By Trevor Busch
Although some question remains about its legality, town council has approved a residency requirement policy for senior management despite the potential for a Charter challenge.
In early 2017, town council had directed administration to look into developing a residency policy for management, and administration sought legal advice on the potential implications. At their April 10 regular meeting, town council had voted 6-1 to instruct administration to proceed with developing a policy with regard to senior management living within the town of Taber, or within a certain response time.
In a legal brief prepared for the town by Megan Van Huizen of Brownlee LLP, various legal risks to the development of a broadly-applied hiring policy for management were detailed.
Applicable statutory provisions cited in the brief included Sec. 7 of the Charter of Rights and Freedoms, designed to protect the liberty of individuals from being infringed on by government actions or actors. It was also noted that it “has long been accepted that the Charter applies to municipalities’ actions and policies.”
Justification for the policy was drafted around emergency operations requiring the proximity of key management personnel to ensure effective and timely response. This approach was considered to be the most persuasive argument in defending the policy against potential legal or Charter challenge. Senior managers are required to serve on the Municipal Emergency Management Agency, responsible for commencing and managing operations in response to emergencies affecting public safety.
“We built the requirement around the Municipal Emergency Management Agency, just so that the policy would stand up better that way,” said human resources manager Barkley Busch, speaking at town council’s June 12 regular meeting. “That’s kind of the rationale we’ve used here. It affects six positions. It affects our fire chief and our police chief, who arguably would be somebody who we would have prior to this policy a requirement for them to be on hand very quickly in the event of an emergency.”
The policy called for senior managers to reside in proximity to municipal boundaries within a 20-minute response time, although this threshold was challenged by Coun. Jack Brewin who appeared concerned about employees residing in neighbouring communities.
“How long does it take to get to Coaldale?”
Coun. Rick Popadynetz advocated for a 10-minute response time radius for managers to align with the province’s high intensity residential fire (HIRF) regulations.
“I think we really need to follow that, a 10-minute response time. Time is of the essence with emergency operations management procedures. And that’s what we need to do, is make sure our managers can provide a safe haven for our community in the event of a major emergency.”
The policy will represent a minimum $5,000 increase per senior manager who relocates to Taber due to a moving allowance component of the policy.
“In discussing with administration, we felt like if we’re going to ask this of people then we need to be willing to provide them with some money to actually move to our community,” said Busch.
Coun. Randy Sparks wanted the policy clarified as to whether this amount represented a minimum or a maximum, and suggested $5,000 as the maximum.
“Five thousand. I’m serious — if council passes this, I believe this is being pretty good of council.”
Mayor Andrew Prokop appeared more amenable to future management hires having access to funds to assist with relocating.
“That’s not unreasonable.”
Coun. Laura Ross-Giroux, who had initially opposed the formulation of a residency policy, reversed course to endorse the idea.
“I think it was really good that you formulated this policy through emergency management. I certainly agree with the $5,000, and I agree with Councillor Popadynetz’s 10 minute (response). Preferably we have them in town, rather than in the surrounding (area), but if we can do 10 minutes I’m fine with that.”
The positions provided to Brownlee LLP for consideration were the director of planning and economic development, director of recreation, director of engineering and public works, director of finance, and the fire chief.
“It is advisable to consider whether the job can be performed effectively if the employee lives outside town boundaries. It is our view that the skills required and the responsibilities of the town’s director positions do not hinge on the employee residing within town limits,” said Van Huizen in her written brief.
In the analysis of the Charter implications such a hiring policy could entail, Brownlee LLP cited the 1997 Supreme Court of Canada decision in the case of Godbout v. Longueil, in which an employee was required to sign a declaration stating they would live in a city for the duration of their employment, in accordance with the city’s residency resolution. According to Brownlee LLP’s brief, all nine judges found the requirement violated the Quebec Charter, while three considered the impact of the national Charter. Of those three, La Forest J. found that a residency requirement attached to employment infringed on an individual’s liberty rights.
Van Huizen, in her conclusions in Brownlee LLP’s legal brief, recommended against implementing a blanket residency policy for town management.
“The optics of non-residents advocating for development, tourism and job retention in the town may not be desirable, however the requirement of residency will not pass scrutiny on optics alone. If the town wishes to implement a residency policy we recommend it contemplate specific response times rather than geographical boundaries,” said Van Huizen. “Further, we would advise against implementing a general blanket policy, but instead suggest including the rationale for the residency requirement within each particular job description itself.”
Information on 11 different municipalities was previously compiled by administration, and only one, the City of Brooks, has implemented an official residency policy for management employees, and it was noted that the policy “has never been officially enforced” and acts as more of a guideline.
The policy only applies to senior managers, not town employees, and is grandfathered to only affect new management hirings not current managers who may reside outside of the community.
“We don’t want administration or anyone to think that’s what we’re doing this for,” said Brewin. “This is for new hires only.”
According to the policy, the residency requirement for senior managers will be a condition of employment, and they will be given one year from their date of employment to comply. Those who fail to comply with the policy and procedures will be subject to termination. The residency requirement can only be waived by official resolution of council.
“The reason for the one year is usually in a senior management position we’re going to do a six month probation period,” said Busch. “A lot of people are unwilling to move anywhere until they pass their probation period. Once that probation period has passed, they have six months to get here.”
It was also noted in the policy’s operating procedures that “applicants for senior manager positions who demonstrate a willingness to relocate in accordance with the requirements of the policy will be given priority in the hiring process.”
Although response times in the residency policy were expressed in terms of minutes, there was no recognition of potential seasonal changes in driving time, or any indication whether delays due to weather events — which could potentially trigger an emergency situation for the community — should factor into the town mandating a 10-minute response time.
Following discussion, council voted unanimously to pass the Senior Managers Residency Requirement Policy C-8, changing procedure No. 4 to a maximum of $5,000 moving expense, and changing the response time from 20 to 10 minutes.