Acting-CAO appointment violates Ontario Municipal Act

by Keely Grasser

Feb 20, 2008

KEARNEY — The town has found out the hard way that it can’t appoint a member of council to a staff position.

Kearney council is currently backtracking on a resolution passed at their Feb. 13 council meeting, appointing councillor Paul Tomlinson as acting CAO during regular CAO/clerk/treasurer Twyla Nicholson’s indefinite leave of absence.

The move turned out to be illegal.

The resolution, which came out of closed session, appoints Tomlinson “as acting CAO to provide the required managerial presence for the town, to oversee the CAO/clerk/treasurer leave of absence, address staffing needs and anything else as required.”

The resolution noted that remuneration for Tomlinson would be determined.

But the province’s Municipal Act dictates that elected officials can’t fill municipal staff positions.

Council didn’t realize that until later.

“We thought it was (legal) but I’m understanding now it’s not,” said Mayor Jeff Johnston, adding that council knew that one of their ranks couldn’t hold a clerk or treasurer position, but didn’t know that the rules also extended to the CAO position.

Council did not get legal counsel before passing the resolution, he said. Someone not named within council advised them that appointing Tomlinson to the CAO position was allowed.

At the meeting, Tomlinson, who has a background in business, said that council envisioned the acting CAO position as a liaison between council and staff.

“I was flattered by council’s vote of confidence…I think I could have done the job on an interim basis...but I didn’t want to lose my council seat,” he said.

Tomlinson also said that he wasn’t concerned with pay, more about getting reimbursed for related expenses.

He added that he told Johnston that he didn’t want to be part of the discussion regarding his remuneration.

As to whether he declared a conflict of interest while council was discussing the possibility of appointing him to the position, Tomlinson said, “I can’t recall, to tell you the truth…I know I said nothing and I didn’t vote.”

The resolution was passed in an unrecorded vote.

By Thursday morning, Tomlinson said, a call to the town’s lawyer caused them to realize their move was illegal.

He talked to the lawyer, as well as to the Ministry of Municipal Affairs and Housing (MMAH) about his options.

The lawyer advised him to get council to withdraw the resolution and for him to turn down council’s offer of the position.

The resolution, Tomlinson said, was an offer. In order for a contract to be struck, thus making him an employee, he would have had to accept.

Tomlinson said he has sent an e-mail to council refusing their offer. This, as well as the withdrawal of the previous motion, is scheduled to be dealt with at a special council meeting on Friday.

Had Tomlinson accepted the position, council could have opened themselves up to major legal issues.

Ben Horner, of the province’s MMAH, said that councillors cannot hold staff positions. The MMAH doesn’t enforce the regulations.

Horner said issues arising from such a situation would be up to a court to sort out.

If a councillor has indeed accepted a staff role, Horner said that a member of the public could take to the courts to challenge any decision made by council during the time that a council member was acting in a dual role.

The council member’s seat could also be declared vacant as they were no longer eligible to hold it because they became a staff member.

Council had no idea this was the case when they passed the resolution and were well-meaning in their intentions, Tomlinson said. “I feel sorry for staff. I don’t want to jeopardize my role as a councillor. I would die if I lost my role on council for an innocent attempt to help staff.”

As for still being without a CAO, Johnston said the town is now “back to square one.”

They’re still looking to fulfill the role, he said. “We need to have that. There are too many management requirements or duties to allow that not to be fulfilled.”

He added that the sooner the town found an interim CAO, the better.

Johnston said that it would be unlikely that someone could be found before the beginning of this week. When the town finds a suitable candidate, he said, council will hold a special council meeting to appoint them.