No council approval? No extension: Expert

Caslin ‘does not have any inherent authority to act without authorization...’

Regional Chair Alan Caslin’s unilateral decision to extend CAO Carmen D’Angelo’s contract would be “null and void” without approval from council, says Niagara’s former interim integrity commissioner.

At a special council meeting Thursday, Caslin told councillors he unilaterally extended D’Angelo’s contract by three years, allowing him to remain in the $230,000-a-year position until 2022.

Caslin apologized for having done so if he lacked the authority. Regional staff also previously confirmed there was no bylaw approved by council to extend D’Angelo’s contract.

In an email to The Standard, John Mascarin, who served as the Region’s integrity commissioner last year, said the Ontario Municipal Act requires municipalities to act only “through its council and only by bylaw, unless specifically authorized to do otherwise.”

“If council did not specifically or generally authorize the regional chair by bylaw to extend the CAO’s contract, any purported extension of it would be null and void,” said Mascarin.

“Although the regional chair may be the head of council, he does not have any inherent authority to act without authorization from council.”

And the “indoor management rule” that applies to business corporations does not apply to municipal corporations such as Niagara Region, Mascarin said, referring to a legal principle that says people who enter into a contract with a corporation can rely on the assumption that the representatives of that corporation has the legal authority to bind the corporation.

Brock University political science professor David Seigel said the “CAO works for council, not the head of council.”

As such, he said any changes to the CAO’s contract “need to be a council decision.”

For instance, when D’Angelo’s contract was initially approved on Oct. 31, 2016, with an option for a two-year extension, Seigel said council could have delegated decision-making authority regarding that contract extension to Caslin.

And councillors contacted by The Standard Friday did not recall ever having voted to give Caslin that power.

Still, St. Catharines Mayor Walter Sendzik said council has asked for more information on the issue, asking staff to review records to be certain that no such motion was ever approved by council.

“Obviously that was a discussion point, but we’ve asked for more information,” he said.

“As a council, we’re trying to get as much information as possible before we make any comment.”

St. Catharines Coun. Brian

Heit said to the best of his knowledge, no such motion was ever approved.

“I’ve never seen it. I don’t believe it was done,” he said. “I can’t say 100 per cent, but I don’t believe it was ever done.”

“Clearly, we weren’t involved,” said Pelham Mayor Dave Augustyn. “The chair took it upon himself to do this, and that’s disheartening.”

And St. Catharines Coun. Kelly Edgar said he too does not recall council ever authorizing Caslin to extend the contract.

“As far as people I’ve spoken to are concerned, we did not give him that authority,” said Edgar, who as vice-chair led much of the discussion at Thursday’s meeting.

However, he said the Region will have a definitive answer after council records are reviewed.

Asked what it could mean for the CAO if it’s ultimately determined his extended contract is null, Sendzik said speculating about the issue “would be irresponsible.”

“As a council, it’s our responsibility to ensure that whatever decision is made, is made with a fulsome set of information,” he said.

“And we don’t have a lot of information right now today.”

Sendzik, however, shares the frustration felt by several of his colleagues regarding the time being dedicated to the issue.

“There was definitely a heightened temperature in the room” during the special council meeting, he said.

“There’s been so much speculation and so much attention placed on this entire process, from the hiring to the contract. A lot of councillors just want to get to the bottom of it.

“There’s a lot of fatigue,” he said.

Sendzik said Welland Coun. Paul Grenier eloquently expressed that frustration during the meeting.

“I am tired of these conversations and, by the way, if you are keeping score, we are in our ninth hour of talking about ourselves in the last two weeks and 5,200 families are still waiting for housing,” said Grenier.

That frustration is also being felt throughout the community.

St. Catharines lawyer Rob Welch, for instance, took to social media sharing his thoughts about the issue.

“This action of Al Caslin is a fundamental disservice to his colleagues on @NiagaraRegion council, the staff at the Region, and most importantly, the residents and ratepayers in Niagara,” he wrote on Twitter. “It’s an egregious breach of fiduciary duty.”

Contacted at his office, Welch — a former regional councillor — said he stands by that comment.

Meanwhile, Welland MPP Jeff Burch referred to the council meeting in an open letter he wrote to Ontario Ombudsman Paul Dubé, whom councillors unanimously voted to call in for an investigation of the CAO’s hiring.

Referring to the contract extension, Burch wrote that there was “no debate, no vote and no bylaw enacted.”

“Mr. Dubé, as Municipal Affairs Critic for the Official Opposition with the full support of Niagara Regional Council and many taxpayers.

“I urge your office to undertake a full investigation into this matter as soon as possible,” he wrote.

“Confidence must be restored in Niagara Regional Council and this investigation will play a key role in restoring the faith people once had in our local government. Recent newspaper articles are also attached for your review.”

Caslin and additional regional councillors did not respond to a requests for interviews prior to The Standard’s deadline.