Nanaimo mayor, councillor censured — but will it stick?
Orders politically effective but likely can’t be enforced: experts
Nanaimo’s mayor and one councillor have been censured by council and told to write apology letters to the city’s chief administrator and to take special workplace training.
But lawyers specializing in municipal law say it is unlikely these orders can be enforced against Mayor Bill McKay and Coun. Diane Brennan.
John Alexander, of the Cox Taylor law firm in Victoria, said Wednesday, “While the ‘censure resolutions’ may be politically effective, council probably had no legal basis for passing them, and no effective legal way of enforcing any compliance.”
Some Nanaimo citizens are weary of the ongoing troubled atmosphere at city hall.
Kim Smythe, president and chief executive officer of the Greater Nanaimo Chamber of Commerce, said: “I think most people are just fed up with the amount of time that has been spent on this and how it keeps coming back and nothing ever seems to happen. I think everybody is just sick and tired of it.
“And it is beyond being a point of discussion anymore. It’s kind of like, ‘Oh really? So what?’ ”
More censure hearings were set for Wednesday, he said, adding, “I’m starting to lose track of what all these hearings are about.”
Smythe predicts the municipal election in October will be a “bloodbath.”
Nanaimo council conflicts have frequently made the headlines. Posting of a video recording of a heated committee of the whole meeting on Monday was delayed because it had to be reviewed due to the “loss of decorum on multiple occasions,” city clerk Sheila Gurrie said in a statement Tuesday. The review was needed to “help the city minimize any potential liability that may stem from any inappropriate conduct and behaviours recorded last night,” she said.
Coun. Jerry Hong said Wednesday that council members had raised their voices and recording was stopped for 10 to 15 seconds until decorum was restored.
He said that Tracy Samra, Nanaimo chief administrative officer, said it was not fair for staff and that staff did not want to be in the crossfire.
In a separate meeting on Monday, in-camera censure hearings were held for McKay and Brennan.
Councillors determined that McKay and Brennan had been disrespectful to Samra, and had breached the city’s respectful workplace policy. Hong said that the vote was unanimous and that all council members, except for McKay and Brennan, were present.
McKay and Brennan were ordered to write Samra apology letters by Jan. 30 and to complete training by the end of July, as set out in a consultant’s report.
What is called the Goldner report was commissioned after Samra complained about the way she was treated. It has not been made public.
Hong said that McKay and Brennan had each made recommendations on how to handle the matter. He said the directions coming out of the hearing struck a “good balance.”
“We hope that they will do it and then this issue is now complete and [we can] move forward.”
Samra said in a statement about the hearings: “Evidence relied on is the (consultant’s) report and legal counsel advice — neither will be released. Their decisions were unanimous, meaning there is no question [that] council didn’t accept the investigators’ findings of fact.”
McKay said he was unable to comment until he speaks to his lawyer, currently out of the country. Brennan could not be reached. Alexander reviewed B.C.’s governing legislation and said: “There does not appear to be any explicit power for a council to “censure” anyone.”
“Council is entitled to govern the conduct of council meetings, but not the general conduct or behaviour of members of council outside meetings. Those more general conduct rules are all set out in the Community Charter, and the remedies for contravening those rules are there in the provincial legislation,” he said.
“That includes disqualification, and payment of damages if a breach of confidentiality causes a loss. That is what the earlier lawsuit was about.”
The City of Nanaimo had sued McKay in late December 2016. The lawsuit maintained there were violations by McKay of the Community Charter confidentiality provisions and privacy rules.
McKay denied the allegations. The municipality dropped the lawsuit last month, saying it would instead hold a censure hearing.
Vancouver lawyer Nathalie Baker, of Stevens Virgin Law Corp., said the censure is a way for council to express disapproval. “It is a form of discipline,” she said, describing it as a slap on the wrist. “There could be further censure hearings. Perhaps they could be stripped of some of their duties.”
Meanwhile, Nanaimo is advertising for a full-time senior solicitor to replace use of on-contract legal advice. Hong said the decision to create this position will be made as part of municipal budget discussions.