Casual legal: Council's employment obligations to the CAO
DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.
By Lauren Chalaturnyk
Reynolds Mirth Richards Farmer LLP
Alberta Municipalities Casual Legal Service Provider
Municipal Councils rarely need to engage with employment matters and are insulated from the administration and management of municipal staff in almost all cases with one clear exception: the Chief Administrative Officer (“CAO”). The CAO is Council’s one and only employee. This means that Councils should understand their obligations relative to the hiring, performance management, and termination of CAOs.
The Municipal Government Act (“MGA”) requires that all Councils establish a position of CAO by bylaw and appoint a CAO into that position (sections 205 and 206). The MGA also requires that Councils issue an annual written performance evaluation of the CAO (set out in sections 207 and 208 of the MGA).
Like any employee, it is best practice to have an employment agreement in place for the position of CAO as this will allow council to set clear expectations for the CAO and provide some predictability to circumstances that may arise at the end of the CAO’s employment. It is also possible to hire a CAO and have them hold the position as an independent contractor. The more exclusive and full-time the work with the municipality is expected to be, the more appropriate it will be to have the CAO as an employee.
Where the CAO is an employee of the municipality, Council owes the same duties to ensure a safe, harassment-free, and violence-free workplace to the CAO as the municipality generally owes to its staff. Council also owes obligations to the CAO under the Alberta Human Rights Act.
Finally, Council must be mindful of its obligations under the MGA regarding the revocation or suspension of the CAO’s appointment. Unless certain requirements are expressly waived in the CAO’s employment agreement, then Council must follow the steps in the MGA. In particular, under section 206 of the MGA, council must first notify the CAO of its intent to suspend or revoke the appointment, then it must provide the CAO with an opportunity to be heard by council (unless this has been expressly waived by the CAO in writing). After Council has heard from the CAO, it may only then decide whether to proceed with the suspension or revocation and a majority of the whole of Council must vote to do so. All discussions between Council members and the CAO regarding the suspension or revocation of the CAO’s appointment must be held in closed session, with the exception of the passing of required resolutions which must be done in public.
The suspension or revocation of the appointment of a CAO is a complex process, and it is prudent for Council to seek legal advice if it is considering doing so to ensure that its obligations under both the MGA and any applicable contract are met.
To access Alberta Municipalities Casual Legal Helpline, Alberta Municipalities members can call toll-free to 1.800.661.7673 or email casuallegal [at] abmunis.ca (casuallegal[at]abmunis[dot]ca) and reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please contact riskcontrol [at] abmunis.ca (riskcontrol[at]abmunis[dot]ca), or call 310.MUNI (6864) to speak to Alberta Municipalities Risk Management staff. Any Regular or Associate member of Alberta Municipalities can access the Casual Legal Service.
