October 21, 1999

To: Administration Committee

From: City Clerk

Subject: Policy on Filling Vacancies on City Council

Purpose:

This report responds to a request from Council for staff to develop a policy on the methods to fill future vacancies on City Council.

Source of Funds:

Not applicable.

Recommendations:

It is recommended that:

(1) any vacancy in the office of the Mayor or a Councillor declared by Council prior to July 31 in the year prior to an election year be filled through the conduct of a by-election;

(2) any vacancy in the office of the Mayor or a Councillor declared by Council after July 31 in the year prior to an election year be filled through an appointment; and

(3) the recommended procedures for filling a vacancy through an appointment, as outlined in Appendix AA@, be adopted.

Council Background/Reference:

On July 27, 28, 29 and 30, 1999, City Council, in adopting Clause No. 1 of Report No. 3 of the Administration Committee [Filling of Council Vacancy - Scarborough Highland Creek (Ward 16)], approved the following recommendation:

AIt is further recommended that the City Clerk be requested to submit a report to the next meeting of City Council, scheduled to be held on September 28, 1999, through the Administration Committee, and not related to this particular by-election, on options to establish a policy and/or by-law to address methods of filling future vacancies on City Council, so as to provide that the filling of vacancies is not left to the discretion of Members of Council.@

Comments and/or Justification:

The Municipal Act contains certain provisions Council must follow when filling a vacancy on Council. Section 43 of the Act states that Awhere the seat of a member of council becomes vacant under section 38, the council shall forthwith declare the seat to be vacant@. Should Council neglect to make such a declaration, an elector may commence court action for a declaration that the office of a Member of Council has become vacant in accordance with the Municipal Act.

Generally, Council has two available options for filling a vacancy; through an appointment or through the conduct of a by-election. These options apply to vacancies in the offices of both the Mayor and Councillors. Council=s discretion is only restricted if the vacancy occurs after March 31 in the year of a regular election. In this instance, Council must fill the vacancy by way of an appointment within forty-five days of the vacancy occurring; a by-election may not be held. If the vacancy occurs less than forty-six days before nomination day in a regular election, the vacancy need not be filled.

The person appointed or elected to fill a vacancy shall hold office for the remainder of the term of the Member of Council.

1. Appointment

Section 45 of the Municipal Act permits Council, at a meeting called for that purpose, to fill a vacancy by appointing a person who has consented to accept the office and who is qualified to hold the office. To be qualified, a person must be:

(a) eighteen years of age or older;

(b) a Canadian citizen;

(c) a resident of the City of Toronto or the owner or tenant of land in the City of Toronto or the spouse of such an owner or tenant; and

(d) not disqualified under any Act from holding municipal office.

If the vacancy is in the office of mayor, in addition to the above noted qualifications, the person appointed must be a current Member of Council on the date of the appointment.

If more than one person is nominated for appointment, a vote of the Members of Council shall be taken by the Clerk. The person who receives the votes of more than one-half of the number of all Members of Council shall fill the vacancy.

The recommended procedures to be followed in appointing a person to fill a vacancy on Council are set out in Appendix AA@ attached hereto.

Advantages:

(1) less costly procedure than conducting a by-election (estimated $20,000 in advertising costs to seek persons interested in being appointed);

(2) process can be completed in a timely manner; and

(3) less labour intensive and less costly process from a staffing perspective.

Disadvantages:

(1) could be viewed as a less democratic process; and

(2) it could be perceived that Council was affording an advantage to the individual appointed should he or she decide to run in the next municipal election.

2. By-election

Section 46 of the Municipal Act permits Council to pass a by-law to provide that a vacancy on Council shall be filled by way of a by-election. The by-election shall be held in accordance with Section 65 of the Municipal Elections Act, 1996.

Under section 65 of the Municipal Elections Act, 1996, if Council determines that a by-election is to be held, the Clerk is responsible for setting the date of nomination day, which is to be a day not more than thirty days after the passing of the by-law indicating a by-election is required. Voting day shall be thirty-one days after nomination day. The by-election shall be conducted as far as possible in the same manner as a regular election.

As noted above, no by-election may be held to fill a vacancy that occurs after March 31 in the year of a regular election.

Advantages:

(1) best ensures a democratic process for constituents; and

(2) provides an opportunity for election staff to test new procedures and processes in advance of a regular election.

Disadvantages:

(1) more costly process than an appointment (a single member ward by-election is estimated to cost $85,000 plus $35,000 for a contribution rebate program);

(2) a by-election is a longer time process than an appointment; and

(3) more labour intensive and costly process from a staffing perspective.

Past Practices in Filling Vacancies:

In reviewing past practices in the former municipalities now making up the City of Toronto, staff researched Council vacancies back to 1984 and found a total of nineteen vacancies that were filled. Of these nineteen vacancies, eleven were filled by appointment and eight through by-elections.

Of the eleven appointments, nine were in a regular election year, six of which were after the mandatory March 31st date as provided by the Municipal Act. The remaining two appointments were made in the year preceding an election year. One was made in the month of June and the other in the month of October. In the subsequent municipal election six of the eleven ran for office.

Of the eight by-elections, none were in an election year. Four were held in the year preceding an election year. The remaining four by-elections were held in the year immediately following the previous municipal election. In the subsequent municipal election, seven of the eight ran for office.

During this first term of Toronto City Council, two by-elections have been conducted to date. The first (September 24, 1998) was mandated by Provincial legislation to give East York (Ward 1) a third Council Member. The second (September 23, 1999) was as a result of Council=s decision to hold a by-election to fill the recent vacancy in Scarborough Highland Creek (Ward 16).

Analysis:

Other than the cost differential, there are three major factors to be considered in deciding between an appointment and the conduct of a by-election to fill a vacancy.

(a) The Timing of the Vacancy

There is more merit in filling a vacancy through a by-election the earlier the vacancy occurs in the Council term. Conversely, the later the vacancy occurs, the more justification there is to appointing a person to fill the vacancy. The Provincial legislation recognizes this fact by stipulating that all vacancies after March 31 in an election year are to be filled through an appointment.

(b) Whether the Vacancy is for the Office of the Mayor or a Councillor

Some might argue there should be different rules in filling a vacancy in the office of the Mayor than a vacancy in the office of a Councillor. The only distinction the legislation makes in this regard is that if an appointment is to be made to fill the office of the Mayor, the person appointed must be a current Member of Council. This recognizes the fact the person would have been elected by at least some of the electorate (in Toronto=s case, this would be on a ward basis).

(c) The Wishes of the Constituents

Many constituents would argue they should always be given the opportunity to vote for a person to fill the vacancy, this is the essence of a democratic society. However, the voter turnout at by-elections is traditionally very low which would perhaps indicate voter apathy in the process. For example, in the two by-elections conducted during this term of Council, the voter turnout was 19 per cent for East York (Ward 1) and 18 per cent for Scarborough Highland Creek (Ward 16) as compared to a 45.65 per cent turnout in the 1997 general municipal election.

In addition, constituents, together with other potential candidates, may argue that Council is giving an unfair advantage to the person appointed should he or she decide to run in the next municipal election. As noted in the past practices of the former municipalities, six of the eleven appointees subsequently ran for office.

By providing Council with total discretion in the manner in which vacancies are to be filled (other than the restrictions during an election year), the Provincial Legislature recognizes that this is ultimately a political decision, there is not one general rule that will satisfy the particular circumstances of all vacancies.

In the development of this policy on the method of filling vacancies on Council, staff have attempted to balance democratic principles with Council=s stated desire for a policy which would remove its discretion in the manner in which vacancies are to be filled.

The term of Council begins on December 1 in the year of a regular election and ends thirty-six months later on November 30 in the year of a regular election. The Municipal Act requires vacancies occurring after March 31 in an election year to be filled through an appointment. This means that up to the end of the twenty-eighth month of the Council term, a vacancy can be filled by either a by-election or an appointment. The by-election process takes a maximum of 61 days (approximately two months) and, depending on the timing of the vacancy in terms of Council=s meeting schedule, up to two months could pass before Council would make a decision on how to fill the vacancy.

The date that Council declares the seat to be vacant would be the appropriate date to use for the purposes of a policy on whether to fill the vacancy through an appointment or the conduct of a by-election. Section 43 of the Municipal Act requires Council to Aforthwith@ declare the seat to be vacant. While forthwith is not a defined term in the Act, the generally accepted definition is Aimmediately@.

Staff recommend that any vacancy declared by Council prior to July 31 in the year prior to an election year shall be filled through a by-election. Any vacancy declared after July 31 in the year prior to an election year would be filled through an appointment.

July 31 was chosen as the dividing line date as Council does not meet in August and if Council were to decide at its September meeting to have a by-election, it could not be held until near the end of November which is only four months away from the March 31 cut-off date. Council changes the membership of its Committees after eighteen months, being the halfway mark of the term. It is not recommended that this date be used as it might result in a by-election being conducted during the summer months should Council declare the vacancy immediately prior to the cut-off date. Summer by-elections should be avoided as many electors would be on vacation and therefore unavailable to vote.

Staff recommend that this policy apply in the case of vacancies in both the Mayor=s office and the Councillor=s office.

Conclusion:

Staff are recommending that vacancies in the office of a Member of Council declared by Council prior to July 31 in the year prior to an election year be filled through a by-election. Vacancies occurring after this date would be filled through an appointment.

Council is also requested to approve the recommended procedures for filling a vacancy through an appointment as outlined in Appendix AA@.

Contact Name:

John Hollins, Director of Elections

Telephone No.: 392-8019

E-mail: jhollins@city.north-york.on.ca

Novina Wong

City Clerk

APPENDIX AA@

Procedures for Filling a Councillor=s Vacancy Through an Appointment

1. Council shall declare the seat of the Member of Council to be vacant at the next regularly scheduled Council meeting following the occurrence of the vacancy or at a special Council meeting called by the Mayor or requested in writing by a majority of all Members of Council.

2. Advertisements shall be placed in the four major daily newspapers and in the local newspaper serving the applicable ward. The advertisements shall indicate Council=s intention to appoint a person to the vacancy and outline the process one must follow to become nominated. In addition, notice will be sent to all ratepayers= groups, tenant associations, condominium associations and other individuals in the City who request notice.

3. Information sessions shall be conducted by staff. All interested persons must attend one of these sessions and complete a Consent of Nominee form and a Statement of Qualification.

4. The vote shall occur at a Council Meeting called for that purpose.

5. The meeting shall be called to order by the Mayor or the Presiding Officer at the designated time.

6. The Mayor or Presiding Officer shall make a short statement of the purpose of the meeting and the general order of proceedings to be followed.

7. The Clerk will provide to the Mayor or Presiding Officer a list of the names of those candidates who have completed the Consent of Nominee and Statement of Qualification and the Mayor or Presiding Officer will call for a motion from Council in the following form:

AMoved by...

Seconded by...

THAT the following persons, who have signified in writing that they are legally qualified to hold the office of Councillor and consented to accept the office if they are appointed to fill the vacancy of Councillor, shall be considered for appointment to fill such vacancy.@

8. Each of the candidates shall be afforded the opportunity to address Council for a period of not more than five minutes. The order of speaking will be determined by lot. (The Clerk shall place the names of all candidates in a container and randomly draw the names.)

9. Each Member of Council will be allowed no more than one question to each candidate.

10. Upon hearing all the submissions of the candidates, Council will proceed to vote as follows:

(a) Members of Council will vote by way of ballot;

(b) following the procedure set out in subsection 45(4) of the Municipal Act, where the candidate receiving the greatest number of votes cast does not receive more than one-half the votes of all Members of Council, the candidate or candidates who received the fewest number of votes shall be excluded from the voting and the vote will be taken again by the Clerk and, if necessary, more than once, excluding in each successive vote the candidate or candidates who receive the fewest number of votes in the preceding vote, until the candidate receiving the greatest number of votes has also received more than one-half of the votes of the Members of Council present and voting;

(c) where the votes cast are equal for all the candidates:

(i) if there are three or more candidates remaining, the Clerk shall by lot select one such candidate to be excluded from the subsequent voting;

(ii) if only two candidates remain, the tie shall be broken and the vacancy shall be filled by the candidate selected by lot conducted by the Clerk;

(iii) Alot@ means the method of determining the candidate to be excluded or the candidate to fill the vacancy, as the case may be, by placing the names of the candidates on equal size pieces of paper placed in a container and one name being drawn by a person chosen by the Clerk.

11. Upon conclusion of the voting, the Clerk will declare to be elected the candidate receiving the votes of more than one-half of the number of the Members of Council present and voting.

12. A by-law confirming the appointment shall be enacted by Council appointing the successful candidate to the office for the remainder of the term of the present Council.

Procedures for Filling a Mayor=s Vacancy Through an Appointment

1. Council shall declare the seat of the Mayor to be vacant at the next regularly scheduled Council meeting following the occurrence of the vacancy or at a special Council meeting requested in writing by a majority of all Members of Council.

2. The vote shall occur at a Council Meeting called for that purpose.

3. Any Member of Council wishing to be considered for appointment to the vacancy shall advise the Clerk in writing by 12:00 noon, five business days prior to the meeting.

4. The meeting shall be called to order by the Presiding Officer at the designated time.

5. The Presiding Officer shall make a short statement of the purpose of the meeting and the general order of proceedings to be followed.

6. The Clerk will provide to the Presiding Officer a list of the names of those Members of Council who have indicated in writing their interest in being appointed to the vacancy and the Presiding Officer will call for a motion from Council in the following form:

AMoved by...

Seconded by...

THAT the following persons, who have signified in writing their interest in being appointed to the office of Mayor, shall be considered for appointment to fill such vacancy.@

7. Each of the candidate Members of Council shall be afforded the opportunity to address Council for a period of not more than five minutes. The order of speaking will be determined by lot. (The Clerk shall place the names of all candidates in a container and randomly draw the names.)

8. Each Member of Council will be allowed no more than one question to each candidate.

9. Upon hearing all the submissions of the candidates, Council will proceed to vote as follows:

(a) Members of Council will vote by way of ballot;

(b) following the procedure set out in subsection 45(4) of the Municipal Act, where the candidate receiving the greatest number of votes cast does not receive more than one-half the votes of all Members of Council, the candidate or candidates who received the fewest number of votes shall be excluded from the voting and the vote will be taken again by the Clerk and, if necessary, more than once, excluding in each successive vote the candidate or candidates who receive the fewest number of votes in the preceding vote, until the candidate receiving the greatest number of votes has also received more than one-half of the votes of the Members of Council present and voting;

(c) where the votes cast are equal for all the candidates:

(i) if there are three or more candidates remaining, the Clerk shall by lot select one such candidate to be excluded from the subsequent voting;

(ii) if only two candidates remain, the tie shall be broken and the vacancy shall be filled by the candidate selected by lot conducted by the Clerk;

(iii) Alot@ means the method of determining the candidate to be excluded or the candidate to fill the vacancy, as the case may be, by placing the names of the candidates on equal size pieces of paper placed in a container and one name being drawn by a person chosen by the Clerk.

10. Upon conclusion of the voting, the Clerk will declare to be elected the candidate receiving the votes of more than one-half of the number of the Members of Council present and voting.

11. A by-law confirming the appointment shall be enacted by Council appointing the successful candidate to the office for the remainder of the term of the present Council.