Also known as: discretionary authorities · administrative discretion
Written by attorneys · grounded in primary & secondary sources — see below
Authority vested in an official or body that permits individualized determinations or exemptions from uniform rules rather than mandatory application across all cases.
A city ordinance bars foster agencies from declining to certify same-sex couples. City officials retain power to grant case-by-case waivers for agencies citing religious objections. When a religious agency refuses certification, the city enforces the rule against it. Because the officials hold discretionary authority to excuse compliance, the policy is not generally applicable and must satisfy strict scrutiny.
An investment adviser holds client shares under an agreement granting it power to decide whether to tender those shares in a takeover bid. When a bidder launches a consent solicitation, the adviser uses its power to direct clients to execute consents favoring the bidder. The adviser's exercise of that power binds the clients because the agreement conferred discretionary authority over the voting decision.
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A policy is not generally applicable if it allows officials to grant individualized exemptions. The existence of that power means the rule must satisfy strict scrutiny even if the government rarely exercises the power.
A person who receives discretionary authority over property holds possession. Misappropriation by that person therefore does not constitute larceny because the owner has surrendered possession rather than mere custody.
An association board must exercise discretionary rulemaking and design powers in a reasonable manner. Courts review whether the board acted within its authority and whether the substance and process of the decision are reasonable given community purposes and member interests.
In a closely held corporation a unanimous written shareholder agreement made known to the corporation may restrict or eliminate the board's discretionary authority and reallocate decision-making power to the shareholders themselves.
…or exceeds [$17.25] per [Purchased] Share, then Ariel agrees to use its best efforts as investment adviser to exercise its discretionary authority to cause Ariel’s Clients to: (i) tender the Purchased Shares in such tender offer; and (ii) execute the proxies or written consents in the form solicited by [Chesapeake] or any of its…