Resolving the Crisis of Legitimacy at City Hall
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Resolving the Crisis of Legitimacy at City Hall

The Rob Ford saga has exposed structural flaws in our municipal government. Council should embrace this opportunity to repair them.

Rob Ford facing off against his former budget chief, Mike Del Grande, at City Hall last week.

With council’s recent round of votes, Toronto’s politics may finally be headed back to something approaching normalcy—or the nearest we’ll be allowed so long as Rob Ford is mayor. Council has, finally, asserted its supremacy over Ford. We’ll see if it sticks: Rob Ford has promised to mount a legal challenge to council’s decisions, and a court may yet decide that council has gone too far. (Ontario’s Municipal Affairs Minister Linda Jeffrey has said that according to the advice she’s received, council was within its rights. This won’t, however, preclude Ford from attempting a legal challenge anyway.)

But for now, this is a partial–yes, partial–resolution of the crisis. A complete resolution requires more.

Monday saw Ford made, in effect, into a councillor-at-large: he will have no special privileges except for those (largely ceremonial ones) required by provincial law, and even those won’t be administered without resistance from council. He has been rendered, in every way council currently has at its disposal, powerless.

Except he won’t be powerless—he’ll still be a member of council. And he’s made it clear that he’s going to use the abilities he has as a member of council to prevent the work of council from getting done. He explicitly threatened to filibuster council in response to its disciplinary actions, and proceeded to do just that when council resumed debate on its regular agenda, by placing a hold on just about every remaining item.

To be clear: the “hold” isn’t a rare procedural trick. It’s something that Toronto City Council needs just to get its work done—it’s the mechanism by which a member of council puts a motion up for debate, rather than having it passed automatically and without discussion.

Council can take away powers it delegated to the mayor (or rather, we hope a court agrees it can) but trying to pass Ford-specific limits on the rights of council members to hold items for debate is a lot dicier, legally speaking. So what then? Do we start limiting the rights of all members to hold items for debate, just so we can try and get around Ford’s temper tantrums?

This is ridiculous. Ford is explicitly stating that not only does he not have any intention of doing his job—he’s not going to allow his colleagues to do their jobs, either. This isn’t hyperbole. The role of the mayor of Toronto as the head of council is set out in S. 133 (1) of the City of Toronto Act.

133. (1) It is the role of the mayor of the City, as the head of council,

(a) to act as chief executive officer of the City;
(b) to preside over meetings of council so that its business can be carried out efficiently and effectively;
(c) to provide leadership to council;
(d) to represent the City at official functions; and
(e) to carry out the duties of the head of council under this or any other Act.

Rob Ford has explicitly stated that he does not intend to do his job under S. 133 (1) clauses A or B. Council has made C irrelevant. It can’t technically take D away from him, but he’s already sufficiently toxic that he can’t represent the city at the Santa Claus Parade and has to pay his own freight to the Argos-Ticats game. So Ford, in a very literal sense, cannot do the job he was hired to do.

In any other situation–with an office holder who was not merely abdicating his duties, but actively hindering them–the answer would be simple: he should be removed from office, as fast as reasonably possible. So, great news: the Premier says that if council asks for “new tools” to resolve the Ford situation, her door is open. On Monday, Tim Hudak, the leader of the official opposition, said “We need to put this behind us” when asked what he would do if council asked the province for help.

And…. nothing from council. Denzil Minnan-Wong is still talking about this, but councillors by and large don’t seem ready to take this step. Rob Ford has done everything imaginable (even with our newly expanded imaginative horizons) to disgrace his office, but the line from councillors is that if he isn’t actually incarcerated, he should get to keep his seat.

This is a ridiculous threshold to set for public office. It’s surprising that even needs to be said. What it amounts to is a claim that, short of serious crimes, the only real limit to an abuse of public trust is the abuser’s own sense of shame.

It’s also undemocratic, though many seem to misunderstand this. An election isn’t a get-out-of-jail-free card. It’s a conditional licence granted by the people to represent them. Just because that licence is normally reviewed at regular intervals (elections) doesn’t mean that’s the only permissible way to do so.

To put it simply: if a large majority of council asks the province for the power to remove Rob Ford from office, and that were to get unanimous consent from all three parties at Queen’s Park, you would have the elected representatives of both Toronto and Ontario voting to add accountability to the office of the mayor. Absolutely nothing in that is undemocratic. It is, instead, a pair of democratic assemblies doing their jobs—because Rob Ford refuses to do his.

Some councillors and observers have raised concerns about the precedent this would set: What’s to keep this from being abused? The only thing that keeps anything from abuse in a democratic government: in the final accounting, the voters. If city council votes to remove Rob Ford from office and this so outrages the voters that they want to remove their councillors at the next election, they’ve got the opportunity to do so. But in the meantime, it’s council’s job to properly manage the business of this city.

Or, to repeat more precisely: it’s Rob Ford’s job, but he refuses to do it, and says that as long as he’s a member of council, he won’t let anyone else do it either.

This isn’t simply about Ford. Council should have the power to expel any member of council—be it a councillor or a mayor—who consistently and deliberately undermines the effective and efficient functioning of council.

If this sounds like a dangerous road to go down, we can look to the Parliament of Canada’s description of the House of Commons:

The power of the House to expel one of its Members derives from its traditional authority to determine whether Members are qualified to sit. A criminal conviction is not necessary for the House to expel a Member; the House may judge a Member unworthy to sit in the Chamber for any conduct unbecoming the character of a Member.

Historically, members have only been expelled for criminal convictions. But that is explicitly not the threshold the House sets.

The U.S. Congress has the power to expel members, and the Constitution simply sets the threshold of needing a two-thirds vote of the respective chamber. No criminal or ethical threshold for expulsion is explicit in the text.

The power to expel one of its members is properly understood as the power of any normal, mature democratic assembly. And Toronto City Council should have that power, even if councillors can’t (for reasons that defy understanding) bring themselves to use it. The language we choose is important here: this isn’t “recall” or “impeachment.” Ford isn’t being judged because he’s unpopular, nor is he being judged because council disagrees with him politically–though both of those things are obviously true.

Rather, Ford is being judged, and should be expelled, because council’s first job is maintaining the effectiveness of council. Rob Ford has made himself an obstacle to that, and made it clear that he’s going to keep doing so as long as he’s able.

What happens next, if council removes Ford from office?

Council has an existing policy for dealing with vacancies, which we’ve seen used recently, in the case of Doug Holyday—who left City Hall for Queen’s Park after a by-election this summer. It can choose to appoint a successor or hold an election. Given that we’re less than a year away from the next city-wide election anyway, councillors would likely opt for an appointment. But the basic point is this: the procedural machinery for a vacancy at council already exists, and we don’t need to reinvent the wheel.

What about (insert my preferred fix here)?

There are a bunch of other ideas worth considering that might help make council work better. Dave Meslin has been advocating for Instant Runoff Voting (or ranked ballots), and other cities use at-large councillors instead of ward systems to ensure councillors have city-wide interests in mind when they vote, for starters. These are all methods that deserve study, but they don’t resolve the problem we have now, and won’t prevent it from occurring in the future.

There is no evidence that Instant Runoff Voting would have prevented Ford from becoming Mayor (contemporary polls showed Ford was the second choice for many Smitherman and Pantalone voters), and absolutely nothing about his tenure in office should make you think that IRV would have changed the way Ford would have comported himself since. (To be cruel about it: he was not thinking about his poll numbers while smoking crack.)

What about the potential for abuse?

Every system can be abused, and most are. Abuses can be a reason for caution, but on their own can’t be a reason to avoid necessary changes. (Police abuse civilians. Few think the absence of police would be preferable.) The actual history of expulsion powers suggests that abuse isn’t something we have to worry about. The Canadian House of Commons has expelled four members in its entire history, all for the commission of crimes. Of the 20 members of Congress who have ever been expelled, 17 were Southern Democrats who joined the Confederacy—and expulsion for treason seems pretty reasonable. Neither chamber shows a history of political expulsion votes.

The design of an expulsion rule is important: we should be looking at a larger threshold than a 50+1 majority, and additional safeguards can be built in—such as a requirement for multiple votes separated by a temper-cooling interval. (Two votes within 15 days, for example.) But there’s no reason to suggest that expulsion powers, in and of themselves, are likely to be abused by Toronto City Council. They are, however, the only tool left that could actually solve the crisis at City Hall.

This isn’t just about Ford

It’s important to emphasize here that while Ford is a bad actor who deserves his fate, this isn’t simply about Ford. Rather, Ford has exposed a structural flaw in the design of council, in the way bad actors expose security flaws in computer systems. The answer, when your laptop gets a virus, isn’t to throw it in a desk drawer and hope for the best. The answer is to fix the flaw.

The flaw Ford has exposed is that council cannot function when one of its members is explicitly invested in making sure that it doesn’t function. Since he was a councillor, Ford’s disruption have gone from wryly frustrating to jaw-dropping to indefensible, and by his own words he now intends to obstruct even basic council work. Putting Ford in a box and hoping for the best isn’t going to get us out of this mess.

But say I’m wrong: Let’s say that contrary to his own words and deeds, Ford actually passes the remaining year without making council a disaster area. Ford’s voters haven’t gone anywhere, and letting the status quo endure amounts to hoping that the 47 per cent of people who voted for Ford in 2010 won’t be fooled again. Council needs a strategy to deal with the next Rob Ford even if it refuses to deal with the one it already has.

Toronto City Council should have the power to expel a member of council who becomes an immovable obstacle to the business of the City. Whether mayor or councillor, nobody should be able to hold Toronto and its business hostage. Arguing against this as a basic right of a democratic assembly is to argue that Toronto’s council is not a mature level of government. If there are any councillors reading this, please: you’ve insisted since amalgamation that Toronto is a responsible level of government. That has to mean something concrete, and now it means you have to ask the province for the power to expel an irresponsible member of council.

Rob Ford has long since earned his expulsion from council. He demeans his office and the offices of people around him. He humiliates council and the city as a whole. The only thing left for him to do is literally defecate on the council floor, but according to some it would be undemocratic for us to keep him from doing so. This is absurd. Representing the voters isn’t a right—it’s a privilege that emanates from our individual rights, and Ford has used up the last of his political privileges.

The alternative is to spend the next year watching as Rob Ford does what he tells us he’s going to do: sue the City for his powers back, at the cost of millions of dollars and months of time—all while he does everything he can to obstruct anything he can. If that worries you less than the political risks of a more powerful council, you don’t have your priorities straight.

This is a revised version of a post that originally appeared on John Michael McGrath’s blog.