(Report dated May 19, 1998, addressed to the Special Committee to Review the Final Report of the Toronto Transition Team, from the City Solicitor and the City Clerk.)

Subject:Procedural By-law Amendments

Purpose:

The purpose of this report is to respond to the request of the Special Committee to Review the Final Report of Toronto Transition Team, that the City Solicitor and City Clerk report on a proposal of Councillor Faubert concerning the use of a "presiding member of Council", and report further on a reference to be made in the Procedural By-Law for unprovided cases.

Funding Sources, Financial Implications and Impact Statement:

This report has no financial implications.

Recommendations:

1.That the status quo, recognizing the Mayor as the Chair of Council and appointing a Deputy Mayor as provided for in the Municipal Act, be maintained and that references to Second Deputy Mayor and Third Deputy Mayor in the Procedural By-Law be deleted.

2.That the Standing Orders of the Legislative Assembly of Ontario be used in unprovided cases.

Council Reference/Background/History:

The Special Committee at its meeting held on April 24, 1998 had before it a joint report (April 22, 1998) from the City Solicitor and the City Clerk addressing a number of amendments proposed by members of Council to the Procedure By-law which were referred to the Special Committee for review by City Council at its meeting of January 2, 6, 8 and 9, 1998. At its meeting, the Special Committee requested that the City Solicitor and the City Clerk submit a report to its next meeting on a method of implementing a proposal by Councillor Faubert respecting the use of a "presiding member of Council" which would fulfil the legal requirements of the Municipal Act and allow for a single member of Council to be responsible for conducting meetings of Council. Additionally, the Committee requested the report to comment on the feasibility of each member of Council being given the opportunity of chairing meetings of Council on a rotating basis.

The Committee also requested the City Solicitor and City Clerk to report further on proposed references to be used in the event of matters unprovided for in the Procedural By-law, and in particular the merits of referencing either the Standing Orders of the Legislature or Robert's Rules or Order.

Comments and/or Discussion and/or Justification:

Regarding a "Presiding Member of Council"

Councillor Faubert, in a communication (April 20, 1998) to the Committee responded to Councillor Miller's memorandum seeking the opinion of members of Council regarding proposed amendments to the Procedural By-law. The proposal set out in Councillor Faubert's communication was directed to the City Solicitor and City Clerk for a report by the Special Committee.

Respecting use of a speaker, Councillor Faubert recommended that if existing legislation does not allow for the appointment of a Speaker, "then Council should immediately apply for a Legislative amendment, if Council concurs." Councillor Faubert states that: "I support the principle behind such proposal, but probably should not be a Speaker as this implies a parliamentary form of government, and municipal government is congressional in nature and form. The position should be a "President" of Council or alternatively, a "Chairman" of Council, elected by majority vote of Council." Councillor Faubert submits that the Chair should not be required to vote except in case of a tie vote and must leave the Chair to participate in debates, move motions, etc.

The concept of a speaker/presiding officer/chair of council is not uniformly interpreted by municipalities. The cities of Winnipeg and Montreal both employ a model of municipal government using a "speaker" model. In Winnipeg, the speaker is referred to as the presiding member and retains the right to vote. That model was detailed specifically in our earlier report. In Montreal the speaker is called the "meeting chairman" and can only vote in the case of a tie vote. The Montreal system most closely mirrors that of the Ontario Legislature respecting the role of the speaker. The Manitoba Municipal Act and the Cities and Towns Act of Quebec both establish the mayor as the presiding officer at Council, absent special legislation.

In the City of Chicago, which has fifty City councillors, the Mayor presides over meetings of Council. A "President pro-tem" is appointed from amongst the councillors, who is the acting head of council in the Mayor's absence. In New York City, which has fifty-one members of Council, a speaker model is used; a member of Council is elected "Council Speaker" from amongst the members of the party with the largest representation. The New York City structure is significantly different than our structure however in that it is based on a party politics, and the Speaker also holds the role of Majority Leader. Members of Council submit the equivalent of Notices of Motion to the Council Speaker's office for introduction into Council. As Majority Leader, he or she is responsible for obtaining consensus on major issues. The position of Minority Leader is then elected from members of the party with the next largest representation. A member of Council is also appointed Public Advocate and is responsible for chairing Council meetings. In the absence of the Public Advocate, the Council Speaker will chair the Council meeting, or appoint someone else to chair it.

As has been noted in our report dated April 22nd, section 57 of the Municipal Act provides that the head of Council shall preside at all meetings of the Council. Section 69 of the Municipal Act provides that the Mayor of a City is the head of the Council and the Chief Executive Officer of the corporation. Subsection 69(2) authorizes Council to appoint one of its members to act in the place of the Mayor as head of Council when the Mayor is absent or refuses to act, or the office is vacant and provides that while so acting, the member has all of the rights, powers and authority of the head of council.

Accordingly, while the Municipal Act does allow City Council to appoint a Deputy Mayor or another member of Council to act in the place and stead of the Mayor during his absence, the Municipal Act does not authorize City Council to appoint another member of Council to chair meetings of Council while the Mayor is present. There is no provision in the Municipal Act that would allow for the appointment of a single member of Council to be responsible for chairing meetings of Council while the Mayor is present at those meetings.

Presently, Council has appointed a Deputy Mayor to assist the Mayor and to act in the place and stead of the Mayor when the Mayor is absent as is set out in the Procedural By-law. Section 7 of the Procedural By-law also provides for the Mayor or the Deputy Mayor to designate another member of Council as acting Chair during any part of a meeting of Council where the Mayor or Deputy Mayor has left the chair for any reason. Together, these provisions ensure that Council can function without disruption in the absence of the Mayor or Deputy Mayor and allow other members the opportunity to preside as acting chair at Council meetings.

With respect to the feasibility of members of Council being given the opportunity of chairing meetings of Council on a rotating basis, again, this is not an option under our current legislative framework. When the Mayor is absent, as an alternative to a Deputy Mayor, Council could provide for the appointment of an "Acting Head of Council" to be rotated amongst several members. In the former City of Toronto for example, this role was rotated amongst the chairs of the various standing committees, each for a set term. The benefit of this system is that it helps to spread out the workload. A detriment of this system is that the additional work often is placed on those who already have heavier workloads i.e. as chairs of the Standing Committees. In the context of chairing meetings of Council, a further detriment is that a short term as acting head of Council might not be sufficient to allow the member to become fully adept at applying the rules of procedure in a Council of fifty-six members. This could result in further delays to interpret the rules, or if other members were to challenge the rulings of the chair.

One further option that might be available in this respect would be to use the mechanism in the Procedural By-law respecting meetings of the Committee of the Whole. Existing legislation does not require the Mayor to chair committee meetings. A member of Council other than the Mayor could therefore be given the responsibility of chairing meetings of Committee of the Whole. If Councillors exercised their rights to ask questions and debate matters in meetings of Committee of the Whole and agreed not to repeat the process again during City Council meetings, this could serve to reduce the considerable workload placed on the Mayor at City Council meetings and would significantly streamline Council meetings. This model was effectively used in the former City of North York. In considering this option Council should be aware that, if Council chose to adopt a procedural model premised on the understanding that substantial debate of items would occur at the Committee and not at the Council, the right to debate and question at Council could not be restricted in the Procedural By-law. There may be some difficulty in reaching consensus on such a procedure in a Council of this size. This could mean that items are open to debate before the full Council twice. It could also mean that given current time and workload pressures on Councillors, Councillors may choose not to attend meetings of the Committee of the Whole, knowing that matters will be debated at Council in any event. Administratively, it could also be difficult to devise a new schedule that would allow for regular meetings of a Committee of the Whole without expanding the time between Council meetings even further.

Unprovided Circumstances:

The Procedural by-laws of the former Metro Toronto and City of Toronto utilized the Standing Orders of the Legislative Assembly in unprovided circumstances while the former municipalities of East York, Scarborough and York referenced Robert's Rules of Order. The former cities of Etobicoke and North York did not address a source to be referred to in circumstances not provided for in their Procedural By-law. It should be noted that in all of these municipalities, as at present, procedural by-laws contained sufficient detail that it would be rare to need to refer to another source in any event.

The Procedural By-law for the new City of Toronto had recommended referencing the rules of the Ontario Legislature for unprovided circumstances for several reasons:

.These rules are quite familiar to staff, most Councillors and members of the public in the context of following proceedings on provincial legislation, including private municipal legislation.

.The provincial rules are drafted in a legislative style (brief, succinct points) and are organized so that they are easy to follow.

.The rules contemplate an impartial speaker, being the role filled by the Mayor in a municipality.

The American text, Robert's Rules of Order are designed for adoption by city councils, clubs, corporations and other bodies. While Robert's Rules would also provide a very complete reference, the concerns with these rules were as follows:

.The rules are all-purpose in nature and therefore contain a great deal of material that is not relevant to the functioning of a municipal council, including provisions for proxies, voting by mail, creation of a permanent society, provisions respecting organized conventions, provisions respecting the responsibilities of corporate officers, etc.

.Robert's Rules are organized in paragraph form making it often necessary to read several pages, whereas the Standing Orders of the Province are broken down in more concise legislative drafting form which is easier to read.

.Robert's Rules contain a detailed index that must be referenced and which includes a great deal of information unnecessary to municipal councils making it more difficult to reference relevant provisions.

As a result of the foregoing analysis, staff continue to support the use of the Standing Orders of the Legislative Assembly of Ontario as the reference in unprovided circumstances.

Conclusions:

This report further addresses the issues surrounding the proposal by Councillor Faubert to have a presiding officer chair council meetings, and expands on the reasons for recommending that the Standing Orders of the Legislative Assembly of Ontario be referred in unprovided circumstances.

Contact Name:

Mary Ellen Bench

Legal Department

392-7245

 Terry Fenton

Clerk's Department

778-2002