October 12, 2011

Council muzzles the Mayor - is legal? A look at the legislation

Introduction

Hamilton City Council is putting the muzzle on Mayor Bob Bratina after nearly a year of unilateral decisions

Council voted, in committee yesterday, to muzzle the Mayor and require another Councillor present during any lobbying session with senior levels of government.

Full text of the motion:

23. Government Relations Contact Team

(a) That Hamilton City Council is committed to improving our best practices in government relations;

(b) That Council and the Fairness to Hamilton Campaign Committee shall maximize utilization of staff and elected officials with proven competencies in government relations;

(c) That Council shall meet annually in an in-camera Council workshop pursuant to Section 239(3.1) Ontario Municipal Act to educate, train and
improve the knowledge of elected officials and senior management in government relations best practices;

(d) That Council shall annually debate and approve a list of municipal priorities for discussions with both senior levels of government;

(e) That Council directs that all meetings, discussions or teleconferences with senior levels of government regarding items on the approved list of
municipal priorities shall be conducted by a Government Relations Contact Team which shall be restricted to the Mayor, Chair of the Fairness to
Hamilton Campaign Committee and the City Manager;

(f) That Council direct that all communications received by elected officials or city staff from any representative of a senior level of government regarding potential funding shall be copied to the Mayor, the Deputy Mayor, members of the Fairness to Hamilton Campaign Committee and the City Manager within 48 hours of receipt.

The Motion carried:

Yeas: Clark, Collins, Duvall, Farr, Jackson, Johnson, Merulla,Partridge, Pasuta, Whitehead
Nays: Bratina, Pearson, Powers
Absent: Ferguson, McHattie, Morelli

A vote to ratify the recommendation of Council sitting as committee will held tonight at Council.

Is the Motion legal?

To answer this question, we must refer to the laws governing the Mayor’s powers. We’ll start with the law creating the Mayor’s position and which Council cannot overturn:

The Ontario Municipal Act

The Act (online here) defines the powers of the “Head of Council” (nowhere in the Act is the term “mayor” used):

Role of head of council

225.  It is the role of the head of council,

(a) to act as chief executive officer of the municipality;
(b) to preside over council meetings so that its business can be carried out efficiently and effectively;
(c) to provide leadership to the council;
(c.1) without limiting clause (c), to provide information and recommendations to the council with respect to the role of council described in clauses 224 (d) and (d.1);
(d) to represent the municipality at official functions; and
(e) to carry out the duties of the head of council under this or any other Act. 2001, c. 25, s. 225; 2006, c. 32, Sched. A, s. 100.

Substitution

226.  A municipality may, with the consent of the head of council, appoint a member of council to act in the place of the head of council on any body, other than on the council of another municipality, of which the head of council is a member by virtue of being head of council. 2001, c. 25, s. 226.****

Head of council as chief executive officer

226.1  As chief executive officer of a municipality, the head of council shall,

(a) uphold and promote the purposes of the municipality;
(b) promote public involvement in the municipality’s activities;
(c) act as the representative of the municipality both within and outside the municipality, and promote the municipality locally, nationally and internationally; and
(d) participate in and foster activities that enhance the economic, social and environmental well-being of the municipality and its residents. 2006, c. 32, Sched. A, s. 101.

The Act does not give further direction for the role of the Mayor and does not prevent the kind of procedural direction that Council is passing in the motion guiding the Mayor’s lobbying activities. The motion does not say the Mayor cannot lobby for or represent the City, it says how he is to do so. As Council, and not the Mayor individually, are the municipality; the motion is allowed under the Municipal Act.

City of Hamilton Procedural Bylaw

The City of Hamilton’s Procedural Bylaw governs how Council exercises its powers and the role of the Mayor within the City. Council can amend the Bylaw, but only after a long process. The Mayor Bratina muzzle motion must meet the test of the current version of this bylaw.

ROLE OF THE MAYOR

The Mayor is responsible to act as the Head of Council, as detailed in the Municipal Act, 2001 providing leadership to other Members of Council.

(a) To act as the Council’s corporate representative when dealing with other government agencies and the private sector consistent with the vision and direction expressed by the Council of the day.

(b) The Mayor and the City Manager must work in close liaison as the pivotal link between the policy-making body of Council and the administrative organization of the City.

(c) The role of Mayor is considered as statutory and policy-related, to act as the Head of Council and to co-ordinate political representation on behalf of the City when required at meetings, receptions, functions, and community activities, and to direct administrative functions to the attention of the City Manager.

There is nothing in the Procedural Bylaw that grants the Mayor exclusive domain in the conduct of external affairs. The Bylaw states the Mayor is Council’s representative. Council can tell their representative how they will represent.

Conclusion

The motion is legal and within the powers of Council to adopt. The question is, will they stick to their motion or will there be a face-saving compromise?