2012-07-30_Supplemental Agenda Packet--Dossier de l'ordre du jour supplémentaire.7 neSJ
City of Saint John
Common Council Meeting
Monday, July 30, 2012
Location: Common Council Chamber
Supplemental to Agenda
12.6 City Solicitor: Synopsis and Comment Upon the Regional Service Delivery
0
City Solicitors ice
Bureau de Pavocat municipal
The city of Saint John
July 25, 2012
Common Council of
The City of Saint John
Your Worship and Councillors:
Re: Synopsis and Comment Upon the
Regional Service Delivery Act
Common Council at its meeting of July 16th last adopted the following
resolution:
"RESOLVED that:
1. Council direct the City Solicitor to engage in a comprehensive
review of Bill 61 and its potential impact(s) on the City of Saint
John and its operations.
2. Council direct the City Manager to participate in this review
process.
3. Council direct both the City Manager and the City Solicitor,
working with the Intergovernmental Affairs Coordinator, to meet
the timelines of the Association."
Although not expressly addressed in that resolution we understand that
the aim is to have the Municipal Legal Departments in the Province
produce a single document for submission by the City's Association to the
Provincial Government respecting the Act. We have been in contact with
the City Solicitors of Fredericton, Moncton, Miramichi and Edmundston in
this respect. Edmundston alone has produced a very brief document as of
this writing. Fredericton has determined to await the Regulations,
Miramichi expects something later and Moncton is preparing a review of
some description.
In light of the time line described, we have prepared this material. It is not
exhaustive in its analysis and is based only on the language of the Act. It
does not reflect information received by the City Manager late last week in
SAINT JOHN P.O. Box 1971 Saint John, NB Canada E214L1 I wwwsaintjohn.ca I C.P. 1971 Saint John, N. -B. Canada E2L4L7
2 1 Common Council
July 25, 2012
a meeting which he and other City Managers in the region attended with
Mr. Paul Stapleton, the person selected by the Province to shepherd the
introduction of the Regional Service Commission model. What follows is
primarily synoptic since the implications of the Act are largely apparent on
their face. We have commented where it is otherwise. As you will see,
the Regulations once made will provide the operational details respecting
the proper administration of the Act and the "... management conduct of
the affairs of the Commission ".
For purposes of
synopsis
and comment this letter
divides the Act into
three categories:
Structure,
Powers and
Duties, and
Finance.
1. Structure
(a) Regions are established as: "...described and identified by
regulation ...." (section 2(1)).
(b) Regional Service Commissions ( "Commission(s) ") are
established as "... described and identified in regulation ...."
(section 3(1)).
(c) Regional Commissions are bodies corporate [i.e. they enjoy a
separate legal existence (section 3(2))].
(d) The powers of a Commission are set out in section 8:
"8 A Commission may
(a) acquire by purchase, lease, gift, donation, bequest or
otherwise any real or personal property, and own,
hold, sell, manage or deal with the property as the
Commission may determine,
(b) manage and control its bank accounts and other
necessary banking operations,
(c) engage and pay personnel,
(d) become a party to any contract or agreement within
its powers,
(e) purchase or dispose of capital assets,
(f) sue and be sued,
(g) subject to this Act, the regulations or any other Act or
regulation, finance any of its undertakings,
3 1 Common Council
July 25, 2012
(h) assess, charge and collect fees for services from its
members and other persons provided a service, and
(i) perform any function or duty fixed by or in accordance
with the regulations.
(e) Commissions are
directed
in their
business and affairs by a
board of directors
( "Board ")
(Section
9(1)).
(f) The first Board "(the Interim Board)" is to be appointed by the
Minister of Environment and Local Government and consists of
the Mayors of each municipality or rural community within a
region as well as a representative at large from a local service
district should one exist within the region, selected in
accordance with the Regulations. (Section 10(1))
(g) Interim board members hold office until their successors take
office (Section 10(6)). [This is somewhat confusing in light of
the provision in section 9(2) which impliedly automatically
populates the Board with the persons who hold the positions
identified in section 10(1)]
(h) A Board is comprised of the Mayor of each municipality within a
region and an at large representative for each local service
district, chosen in accordance with regulation (Section 9(1) (2)).
(i) If a Director is absent or unable to act an alternate
member referred to in the Regulation may act on behalf of
that member of the Board." (Section 9(4)).
Q) A quorum for a Board, unless otherwise provided
for by regulation, is a majority of Board members. (Section 9(7)).
[There is no provision for a quorum when the normal quorum
cannot be achieved because of conflict - cf Section 90.7(1)
Municipalities Act.]
(k) Boards elect a chairman and vice - chairman and the vice -
chairman acts when the chairman is unable or "unwilling" to act
(Section 9(6)).
(1) Decisions taken by a quorum of members constitutes a decision
of the Board (Section 9(8)).
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July 25, 2012
(m)The Minister may appoint a trustee to have all the powers, rights
and responsibilities of the Board if, in his opinion, the Board is
not functioning efficiently, failing to fulfill its obligations under the
Act and Regulations or it is in the public interest (Section
34(11))
(n) Conflict provisions respecting the Commission, member of the
Board and employees of the Commission are to be set out in
Regulation.
(o) The Regulations may extend to 30 enumerated topics in
addition to any matter: "... that may be necessary for the proper
administration of this Act and the management and conduct of
the affairs of a Commission." (Section 37(d))
(p) Regional solid waste commissions are dissolved as of January
1, 2013 in accordance with Section 38 of the Act and
appointments to regional solid waste commissions are revoked
as of that date. (Section 38(1), (2))
Transitional
(q) Broad immunity is provided to the Minister, the Crown,
members of regional solid waste commissions, members of a
Commission or Board, from civil legal proceedings arising from
the dissolution of a regional solid waste commission. (Section
39(1))
(r) All assets, rights, liabilities, obligations of regional solid waste
commissions are vested in the Minister and on order in writing
transferred to a Commission "directed by the Minister'. (Section
41)
(s) Employees of regional solid waste commissions become
employees of the pertinent Commission without interruption of
employment service. (Section 43(1) and (2))
(t) Collective agreements are binding on the respective
Commissions. (Section 43(3))
(u) Regional solid waste commissions are not to prepare or vote on
a budget for 2013. (Section 44)
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July 25, 2012
(v) District planning commissions are dissolved as of January 1,
2013. (Section 45)
(w)Broad immunity from civil legal proceedings is provided to the
Minister, the Crown, members of district planning commissions
and board of directors arising out of the dissolution of a district
planning commission or the revocation of appointments thereto.
(Section 45(2)
2. Powers and Duties
(a) Common Services (defined as comprising "regional planning
service" and "solid waste disposal service" shall be provided to
members of the Commission i.e. municipalities within the region,
only by or through the Commission (Section 4(1)).
(b) A Commission is obliged to "... provide its members with a
forum in order to initiate cooperative action among its members,
which shall include discussions with respect to the following:
(a) the effectiveness and efficiency of policing services;
(b) the coordination and pooling of resources in planning for
emergency situations, including cooperative action with
respect to the development of mutual assistance
agreements;
(c) the development, planning and financing of regional
initiatives, including common or regional sport,
recreational and cultural facilities; and
(d) the facilitation of administrative, financial and other
service arrangements."
(c) Importantly, the Act provides that a Commission may in writing
delegate its powers and authorities under the Act or the
Regulations to the chairman or other member of the Board, the
Executive Director, the Planning Director, a Committee of the
Commission or any employee of the Commission, subject to the
limitations set out in Section 16(3) which states:
"16(3) A Commission shall not delegate the power or duty
(a) to enact, amend or repeal by -laws,
(b) to authorize borrowing,
(c) to adopt budgets,
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July 25, 2012
(d) to set fees,
(e) to establish committees of the Board,
(f) to appoint individuals to committees of the Board, and
(g) to appoint or suspend the Executive Director or to
terminate the employment of the Executive Director."
(d) A Commission may by agreement provide any service, other
than a common service, to one or more of its members.
(Section 6(1)(a))
(e) A Commission may by agreement provide any service, including
a common service, to any person other than an individual.
(Section 69(1)(b))
(f) A Commission is required to prepare a Regional Plan in
accordance with the applicable provisions of the Community
Planning Act and the regional plan shall be adopted by the
Commission "... within the time prescribed by regulation. "
(Section 23(2))
(g) A Commission shall provide land use planning service to a
municipality which is not providing its own. (Section 25(1))
(h) A Commission which provides land use planning service has
specific powers and duties respecting zoning and subdivision:
those falling under Section 34(3)(g, h), Section 35, Section 36,
Section 40(2, 4), Section 42(3)(c, f, I, k) and Section 56(2) of the
Community Planning Act. These sections relate variously to
zoning by -law provisions addressing the prohibition of
construction upon a site found to be marshy, subject to flooding,
etc., authorization of a development for a temporary period,
provision for similar or compatible uses, and the granting of
variances under the zoning or subdivision by -law respectively.
[This does not synchronize perfectly with the provisions of the
Community Planning Act, which for example provide that a
regional plan shall be adopted by the Lieutenant Governor in
Council]. The Commissioner of Growth and Development would
be able to speak in greater detail with respect to the potential
operation of the planning scheme set out in the Act.
(i) A Commission may enter into an agreement with municipalities
providing their own land use planning service to have that
municipality provide land use planning services to the
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July 25, 2012
Commission. (Section 25(3)) The powers and duties of a
Commission with respect to land use planning are set out in
Sections 24 and 25 of the Act and their practical implications for
the city warrant comment by our Commissioner of Growth and
Development. [This presents the possibility of a City selling its
land use planning services for profit.]
Q) Powers of the Interim Board extend to the appointment of an
Executive Director, the adoption of by -laws respecting
committees of the board and their respective mandates,
managing and controlling bank accounts and undertaking other
necessary banking matters; incurring expenses and undertaking
obligations necessarily incidental to the board's functioning
(Section 10(3)).
(k) The Interim Board must adopt a procedural by -law and approve
the first budget prior to November 15, 2012.
(1) The Board must employ an Executive Director of the
commission whose duties and authorities will be as set out in
the Act, its Regulations and by the Board (Section 13(2)).
(m)By -laws of a Board are to become effective not earlier than
January 1, 2013 and may be amended or repealed by
subsequent Boards (Section 10(4)).
(n) The Executive director may hire employees as the Executive
director considers necessary, including a Planning Director to
ensure the provision of services (for example solid waste
disposal and regional planning) and the execution of the
commission's powers and duties (Section 14).
3. Finance
(a) The Act provides that the costs of each service provided by or
through a Commission "... shall be apportioned among its members
or other person receiving the service ... in a manner and in
accordance with the regulations or if no regulation has been made,
by resolution of the Board ". (Section 19).
[The apportionment costs by an interim board appears to on a
simple majority basis (Section 10(5), contrary to the "two- thirds /two-
Common Council
July 25, 2012
thirds" arrangement prevailing for budgets, and could be
disadvantageous to the City.]
(b) Any amount which a municipality is required to pay to a Commission
respecting the provision of a service shall be paid to the
Commission "... at the time and in the manner approved by the
Commission." (Section 20(1))
(c) The first budget of a commission is prepared by the Minister and is
delivered to the Board (Section 11(1).
(d) Approval of the first budget by the interim board requires the positive
vote of two - thirds of the members of the board who represent at
least two - thirds of the total population "... represented by all the
members of the interim board present ...." (Section 11(3)).
(e) If the interim board has not approved a budget by November 15,
2012, the Minister shall approve the first budget on behalf of the
interim board (Section 11(4)).
(f) If a municipality is in arrears for a period in excess of 90 days with
respect to any payment due the Commission the Minister may make
the payment and deduct that amount that amount from any amount
owed by the Province to the municipality in question. (Section
20(2))
(g) A Commission may establish a solid waste disposal service and, if
applicable, a solid waste collection service. (Section 21 (1))
(h) The fiscal year of the Commission is the calendar year.
(i) Annually the board shall prepare and adopt for each fiscal year an
operating budget and a capital budget which budget shall not be
adopted.
Q) A Commission must provide in its budgets for revenues which
create an annually balanced budget for each service provided.
(Section 27(4))
(k) A deficit respecting a service in any year shall be debited against
that budget in the second next ensuing year. (Section 27(7))
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July 25, 2012
(1) A Commission is required to treat a budget surplus in a similar
fashion. (Section 27(8))
(m)Notice of vote on a Commission budget and a copy of that budget
must be given in writing to each member at least 45 days prior to the
vote. (Section 28)
(n) A Commission must arrange for annual audited financial statements
and deliver them to each member by March 315`. (Section 29(1))
(o) Members of a
Commission
are liable for
their proportionate share of
any default in
payment by a
Commission.
(Section 30)
As stated at the outset, the Act establishes the structure of a Regional
service delivery mechanism, stipulates the services which a Commission
must provide and which a member municipality must accept, identifies the
discretionary, as opposed to mandatory services able to be provided by a
Commission and as well describes the framework within which a
Commission will exercise its powers and discharge its duties. The actual
implementation or operation of those powers and structures together with
the discharge of those duties will be governed by the content of
Regulations yet to be made. I have enquired of the Province whether
regulatory provisions have been drafted and if so whether they would be
available for review by municipalities. As of this writing a response has
not been received. It would obviously be very valuable to have an
opportunity to review and comment upon proposed Regulations before
they are promulgated and I would recommend that the City directly and
under the aegis of the City's Association seek that opportunity from the
Province.
Respectfully Submitted,
V
Joh .Nugent
�
City Solicitor