Tony Fleming, a certified specialist in municipal law for Kingston-based Cunningham Swan Lawyers, said the Municipal Act and the Municipal Elections Act apply in this case. While a section of the Municipal Act prohibits auditor generals from running for office, there's an exemption for people covered in the elections act.
And Section 30 (3) of the Elections Act says the employee must give written notice, but “the employee is entitled, as of right, to take unpaid leave” to run in municipal elections.
Since Bigger works on a contract, he's technically not an employee. But Fleming said despite some confusing wording, Section 30 (8) says auditor generals and other officers of city council who are not defined as employees are also entitled to run.
“It could have been written more clearly,” Fleming said of the section in the elections act. “It's an odd way to write it. But they are entitled by right to run provided they take the unpaid leave.
“And either they come back to work if they lose, or don't come back if they win.”
Lawyer Greg Levine, an expert in municipal law who is the integrity commissioner for three municipalities in Ontario, agreed Bigger is entitled to the leave of absence, and to go back to work if he loses.
“It is kind of interesting that this person is an officer of council, though,” Levine said. “Nothing directly prohibits this that I know of. And I can see someone doing it, but I can't see them going back, but not because they would be legally prohibited.”
Levine says there could be practical difficulties for an auditor general to become a politician, advocate for a specific platform, lose the campaign and go back to their old job.
“Suppose it's a vicious election campaign,” Levine said. “What if he disagreed with every policy the winning candidate enunciated? To go back, after having been politicized over a whole bunch of issues? I don't know. I can't see any law against it, but pragmatically, it's problematic.”
In an email, lawyer Virginia MacLean, an Oakville-based local government specialist, disagreed.
“Look at the Municipal Act section which addresses notice, right to unpaid leave etc.,” she wrote. “Because the legislature has chosen to include this provision in the legislation and specifically considered the issue, I would suggest that there is no conflict or ethics issue.”
Another municipal legal specialist, who didn't want to be named in case he's hired to give an opinion on the matter, said bad feelings generated by an election campaign would blow over quickly.
“You may say nasty things, you may be embarrassed, but I don't see why he would have a conflict going back to his job after the campaign,” he said. “He'd just be doing his same old job again.”
He would be more concerned about the fact auditor generals have widespread access to financial and other private information that they are sworn not to reveal.
In the heat of a campaign, that sort of information could inadvertently come out.
“It's an interesting question, but if he came to me, I would say don't do it. He's at risk. Someone is going to go after him.”
While Bigger has the right to the unpaid leave and to run, Fleming said he could end up in the uncomfortable position of having to work for the person who defeated him.
“It's not an easy position to put yourself in, or the city council,” he said. “If you lose, you go back to working for the corporation, and the mayor is the head of that corporation. So it's a little difficult.”