Report to: General Committee Date Report Authored: September 3, 2009

SUBJECT: Filling of Vacant Regional Council Position

PREPARED BY: Kimberley Kitteringham, Town Clerk, Ext. 4729

RECOMMENDATION:

1) That the Report entitled “Filling of Vacant Regional Councillor Seat” be received; and,

2) That, at its September 15, 2009 meeting, Council declare the Regional Council seat formerly held by Tony C. Wong vacant in accordance with the Municipal Act, 2001; and,

3) That Council provide direction on the method to be used to fill the vacancy; and,

4) That, if Council chooses to fill the vacancy through an appointment, an appointment procedure be adopted; and further,

5) That, should a by-election be required, the Town’s Procurement By-law be waived to allow for sole sourcing to Election Systems and Software (ES & S) to be funded from the election reserve account 86 2700 850.

4. Financial

5. Others (HR, Strategic, Affected Units) 6. Attachment(s)

PURPOSE:

The purpose of this Report is to outline the options available to fill the vacancy on Town of Markham Council resulting from the death of Regional Councillor Tony Wong on June 17, 2009.

BACKGROUND:

Vacancies on a municipal council are addressed in Sections 259-263 of the Municipal Act (the Act). The Act stipulates that if the office of a member of municipal council becomes vacant as a result of a death, the municipality must pass a motion to declare the seat vacant at one of its next two meetings. Based on Markham’s meeting schedule, this declaration must therefore occur at the September 15, 2009 Council meeting.

OPTIONS/ DISCUSSION:

In accordance with the Act, Council has the following 2 options for filling the vacancy:

(1) Appoint an eligible voter to assume the vacant seat; or,

(2) Hold a by-election in accordance with the Municipal Elections Act, 1996 (MEA).

Council is required to select one of the above-noted options within 60 days after the day the declaration of vacancy is made. The following is a brief overview of each of the two options.

Option 1 – Appointment

In accordance with the Act, an individual must be an eligible voter to be appointed. To be an eligible voter, an individual must be (1) 18 years of age or older; (2) a Canadian citizen; and (3) and owner or tenant of land in the Town or the spouse of such an owner or tenant; and (3) not disqualified by statute.

Council must agree to and approve a procedure for the appointment process.

Appointment Advantages:

· Less costly procedure than conducting a by-election. Depending on the form and complexity of appointment considered, administration, printing, advertising, website development and other outreach costs range from $10-15,000; and

· The vacancy could be filled sooner through an appointment.

Appointment Disadvantages:

· It could be viewed as a less democratic process; and

· It could be perceived that Council is affording an advantage to the individual appointed should he or she decide to run in the 2010 Municipal Election.

Option 2 - By-Election

The by-election process is prescribed by the MEA. The legislated timeframes are outlined below:

· Within 60 days after the day a declaration of vacancy is made (September 15, 2009 in Markham’s case), Council must pass a by-law requiring a by-election to be held;

· Nomination Day is to be set not more than 60 days from the date Council passes a by-law requiring a by-election; and

· Voting day is 45 days after Nomination Day.

The MEA does not require Ward Councillors to vacate their seat in order to seek a Regional Council position in a Town-wide by-election.

Staff prefer that a longer amount of time be afforded to prepare for a by-election, to allow candidates the opportunity to conduct a meaningful campaign and for the public to be fully engaged in the process. To achieve this, a Ward-based by-election is recommended to be held late January, 2010 and a Town-wide by-election is recommended to be held late February, 2010.

Administratively, staff advise that the earliest possible date for a Ward-based by-election is late November, 2009 and early January, 2010 for a Town-wide by-election. An overview of the various scenarios for holding a By-Election and preliminary cost estimates associated with each is included in Attachment “A”.

Should Council choose to undertake a by-election, staff recommends that the Town’s Procurement By-law be waived to allow for Election Systems and Software (ES & S) to be retained. ES & S is the company retained for the provision of automated vote counting systems in the 2003 and 2006 Municipal Elections. Additionally, in recognition of the short time frames involved, it would not be practical to offer an internet voting option.

By-election Advantages:

· Viewed as more democratic than an appointment process.

By-election Disadvantages:

· More costly than an appointment (a Town-wide by-election is estimated to cost an upset limit of approximately $505,000, exclusive of Contribution Rebate Program costs; a single member Ward by-election is estimated to cost an upset limit of approximately $91,000, exclusive of Contribution Rebate Program costs) [1].

· The vacancy would take longer to fill.

· Generally, by-elections have a low voter turnout.

Term of Office

Under the Act, a person appointed or elected to fill a vacancy shall hold office for the remainder of the term of the person he or she replaced. Accordingly, the person appointed or elected relative to this vacancy would hold office only until November 30, 2010.

Past Vacancies in the Town of Markham and other Ontario Municipalities

Appended to this Report as Attachment “B” is a synopsis of how past vacancies on Town of Markham Council were resolved. Since 1960, there have been 5 vacancies on Markham Council since 1960 (1 Mayor; 2 Regional Councillors; and 2 Wards Councillors). Of the 5 vacancies that occurred, 3 were filled by appointment (the Mayor and 2 Regional Councillor vacancies) and 2 through a by-election (the 2 Ward Councillor vacancies).

Also appended is Attachment “C” which summarizes how vacancies on other Ontario municipal councils have been handled since the November 2006 Municipal Election. Of the 32 vacancies listed, 20 were filled by appointment, 12 through a by-election.

In reviewing the data provided in both Attachments “B” and “C”, and in discussions with some of the municipal clerks involved, it is clear that municipal councils have taken into consideration a number of different factors in determining whether to fill a vacancy through appointment or by-election, including:

Proximity to the next regular election;
Costs (i.e. Municipality-wide versus Ward impact);
Public interest; and
Local Councillor interest in serving at the upper-tier level.

While the research indicates that the majority of council vacancies in Ontario since 2006 have been filled through appointments, the decision as to which method to employ rests solely with Markham Council.

Rebate Program

The Town has established a rebate program for contributors to elections, as outlined in Attachment “D”. The By-law provides for the application of the program for the regular election “and any by-election during the 2006-2009 term of Council”.

Based on the 2006 general election, the average cost of the program (per registered candidate) is $9,696.00.

FINANCIAL CONSIDERATIONS AND TEMPLATE:

Costs are dependent on the method adopted by Council for filling the vacancy. The estimated cost of appointing a Regional or Ward Councillor following recruitment from the community is $10,000 - $15,000. The estimated cost of having a by-election (Option 2) is up to $91,000 for a Ward election; and up to $500,000 for a Town wide election, exclusive of Contribution Rebate Program costs.

HUMAN RESOURCES CONSIDERATIONS

Not applicable.

ALIGNMENT WITH STRATEGIC PRIORITIES:

Not applicable.

BUSINESS UNITS CONSULTED AND AFFECTED:

Legal and Finance departments have been consulted in the preparation of this report.

RECOMMENDED

BY: ________________________ ________________________

Kimberley Kitteringham, Andy Taylor,

Town Clerk Commissioner of Corporate Services

ATTACHMENTS:

Attachment “A” – By-Election Options & Preliminary Cost Estimates

Attachment “B” – Past Council Vacancies – Town of Markham

Attachment “C” – Past Council Vacancies – Ontario Municipalities since November, 2006

Attachment “D” – By-law 2005-311, Rebate Program By-law

Attachment “A”

By-Election OPTIONS & PRELIMINARY COST ESTIMATES

Town-wide by-election

Longer timeframe

· Example: February 27, 2010. This date was determined as follows:

Tuesday, September 15, 2009 declaration of vacancy;
Saturday, November 14, 2009 – last day for Council to pass a by-law to conduct a by-election (according to Council’s current schedule, this would be Tuesday, November 10, 2009);
Wednesday, January 13, 2010 – Final date for Nomination Day; and,
Saturday, February 27, 2010 – Voting day (45 days after Nomination Day).

Shortened timeframe

· Example: January 11, 2009. This date was determined as follows:

Tuesday, September 15, 2009 declaration of vacancy and adoption of a by-law to hold a By-election;
Friday, November 27 – Nomination Day; and,
Monday, January 11, 2009 – Voting day (45 days after Nomination Day).

Ward by-election

Longer timeframe

· Example: January 26, 2010. This date was determined as follows:

Tuesday, September 15, 2009 Council meeting - declaration of vacancy;
Tuesday, October 13, 2009 – Council adopts a by-law to hold a By-election;
Saturday, December 12, 2009 - Final date for Nomination Day; and,
Tuesday, January 26, 2009 – Voting day (45 days after Nomination Day).

Shortened timeframe

· Example: November 23, 2009. This date was determined as follows:

Tuesday, September 15, 2009 Council meeting – declaration of vacancy and adoption of a by-law to hold a By-election;
Friday, October 9, 2009 – Nomination Day; and,
Monday, November 23, 2009 – Voting day (45 days after Nomination Day).

Preliminary Cost Estimates - Town-Wide By-Election

Office supplies/printing 75,000

Temporary election officials 100,000

Postage 115,000

Voting place rental, furniture 25,000

Communications plan 45,000

Miscellaneous 25,000

Tabulators/support (ES & S preliminary estimate) 120,050

______________________________________________________

TOTAL $505,050

Preliminary Cost Estimates - Ward Based By-Election

Office supplies/printing 15,000

Temporary election officials 15,000

Postage 15,000

Voting place rental, furniture 5,000

Communications plan 20,000

Miscellaneous 4,500

Tabulators/support (ES & S preliminary estimate) 16,250

______________________________________________________

TOTAL $ 90,750

Please Note:

The costs listed above are estimated; formal quotations will be required;
Assumptions include: no internet voting program; reduced voting locations; maximized use of Town facilities and staff; and,
The cost of the Contribution Rebate Program has not been included in the estimates provided above. Based on the 2006 data, the average cost of the program (per registered candidate) is $9,696.00.

Type of Vacancy	Reason for Vacancy	Date Vacancy was Declared	Method of Filling Vacancy	% of Voter turnout at by-election	Person Appointed/ Elected	Date Appointed / Sworn -In
Mayor	Mayor Tony Roman passed away	November 24, 1992	Appointment		Regional Councillor Frank Scarpitti	November 24, 1992
Regional Councillor	Regional Councillor Frank Scarpitti was appointed to the position of Mayor	November 24, 1992	Appointment		Councillor Ken Dunphy	November 24, 1992
Ward Councillor	Councillor Ken Dunphy was appointed to the position of Regional Councillor	November 24, 1992	By-election	22 %	Councillor Ron Maheu	April 13, 1993
Regional Councillor	Regional Councillor Bill Fisch was appointed to the position of Regional Chairman	December 11, 1997	Appointment		Councillor Tony Wong	January 13, 1998
Ward Councillor	Councillor Wong was appointed to Regional Councillor	January 13, 1998	By-election	18.39%	Councillor Khalid Usman	March 10, 1998

Attachment “C”
Past Council Vacancies:
Ontario Municipalities Since November 2006

Date	Municipality	Population	Appointment or By- Election	% of Voter Turnout at By-Election	Form of Appointment
January 2007	Burlington	160,000	By-election	9.57%
January 2007	Markstay-Warren	2,666	Appointment		Appointed the person with the next highest number of votes from the 2006 Municipal Election.
February 2007	Gauthier	131	Appointment		Appointed the person with the next highest number of votes from the 2006 Municipal Election.
March 2007	Melancthon	2,470	By-election	24%
March 2007	Durham District School Board	N/A	By-election	3.02%
March 2007	Calvin	602	Appointment (2)		A Ward Councillor was appointed to fill the vacant Mayor position; the person with the next highest number of votes from the 2006 Municipal Election was appointed to fill the Ward Councillor vacancy.
April 2007	Guelph	110,000	Appointment		Appointed the person with the next highest number of votes from the 2006 Municipal Election.

Date	Municipality	Population	Appointment or By- Election	% of Voter Turnout at By-Election	Form of Appointment
April 2007	Pickle Lake	398	Appointment		Community wide recruitment of an eligible elector.
May 2007	Atikokan	3,172	Appointment		Appointed the person with the next highest number of votes from the 2006 Municipal Election.
June 2007	Milton	65,800	By-election	20.86%
June 2007	White River	889	Appointment		Appointed the person running for Mayor with next highest votes (Note: the vacancy was not for Mayor). The person appointed was a past Councillor.
July 2007	Marathon	4,095	Appointment		Appointed the person with the next highest number of votes from the 2006 Municipal Election.
July 2007	Plummer-Additional	625	Appointment		Appointed the person with the next highest number of votes from the 2006 Municipal Election.
July 2007	McMurrich-Monteith	655	Appointment		Appointed the person with the next highest number of votes from the 2006 Municipal Election.

Date	Municipality	Population	Appointment or By- Election	% of Voter Turnout at By-Election	Form of Appointment
July 2007	Pickle Lake	398	Appointment		Community wide recruitment of an eligible elector.
August 2007	Welland	47,236	Appointment		Appointed the person with the next highest number of votes from the 2006 Municipal Election.
September 2007	Dorion	383	By-election	34.9%
September 2007	Arran-Elderslie	6,230	By-election	33.7%
September 2007	Wollaston	634	By-election	42.41%
September 2007	Drummond-North Elmsley	7,118	Appointment		A notice was sent out requesting nominations. Councillors were also permitted to make nominations on the day of the Council meeting. The vacancy was filled by Council voting on each nomination.
September 2007	Halton Region School Board	N/A	By-election	No Response
September 2007	Dubreuilville	773	Appointments (2)		No response at time of survey.
September 2007	Temagami	934	Appointment		The position for Councillor was advertised in the local media, and the applicants were interviewed by Members of Council. Members of Council voted on the top candidates at the next Council meeting.
October 2007	Fort Frances	8,103	By-election	48.3%

Date	Municipality	Population	Appointment or By- Election	% of Voter Turnout at By-Election	Form of Appointment
October 2007	Elizabethtown-Kitley	9,631	Appointment		Appointment process open to all eligible voters.
October 2007	Ajax	74,907	By-election	8.36%
October 2007	Scugog	20,367	By-election	23%
October 2007	Thunder Bay	109,140	Appointment		Appointed the person with the next highest number of votes from the 2006 Municipal Election.
January 2008	Drummond- North Elmsley	7,118	By-election	15%
May, 2008	Aurora	45,000	Appointment		Appointed the person with the next highest number of votes from the 2006 Municipal Election.
September 2008	Niagara-on-the-Lake	13,661	Appointment		Appointed the person with the next highest number of votes from the 2006 Municipal Election
May, 2009	South Dundas	10,500	Appointments(3)		Mayor died; Deputy Mayor was appointed Mayor; Councillor with the most votes in previous election became new Deputy Mayor; the person with the next highest number of votes from the 2006 Municipal Election was appointed to Council.

Attachment “D”
ELECTION REBATE PROGRAM BY-LAW

BY-LAW 2005-311

A By-law to authorize the payment of rebates to

persons who make contributions to candidates for an

office on the Town of Markham municipal council

for the 2006 Municipal Election and any By-election during the

2006-2009 term of office

WHEREAS subsection 82(1) of the Municipal Elections Act, 1996, as amended (“the Act”) provides that a municipality may, by by-law, provide for the payment of rebates to persons who make contributions to candidates for an office on the municipal council;

THEREFORE THE COUNCIL OF THE CORPORATION OF THE TOWN OF MARKHAM ENACTS AS FOLLOWS:

1. The payment of rebates to individuals who are residents in the Province of Ontario who make financial contributions to candidates for an office on the municipal council for the 2006 Municipal Election and any By-election during the 2006-2009 term of office is authorized.

2. Notwithstanding section 66 of the Act, the following are not eligible for a contribution rebate:

a. contribution of goods and services;

b. a candidate’s contribution of inventory from a prior election;

c. contributions made by corporations and trade unions.

3. Notwithstanding section 66 of the Act, only the net contribution from a fundraising event shall quality for a rebate.

4. The application for rebate shall be in the form established for that purpose by the Clerk, which shall include a receipt in the form provided by the Clerk that is signed by, or on behalf of, the candidate.

5. A candidate for an office on the municipal council who participates in the rebate program:

a. shall comply with subsections 78(1) to (4) of the Act; and

b. shall include with the documents filed under subsection 78(1) or (2) of the Act, as the case may be:

· a copy of the receipt issued for the contribution,

· a copy of all campaign expense invoices incurred as part of the campaign

· a list of contributors $50.00 or more, including the net contribution amount to fund raisers

· a separate list of contributors to fund raising events

· an auditor’s statement that the auditor has verified all contributions against a bank statement for the campaign account

6. A candidate who is not participating in the rebate program shall notify their contributors and obtain their consent in writing that their contribution will not be submitted for a rebate.

7. The Clerk shall pay the contributor a rebate in accordance with section 8, if the following conditions are met:

a. the application complies with the provisions of this by-law;

b. the candidate has complied with the provisions of the Act and has filed a financial statement and auditor’s report in accordance with Section 78(1) of the Act;

c. the Clerk is satisfied with the receipt filed by the candidate;

d. the Clerk is satisfied with the campaign expense invoices submitted by the candidate;

e. the Clerk is satisfied that the candidate has filed the documents required by section 78 of the Act by the relevant filing date, and that no such document shows on it face that the candidate has incurred expenses exceeding what is permitted under section 76 of the Act;

f. the Clerk is satisfied that the candidate has paid any campaign surplus to the Corporation; and

g. the candidate has agreed to participate in the rebate program established by this By-law.

8. The rebate shall be calculated as follows:

a. the minimum contribution qualifying for a rebate shall be $50.00;

b. if the contribution is $300.00 or less, the rebate is 75 per cent of the contribution;

c. if the contribution is greater than $300.00, the rebate is 75 percent of $300.00 plus 50 percent of the difference between the total contribution and $300.00, to a maximum rebate of $350.00 regardless of the number of contributions made by any individual eligible contributor.

READ A FIRST, SECOND, AND THIRD TIME AND PASSED THIS

15^TH DAY OF NOVEMBER, 2005.

_______________________________ ______________________________

SHEILA BIRRELL FRANK SCARPITTI

TOWN CLERK DEPUTY MAYOR

[1] The costs provided are estimates only. Clerk’s staff will require formal quotes.