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Playing God, or at Least Cop, During the Municipal Election

By
Dean Iorfida
and
,
on
October 22, 2018

Yesterday (October 4th), Toronto City Clerk, Ullie Watkiss held a press conference to provide an update on the City of Toronto’s plans to conduct a 25-ward municipal election.  She was upbeat and professional and announced that other than decreases in advance polling dates, the election should go off according to plan.

Since Premier Ford’s surprise announcement in July slashing Toronto City Council from a proposed 47 wards to 25, my thoughts have often turned to Ms. Watkiss.  Having been the city clerk for four elections, I appreciated the extensive planning required to conduct the important event.  Having a last minute change of such stature thrown at her, would not be easy.  

When I heard she had retained independent legal counsel, it did not surprise me.  As Ms. Watkiss noted during her press conference, the clerk is the independent statutory officer entrusted with running the municipal election, akin to the Chief Returning Officer in Federal or Provincial votes.  I wondered if Ms. Watkiss was going to have to resort to the “god clause”.

The Municipal Elections Act (MEA) does have wording where the clerk’s decision is final, related to the voters’ list, certification of nominations and determination of spending limits.  Section 12 (1) of the MEA allows the clerk to provide for any matter or procedure that is not otherwise provided for in an Act or regulation and, in the clerk’s opinion, is necessary or desirable for conducting the election.  Municipal clerks refer to the section, tongue in cheek, as the “god clause” because it provides an all encompassing authority not usually afforded to civil servants.   

I am not aware of any case law or scholarly analysis on the section.  Despite such perceived power, most clerks are conservative in their actions and unlikely to invoke the section with much fanfare. It is used more as a fall-back position.  I used the section on one occasion, as justification to have a candidate remove a logo from his website.  The logo incorporated features of the official, city crest contrary to the municipality’s Use of Corporate Resources policy.

The “god clause” section was most commonly used as the legal authority for the development of such Use of Corporate Resources policies. The policy typically prohibits campaigning on municipal property, use of corporate resources, such as municipal logos and equipment, and prevents incumbents from using their councillor budgets for campaign purposes.

With the Municipal ElectionsModernization Act, 2016, the MEA was amended to now  require a municipality, before May 1 in the year of a regular election, to establish rules and procedures with respect to the use of municipal resources during the election campaign period.  Clerks lobbied for this change during the post-2014 municipal election review with the Ministry of Municipal Affairs.  Codifying the requirement allow clerks to not have to rely on section 12(1) as the sole justification for the policy.

As the press conference in Toronto highlighted, most clerks are consumed with the organization of the upcoming election i.e., getting polling locations finalized, voter notification cards and ballots printed and hiring and staffing for advanced polls and voting day. I was fortunate to have a deputy with considerable experience, who handled most of the administration and organization surrounding the election.  This allowed me to deal with, and shield my election staff, from the “politics” that arise during the campaign.  I often was called upon to field candidate complaints, remove election signs in contravention of the sign by-law and warn candidates when they ran afoul with the rules.

The aforementioned Use of the Corporate Resources policy is a good tool to have candidates behave, however, enforcement is not always practical.  Complaints of candidates campaigning on municipal property are often reported after the fact.  Also, other than the stern warning, the clerk does not have the authority to issue fines or remove a candidate from the ballot for egregious behaviour.  

Social media has helped with the enforcement.  Savvy electors are increasingly aware of the MEA sections, local sign by-law provisions and corporate resource policies and are likely to call out candidates who are in violation.  Whether candidates are ultimately punished at the voting booth for such misdeeds is subject to debate.

I was probably an exception, having to play cop during the election campaign is often the last thing most clerks want to deal with.  Clerks are in the unenviable position of having to warn candidates, who may be future council members or incumbents they are dealing with on a regular basis.  

In order to avoid the potentially awkward situation between municipal staff and their political masters, there has been some discussion on whether the running of municipal elections should be taken away from City Hall and delivered by Elections Ontario.  As was highlighted with the change in the number of wards in Toronto, municipalities are “creatures” of the Province. so it would not be a stretch to see such a change.  Finally, municipal clerks often have enough on their plate, with their day to day duties, and may wish to not have to play god or cop anymore.

 

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