How will Rossland resolve its governance mess...or will it?
Troubling questions arise out of the Auditor General’s report: Are Rossland’s management and procedural shortcomings limited to the seven capital projects examined? Have these problems infected the overall management and administration of the municipality?
The place to start looking for answers to these questions is the Delegation Bylaw (#2473). A citizen seeking to understand the impact of this bylaw needs to understand every word and its placement in this bylaw. For example, section 3 states that “Council hereby delegates to the Chief Administrative Officer all of the powers, duties and functions of Council …” Not some powers, not select duties, and not an occasional function, but all of them. In Rossland, everything the Community Charter allows a council to delegate has been delegated to the Chief Administrative Officer (CAO).
To appreciate the full impact of this wholesale delegation, take a look at the City of Rossland Officers Bylaw #2472. Schedule “A” of this bylaw lists 23 powers, duties and functions assigned to the CAO. For example, the CAO has unrestricted powers to:
- set the terms, conditions, benefits and remuneration for the employment of all department heads, supervisors, administrative assistants and all other non-contract employees;
- re-organize the City’s administrative structure;
- authorize lawyers to conduct any action or proceeding in any court of law or before any tribunal, arbitrator, board, or any person, for or on behalf of the City;
- authorize the use or budgeted purchase or sale of City facilities, equipment and services and authorize the awarding of contracts for budgeted items.
Having delegated all of this, what is left for Council to do, and where is its responsibility? The adaptation of bylaws is one power Council could not delegate. However, a bylaw cannot be more effectual than the quality, the adequacy, and the applicability of the information which form the basis for its measures. Put another way: garbage in – garbage out. As the Auditor General reported, bylaw powers notwithstanding, “the City remains vulnerable to a repeat of the problems that occurred in the projects we reviewed.”
The delegation and officers bylaws have reduced Council’s engagement in financial matters to the point of irrelevance. The information relied on by the Chief Financial Officer (CFO) in the development of budgets and financial plans reflect the staffing decisions and contracts negotiated and approved by the CAO. The Chief Financial Officer (CFO) provides advice on financial matters, including the preparation of budgets and financial plans, to the CAO, not to Council. By the time Council gets a first look at it, the bricks and mortar of the financial plan and budget are in place. Council is presented with a take-it-or-leave-it financial plan and budget because Council does not want to be bothered with the details involved in the City’s finances. Council never sees the plan’s components, it never examines alternatives, and never debates the merits of option A vs. option B. Council is left with the job of rubber-stamping the final step in the process, the adoption of the Financial Plan Bylaw. This is not because the CAO is withholding information or is acting in an underhanded manner, but because Council has delegated all that it could to the CAO. The CAO may seek Council’s direction on some aspects of the financial plan, but any such reference is at the discretion of the CAO, not the Council.
Municipalities are not permitted to run deficits. Whatever the revenue source – user fees, license fees, and property taxes in all their variants – the total of revenues to be collected is determined by expenditure decisions. The financial consequence of Rossland’s Delegation Bylaw and Officers Bylaw is that the CAO controls expenditures while Council secures the revenues needed to pay for it all. What is lost in the process is any pretense of accountability. The CAO is accountable to him/herself for municipal expenditures and Council is compelled by the Community Charter to raise the revenues needed to pay the bills.
Personnel matters provide another example. The Community Charter obliges municipal councils to appoint three officer positions: CAO, CFO, and Corporate Officer (CO). The powers of Rossland’s CAO are therefore limited to making recommendations to council on the appointment, promotion, demotion, suspension or termination of these three positions. However, here again Council has limited its involvement to a bare minimum, leaving matters concerning employment terms, conditions, benefits and remuneration to the CAO’s discretion. In other words, once Council has agreed to appoint X to an officer position, Council’s job is done. The CAO negotiates and decides the terms, conditions, benefits and remuneration pursuant to which X will be employed by the City of Rossland. As with the financial plan, it was the Council who decided that it did not want to be bothered with details concerning the remuneration and benefits for City of Rossland employees, from casual labour to CAO.
Municipal government entails more than revenues and expenditures. There are regional matters (e.g., recreation and sewage treatment) and land development matters (e.g., planning and zoning) to consider, to debate, and to decide. In view of the importance of such matters, how much time should or could a council dedicate to routine operational matters? What is wrong with Council delegating what powers, duties and functions the law allows it to delegate to its CAO to allow more time for Council to deal with other matters of importance to the community’s future?
. The Community Charter (s. 114) states that the powers, duties and functions of a municipality are to be exercised and performed by its council, and that council is the governing body of the municipality. Section 147 permits council to establish the position of CAO whose powers, duties, and functions are tomanage of the operations of the municipality and to ensure that the policies, programs and other directions of the council are implemented. The key word here is the reference to council. What is the purpose of s. 154 which allows for the delegation of council powers? With few exceptions, e.g., the City of Vancouver, the Community Charter applies to all British Columbia municipalities equally, from Surrey (population 468,251) to Zeballos (population 125). Some flexibility in the law is essential to allow for municipality-specific conditions and circumstances.
Rosslanders ought to make the effort and look up Surrey’s website: http://www.surrey.ca/search.aspx?q=delegation+bylaw. This website contains a long list of delegation bylaws adopted by the City of Surrey. Delegation Bylaw #16750, for example, delegates the authority to award four specific contracts and one specific request for proposals to the City Manager on the condition that:
· tenders are received in an open public tender;
· the award is to the lowest tender;
· the construction tender is no more than 10% over the Engineer’s pre-tender estimate.
Surrey did not adopt an omnibus bylaw to delegate all of its powers, duties, and functions as Rossland Council did. Surrey Council delegates case-specific and limited powers sparingly, from time to time, adopting a separate bylaw for each such case. Are council duties and responsibilities in Rossland so much more onerous and burdensome than what they are in Surrey?
The question for Rossland is what next? The Auditor General’s report is a devastating condemnation of the manner in which the municipality is administered. Council has publicly announced that it will review the Delegation Bylaw. What is Council waiting for? And what about the Officers Bylaw? If Council repeals these bylaws to restore appropriate responsibilities and accountability for both Council and the CAO in the administration of the municipality’s affairs, would that affect the CAO’s employment contract? How could Council justify the CAO’s salary and benefits if the CAO is relieved of the wholesale delegation of council powers, duties and functions? And if the CAO’s compensation package should be adjusted, would the compensation packages of other management positions also have to be reviewed to maintain proportionality?
Keep in mind that, among the delegated powers, is the power to obtain legal advice. If Council were to consider changes to the delegation and officers bylaws, is it likely that the CAO would seek legal advice on how changes to these bylaws could impact the CAO’s employment contract? The context of legal advice received would be framed by the CAO’s instructions to the lawyer. A conflict of interest? No. The CAO would be acting within the framework of delegated powers.
Was Council hoodwinked into adopting these two bylaws or was it negligent? Today that question is irrelevant. The reality today is that the municipality’s administration is a convoluted mess. It will take courage and determination to find a way out of it, and it will be expensive. Doing nothing is always an option, but doing nothing will cost money too. The decision facing Rossland citizens in the municipal election this year will not be taxes. Taxes will go up, rest assured. The decision will be to:
a) elect a council with the courage and determination to clean up accumulated mess, or
b) retain the status quo in which case it really does not matter for whom you vote.
Andre Carrel is a retired city administrator and full-time grandpal.