When can the Ombudsman investigate decisions of elected councilors?

When political issues are voted on by elected councilors, an appointed official like the Ombudsman must respect the democratic process and allow those decisions to proceed unchallenged. A political decision might be approving the budget or passing a bylaw to bring in photo radar. At that level it is the responsibility of town’s voters, not the Ombudsman to evaluate council’s performance.

Administrative decisions apply the bylaws passed by council and these decisions are usually made by employees of the town. Sometimes municipal councils consider the application of bylaws. In such cases, the Ombudsman may investigate the fairness of council’s decision. Distinguishing between political and administrative decisions has been a challenge for Ombudsman investigators since the office received jurisdiction over municipalities on April 1, 2018.

A relatively straightforward example comes from a small Alberta town where a resident was five minutes late paying his yearly property taxes, but still received a charge of almost $2,000 for being in arrears. The taxpayer wrote to the Ombudsman: “I emailed my plight to (the) mayor.” The mayor took the case directly to council. In a city or large county, appeals about tax arrears would never make it to council. In very small municipalities, council involvement might be the only alternative. A principle of administrative fairness is all decisions should be subject to review. If a village only has a handful of employees, there may be no one else to review decisions. However, nothing forbids council from acting as a review body.

The taxpayer was able to make his case before council. He pointed out he had a record of paying on time and he put his payment into the town’s drop box only minutes after the town office closed. He also argued other municipalities in the region would have forgiven the arrears. While there was a dissenting vote, the majority of council ruled it had to apply its bylaw consistently. The deadline had been published on tax notices and in advertisements. The arrears were applied consistent with the town bylaw and the arrears were not forgiven.

The Ombudsman investigator reviewed the notices, advertisements, town bylaw and concluded the town acted within its authority. Following the council decision, the taxpayer tried to appeal the council decision back to the chief administrative officer who refused to reconsider a decision of council. The Ombudsman would have expected a review at a lower level if the request had been made prior to consideration by council, but not afterwards.

It has been a year since the Ombudsman’s began accepting and acting on complaints about municipalities. Small municipalities are responsible for operating under the same legislative requirements as larger municipalities but with less staff and resources. Employees and council must take on a wider range of roles. This requires some agility in the Ombudsman’s approach when working with small municipalities because the application of administrative fairness will be different than in large cities.