This column by Douglas W. Judson was printed in the Kenora Miner and News on September 29, 2022. You can find it online here.
“Your job is to fight the staff.”
When I started my term as a councillor in Fort Frances, those were the words of wisdom from a friend who had served several terms in another municipality. Since my election in 2018, I have come to better understand their meaning.
With a month left to go in Ontario’s municipal election campaign, candidates will be busy selling voters on their ability to play nice with others. Municipalities act on mandates given by a majority vote of their council, and so, naturally, some level of cooperation is needed to get anything done.
But if the ideal council is a team, who are they playing against?
In a Parliamentary system, this is obvious: it’s the other parties. The opposition’s job is to hold the government accountable. We see this play out in Question Period every day. The members of cabinet represent the executive branch of government within the House of Commons and provincial legislatures. They must withstand the scrutiny of the opposition members. The government can only govern with the confidence of the legislature, failing which an election is usually called.
Likewise, many who are elected to municipal councils naively assume that their opponents are other councillors. But I am here to disabuse that notion. While councillors may disagree with one another on issues, the reality is that it is the municipal staff who are on the other team. Your job is to be a good “opposition” – to hold the administration accountable to the public and to bring perspective from the community to bear on the municipal government.
This is necessary because the staff of the municipality have no political accountability to your constituents. They also have their own interests from time to time – maybe in less work, higher budgets, or simply to resist change that will require new ways of doing things.
Your job, as a council member, isn’t to cheer-lead the staff, to make excuses for the staff, or to defend the staff from public scrutiny. Your job is to challenge (and sometimes, to inflict) the staff with a measure of public accountability. Like a Parliamentary government, a city manager or chief administrative officer who fails to maintain the confidence of council can be dismissed.
The problem savvy councillors soon discover is that these municipal “teams” are not playing with the same equipment. Staff have significant resource and informational advantages over councillors. They control the timing of information that comes to council, what options are presented, and how they are framed. Staff may provide advice to council that is self-serving, removes public oversight, or conveniently overlooks shortcomings in their own performance. Because administration only acts at the whims of a majority of council, staff can also refuse to provide even basic information to individual members of council to allow them to do their jobs.
Sometimes the staff can play favourites among their council too, and there is little a councillor can do about it without the backing of a majority of council. There is no point in taking your grievance to council if that majority is complicit or benefiting from the misconduct, illegality, or mismanagement in question – or, in many cases, would rather protect their friends. The Municipal Act is of no assistance here, as it only defines the role of council, and not the rights of individual council members. Your ability to demand accountability from staff can be easily hampered by political favouritism.
All this isn’t to say that municipal staff are bad actors or wish ill upon the community. But they have undeniable political interests in how the municipality functions, and they benefit from the limited rights of individual councillors. That’s why having appropriate accountability tools and policies in place when things are going well will protect the public when issues arise.
To address this imbalance, incoming councils would be wise to insist on adopting a number of policy measures to protect and define their role and rights early in the new term. The Municipal Act provides some frameworks for this, but it’s up to council to operationalize them. Here are 3 examples:
First, a wise council should consider reviewing the municipality’s statutorily-required council-staff relations policy and using it to codify the rights and entitlements of individual members of council. In particular, this should include rights for access to information and the process to request it. The policy should also have a mechanism for complaints and sanctions when staff are obstructing members or treating members unfairly.
Second, council should adopt by-laws to ensure that all members are automatically provided copies of general records of the municipality that are produced under any municipal freedom of information requests – without redaction. This is useful because, by default, councillors are not individually entitled to any more information than members of the public. Ensuing members are fully-informed of accountability issues in the municipality before they’re on the front page of the newspaper will loosen the control that staff have over the timing of council access to information. For obvious reasons, this requires that the municipality also codify confidentiality obligations for members of council.
Third, more councils should appoint a municipal ombudsman to investigate councillor complaints about senior staff. The Municipal Act allows the municipality to assign powers and duties to an ombudsman to independently investigate the administration of the municipality. This tool can be used to help members individually ensure that staff respect the role of council and the rights of individual members. Otherwise, it is often difficult for council (or its members) to push-back against staff objections to their wishes.
In general, most unelected municipal staff would likely prefer a docile council that rubber-stamps their agenda. For the same reasons already outlined, staff are often loath to advise council to do anything that could subject them to further scrutiny. But candidates run on robust platforms of service and change for their community. Without appropriate policies in place to empower individual members to advance those initiatives, they can be easily circumvented by the politics of the municipal bureaucracy.
A democratic government that provides no powers or rights to its individual elected officials is an impoverished one that is not meeting its potential for the public it serves.
Douglas W. Judson is a lawyer and community advocate based in Northwestern Ontario/Treaty #3 territory. Connect with him at info@douglasjudson.ca or @dwjudson.
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