Ombudsman Replies
Friday, July 4, 2014 at 9:56AM
Bill Barclay

This is the reply received from the Ombudsman on 3 July. I understand that a number of readers have been awaiting this response, and I guess that they, like me, will be unsurprised, and somewhat cynical at the content.

Suffice to say that I am more than miffed to find that he considers that I have:

"insufficient personal interest in the subject-matter of the complaint (section 17(2)(c) of the Ombudsman Act)", and

"On the information you have provided, it does not appear your interest in the subject matter is greater than the public generally."

Well indeed - that certainly narrowly defines the role of the Ombudsman, and is a general purpose 'let-out' for almost any complaints brought forward by members of the public. And it apparently means that no ratepayer has any right to make a complaint of this nature. It surely opens a 'Pandora's box', and should bring a wry smile to the face of all those public servants who are thus removed from ever being the subject of complaint.

I am unsure whether it is in any way worth while to take up his invitation to write further comments on this by 15 July. I see no point in flogging a 'dead-horse' with some pin-stripped Wellington bureaucrat whose major objective in life is to dream up ways in which investigation of miscreancy can be avoided.

It adds to the general impression that in this country no-one can be held to account - the resignation of engineers from their own professional body in order to avoid investigation of their actions is but another manifestation of the fact that seldom is anyone held to account for anything here - this is a primarily a legislative failure, but is also a conscience thing, and a reflection of the 'she'll be right, easy going' approach. We see egregious examples every day, not least right here in our Council.

Dear Mr Barclay

I refer to your letter of 15 May 2014, in which you make a complaint against the Thames Coromandel District Council ('the Council') about its administration of a "Business Growth Fund", and how it decided to grant funds to certain businesses. Also, your complaint about the Council's decision to withhold information under theLocal Government Official Information and Meetings Act 1987.

I propose to deal with the first aspect of your complaint now, and then we will writeto you again about the withholding of information in a separate letter to you.

The role of the Ommbudsman

Before I address your complaint, it may be helpful to give a brief general explanation of an Ombudsman's functions under the Ombudsmen Act 1975.

Where an agency, such as the Council, is subject to the Ombudsmen Act an Ombudsman may investigate the actions of that agency to the extent that they relate to a matter of administration and affect any person in a personal capacity. However, a complainant is expected to have exhausted all other reasonably available
means for resolving the grievance before an investigation is likely to be commenced. Further, in conducting an investigation an Ombudsman is not acting on behalf of a complainant. The Ombudsman obtains such information as he or she considers necessary and must then form an independent opinion on the subject matter of thecomplaint.

In this respect, the Ombudsman is not an appeal body, empowered to exercise the functions of the original decision maker, but considers whether in making the relevant decision or taking the action complained of, the decision maker had acted in a lawful and administratively reasonable manner. Where that is the case then, assuming the decision or action was reasonably open to the agency complained about, the complaint will not be sustained, even if an alternative option may havebeen equally open. Where a complaint can be sustained, the Ombudsman maymake a recommendation for the resolution of the complaint. However, anOmbudsman has no power to direct or require an organisation to give effect to a recommendation.

Your complaint

I note that in your complaint you say "(p)lease note that I have no connection with any of the businesses mentioned in this complaint, nor have any approached me in this regard".

As you may be aware, an Ombudsman's function under the Ombudsmen Act 1975 is, generally speaking, to investigate the manner in which central and local government agencies and their officers and employees have performed their administrative functions where the performance of those functions affects some person or persons in their personal capacity.

However an Ombudsman is authorised not to investigate a complaint where the complainant has an insufficient personal interest in the subject-matter of a complaint (section 17(2)(c) of the Ombudsmen Act).
In general terms, this means that unless there is a direct impact on the complainant personally, the complainant is expected to have an interest that is greater than that of the public generally. Such an interest is seen to involve some advantage or disadvantage to the complainant that is not too remote. By contrast, an interest in the preservation of a particular environment, or an intellectual or emotional concern, the satisfaction of righting a wrong, an interest in upholding a principle, or a sense of grievance is not regarded as an interest that is greater than that of the public generally. In such circumstances, an Ombudsman is unlikely to commence an investigation.

On the information you have provided, it does not appear your interest in the subject matter is greater than that of the public generally.

However, if I have misunderstood the position, it is open to you to write in with further comments by 15 July 2014. If we do not hear from you by then, it will be assumed you no longer wish to comment on the matter and no further action will be taken on this ground of complaint.

Comment - other avenues

As you are complaining about the administration of public funds, the Office of the Auditor General (`the OAG') may be a more appropriate body to address your concerns. I note that on its website, the OAG says:

"Parliament seeks independent assurance that public sector organisations are operating and accounting for their performance, in accordance with Parliament's intentions. There is also a need for independent assurance of local government. Local authorities areaccountable to the public for the activities they fund through locally raised revenue. As an Officer of Parliament, the Auditor-General provides this independent assurance to both Parliament and the public."

Further, I note your comment that "(t)he Grant payments may therefore constitute
an illicit use of funds..."

It is not clear whether you are alleging fraud; however, if you are, I would suggest contacting the Police about this matter.

Complaint under the Local Government Official Informations and Meetings Act 1987

Complaint under the Local Government Official Information and Meetings Act 1987I also note you have complained about the Council's decision to withhold information relating to Guru Digital, who I understand was a business that applied for funding from the Council's Business Growth Fund. At this stage, I can inform youthat this complaint is likely to be investigated. As mentioned, we will write to you again in a separate letter.

I hope my comments have been helpful, at least in clarifying the possible avenues available to you.

Yours sincerely

Anthony llott

Manager - Early Assistance Team

 

 

 

Article originally appeared on BillBarcBlog (http://billbarclay.co.nz/).
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