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4. DELEGATION OF POWERS POLICY
POLITIQUE SUR LA
DÉLÉGATION DE POUVOIRS
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Committee Recommendation
That Council
approve the Delegation of Powers Policy attached in Document 1.
Recommandation du comité
Que le Conseil approuve la Politique
sur la délégation de pouvoirs ci‑jointe dans le Document 1.
Documentation
1. City Clerk’s and City Solicitor’s joint
report dated 9 November 2007 (ACS2007-CMR-CCB-0022).
Report
to/Rapport au :
Corporate Services and Economic Development Committee
Comité des services organisationnels
et du développement économique
and Council / et au Conseil
13 November 2007 /
le 13 novembre 2007
Submitted by/Soumis par : Pierre Pagé, City Clerk/Greffier municipal
and
M.
Rick O'Connor, City Solicitor/Procureur de la ville
Contact
Person/Personne ressource : Leslie Donnelly, Deputy City Clerk/ Greffière adjointe
City Clerk’s Branch/Direction du greffe
(613) 580-2424 x28857,
Leslie.Donnelly@ottawa.ca
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Ref
N°: ACS2007-CMR-CCB-0022
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SUBJECT:
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DELGATION OF POWERS POLICY
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OBJET :
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Politique
sur la délégation de pouvoirs
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REPORT RECOMMENDATION
That the Corporate Services and Economic Committee
recommend Council approve the Delegation of Powers Policy attached in Document
1.
RECOMMANDATION DU
RAPPORT
Que le
Comité des services organisationnels et du développement économique recommande
au Conseil d’approuver la Politique sur la délégation de pouvoirs ci‑jointe
dans le Document 1.
EXECUTIVE SUMMARY
Assumptions and Analysis:
Bill 130, the Municipal
Statute Law Amendment Act, 2006 made numerous amendments to the Municipal
Act, 2001. The Bill provides
municipalities with greater powers, autonomy and authority to delegate its
powers, and these are balanced with increased accountability and transparency
measures. As one of the new
accountability and transparency measures, Bill 130 lists a number of policies
municipalities must adopt and maintain, and this section (Section 270) has been
proclaimed to come into effect on January 1, 2008. While the City of Ottawa already has four of the mandated
policies (Sale of Land; Hiring of Employees; Procurement of Goods and Services;
and Public Notice), it also needs a policy addressing “the delegation of its
powers and duties”.
The City of Ottawa’s current
delegation of powers is set out under the Delegation of Authority By-law, the
Purchasing By-law and the Standing Committee Terms of Reference. This delegation is reflective of the limited
ability municipalities have had to delegate powers under previous versions of
the Municipal Act. In order to
meet the provincial deadline of December 31, 2007, staff has prepared a draft
policy, which includes over-arching principles that capture the City’s approach
to the delegation of powers and identifies the current by-laws and policies
that define the parameters of delegation.
While both the Delegation of Authority By-law and the Purchasing By-law
have reporting mechanisms attached to them, the draft policy also recognizes
and incorporates the notion that all new delegation of powers or authorities
will have corresponding accountability measures attached to the delegation.
As indicated, under Bill 130,
municipalities are provided increased authority to delegate powers and duties,
subject to some restrictions. Given the
depth and breadth of the enhanced ability to delegate powers and duties, staff
intends to undertake a comprehensive review of the potential options for
increased delegation as part of the Mid-term Governance Review and bring
forward an integrated package in 2008.
Financial Implications:
There are no financial
implications associated with approving this report.
RÉSUMÉ
Hypothèses et analyse :
La Loi
130, Loi de 2006 modifiant des lois concernant les municipalités, a
apporté de nombreuses modifications à la Loi de 2001 sur les municipalités.
La nouvelle loi dote les municipalités de pouvoirs, notamment d’un pouvoir de
délégation d’autorité, et d’une autonomie plus larges, contrebalancés par des
mesures de responsabilisation et de transparence accrues. Ainsi, la Loi 130 dresse une liste de
politiques que les municipalités doivent adopter et appliquer. L’article en
cause (article 270) doit entrer en vigueur le 1er janvier 2008.
Alors que la Ville d’Ottawa possède déjà quatre des politiques exigées (vente
de biens-fonds; engagement d’employés; approvisionnement en biens et en
services; et avis public), il lui faut aussi se doter d’une politique traitant
de la « délégation de ses pouvoirs et fonctions ».
Le mode de délégation de pouvoirs à la Ville
d’Ottawa est défini dans le Règlement municipal sur la délégation de pouvoirs,
le Règlement municipal sur les achats et les cadres de référence des comités
permanents. Ce mode de délégation de pouvoirs reflète la capacité limitée de
déléguer des pouvoirs que les versions précédentes de la Loi sur les municipalités accordaient aux municipalités. Afin de
respecter l’échéancier provincial du 31 décembre 2007, les employés ont élaboré
un projet de politique qui tient compte des principes généraux sous-tendant la
démarche adoptée par la Ville à l’égard de la délégation de pouvoirs et qui
énumère les politiques et règlements municipaux définissant les paramètres de
la délégation à l’heure actuelle. Bien que le Règlement municipal sur la
délégation de pouvoirs et le Règlement municipal sur les achats s’accompagnent
tous les deux d’un mécanisme de production de rapports, le projet de politique
reconnaît et intègre également la notion selon laquelle toute nouvelle
délégation de pouvoirs ou d’autorité sera assortie de mesures de
responsabilisation.
Comme il a été mentionné, la Loi 130 accroît la
capacité des municipalités de déléguer des pouvoirs et fonctions, moyennant
certaines restrictions. Vu l’ampleur et
la portée de cette capacité nouvelle, le personnel compte procéder à un examen
approfondi des possibilités d’augmenter le nombre de pouvoirs délégués dans le
cadre de l’examen de mi-mandat de la structure de gestion publique et soumettre
une proposition complète à ce sujet en 2008.
Répercussions financières :
L’adoption de ce rapport n’entraîne aucune
répercussion financière.
BACKGROUND
Bill 130, the Municipal
Statute Law Amendment Act, 2006, came into effect, with some minor exceptions,
on January 1st, 2007. This
omnibus bill included nearly 200 pages of revisions to the Municipal Act,
2001, and provided Ontario’s 444 municipalities with broad powers and often
the discretion to determine which powers it will use to meet its own specific
needs. This greater authority is
balanced with increased accountability and transparency tools for
municipalities.
As Bill 130 revisions are quite
significant, municipalities across Ontario are just beginning to understand the
potential for improved governance and service delivery that now exist. Ottawa City Council received its first
report in October 2006, entitled “Bill 130 – Municipal Statute Law Amendment
Act”, which outlined some of the significant amendments of the Act and staff
were directed to “provide the 2006-2010 Council with an update on amendments to
Bill 130 in order to enable Council, upon its enactment, to determine its
strategic priorities arising from same”.
Council was then provided with a series of White Papers on Bill 130
amendments during the Council Strategic Planning Sessions in May 2007. Based on recommendations and feedback from
these sessions, staff is bringing forward various reports to implement the
mandatory provisions in Bill 130 as well as consider the discretionary options
City Council may wish to pursue.
Given the depth and breadth of
the potential changes the City of Ottawa might undertake in the area of
governance, particularly with respect to the new Bill 130 tools to enhance
accountability and transparency and the enhanced ability to adjust the
delegation of powers, staff intend to undertake a comprehensive review of these
tools as part of the Mid-term Governance Review and bring forward an integrated
package in 2008 following extensive consultations.
With that, however, the revised Municipal
Act, 2001 requires the City of Ottawa (and all municipalities) to establish
a number of policies by December 31, 2007.
At the present, City Council has already adopted the following four
statutory policies:
- Sale of Land;
- Hiring of Employees;
- Procurement of Goods and Services; and
- Public Notice.
The additional policies that must be adopted are:
- The manner in which the municipality will try to
ensure that it is accountable to the public for its actions and that its
actions are transparent to the public; and
- The delegation of its powers and duties.
Another issue the municipality must resolve is that of the
appointment of a Meetings Investigator.
Section 239.1 of the revised Municipal Act, 2001 enables any
person to “request that an investigation of whether a municipality or local
board has complied with” either the statutory requirements for closed meetings
or a procedure by-law. This
investigation is to be undertaken by either:
- An independent and impartial investigator appointed
by the municipality; or
- The provincial Ombudsman under the Ombudsman Act, if
a municipality has not appointed its own investigator.
The revised Municipal Act,
2001 also requires that public notice for Council and Standing Committee
meetings be enshrined within the municipality’s Procedure By-law, and
not just in the Notice By-law.
As well, City Council has directed staff to look at
establishing a Code of Conduct for elected officials as one of the City
Strategic Directions approved in July 2007.
Reports on these items are being brought before City Council in advance
of the Mid-term Governance Review to meet the legislated timelines where
required. They are being brought
forward together, as they are related.
This report recommends a
Delegation of Powers Policy for the City of Ottawa.
DISCUSSION
Section 270 of the Municipal
Act, 2001 as amended by Bill 130, requires that the City of Ottawa adopt
and maintain a policy with respect to “the delegation of its powers and duties”
for January 1, 2008. Presently, the
City has in place a Delegation of Authority By-law and Purchasing By-law, which
outline different levels of authority that have been delegated to various
officers of the City. In order to
comply with the provisions of Section 270, staff has prepared a policy
reflecting the principles of the existing by-laws. Further examination of Council’s ability to delegate its powers
and duties will be conducted as part of the 2008 Mid-term Governance Review.
It should be noted that while a
Delegation of Powers policy is a requirement under the Municipal Act, 2001
as amended by Bill 130, some municipalities have opted to forgo the development
of a specific policy and consider policies and practices that are already in
place as compliance with the legislation.
This is true for the City of Toronto and the City of Waterloo who will
be dealing with delegation of powers and duties on a “case by case basis”.
Current Delegation Practices
The City’s current delegation of
authority is based on the previously constrained authority to delegate in the Municipal
Act, 2001. When enacted in 2003,
the Municipal Act, 2001 provided a “perceived” increased authority to
delegate from the former Municipal Act under the new natural person
powers to delegate administrative responsibilities to committees, staff members
or other bodies. However, limitations
placed on the natural person powers resulted in a similar level of authority
available under the former Municipal Act.
The City of Ottawa currently
delegates authority by way of two by-laws and the Standing Committee Terms of
Reference. First established in 2001,
the Delegation of Authority By-law and the Purchasing By-law were drafted by
consolidating existing delegation of authority powers, particularly from the
larger area municipalities and in the former Region of Ottawa-Carleton, and
applied across the area of the new City.
They have been revised as needed, with the Delegation of Authority
By-law being reviewed as part of each governance review.
The matters within the Delegation
of Authority By-law and the Purchasing By-law are primarily administrative and
include authorities to enter into service agreements, designating fire routes,
determining cost-sharing arrangements for utility relocation costs and
approving employee administrative policies.
Staff also has the authority to approve spending within their respective
budget envelopes with the value limits for the approvals being assigned
according to level of responsibility in the organization. City Council receives quarterly and annual
reports on a number of aspects of both the Delegation of Authority By-law and
the Purchasing By-law.
Delegation of Authority By-law
The Delegation of Authority
By-law sets out the delegation of authority to various officers of the
City. General provisions are provided
in the main part of the by-law and specific delegations are detailed in
attached schedules to the by-law. The
general provisions cover the City Manager’s authority to further delegate any
powers, duties or functions under his delegation and Council’s authority to
impose terms and conditions upon any delegation as they see fit, including the
power to rescind a delegation.
Reporting of the exercise of delegated authority is provided to the
appropriate Standing Committee on a quarterly basis, as a minimum, unless
expressly specified in the by-law.
Specifically, the Delegation of Authority By-law requires the following
reporting out:
·
Approval of any purchase of service agreement,
including any construction or consultants contract, where the amount to be
expenditure exceeds $50,000;
·
Transfer of Budget Funds of more than $50,000 shall be
reported to each Standing Committee to which the recipient branch reports;
·
Real Estate Transactions;
·
Claim Settlements where the amount exceeds $100,000;
·
Loans under the Housing Branch; and
·
Approvals/revisions to approvals by officials within
the Planning, Transit and the Environment Department.
Purchasing By-law
The Purchasing By-law outlines
the parameters of purchasing goods, services and construction for the City of
Ottawa. The by-law’s objective is to
obtain the best value when purchasing goods, construction and services while
treating all suppliers equitably. Under
the by-law, purchases shall be made using a competitive process that is open,
transparent and fair to all suppliers.
Reporting to Council occurs on a quarterly basis and provides details
relevant to the exercise of delegated authority for all contracts awarded by
Directors exceeding $25,000. Where a supplier
has been awarded a cumulative total value of $100,000 or more, all contracts to
the supplier are included in an annual information report to Council.
Standing Committee Terms of Reference
Under the various Standing
Committee Terms of Reference, Council has delegated some of its decision-making
to the appropriate Committee. For
instance, the Corporate Services and Economic Development Committee has the
delegated authority to set the collective bargaining mandate while the Planning
and Environment Committee and the Agriculture and Rural Affairs Committee have
the delegated authority to approve Plans of Subdivision.
Principles of Delegation
In preparing a policy on
delegation of powers and duties, staff has developed a number of over-arching
principles reflective of current delegation of authority as well as recent
positions Council has taken on delegation through its Strategic Priority
Setting process.
City Council supports the
delegation of powers and duties to provide efficient management of municipal
operations and to respond to matters in a timely fashion according to the
following principles:
- All
delegation of powers and duties shall be set out in the Delegation of
Authority By-law and reviewed every term of Council.
- Unless
expressly delegated by Council through the Delegation of Authority by-law,
all powers and duties of Council remain with Council.
- All
delegation of powers and duties may be revoked at any time without notice.
- No
delegation of powers and duties shall exceed the term of Council.
- Every
delegation of a power or duty of Council shall be accompanied by a
corresponding accountability and transparency mechanism.
- A
delegation of a power or duty under any by-law to any member of staff is
also a delegation to a person appointed as the City Manager to act in the
capacity of the delegate in their absence.
In exercising any delegated authority, the delegate shall
ensure the following:
- Any
expenditure related to the matter shall have been provided for in the
current year’s budget;
- The
scope of the delegated authority shall not be exceeded by the delegate;
- The
consistent and equitable application of Council policies and procedures;
and
- Where
required by the specific delegated authority, reports shall be submitted
to Council advising of the exercise of a delegated authority and
confirming compliance with the delegated authority and this policy.
Delegation of Powers & Duties under Bill 130
Prior
to Bill 130, the Municipal Act, 2001 contained few provisions
that expressly addressed the extent to which a council could delegate its
authorities to other bodies or offices.
In the revised Municipal Act, 2001, Sections 23.1 through to 23.5
of Bill 130, broaden the ability of municipal councils to delegate authority to
committees, staff, and others subject to certain restrictions (i.e. the
delegated authority cannot be made irrevocable beyond the term of
council). Despite the enhanced
authority to delegate, the Municipal Act, 2001 does include some
restrictions to the ability to delegate and identifies specific powers and
duties that a municipality would not be able to delegate including zoning
bylaws and imposing taxes.
Specifically,
Section 23.2 outlines the authority for municipalities to delegate legislative
and quasi-judicial powers only to:
(a)
one or more members of its council or a council committee;
(b)
a body having at least two members of whom at least 50 percent
are
(i)
members of its council;
(ii)
individuals appointed by its council;
(iii)
a combination of individuals described in subclauses (i) and (ii);
or
(c) an individual who
is an officer, employee or agent of the municipality.
With respect to the limitations
on what cannot be delegated, Section 23.3 (1) expressly prohibits the
delegation of the following powers and duties:
·
the adoption or amendment of the budget;
·
the setting of taxes, user fees, tax rates and ratios;
·
the power to appoint or remove statutory officers;
·
the power to incorporate municipal corporations;
·
the power to adopt or amend its Official Plan; or
·
the approval of Community Design Plans or a zoning
by-law.
In response to the potential for
increased delegation of powers and duties, City Council identified the
following strategic direction with respect to delegating powers and duties:
Increase the appropriate delegation of authority to
Standing Committees, ward Councillors and staff to improve Council’s ability to
provide strategic direction and reduce transactional approvals.
Staff has committed to try and streamline
Council decision-making process by investigating appropriate levels of
delegation of powers and duties accompanied by appropriate accountability and
transparency mechanisms. However,
because the increased ability to delegate is quite broad, the issues around
using the new Bill 130 delegation tools requires a thorough examination and a
great deal of consultation with Members of Council, staff, and the public. Staff will conduct a review of potential
delegations in conjunction with the Mid-term Governance Review, as the City has
an integrated governance structure and there is the potential for any single
change in delegation to have a cascading effect in any number of other policies
and procedures.
CONSULTATION
Given the administrative nature
of the recommendations, public consultation was not required for this report. Extensive consultations will be undertaken
with Members of Council, staff and the public regarding use of the expanded
authority to delegate powers and duties as part of the 2008 Mid-term Governance
Review.
FINANCIAL IMPLICATIONS
There are no financial
implications in approving this report.
SUPPORTING DOCUMENTATION
Document 1 – Delegation of Powers
Policy
DISPOSITION
The City Clerk’s Branch will
further review the Delegation of Powers policy as part of the 2008 Mid-term
Governance Review as well as any other directions from City Council.
