STAFF REPORT

November 17, 1999

To: Administration Committee

From: H.W.O. Doyle, City Solicitor

Subject: Appointment of Persons to Fill a Council Vacancy

Purpose:

The purpose of this report is to respond to the Committee's request for a report on issues concerning the appointment of persons to fill a Council vacancy, the Clerk's report on a policy for filling vacancies on City Council, and to address the eligibility of persons to hold the office of City councillor who have been charged or convicted of a criminal offence, including municipal corruption.

Funding Implications and Impact Statement:

There are no financial implications resulting from the adoption of this report.

Recommendations:

It is recommended that this report be received for information.

Background:

At its meeting held on November 2, 1999 the Administration Committee requested that the City Solicitor report to its next meeting on a motion that anyone appointed by Council be requested to indicate, in writing, that they will not run for election in the next election. The Committee also referred a motion recommending adoption of the policy on filling vacancies on City Council to the City Solicitor for a report. Finally, the Committee requested that the City Solicitor submit a report on the eligibility of a person becoming a City Councillor who has been charged or convicted of a criminal offence including municipal corruption.

Comments:

Section 45 of the Municipal Act authorizes City Council to fill a vacancy in the office of a member of the Council by appointing a person who has consented to accept the office if he or she is appointed to fill the vacancy, except where the vacancy occurs after March 31 in the year of a regular election. There is no legislative authority for Council to require a person to agree not to run for election in the next election as a condition to being nominated or appointed to fill a vacancy. Consequently, if Council were to make such a request, it would not be legally binding and would not prevent the person appointed from running for election in the next election.

The City Clerk's report of October 21, 1999, recommending Council adopt a policy regarding when Council vacancies should be filled by appointment and when they should be filled by by-election has also been referred to me. The City Clerk report sets out the applicable legislative provisions and the advantages and disadvantages of appointment and of holding by-elections. It responds to City Council's request that the City Clerk report "on the 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." Legally, Council cannot fetter its discretion to determine whether to appoint or hold a by-election to fill a vacancy. The City Clerk's report recommends a policy that could be used by City Council in determining when to fill a vacancy through appointment and when a by-election is most appropriate. Legaly, Councill must consider the merits of filling a vacancy on City Council by appointment or through a by-election as each situation arises. Consequently, if adopted, a policy could be used as a guideline by City Council in making such decisions when these situations arise, but it would not be binding.

Regarding the eligibility of a person becoming a City Councillor who has been charged or convicted of a criminal offence including municipal corruption, subsection 29(1) of the Municipal Elections Act provides that a person may be nominated for the office of City Councillor only if the person is qualified to hold office under the Municipal Act and, is not ineligible under the Municipal Elections Act or any other Act, or otherwise prohibited by law to be nominated for or to hold office. A person who is entitled to be an elector in the local municipality is qualified to hold office under the Municipal Act unless otherwise disqualified. Grounds for disqualification are set out in section 37 of the Municipal Act and section 17 of the Municipal Elections Act, 1996. When read together, the legislation disqualifies a person from running for the office of City Councillor in the following circumstances:

(i) a person who does not own or rent (either directly or through a spouse), or reside in the City;

(ii) a person who is not a Canadian citizen;

(iii) a person who is under 18 years old;

(iv) a person who is serving a sentence of imprisonment in a penal or correctional institution;

(v) a person who was convicted of the corrupt practice described in subsection 90(3) of the Municipal Elections Act, 1996 if voting day in the current election is less than 4 years after the voting day in the election in respect of the year in which the person was convicted.

These offences relate to the giving or accepting, or promising or agreeing to give or accept consideration in connection with the exercise or non-exercise of an electors vote.

(vi) a person who continues to be an employee of the City or of a local board of the City;

(vii) a person who remains a judge of any court;

(viii) a person who remains a Member of Provincial Parliament, a Member of Parliament or a Senator;

(ix) a Crown employee who is a Deputy Minister or who is in a position or classification designated by regulation.

Consequently, there are no grounds by which a person would be prohibited from running for municipal office because of being charged or convicted of a criminal offence including municipal corruption unless the conviction relates to influencing voters within the time-frame referenced above, that person was still incarcerated or was otherwise prohibited based on the grounds set out above.

Conclusions:

If Council were to request a person appointed to fill a Council vacancy to indicate in writing that they will not run for election in the next election, this request would not be legally enforceable. If Council adopts a policy on when to fill future vacancies on City Council by appointment or through a by-election, the policy would not be legally binding on City Council, who would continue to oconsider these matters as they arise, but it would act as a guideline. Section 37 of the Municipal Act and section 17 of the Municipal Elections Act, 1996 set out the grounds that could disqualify a person from running for municipal office. These grounds do not make a person ineligible from becoming a City Councillor because of being charged or convicted of a criminal offence including municipal corruption, other than offences related to influencing voters.

Conttact:

Mary Ellen Bench

Director, Municipal Law

Phone: 392-7245

Fax: 392-1017

H.W.O. Doyle

City Solicitor