Bob Brocklebank

“Do exactly as I say or I’ll have you in court” – that sounds like an impetuous boss, but it might illustrate the way Ottawa municipal employees relate to elected members of Council.

It is easy to assume that all governments in Canada operate in much the same way. Most of us imagine that, in a country deemed a representative democracy, public servants (once considered “civil”) remain in awe of the office of those elected (if not necessarily in awe of every office-holder).

In the federal government it is clear that the elected are to be in charge. Instructions for writing a Memorandum to Cabinet assert that Ministers must be offered a selection of options from which to choose. Public servants are not to dictate to Ministers the course of action to be followed. Eventually some action (or decision not to act) will be taken by Ministers and the public service is expected to fall into line, regardless of individual views on the wisdom of the decision taken.

But at the municipal level we see a very different phenomenon, not because of a power-grab by anyone, but just as practice has evolved.

In most cases, municipal employees offer only one recommendation to Council. In Ottawa it is common for a staff report to be released about a week before a Standing Committee of Council is to consider the topic. The individual Councillor and his/her staff are often confronted with several hundred pages of text to absorb. Alternatives are normally not proposed.

‘Well so what’, you might say - ‘surely the Councillors can come up with their own alternatives’. They can indeed, but Councillors often look over their shoulders.

When land-use planning issues are considered by Ottawa Council, any decision can be appealed to the Ontario Municipal Board, a tribunal established by the provincial government which can overturn municipal decisions. While the OMB has been criticized, it is not the fact of its existence that is disturbing.
For most planning issues, such as changes in zoning, staff reports are prepared by the officials in the Planning and Growth Management Department. The reports bear the name of a senior planner and make a single recommendation.

Discussion by Council members at the Standing Committee on Planning does examine the wisdom of the recommendation in the staff report. However the moment that doubt arises, discussion shifts from the decision at hand and the merits of various decision possibilities, to the prospect of an appeal before the OMB.

The problem is that the Ontario Municipal Board is largely guided in its deliberations by expert witnesses. Councillors are not experts; planners on the City payroll are. If Council does not endorse the recommendation in the staff report, an appellant can subpoena the City planner as expert witness to testify in opposition to the decision of Council at a hearing of the Ontario Municipal Board. The practice has been that the City, unable to use its own employee as an expert witness, then must go and find an outside planner to study the matter and offer testimony in support of the Council decision. It is worth adding that a matter which takes 20 minutes of Council debate may give rise to several days or weeks of hearings before the Ontario Municipal Board.

If a certified planner holds an opinion, there should be no impediment in his/her testimony. However it might be questioned whether all city planners who have had contact with a particular file are unanimous in support of a single recommendation. It is common for several planners to have had involvement. A detailed list of city planners is not provided as part of the public record, nor do Councillors ask for such information.
Of course it would be unreasonable to have elected Councillors continuously probing into the minutia of staff discussions. However in receiving a single recommendation, Council accepts a sort of “cabinet solidarity” from its planning staff.

Here it is worth considering the history of urban planning. This is a relatively new field of study which has only acquired recognition as a profession in the last century. As in other fields, there is rarely a single best solution to a problem. In other professions – medicine, for example which is of much longer history – there is recognition that diagnoses and treatments may differ, giving rise to multiple recommendations for future action. It seems improbable that urban planning issues are so simple as to result in a single best solution.

And it is not evident that planners themselves think that single solutions are appropriate. Rather it appears that planners believe that elected officials want simple recommendations, and they respond accordingly.
We must break the cycle and there is some reason for hope that, with the new Councillors elected late last year, this may be possible. Councillors need to ask if there are alternative solutions to planning questions. They need to probe judiciously into the decision-making process within the Planning Department to understand not only ideas that emerge from a hierarchical structure but also the input from staff directly involved in the application.

Ultimately our elected officials bear responsibility for the direction of the municipality. If practices impair their fulfillment of such responsibility, change is needed.

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