Can the mayor fire the interim CAO?

Does the mayor have the authority to fire someone by herself? The interim CAO, for example? It’s a question I’ve been asked a lot of late by residents.

I think so, but it’s not clear to me in the Municipal Act. She is, after all, legally both the head of council and the chief executive officer, and while related, these two roles can be interpreted differently.

The mayor doesn’t have any more political power than any other member of council (e.g. she gets one vote). But we are the Corporation of the Town of Collingwood and as such shouldn’t our officers – our legal CEO – have the ability to act like their private sector counterparts? Shouldn’t she have more management power and authority, like a CEO?

CEOs in the private sector have such abilities, so why not in the public sector? It seems reasonable to assume that the legislation grants her powers usually ascribed to that corporate title, but she’d need a real legal opinion before doing anything arbitrary.

Under the Municipal Act, section 225, the role of the mayor as head of council is as follows:

225. It is the role of the head of council, (emphasis added below)

1. to act as chief executive officer of the municipality;
2. to preside over council meetings so that its business can be carried out efficiently and effectively;
3. to provide leadership to the council;
   (c.1) without limiting clause (c), to provide information and recommendations to the council with respect to the role of council described in clauses 224 (d) and (d.1);
4. to represent the municipality at official functions; and
5. to carry out the duties of the head of council under this or any other Act. 2001, c. 25, s. 225; 2006, c. 32, Sched. A, s. 100.

Then under section 226, it adds:

Head of council as chief executive officer
226.1 As chief executive officer of a municipality, the head of council shall,

1. uphold and promote the purposes of the municipality;
2. promote public involvement in the municipality’s activities;
3. act as the representative of the municipality both within and outside the municipality, and promote the municipality locally, nationally and internationally; and
4. participate in and foster activities that enhance the economic, social and environmental well-being of the municipality and its residents. 2006, c. 32, Sched. A, s. 101.Head of council as chief executive officer.

But a CEO is much more than that in pretty much every other place the title is used. And while fine-sounding, words like uphold, promote, foster and so on are not defined. Isn’t firing someone you believe may be harming the economic, or social well-being of the municipality an activity that upholds and fosters the purposes of the municipality?

In the corporate world, a CEO can hire and fire people. It’s an important responsibility and often necessary to the organization’s future. One management site notes:

The CEO hires, fires, and leads the senior management team. They, in turn, hire, fire, and lead the rest of the organization.
The CEO must be able to hire and fire non-performers. She must resolve differences between senior team members, and keep them working together in a common direction. She sets direction by communicating the strategy and vision of where the company is going. Strategy sets a direction. With clear direction, the team can rally together and make it happen.

A CAO is not a legal requirement for a town. In fact, only the clerk and treasurer are required as staff members in a municipality. A CAO is an option under the Municipal Act and his or her role is loosely defined (emphasis added):

229. A municipality may appoint a chief administrative officer who shall be responsible for,

1. exercising general control and management of the affairs of the municipality for the purpose of ensuring the efficient and effective operation of the municipality; and
2. performing such other duties as are assigned by the municipality. 2001, c. 25, s. 229.

Which makes me wonder why we need one at all, interim or otherwise. We had a remarkably effective management team in the past (last term, albeit only for a year). Maybe it’s a model we should return to. Maybe we should simply eschew the position entirely.

So what can a hypothetical mayor do if she believes the control or management provided by the CAO are not in the best interests of the municipality? If she might think the CAO’s decisions are not efficient or work against the mandated “well-being” requirement? Or the CAO doesn’t perform assigned duties? Or pursues private agendas? What if the mayor believes the CAO is not competent, bullies employees or has worsened regional relationships and partnerships? What if she believes the relationship between her and the CAO is so toxic it is a detriment to the community and affects her governance?

What if the mayor believes replacing the CAO is in the best interests of the municipality? What if the mayor argues this act would “foster activities that enhance the economic, social and environmental well-being of the municipality and its residents” as the Act demands of her?

Now, I haven’t asked her about these: it’s all just conjecture. But what if….?

What happens when the community at large loses confidence in its CAO? What if a community does not feel the CAO has sufficiently ensured the “efficient and effective operation of the municipality?”

Should we conduct a survey (a real survey, not one of those flaccid internet polls), asking if people confidence in our interim CAO? What would the hospital board or its facilities committee say? The Curling Club members? Our utilities? Our former electrical or water utility boards? Our municipal partner PowerStream? The councils and mayors of Wasaga Beach, Clearview, Blue Mountains and Innisfil? The airport board? Local developers? The Clearview Aviation Park developers? Our own town staff? The former head of our water utility? The former head of our electrical utility? The other staff who have retired or resigned rather than suffer more harassment or abuse?

It certainly would be an interesting exercise to ask them.

What if council itself has lost confidence? Last vote to extend our interim CAO’s contract squeaked by 5-4. One more unhappy person at the table and it wouldn’t have been renewed for the third time. But lots has happened since then. Should we include councillors in the poll, too?

But I digress. Why can’t a municipal CEO fire a senior executive, as they can in the corporate world? Aren’t we a corporation, too? Well, some mayors believe they can. Or they at least lead the charge.

In January, the mayor of Midland fired his town’s CAO. In the news story, it noted:

In a flood of credible news tips today, it is reported that Carolyn Tripp, the town’s CAO was walked out of her office this morning after having been terminated.

Apparently Mayor McKay believed he had the authority, both legal and ethical. And whether you agree with that decision, the mayor takes his role as head of the corporation seriously and acted accordingly. It takes chutzpah to act as he did.

Brampton fired its city manager (aka CAO) in 2015, following his public tongue lashing by the mayor. However, the news story doesn’t make it clear who fired him. Still, the story implies the mayor’s hand was firmly on the rudder.

Also in 2015, Sudbury fired its CAO, but again while it’s unclear in the story whether it was a unilateral or collective decision, it is implied the mayor was the force behind it. What’s intriguing is than an interim CAO was hired in the former’s place, and he, too, was fired a few months later. Also apparently at the mayor’s instigation.

In 2015, the CAO of Whitchurch-Stouffville was put on administrative leave, and soon resigned. Once again, who did the deed isn’t stated in the story, but other comments suggest the relationship with the mayor may have been at the heart of the dissatisfaction.

Could our mayor put the interim CAO on administrative leave while she explores her legal options?

Brantford’s CAO had a sudden “retirement” in mid-2015 after a special in-camera meeting of the city’s council. The story doesn’t say who pulled the trigger, but it makes it clear that the CAO was at odds with at least some of the council. Our interim CAO was CAO in Brantford before this happened. It would be interesting to know about our interim CAO’s relationship with his former mayor and council that term. Brantford’s mayor met our own mayor, this summer. Maybe I’ll ask her if they discussed our interim CAO’s job performance.

Out of province, in 2015, Winnipeg’s mayor claimed he had “lost confidence” in his city’s CAO and suspended him from duty. A month later, the CAO resigned. It seems he had the power to act as CEO.

In Guelph, earlier this year, the mayor tried to wrest power over contracts away from the city’s CAO and give them to council. It seems to be a contentious relationship that is leading to confrontation between CEO and CAO.

In other news, this spring a Niagara Falls councillor called for the city’s CAO to be fired over disrepectful comments he made about her at the table. I haven’t found a follow-up to say whether he was or wasn’t fired, but it created heated debate among other councillors. Again, it looks like it is headed towards confrontation.

Clearly I don’t know if the mayor has the authority, or whether it’s a grey zone. A legal opinion, as I said, should be gotten before any action taken. Someone should also call Mayor McKay and ask if he had such advice and who gave it.

Collingwood deserve answers.