DATE: September 8, 2014 REPORT NO. CS Chair and Members Committee of the Whole Operations & Administration

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1 DATE: September 8, 2014 REPORT NO. CS TO: FROM: Chair and Members Committee of the Whole Operations & Administration L. Wolfe, City Clerk, Director of Clerk s Services 1.0 TYPE OF REPORT CONSENT ITEM [ ] ITEM FOR CONSIDERATION [ X ] 2.0 TOPIC: Delegated Authority for Restricted Acts During Lame Duck Period 3.0 RECOMMENDATION A. THAT Report CS regarding Delegated Authority for Restricted Acts During Lame Duck Period BE RECEIVED; and B. THAT to ensure the efficient and effective management of the Corporation during a possible lame duck period, Council DELEGATE authority to the Chief Administrative Officer for the 2014 period during which a lame duck Council is in effect, pursuant to section 275 of the Municipal Act, 2001, S.O. 2001, c.25, to address matters as follows: The disposition of any real or personal property of the municipality which has a value exceeding $50,000 at the time of disposal; and Making any unbudgeted expenditures or incurring any other liability which C. THAT the Chief Administrative Officer consult with the City Solicitor and, where appropriate, the City Treasurer prior to exercising that delegated authority; and D. THAT the Chief Administrative Officer ADVISE Council in writing prior to exercising that delegated authority; and

2 CS Delegated Authority For Restricted Page 2 E. THAT a By-law to authorize the delegated authority for restricted acts during lame duck period BE PRESENTED to City Council for adoption at the September 11, 2014 Council meeting. 4.0 PURPOSE The purpose of this report is to seek Council s approval for the delegation of authority to the Chief Administrative Officer (the CAO ) for two (2) restricted acts in the event of a lame duck period. The delegation of authority is important to the Corporation for the purposes of efficient management, business continuity, and the ability to respond to issues in a timely fashion. 5.0 BACKGROUND In order to ensure Municipalities are able to operate efficiently and in a timely manner during a lame duck period, the Municipal Act, 2001 (the Act ) gives Council a remedy in the form of delegated authority from Nomination Day up to the time when the Council-Elect takes office. If it can be determined with certainty, following Nomination Day, that less than 75% of the current Members of Council will return to sit on the new Council, or, following the election, that the Council-Elect will be comprised of current Council Members, then lame duck provisions apply and Council will be restricted in its decision-making abilities in four (4) areas: (a) The appointment or removal from office of any officer of the municipality; (b) The hiring or dismissal of any employee of the municipality; (c) The disposition of any real or personal property of the municipality which has a value exceeding $50,000 at the time of disposal; and (d) Making any unbudgeted expenditures or incurring any other liability which These four (4) restrictions are the only ones noted in the Act. Clause 275(3)(a) cannot be delegated pursuant to subsection 23.3(1) of the Act, and clause 275(3)(b) authority has already been delegated to appropriate management personnel. Clauses 275(3)(c) and (d) require the delegation of authority in order to ensure continued business continuity and efficiency during a lame duck period. Delegated authority would cease on December 1, 2014 when the Council-Elect takes office. Article 16 of the City s Procedure By-law relating to Delegation provides that all delegation to staff be effected by by-law, that the delegation cannot be transferred or further delegated to another person (except in the situation of acting in the capacity of the delegate in his/her absence), and that matters may be delegated by Council where Council explicitly provides for the terms and

3 CS Delegated Authority For Restricted Page 3 conditions under which those powers shall be exercised. In order to adhere to the requirement for terms and conditions under which the delegated powers would be exercised, that aspect would be addressed by requiring the CAO to consult with the City Solicitor, the City Treasurer and to advise Council in writing prior to exercising delegated authority. 6.0 CORPORATE POLICY CONTEXT The delegation of authority during a lame duck period is consistent with Goal 4: Excellence in Governance and Municipal management for Brantford to be recognized as a fiscally responsible and well-managed City that provides efficient and effective government services. It is important that the Corporation is not hampered in its business continuity efforts and organizational efficiency during an election period. 7.0 INPUT FROM OTHER SOURCES Clerk s consulted with staff in Legal and the Senior Management Team regarding the possibility of lame duck Council during the Election Period, and the need for authority to be delegated to the CAO to ensure operations are effectively continued. 8.0 ANALYSIS The lame duck provision is calculated on 2 dates: Nomination Day (September 12), and Election Day (October 27). If, on either of those dates, it can be determined that the new Council will include less than 75% of the outgoing Council Members, lame duck applies and Council is restricted from taking certain actions until the inaugural meeting on December 1, 2014 This period of time is referred to as the lame duck period. Brantford has an eleven (11) Member Council. The lame duck provision applies as soon as it can be determined with certainty that less than 75% of the current members of Council (8.25) may be returning, which, in Brantford s situation, would be fewer than nine (9) existing Members of Council. Therefore nine (9) current Members of Council are required to be certified and elected in order to avoid triggering the lame duck provisions. As of the current date, ten (10) Members have filed nomination papers; however, with three (3) incumbents seeking the Mayor s post, at this time there is only potential for eight (8) Members of the current Council to be elected on October 27, Based on the uncertified nomination papers at this point in time, it would appear that Council will be in a lame duck position after Nomination Day, September 12,

4 CS Delegated Authority For Restricted Page As such, Council will be restricted from the following actions pursuant to subsection 275(3) of the Act: (a) The appointment or removal from office of any officer of the municipality; (b) The hiring or dismissal of any employee of the municipality; (c) The disposition of any real or personal property of the municipality which has a value exceeding $50,000 at the time of disposal; and (d) Making any unbudgeted expenditures or incurring any other liability which In considering the impact of the restrictions under clause 275(3)(a), paragraph 2 of subsection 23.3(1) of the Act, confirms that the power to appoint or remove from office an officer of the municipality whose appointment is required by this Act cannot be delegated. In considering the impact of the restrictions under clause 275(3)(b), Council has already delegated various human resources decisions, including hiring and dismissal of employees, so there is little risk involved in that aspect of those restrictions. With regard to clauses 275(3)(c) and (d), subsection 275(4) of the Act provides that restrictions in those two (2) clauses do not apply if the disposition or liability was included in the most recent budget adopted by Council before Nomination Day in the election year, and Council could make those award decisions. However, a lame duck Council would not be able to award a contract if the amount of tenders exceeded the amount included in the budget. Accordingly, it would be prudent of Council to delegate authority to the CAO with respect to clauses 275(3)(c) and (d) so as to ensure there is an ability to address issues as they may arise which otherwise, would have to wait until December 1, 2014 for decision. It is important to note that, pursuant to subsection 275(4.1) of the Act, Council is not restricted with respect to those actions set out in subsection 275(3) in the event of an emergency. Under section 1 of the Emergency Management and Civil Protection Act, an emergency means a situation or an impending situation that constitutes a danger of major proportions that could result in serious harm to persons or substantial damage to property and that is caused by the forces of nature, a disease or other health risk, an accident or an act whether intentional or otherwise. 9.0 FINANCIAL IMPLICATIONS The delegation of authority itself has no effect on finances. Financial actions taken in accordance with delegated authority would be reviewed by the Treasurer.

5 CS Delegated Authority For Restricted Page CONCLUSION The Municipal Act, 2001 provides Council with the ability to delegate authority for restricted acts so as to ensure continued business continuity and effective management of the municipal corporation relating to clauses 275(3)(c) and (d) of the Act. The delegation of authority would only come into effect during a lame duck period and would end when the Council-Elect takes office on December 1, Council has the potential to become lame duck, either on Nomination Day or Election Day. The Chief Administrative Officer would consult with the City Solicitor and where appropriate the City Treasurer prior to exercising that delegated authority, and would inform Council in writing of the details. The restrictions would not apply in times of emergency (as defined pursuant to the Emergency Management and Civil Protection Act). Lori Wolfe City Clerk/Director of Clerk s Services Darryl Lee General Manager, Corporate Services In adopting this report, is a by-law or agreement required? If so, it should be referenced in the recommendation section. By-law required [ x ] yes [ ] no Agreement(s) or other documents to be signed by Mayor and/or City Clerk [ ] yes [ x ] no Is the necessary by-law or agreement being sent concurrently to Council? [ x ] yes [ ] no