THAT Doesn’t Mean What You Think It Does….

Misuse of the “As Otherwise Provided for by Council” Idea When It Comes To Municipal Council and Staff

By Lorri Matthewson

Across the prairie provinces Councils involve themselves in hiring and firing, staff evaluations, raise decisions, disciplinary actions, staff direction, and operational decisions. They do this based on the assumption that they can, because they always have, or they feel entitled to, by virtue of their election.

Here is the thing though. Council has ONE employee, and that is the Administrator aka the CAO. The CAO manages ALL the other employees. There is no shared authority, there is no partial authority, there are no exceptions.

Doing so, has a name, and it is illegal administrative interference, and acting like this exposes your municipality—and councillors personally—to significant liability.

And before you come at me with the “unless Council provides otherwise” that phrase means council may set policy, not perform administrative duties. No Council in MB, SK or AB has the legal authority to evaluate staff or determine individual raises—those are administrative duties under the legislation.  That clause does not give authority for Council to manage staff, and it does not override the duty of the administrator. So that brings me to….

“We have a policy!! Or a bylaw” But… Councils are not allowed to give themselves authority in areas where they have none.  That kind of policy violates legislation, exposes the municipality to liability, undermines the Administrator, creates a toxic workplace and breaks the governance model you were elected to uphold. You cannot create policy that interferes with duties that have been assigned to the administrator by the province. Council evaluates the CAO, the CAO evaluates staff. Raises and performance reviews are administrative functions. The legislation in MB, SK and AB is explicit about that.   What Council can do is:

• Adopt a policy requiring annual performance reviews

• Adopt a salary grid

• Adopt a hiring policy

• Adopt a progressive discipline policy

• Approve job descriptions

That is how a Council can legally provide otherwise, by providing direction to the CAO. The “unless council provides otherwise” clause cannot override the separation of roles established in the Act, and that is true in all three provinces.  A municipal policy cannot override provincial legislation. A council cannot give itself powers the Act does not give it.

And even if you could find a loophole, why would you want to? Well, there are several theories.

1. They want control without accountability. Some feel entitled to decide who gets hired, and who “deserves” a raise. They want to know who is getting disciplined, and to influence the staff. The trouble is they often do not know or follow the law around these things. They don’t document performance issues that could protect the municipality from wrongful dismissal claims, they don’t have a process for managing grievances, and when it all goes wrong, they often just hand it back to the administrator.

2. They mistake being elected for having that authority. In small populations they often know the staff, are related to staff, are friends with staff, and have worked with them outside of Council and that creates a false sense of entitlement to direct their work. But they have absolutely NO authority over anyone besides the Administrator/CAO.

3. They think they should be involved out of a sense of responsibility. But that, is a misunderstanding of governance. Oversight means they evaluate the CAO/Administrator. It is interference if they try to evaluate staff, particularly when they have no direct supervision of staff, and their knowledge of their work is coming from coffee row. I’m being a bit cheeky here, but rumors can and do impact those staff evaluations.

4. They Don’t Trust the CAO. Sometimes that is justified, sometimes it isn’t. But the reality is Councils don’t address those issues by taking over the CAO’s role. Once a Council starts bypassing the CAO instead of dealing with the actual issue resulting in mistrust, they create a governance issue that is difficult to correct.

5. They think they are being helpful. But good intentions don’t make it legal. In fact, hands on, when it comes to HR, sets up a Council for liability.

6. They Want to Be Liked by Staff. Letting the staff bypass the CAO and come right to the Council makes some councillors feel appreciated, or the good guy, particularly when there are issues. But bypassing the legislated process destroys the CAO’s authority and creates a massive HR risk. 

7. They want to fix the complaints from the residents. They complain about staff, they complain about the roads, they complain about everything, and the councillor wants to fix it, so they go directly to staff. That is a quick way to create harassment complaints, constructive dismissal complaints, and operational chaos.

8.They don’t understand the legislation.  They think they are responsible for staff, and that they can do what they like if they have a policy. But Council cannot use policy to contradict legislation.

9. They are trying to solve a CAO performance problem indirectly. Instead of an honest evaluation, setting expectations and addressing performance issues they try to compensate for perceived CAO issues by direction, correcting and disciplining staff. This bypasses the CAO, avoids their governance responsibility and ends badly.

10. They think “small town” means the rules don’t apply. There are no exceptions based on population size.

None of these reasons stand up under scrutiny or change the intent of the legislation. All of them create legal liability, toxic workplaces, support CAO turnover, and make the public distrust you. Operating this way is bad governance. The clause does not create a loophole for Council to manage staff.  Because the moment a councillor directs or evaluates staff, they become an employer representative—and the municipality becomes legally exposed.

And as a side note, if Council takes on administrative duties, you may have to reconsider your position on overtime for the CAO. But that is an article for another day.