs, making it more efficient and effective. Even in cases where the type of emergencies being dealt with are known, the need for administrative decentralization is still present, due to the fact that various areas experience emergencies at different frequencies and of different magnitudes, making it necessary for each unit to be flexible and malleable depending on its location.
For emergency services that respond to adhoc emergencies, decentralization is very important, first due to the importance of timely responses, and the need for prompt decision making. The need for prompt decisions therefore means that decentralization occurs not just at administrative level, but also in the level of authority accorded the field teams. In this case, discretion is usually not just applicable to human resources and procurement, but also to regulation. Due to the unpredictable nature of adhoc emergencies, the need for leniency when it comes to decision making is paramount, as most situations usually present unique challenges which require not just prompt but unique solutions. As such, it is therefore important that even the decision making process is decentralized for the field teams to be able to work effectively.
The abrupt nature of all emergencies further underlines the need for decentralization, as a distribution of roles ensures that the organizations are constantly ready to handle any emergencies that might arise, regardless of the personnel present. Decentralization also results in increased accountability, as a larger group of people are held accountable for the smooth running of the organization, a factor that definitely impacts performance and therefore leads to efficient operations and even more transparency.
There however are pitfalls associated with administrative decentralization, foremost amongst them being the potential failures at local level due to weak technical or administrative abilities of those delegated to. Even though decentralization redistributes authority, it actually requires that the individual being delegated to have strong administrative abilities, otherwise the system would fail. This also applies to field operations, in that if the field respondents do not have the requisite technical and administrative abilities, operations will suffer in cases of decentralization. In addition, decentralization makes control and distribution of financial resources much more difficult, more so if the resources are scarce. This therefore means that the quality of services might actually not be the same throughout the locality, due to the fact that distribution of resources might not be equal. Furthermore, this skewed distribution may also lead to compromised efficiency and effectiveness in some areas. In cases where the emergency requires widespread efforts, coordination might actually be more difficult and complex, a major disadvantage considering that emergency services usually require swift responses (Mullins, 2004).
While pitfalls do exist, there is no doubting that decentralization in local emergency services is actually a necessity, although the most prudent approach would be deconcentration, which would allow for some degree of central control and effective coordination. This would therefore allow for local emergency services to enjoy the benefits of decentralization, such as improved effectiveness and efficiency, while eliminating the potentially avoidable pitfalls, as most of the people authority is distributed to, would have proven track records within the organization.
References
Cohen, J., & Peterson, S. (n.d). Administrative Decentralization: A New Framework forImproved Governance, Accountability, and Performance. Retrieved from HYPERLINK “http://www.cid.harvard.edu/hiid/582.pdf” http://www.cid.harvard.edu/hiid/582.pdf
Dubois, H., & Fattore, G. (2009). Definitions and typologies in public administration research:the case of decentralization. International Journal of Public Administration 32(8), 704727.
Mullins, D. (2004). Accountability and Coordination in a Decentralized Context: Institutional,Fiscal and Governance Issues. Retrieved from. HYPERLINK “http://www1.worldbank.org/publicsector/decentralization/June21seminar/LiteratureReview.pdf” http://www1.worldbank.org/publicsector/decentralization/June21seminar/LiteratureReview.pdf
Administrative and Personnel Investigations
Administrative and Personnel Investigations
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Abstract
It can not be disputed that administration and personnel investigations are important roles that the security personnel play in any given organization. Administrative roles seek to enhance efficiency and improve the performance of the security personnel. Investigations are viable in problem resolution as they provide objective information upon which decision making is based. In all instances, investigators need to conform to the conditions and guidelines that are established by the organization. Usually, investigations present varied challenges especially because circumstances differ considerably. The purpose of this paper is to highlight the importance of administrative roles by the security manning the warehouse. In addition, it underscores an objective procedure that needs to be followed by the security when carrying out investigations.
Administrative and Personnel Investigations
Administration of security issues and conducting of personnel investigations is at the core of security concerns in the warehouse. These should be pursued in an effective manner in order to enhance the security of the products in the warehouse as well as the occupants therein. Certainly, proper administration and conducting of investigations enables the organization to confront security concerns with ease. In addition, it helps this organization to address employee misconduct and facilitate assumption of acceptable behavior. This needs to be attained without compromising employee productivity or damaging personnel morale. The following guidelines should be followed in pursuing this goal.
Effective administration of security issues in the warehouse if of paramount importance for this organization. This is because it enhances efficiency and ensures that all activities are carried out in an effective and timely manner. This is essential for attainment of optimal outputs for any organization. Electronic facilities in the warehouse need to be monitored accordingly. This can be attained if security matters are coordinated in an effective manner. In this regard, it would be important for the security personnel to clearly define the roles of each employee (Curtis & McBride, 2004). It would also be useful for any security information to be stored safely and effectively for easy retrieval when need arises. Most importantly, all security personnel need to uphold professional ethics and follow guidelines accordingly.
With respect to personnel investigations, there are distinct guidelines that should be adhered to when undertaking this. These are objective and aim at limiting allegations of discrimination, harassment, dishonesty, insubordination and retaliation. According to Sloan (2008), they are procedural and start with recognizing when an investigation is required. The need for an investigation is in most instances informed by violation of rules, employee misconduct, filing of a complaint, reporting of a questionable scenario and so forth. This is followed by establishment of the goals of the investigation. In most instances, the primary objective of any investigation entails providing factual and sound evidence.
The security personnel then proceed to determination of who undertakes the investigation. The investigator needs to have sufficient experience, skills and knowledgeable of the legal dynamics and organizational rules governing investigations (Sloan, 2008). This is followed by the identification of witnesses as well as documents. Witness and document identification should be done immediately in order to avoid delays that can compromise the attainment of credible evidence. Then, the investigator proceeds to listing important questions as well as interviewing techniques. These should seek to elicit as much information as possible about the problem. After interviews, investigators need to compile the information and employ it in viable decision making.
References
Curtis, G. & McBride, B. (2004). Proactive security administration. New York: Prentice Hall.
Sloan, J. (2008). Conducting effective personnel investigations: An in depth manual for California public sector employers. USA: CreateSpace.