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HomeMy WebLinkAboutFCS-14-139 - Delegated Authority - Lame Duck Council Staff Report rTC.�r R finance and Corporate Services Department www.kitchener.ca REPORT TO: Finance & Corporate Services Committee DATE OF MEETING: August 11, 2014 SUBMITTED BY: C. Tarling, Director of Legislated Services/City Clerk, 519-741- 2200, ext. 7809 PREPARED BY: C. Tarling, Director of Legislated Services/City Clerk, 519-741- 2200, ext. 7809 WARD(S) INVOLVED: All DATE OF REPORT: July 23, 2014 REPORT NO.: FCS-14-139 SUBJECT: Delegated Authority— "Lame Duck" Council RECOMMENDATION: That, in the event the provisions of Section 275 of the Municipal Act, as amended, come into force and effect between Nomination Day and the end of the outgoing Council's term, the Chief Administrative Officer is granted authority to approve expenditures or other liabilities which are currently unbudgeted and with a value in excess of $50,000.00; and, That the Mayor and Clerk be authorized to execute Agreements that have been approved by the Chief Administrative Officer during this period, subject to the satisfaction of the City Solicitor; and further, That any approvals granted by the Chief Administrative Officer during this period be reported to Council for information at the earliest opportunity following the Inaugural Meeting of the new Council. BACKGROUND: Section 275 of the Municipal Act (the Act) sets out possible restrictions on a council, sometimes referred to as the "lame duck" provisions. There are two periods during which Council could be in "lame duck" status: • From Nomination Day to Election Day (first period); and • From Election Day to the end of the outgoing council's term (second period). The test for the first period is whether the new council will include less than three-quarters (75%) of the outgoing council. The test for the second period is whether the new council will be composed of 75% or more of the outgoing council. In the case of the City of Kitchener, 8 council members constitutes less than 75% ("lame duck") and 9 council members constitutes more than 75% (not"lame duck"). As soon as it can be determined in either period that it is mathematically impossible for three- quarters of the outgoing council to be re-elected, the restrictions set out in Section 275 of the Act apply. The restrictions only pertain to the following actions: (a) the appointment or removal from office of any officer of the municipality; (b) the hiring or dismissal of any employee of the municipality; (c) the disposition of any real or personal property of the municipality which has a value exceeding $50,000 at the time of disposal; and, (d) making any expenditure or incurring any other liability which exceeds $50,000. The expenditure restrictions in (c) and (d) apply only if the amounts were not included in the most recent budget adopted by council before Nomination Day. Sub-section 275(6) of the Act, provides that Section 275 does not prevent a person or body exercising any authority of the municipality that is delegated to the person or body prior to Nomination Day. REPORT: It has been determined that council will not be in "lame duck" status for the first period because a sufficient number of outgoing council members have filed nomination papers so there is the Possibility the new council could include 9 members of the outgoing council. If any outgoing member of council withdraws his/her nomination, however, "lame duck" status would be in effect as of Nomination Day. It is not possible to know, at this point, whether the new council will be composed of 75% or more of the outgoing council. The certainty of this will only be established after Election Day and so, it is unknown whether council will be in "lame duck" status in the second period, and thus, subject to the restrictions contained in Section 275 of the Act. The ability to delegate authority under Section 275 of the Act, though, must be made before Nomination Day. Unbudgeted Expenditures In order to be proactive and prudent, it recommended the Chief Administrative Officer (CAO) be delegated the authority to approve unbudgeted expenditures in excess of $50,000. This delegation has been made in previous election years and is done in order to ensure business continuity in the event an unforeseen expenditure is required for the good of the City. CUPE 791 and IBEW 636 are presently negotiating contracts with the City to replace contracts that expired earlier in 2014. In keeping with past practices, a special meeting of council will be called to deal with the ratification of a collective agreement when a tentative agreement is reached with each union and providing council is not in "lame duck" status. In anticipation that council could be in "lame duck" status when a timely decision is required concerning a recommended collective agreement, the delegation of authority to the CAO is understood to extend to the approval of any collective agreement as required and where conforming with a mandate established by Council prior to entering into the "lame duck" status. Disposition of Property The delegation of authority does not include the authority to approve the disposition of City property with a value exceeding $50,000 that is not part of the current budget as this will be dealt with in a separate report being brought forward by the City Solicitor. Appointment and Dismissal of Staff The Corporate Leadership Team by-law and other City policies establish the administrative authority for hiring and termination. No additional delegation is therefore required. ALIGNMENT WITH CITY OF KITCHENER STRATEGIC PLAN: Financial management and effective and efficient government — Approving the delegation of authority in the event of a "lame duck" status ensures good fiscal responsibility and the availability of funding to carry out City business. FINANCIAL IMPLICATIONS: Without the delegation of authority as per Section 275 of the Act, there will not be the ability to make any unbudgeted expenditure or incur any other liability which exceeds $50,000. COMMUNITY ENGAGEMENT: INFORM — This report has been posted to the City's website with the agenda in advance of the council / committee meeting. ACKNOWLEDGED BY: Dan Chapman, Deputy CAO