By-election or bust: council should stop appointing people to fill vacancies

May 24, 2018

By Matt Elliott

Here’s a short list of ways Toronto City Council could have chosen a replacement councillor for Ward 33 that would have been preferable to the appointment process they used to select Jonathan Tsao on Tuesday.

They could have awarded the council seat at random to, say, a lucky person waiting in line at city hall to get a parking permit. They could have given the seat to a local celebrity – with the caveat that it be a celebrity who has time to do the job. So maybe Toronto Blue Jays backup catcher Luke Maile. He only plays a few games a week. They could have bestowed the seat to a cute and deserving dog. Maybe a hero dog. One that dragged a child out of a burning car wreck or barked in the general direction of danger.

Really, almost anything would be less politically toxic than the appointment process that took place at city hall for just under five hours this week.

My issues with the process have nothing to do with Tsao, selected to replace Councillor Shelley Carroll after she resigned to run for Queen’s Park. Instead, my issues are the same issues I had with the process when it played out last fall, when council chose Lucy Troisi to replace the late Pam McConnell in Ward 28.

You wouldn’t think appointing someone to a short-term council gig could sink to the level of toxicity, but council manages to pull it off. On Tuesday, support for appointees amongst councillors once again split largely along ideological lines. Mayor John Tory and most councillors who tend to vote with him on major issues supported Tsao, while most left-leaning councillors went with Divya Nayak, who had the endorsement of Carroll.

According to the latest version of my City Council Scorecard, the 18 councillors who supported Nayak on the third ballot have an average Team Tory score of 49 percent – meaning they vote with the mayor about 49 percent of the time on major items. The 23 councillors who voted Tsao have a Team Tory score of 83 percent.

How councillors voted

Using a runoff system that required the winner to receive a majority of votes cast, it took three ballots for council to choose to appoint Jonathan Tsao to the vacant council seat in Ward 33. He received 23 votes on the third ballot. Divya Nayak, finishing second, received 18 votes.

The left-leaning councillors who voted for Nayak include Councillors John Filion, Mary Fragedakis, Paula Fletcher, Joe Mihevc, Joe Cressy, Sarah Doucette, Gord Perks, Josh Matlow, Janet Davis, Neethan Shan, Maria Augimeri, Anthony Perruzza, Kristyn Wong-Tam, and Mike Layton. They vote with Tory on average 43 percent of the time on major items.

The right-leaning councillors who voted for Nayak were Councillors Paul Ainslie, Michael Thompson, Norm Kelly, and Josh Colle. Their average Team Tory vote is 81 percent.

The right-leaning councillors who voted for Tsao also have a high average Team Tory score of  83 percent. They include Councillors Michelle Holland, Cesar Palacio, John Burnside, Mark Grimes, Jaye Robinson, Gary Crawford, Lucy Troisi, Justin Di Ciano, Giorgio Mammoliti, John Campbell, Glenn De Baeremaeker, Stephen Holyday, Christin Carmichael-Greb, Frances Nunziata, Michael Ford, James Pasternak, David Shiner, Ana Bailão, Jim Karygiannis, Jim Hart, Mary-Margaret McMahon, Frank Di Giorgio, and Mayor John Tory.

The debate got testy. Accusations of behind-the-scenes lobbying and deal-making were thrown around. On the council floor, Councillor David Shiner complained his personal cellphone number had been given to a candidate by the mayor’s office, for the purpose of winning his vote of support. Councillors later grilled Tsao during his deputation in council chambers about whether he had received contact information from the mayor’s office.

This isn’t how it should go. This process should be innocuous and largely apolitical. The City of Toronto Act generally gives council two options to fill vacant seats: by-election or appointment, though on Tuesday councillors were further limited by the Municipal Elections Act, which stipulates by-elections can’t be held after March 31 of an election year. But whatever the legislation says, it does make sense to consider alternatives to holding a by-election to fill the seat. Each by-election, after all, costs Toronto taxpayers between $200,000 and $250,000.

With that kind of cost, there’s logic in appointing a community member to the city who can take care of pressing business and represent the neighbourhoods. You find someone who is well-known in the community but who isn’t overly political. Someone who won’t run in the next election.

But that isn’t what actually happens. Instead, the process – and it seems to have gotten worse this term under Tory – has become increasingly divisive.

I don’t think there’s a way to change that. The process itself is broken. It doesn’t reflect the reality of politics and politicians.

For one thing, forget about finding someone who you can trust not to run for a council seat in the next election. On Tuesday, every candidate was asked if they would run. Most, but not all, said they wouldn’t. There was even a homemade contract floating around, which some candidates indicated they would sign as a kind of extra-special-pinky-swear-no-take-backs pledge not to run.

But the truth is that there is no guarantee. No pledge made on or off the council floor can be legally binding. If an appointed councillor wants to run again, they can run again. And the advantage granted by their incumbency is significant. It creates an uneven playing field in what should be a race for an open seat.

For another thing, for all the talk of constituency work and responding to resident requests, a city councillor’s most important job is as a person who votes “yes” or “no” on the issues that affect the city. These issues can involve billions of dollars. They can have life-or-death repercussions. They tie into mayoral campaign promises and election strategies and political legacies.

And so forget, too, any notion of an apolitical “caretaker councillor” who exists only to fill in for a few months and handle constituent needs. That doesn’t line up with what the job actually is.

What was really up for grabs on Tuesday wasn’t a council seat and an office budget – it was the right to vote in the council chamber. The person wielding that vote can make Tory’s political life a little easier, by voting with the mayor on most issues, or the person could buoy the fortunes of council’s opposition left.

The only fair way to find a person who can do that job is through a democratic election.

This is understood at other levels of government. No one would seriously suggest a policy that fills seats at Queen’s Park or in Ottawa by appointment. Municipal politics in Toronto should be no different – by-elections should be the only way to fill a seat. If the vacancy occurs too close to the next scheduled election, the seat should remain vacant, with local duties handled by the former councillor’s office staff and the City Clerk’s office at City Hall.

This isn’t a change council can make themselves. It would require a provincial amendment to the City of Toronto Act to allow council to keep seats empty after March 31 in an election year, and always have a by-election anytime before that. But it’s worth asking Queen’s Park to make that amendment. Because after this term, I don’t want to watch more hours-long appointment meetings. I don’t want to hear more empty promises not to run. I don’t want to see more seats become battlegrounds for politicking between ideological wings of council.

I’d rather see democracy. And if not democracy, then, hell, I’ll take the hero dog.