HomeMy WebLinkAboutCLK 03-22 Report to
Executive Committee
Report Number: CLK 03-22 Date: May 2, 2022
From: Paul Bigioni Director, Corporate Services & City Solicitor
Subject: Restricted Acts after Nomination Day (Lame Duck Period)
- Delegation of Authority under Section 275 of the Municipal Act - File: A-1440
Recommendation:
1. That Report CLK 03-22, regarding Restricted Acts after Nomination Day (Lame Duck Period), Delegation of Authority under Section 275 of the Municipal Act, be received;
2. That the draft By-law, included as Attachment #1 to Report CLK 03-22, be approved and
brought forward for enactment at the May 24, 2022 Meeting of Council; and,
3. That the appropriate City of Pickering officials be authorized to take the necessary actions as indicated in this Report.
Executive Summary: Section 275 of the Municipal Act, 2001, S.O. 2001, c. 25, (the “Act”), provides for restrictions on the actions that municipal councils can take, in the period leading up to an election, when it can be ascertained that the new incoming council will include less than three-quarters of the members of the outgoing council. This is commonly referred to as the “Lame Duck Period”.
The lame duck determination is made in two different scenarios during the election period:
1. After nomination day (August 19, 2022), but before voting day (October 24, 2022), the determination shall be based on the nominations to the new council that have been certified and any acclamations made to the new council; and, 2. After voting day, the determination shall be based on the declaration of the results of the
election including declarations of election by acclamation.
If it is determined that Council is in a Lame Duck Period, for the remainder of the term of Council, Pickering City Council will be restricted from certain acts as set out in Section 275 of the Act. To that end, staff are seeking approval of a By-law to give delegated authority to the Chief Administrative Officer (CAO) for some of these restricted acts.
Financial Implications: There are no financial implications associated with this Report, however, the exercise of the delegated authority described in the attached By-law will have financial implications as described in the Discussion section of this Report.
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Discussion: City of Pickering Council is comprised of seven Members, and the
new incoming Council for the 2022-2026 Term will also consist of seven Members. As noted
above, Section 275 of the Act states that the authority of the current Council will be subject to certain restrictions if the new incoming council will include less than three-quarters of the Members of the outgoing Council. Three-quarters of the City’s seven Member Council equals six.
On Nomination Day (August 19, 2022), if it can be determined with certainty, based on the
certified nominations and any acclamations to the new Council, that less than six of the outgoing Members will be returning, the restricted acts under Section 275 of the Act will apply. This could also be the case after Election Day (October 24, 2022) when, based on the election results, it is certain that less than six of the outgoing Members will be returning. (Note: This situation will have fewer implications, as there are no Council meetings scheduled
after Voting Day until the inaugural meeting of the new Council, which is scheduled for November 21, 2022).
Restricted Acts under Section 275 of the Municipal Act
The following are the four restricted acts during a Lame Duck Period:
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 valueexceeding $50,000 at the time of disposal; and,d)making any expenditures or incurring any other liability which exceeds $50,000.
Section 275(4) of the Act provide that clauses c) and d) do not apply if the disposition or
liability was included in the most recent budget adopted by Council before Nomination Day in the Election.
Section 275(4.1) states that nothing prevents a municipality taking any action in the event of an emergency (emergency meaning that as defined under the Emergency Management and Civil
Protection Act, R.S.O. 1990, c. E.9).
Section 275(6) states that nothing prevents any person or body exercising any authority of a municipality that is delegated to the person or body prior to Nomination Day for the election of the new council.
Delegated Authority for Restricted Acts during a Lame Duck Period
This report is presented to Council to seek approval of delegated authority for the CAO for the
disposition of real or personal property, and for certain expenditures outside those already approved in the 2022 Current and Capital Budgets should a Lame Duck Period be in effect.
Delegation of authority during a Lame Duck Period is a common practice among municipalities in Ontario, and is put in place to ensure business continuity, efficient management, and the
ability to respond to urgent situations, where additional expenditures not approved in the most
recent budget, may be required. As outlined in the attached draft By-law (Attachment #1), the
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Subject: Restricted Acts after Nomination Day (Lame Duck Period) Page 3
proposed delegation of authority is subject to certain limitations in that expenditures for the
disposition of land and any other expenditures or liabilities not included in the 2022 Budget are
subject to a limit of $500,000 per expenditure. It should also be noted that the proposed delegation of authority only comes into effect once a Lame Duck Period has been ascertained by the City Clerk and Council has been notified of same. The delegation of authority would end when the Council-elect is deemed to be organized at the November 21, 2022 Inaugural Meeting. Where no Lame Duck Period exists, the By-law would have no effect.
At the time of writing this report, the Town of Whitby and the Region of Durham already have lame duck delegation by-laws or policies in place, and Clarington, Oshawa, and Ajax are all considering the delegation of authority to their CAO’s should a Lame Duck Period come into effect in those municipalities for the 2022 Municipal Election. Several other municipalities in
the Greater Toronto Area and beyond had already enacted delegation By-laws prior to the
2018 municipal election, and these were all reviewed as part of the research undertaken for this Report.
Of the restricted acts outlined in Section 275 of the Act, only those acts in clauses c) and d) require the delegation of authority to the CAO. The following provides an overview of each of
the restricted acts and the provisions that will be needed should a Lame Duck Period be in
effect:
a)the appointment or removal from office of any officer of the municipality:
The appointment or removal from office of any officer of the municipality applies only tostatutory positions (Clerk, Fire Chief, Chief Building Official and Treasurer). Section 23.3(1)of the Act, prohibits the delegation of the power to appoint or remove from office an officer
of the municipality and therefore, this is not a restricted act that can be delegated. Should astatutory position be vacated during a Lame Duck Period, Council would be prohibited fromappointing an individual to such position. That said, the statutory positions of Clerk, FireChief, Chief Building Official, and the Treasurer, have Deputies already appointed to act intheir place should a vacancy occur.
b)the hiring or dismissal of any employee of the municipality:
Under By-law 7780/20, a By-law outlining the duties and responsibilities of the CAO, theCAO has the authority to hire and discharge all employees, except for the above-notedstatutory positions. As a consequence, no delegation of authority is required for thisrestricted act.
c)the disposition of any real or personal property of the municipality which has a valueexceeding $50,000 at the time of disposal:
Most dispositions of real or personal property require Council approval. Real estate
transactions sometimes arise throughout the year, and cannot all be anticipated when theannual budget is approved. It is therefore recommended the CAO be delegated authority toapprove such dispositions, on an as needed basis, with a limit of $500,000 per occurrence.Dispositions of real or personal property exceeding $500,000 will not be possible during theLame Duck Period.
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d)making any expenditures or incurring any other liability which exceeds $50,000:
Any expenditures that have not been approved in the 2022 Budget, and need to be
incurred during the Lame Duck Period, could not be approved by Council if the expenditureor liability exceeds $50,000. It is therefore recommended that the CAO be delegated theauthority to approve such transactions, on an as needed basis, with a limit of $500,000 peroccurrence. Some examples of unexpected expenditures could include, but are not limited
to:
i.approval of additional/overage costs associated with a construction project awardalready approved by Council;ii.the approval of a transfer of funds from reserves for project overages in accordancewith the Financial Control Policy, in conjunction with the Treasurer; or,
iii.unexpected expenditures of an urgent nature, such as due to a major storm event,
that have not been included in the 2022 Budget.
Staff recommend a limit of the delegated authority to $500,000 per expenditure/liability based on the delegation by-laws of several other municipalities. It should be noted, however, that some municipalities have chosen to give their CAOs unlimited delegated authority for Lame
Duck Periods.
The attached draft By-law contains a provision requiring the CAO to notify the current Council, on an ongoing basis, in writing, of any exercise of the delegated authority. The By-law also requires the CAO to report to the new Council within the first quarter of the first year of the new term, on all uses of the delegated authority.
Staff recommend that Council enact the attached By-law to facilitate ongoing operation and
administration of the City during a possible Lame Duck Period.
Attachments:
1.Draft By-law to authorize the delegation of authority to the CAO for certain acts during aLame Duck Period for the 2022 Municipal Election.
Prepared By: Approved/Endorsed By:
Susan Cassel Paul Bigioni City Clerk Director, Corporate Services & City Solicitor
Original Signed By:Original Signed By:
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Approved/Endorsed By:
Stan Karwowski Director, Finance & Treasurer
SC:sc
Recommended for the consideration
of Pickering City Council
Marisa Carpino, M.A. Chief Administrative Officer
Original Signed By:
Original Signed By:
The Corporation of the City of Pickering
By-law No. XXXX/22
Being a by-law to authorize the delegation of authority to the
Chief Administrative Officer for certain acts during a “Lame Duck Period” for the 2022 Municipal Election
Whereas Section 275 of the Municipal Act, 2001 S.O. 2001, c.25, as amended, (the “Act”), restricts Council from undertaking certain acts after either nomination day, or after the last
voting day, based on the criteria as set out in Section 275 of the Act, once it can be determined
that the new council will include less than three-quarters of the members of the outgoing council;
And Whereas, the period in which the acts of council are restricted (“Lame Duck Period”) ends on the day the Council-elect takes office and is deemed organized in accordance with the Act;
And Whereas, Section 275(6) of the Act provides that nothing in Section 275 prevents any
person or body exercising any authority of a municipality that is delegated to the person or body prior to Nomination Day for the election of the new council;
And Whereas, pursuant to Section 23.1 of the Act, a municipality is authorized to delegate its powers and duties under the Act or any other Act to a person or body, subject to the
restrictions set out in the Act;
And Whereas, to ensure the efficient and effective management of The Corporation of the City of Pickering (the “City”), during a Lame Duck Period, it is prudent that Council delegates certain authority to the Chief Administrative Officer for that period of time;
Now therefore the Council of The Corporation of the City of Pickering hereby enacts as follows:
1.The Chief Administrative Officer is hereby delegated Council’s authority, for the period
following Nomination Day, or Voting Day, in the year of the election when it has beendetermined that a Lame Duck Period is in effect, for approval of the following matters:
a.the disposition of any real or personal property of the municipality which has avalue exceeding $50,000 at the time of disposal, provided such disposition shall
not exceed $500,000 per occurrence;
b.in addition to the authority described in Section 1. a. above, making anyexpenditures or incurring any other liability that exceeds $50,000, except in thosecases where the liability was included in the most recent budget adopted byCouncil before Nomination Day, provided that such expenditure or liability shall
not exceed $500,000 per occurrence and the appropriate funds are available for
the expenditure which shall be determined by the Treasurer and CAO inaccordance with the Financial Control Policy;
2.The Chief Administrative Officer shall notify Council in writing, for their information, onan ongoing basis, of any exercise of delegated authority pursuant to this By-law;
Attachment #1 to Report CLK 03-22
By-law No. XXXX/22 Page 2
3. The Chief Administrative Officer shall provide an information report to the new Council, in the first quarter of the year following the election, setting out each use of delegated authority pursuant to this By-law; and,
4. The authority delegated pursuant to this By-law shall only be in effect during the Lame
Duck Period.
By-law passed this 24th day of May, 2022.
________________________________ David Ryan, Mayor
________________________________ Susan Cassel, City Clerk