PRESENTED DURING THE 2015 QUEBEC FEDERATION OF MUNICIPALITIES CONGRESS September 25th, 2015

A TEAM MAYOR – DIRECTOR GENERAL: A WINNING TEAM FOR MUNICIPAL

ADMINISTRATION

TRANSLATED AND PRESENTED BY Ms VALÉRIE BELLE-ISLE, Esq. AND Ms CHLOÉ FAUCHON, Esq

1. Introduction

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  In a municipality, there is:

>  One boss: the council

>  And two leaders: the political leader (the mayor) and the administrative leader (the director general)

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  For a municipality to operate efficiently, the mayor and the director general must act with complicity and form a team.

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  To form an outstanding team, it is important that each person respects the role of the other. It is also important to help other members assume their role in the team.

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2. THE MAYOR AND THE DIRECTOR GENERAL’S RESPECTIVE ROLES

ACCORDING TO THE LAW

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2.1 The Mayor’s Role

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  Rights of superintendence, investigation and control over all the affairs and officers of the municipality;

  Sees to the faithful and impartial execution of the council’s decicions;

  Communicates to the council any information or recommendation which he considers conducive to the interests of the municipality and its inhabitants;

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  Signs all by-laws, resolutions, obligations, contracts, agreements or deeds;

  Has a suspensive veto;

  Presides over the sittings of the council and convenes any special sittings;

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  Maintains order and decorum and may order that any person disturbing a sitting of the council be removed;

  Is in charge of the access to documents (a charge he usually delegates);

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2.2 The Director General’s Role

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  Acts under the authority of the council (and of the administrative committee, if there is one)

  Responsible for the administration of the municipality;

  May convene a special sitting of the council;

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  Plans, organizes, directs and supervises the activities of the municipality;

  Ensures communication between the council and the other officers and employees of the municipality;

  Has access to all the documents of the municipality and may require any document or information from any officer or employee

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  Assists the council in the preparation of the budget;   Examines the complaints and claims against the municipality;   Examines the draft by-laws;   Attends the meetings of the council and committees;   Reports to the council on the carrying out of its decisions;

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2.3 Additional Powers for the Mayor and Director General under the Cities and

Towns Act

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  The mayor or director general both have the right to suspend any officer or employee of the municipality at any time.

Note: the council (not the mayor) of a municipality under the Municipal Code may delegate this power to the director general through a by-law.

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3. SEPARATION OF POWERS BETWEEN ELECTED REPRESENTATIVES AND

OFFICERS: THE JUDICIAL APPROACH

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  Justice Allard, S.C.J. said the following regarding the mayor’s role in Alain c. 3104-2955 Québec inc., 2001 CanLII 11766 (QC CS) (the following excerpts have been loosely translated

from French) :

« [46]  The mayor, by intervening following a citizen’s complaint regarding the use of the roadfed gravel and the application of the by-law, was not minding his own business.

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[47]  Evidence shows that he kept the administration centralized in his own hands. He embodied the municipal authority. Section 142 of the Municipal Code defines his powers and dictates his duties as the head of the municipal Council :

« The head of the council exercises the rights of superintendence, of investigation and of control over all the affairs and officers of the municipality, […], sees to the faithful and impartial execution of by-laws and resolutions […]».

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[48]  Acting the way he did, the mayor put himself in the position of a subordinate while his duty is to see to the carrying out of the municipal decisions. In such a situation, how can he exercise his right of superintendence on what is happening in the municipality’s affairs? How can he have the independence to investigate the citizen’s complaint? How can he exercise control when he is required to carry out the general power of the chief magistrate, particularly in cases of force majeure? »

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>  To exercise the rights of superintendence and control does not mean the mayor can act instead of municipal officers.

>  The mayor must be able to remain above the fray.

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  The Superior Court, in the case Girard c. Saguenay, 2009 QCCS 5164, comments on the director general’s role as follows (the following excerpts have been loosely translated from

French) :

« [118]  According to the authors Hétu and Duplessis, if the powers and duties of offiers such as the director general are defined in the law, it is because Parliament wanted to grant them the independance as well as the autonomy necessary for the good administration of the municipality. »

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[119]  The director general is required to act as an intermediate between the council, the other officers and the population. His role is two-fold. First he is an employee holding several responsibilities and reporting directly to the council. Second, he represents the council in its dealings with other municipal employees.

[120]  In short, employees and executives have a duty to act faithfully and honestly towards him. This duty is however not absolute, as employees do not have to subit to their superior’s unreasonnable demands or to abuse of power.»

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>  Acting as an intermediate between the council and other officers does not mean the director general can act instead of the council, but rather that he must act according to the council’s decisions.

>  He must also avoid trying to “play mayor”, or block the mayor’s political initiatives.

>  The other officers have a duty to act faithfully and honestly towards the director general.

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  In La Reine c. Maurice Prud’homme, AZ-950031401, 31 août 1995, C.Q., the Court of Québec came to the following conclusions regarding the mayor’s duty to inform the council (the following excerpts have been loosely translated

from French) :

Pages 26-27:

“ Following Justice Baudouin’s analysis in Perrault, precited, we must ask ourselves whether the accused acted or omitted to act in conflict with his duties as per the law, by-laws, his work contract or an administrative guideline regarding his functions.

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Other than the fact that Mr Collins told the accused that one of the reasons he thought he could not recommend Robert Prud’homme as treasurer was the existence of a family relationship between them and the risk that this would cause conflicts of interest or at least the appearance of such conflict, we should also keep in mind section 52 of the Cities and Towns Act, which provides that the mayor shall see “ that the provisions of the law and all by-laws, rules and regulations of the council are faithfully and impartially enforced. He shall lay before the council such proposals as he may deem necessary or advisable, and shall communicate to the council all information and suggestions relating to the improvement of the finances, police, health, security, cleanliness, comfort and progress of the municipality.”

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As such, it is clear that by omitting to inform the council of the recommendations outlined in Municonsult’s report regarding the requirements for the job openings and by unilaterally modifying these conditions in order to limit the number of applicants, thus favoring his son’s application, as well as removing some requirements in order to allow a councillor from his party to apply on another opening he wanted him to fill, especially considering said report was ordered following a resolution from the council, the accused failed to fulfil at least two of his duties under section 52 of the aforementioned Act.”

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Page 29: “It is obvious that by modifying the academic requirements for the post of deputy director general and willfully hiding these modifications and failing to get them approved by the council, the accused is in breach of his legal duties as a mayor. It is more than a simple technical error or a mere administrative misstep to fail to submit a draft report to the council who ordered it by resolution, and to modify without prior approval such critical elements as the academic requirements for a job opening in order to favor a specific applicant.”

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Pages 31-32: I find it however much more difficult to accept when I see the accused willfully attempting to bypass a city policy which provides that this type of internship is not to be remunerated, ordering a cheque to be prepared without getting prior approval for this special procedure from the council, demanding that a budget post be found to file this payment under, by “forgetting” to inform councillors that the amount of $500 to be approved as professional fees is actually payment for his niece working as an intern in a position that should be unpaid, and by “forgetting” to inform the council that internships of this sort have always been unpaid in the past.  

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What I see here are blatant breaches of a mayor’s legal duties, whether it is the duty to see to the faithful and impartial enforcement of the by-laws, rules, regulations and orders of the council, the duty to see that the revenue of the municipality is collected and expended according to law, or the duty to communicate to the council all the necessary information.”

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  When an issue is discussed in council, the mayor must be transparent and communicate any information he has.

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  The Commission des relations du travail, in the Faucher et Bastiscan (Municipalité de), 2013 QCCRT 93 case, had the following opinion on a director general’s freedom of expression on matters regarding municipal administration:

«  [51] When she is told, among other things, about her criticisms of the council’s positions, she argues that she is entitled to her “opinion as a citizen.”

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The consultant, Mr Trépanier, reminds her that it is not her role to criticize. She is to advise elected officials and carry out their decisions. There are also attempts to help her better organize her work and avoid having to work overtime. […]

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[105] The municipality thus established that through her attitude and actions, plaintiff breached the relationship of trust essential to the continuation of the employer-employee relationship.

[106] First of all, plaintiff has worked for two years as director general. She is the chief officer among the municipality’s five employees.

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[107] Section 211 of the Municipal Code provides that she is to be “responsible for the administration of the municipality and for that purpose [s]he shall plan, organize, direct and supervise the activities of the municipality”, all of this under the authority of the municipal council. She also ensures communication between the council and the other officers of the municipality and assists the council members (S. 212(1) and (2)).

[108] In the Commission’s eyes, this means that a high level of trust and constant collaboration between her and the members of the council is essential.”

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  A director general who publicly criticizes the council breaches the relationship of trust between him and the council.

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4. CONCLUSIONS

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  In their respective roles, the mayor and the director general are without a doubt privileged partners.

  The description of their respective responsibilities implies their collaboration. They have no choice but to speak and act in concert.

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Thank you, and have a nice day!

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