Legal opinion about Joe Fratesi's conduct

The following is the continuation of a legal opinion sent to Mayor John Rowswell on January 5, 2001 by Sudbury human resources lawyer Jack Braithwaite:

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In light of the above, we would suggest the Mayor and Council ensure that the parties understand their respective roles.

In particular, we would suggest that the Mayor and Council assert their authority and responsibility both to oversee the conduct of the subordinate officers and also to ensure that the policy and vision of the City is carried out in the manner which meets the goals and objectives of the Mayor and Council.

Consider the following:

1) Review past practice and legislation to confirm role and scope of authority of Mayor as head of Council.

2) draft letter to CAO confirming the following:

• scope of authority of Mayor as head of Council; that the general role of the CAO is to implement policy as formulated by Council;

• that the existence of the position of the CAO is subject to rhe Municipal Act and the option of council to appoint a CAO by by-law;

• that any authority and/or administrative control held by the CAO over departments is subject to the creation and scope of a by-law as determined by Council;

• that the CAO is to meet with the Mayor regularly, among other things, for the co-ordination of all departmental activities;

• advise the CAO that for the effective administration of the will of council, the CAO will report to the Mayor on a regular basis and the Mayor as head of council will provide direction to the CAO;

• advise the CAO that the Mayor and Council look forward to working closely with the CAO and drawing upon his experience, cooperation and timely advice in addressing the needs of the community;

• confirm that the Mayor's office and/or Council has no intention to terminate the CAO and only wishes to fulfill the mandate of its elected office efficiently through the cooperation of the CAO and staff;

• confirm that the CAO would agree that fulfilling the Mayor's mandate is a laudable goal to pursue without unnecessary roadblocks.

3) develop a policy of review to ensure that performance standards of all staff are maintained at an acceptable level as defined by council and, in particular, ensure that performance appraisals exist and/or are developed and, accordingly, used to gauge the performance of all staff including the CAO.

4) if performance appraisal forms do not exist, then direct the CAO to develop such forms.

5) ensure that performance appraisals are regularly used to assess the conduct and performance of all staff and subordinate officers including the CAO.

6) confirm that the Mayor as head of council will be (he spokesperson for the City on all matters regarding policy regardless of whether such policy may or may not be construed as political.

7) develop a protocol and/or have council issue a directive as a means of administrative efficiency to ensure the following:

• that council is readily able to convey its message to me CAO;

• that the CAO reports to the Mayor on a regular basis-

• that the CAO accepts direction from the Mayor as head of council.

8) generally establish and assert that the line of authority flows from the Mayor and Council to the CAO and staff and not me other way around to any degree.

Conclusion

We are of the view that arguably the letter of the CAO challenges the authority of the Mayor's office and to that extent the thrust of the letter may have repercussions on the ability of the elected office to operate efficiently.

To the extent that the letter may go unchecked we are of the opinion that the impact of the letter may undermine change and/or adversely affect the proper flow of authority from the Mayor's office and council to both the CAO and staff to implement the policies of the elected office.

Accordingly, we are of the view that to facilitate the smooth functioning of the newly elected council, the Mayor and Council should clearly establish policies and procedures to direct the CAO and staff.

To the extent that the Mayor's office and council can establish clear policies of directions and procedure, it would be in a favourable position to defend a potential wrongful dismissal suit through documentation of directives and defined expectations clearly communicated to the CAO and staff.

Yours very truly,

Jack Braithwaite

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