Councillor Adriane Carr requested my legal opinion relating to the powers of the City Manager. She distributed to the Media yesterday. A short version was also supplied but many people have asked for the complete text with statutory citations. Here is a slightly edited version of that opinion.
February 10, 2013
Councilor Adriane Carr
EMAIL: adriane.carr@gmail.com
Dear Councilor Carr
Re: Powers
of the City Manager to prevent a notice of motion from being presented to
Council
YOUR REQUEST
You have requested our
opinion as to whether the City Manager has authority: (a) to refuse to permit a
motion submitted by a Vancouver City Councilor to be placed on the Council
Agenda and, (b) to direct you to avoid
public discussion of council business, and (c) whether your motion puts at risk
civic business as alleged by the Manager.
OUR OPINION
Our
answers to your specific questions may be summarized as follows:
The
Vancouver City Manager has no authority to prevent a motion submitted by a
Vancouver City Councilor, from being placed on the Council agenda. To do so would be completely improper since
it interferes with the performance of your legislative duties.
The
Manager can provide her advice but cannot prevent a City Councilor from
discussing Council business with the media.
The Manager serves at the pleasure of Council and not the other way
around.
The
test of the Manager’s authority is not whether a public utterance by
politicians may ultimately affect the City, positively or negatively. The Manager simply has no authority to limit
a City Councilor’s right to publicly discuss Council business. A councilor may be liable under some circumstances
for defamatory statements or for damages to the City arising from disclosure of
confidential matters but the manager cannot do anything about it other than
give advice.
Whether
or not the motion you submitted for the Feb 12 2013 meeting of Council (attached)
put at risk or adversely affects the Park Board or the City, given the ongoing
negotiations between the General Manager of the Park Board and Community Centre
Associations regarding their Joint Operating Agreement is irrelevant. This is a political question rather than a
legal one. The answer to the question
raised by the motion could affect the outcome, but that does not give the
manager the right to interfere with the submission of your motion to Council or
to publicly advocate for one side or another.
The
negotiation of the Joint Operating Agreement is completely different from the
negotiation of union contracts. Council
discusses a limited list of things including union matters in camera
because they are specifically permitted to do so. Everything else must be in open session.
Although
you could bring an application for judicial review, if your motion does not
make the agenda, this is not a practical legal mechanism in this case. You will be better off exposing through
political means and public discussion the issues you consider. important.
FACTS
You
have provided us with the following facts upon which we rely in providing our
opinion:
email exchange deleted
ANALYSIS
The City of Vancouver is
said to be a creature of statute. It has
only those powers conferred upon it by the legislature through the Vancouver Charter, and to a lesser
extent, where applicable, the Community
Charter and Local Government Act. Therefore, any bylaw, resolution or action by
any official must be authorized by and consistent with the powers delegated by
the Vancouver Charter. A bylaw, resolution or action by an employee that
does not have its source in the Vancouver Charter will be declared ultra vires
and set aside.
Municipal powers may be
administrative (executive), quasi-judicial or legislative. Councilors on different occasions carry out
each of these functions. Only
Councilors, however, can carry out legislative functions. Thus, even if the Manager had the power under
a bylaw to prevent a legislative act from occurring, the bylaw would be ultra vires (beyond the power of the
council to enact) and would be set aside.
Section 161 of the Vancouver Charter provides that by a
vote of not less than two thirds of its members, the Council may delegate to
employees of the City any of the executive or
administrative powers exercisable by the Council. There is no power to delegate legislative
powers. Delegates can’t delegate to
others unless empowered to do so. Your
notice of motion is a legislative act.
The power to prevent it from going to Council could not be delegated to
the manager.
161. Delegation of powers
By a vote of not less
than two-thirds of its members, the
Council
may delegate, with or without restrictions or conditions, to any committee
comprised
(a) of members of the
Council; or
(b) of employees of the
city; or
(c) of members of the
Council and employees of the city,
any of the executive or
administrative powers exercisable by the Council.
The Vancouver Charter
s. 162A empowers the Council to set up departments. S. 162A empowers it to appoint a Board of
Administration (now called the Manager) and delegate to it “any of the executive or administrative powers
exercisable by the Council or any of the functions or duties by this Act
specifically assigned to any officer or employee; There are,
however, no executive or administrative powers of Council that could be
delegated to the manager to stop your motion, which is a legislative act, from
being presented to Council. This is
clear if we review further Council’s powers outlined below for they simply do
not allow it.
162A. To appoint a Board of Administration
The Council may by by-law
provide for the appointment of a Board of Administration and may delegate to such Board
any of the executive or administrative powers exercisable by the Council
or any of the functions or duties by this Act specifically assigned to any
officer or employee. The Council may by such by-law make provisions with
respect to
(a) the persons who shall constitute the Board;
(b) the remuneration that shall be payable to
the members of the Board. If the membership of the Board includes members of
Council, the remuneration payable shall be in addition to the remuneration
received as a member of Council and shall not disqualify such member from
continuing to hold office as a member of Council;
(c) the matters coming within the jurisdiction of the Board;
(d) the procedure to be followed by the Board;
(e) such other matters as Council may deem fit.
Procedure Bylaw. The Council must by bylaw establish
the procedures that are to be followed by it.
The bylaw once enacted must not be altered except by a bylaw passed
according to proper procedures. (Vancouver
Charter s. 164.1) The bylaw already
provides how notices of motions are brought before council. The Manager cannot gratuitously overrule the
process.
164.1 Meeting procedures
164.1(1) The Council must, by by-law, do the
following:
(a) establish the procedures that are to be
followed for the conduct of its business, including the manner by which
resolutions may be passed and by-laws adopted;
(b) establish the procedures that are to be
followed in conducting meetings of
(i) select and standing committee of Council,
and
(ii) any other committee composed solely of
Council members acting in that capacity;
(c) establish the time and place of regular
meetings of Council;
(d) require advance public notice respecting
the time, place and date of Council and committee meetings and establish the
procedures for giving that notice.
164.1(2) A by-law under this
section must not be altered except by a by-law passed at a regular Council
meeting in accordance with a notice in writing given and openly announced at an
earlier regular meeting.
Council meetings must
generally be open to the public except as provided by Vancouver Charter s. 165.2 to 165.8.
165.1 General rule that
meetings must be open to the public
165.1(1) A
meeting of the Council must be open to the public, except as provided in
sections 165.2 to 165.8.
165.1(2) The
Council must not vote on the reading or adoption of a by-law when its meeting
is closed to the public.
A few specific matters
may or must be closed to the public (165.2). Thus, the general rule is openness. The exception is secrecy. A system that allowed the hired help to prevent
a councilor from asking questions through the formal procedure of the notice of
motion would be an invitation to corruption.
165.2 Meetings that may
or must be closed to the public
165.2(1) A
part of a Council meeting may be closed to the public if the subject matter
being considered relates to or is one or more of the following:
(a) personal information
about an identifiable individual who holds or is being considered for a
position as an officer, employee or agent of the city or another position
appointed by the city;
(b) personal information
about an identifiable individual who is being considered for an award or
honour, or who has offered to provide a gift to the city on condition of
anonymity;
(c) labour relations or other employee relations;
(d) the security of the
property of the city;
(e) the acquisition,
disposition or expropriation of land or improvements, if the Council considers
that disclosure could reasonably be expected to harm the interests of the city;
(f) law enforcement, if
the Council considers that disclosure could reasonably be expected to harm the
conduct of an investigation under or enforcement of an enactment;
(g) litigation or
potential litigation affecting the city;
(h) an administrative
tribunal hearing or potential administrative tribunal hearing affecting the
city, other than a hearing to be conducted by the Council or a delegate of
Council;
(i) the receipt of advice
that is subject to solicitor-client privilege, including communications
necessary for that purpose;
(j) information that is
prohibited, or information that if it were presented in a document would be
prohibited, from disclosure under section 21 [disclosure harmful to business
interests of a third party] of the Freedom of Information and Protection
of Privacy Act;
(k) negotiations and related discussions respecting the proposed
provision of an activity, work or facility that are at their preliminary stages
and that, in the view of the Council, could reasonably be expected to harm the
interests of the city if they were held in public;
(l) a matter that, under
another enactment, is such that the public may be excluded from the meeting;
(m) the consideration of
whether a Council meeting should be closed under a provision of this subsection
or subsection (2);
(n) the consideration of
whether the authority under section 165.21 [other persons attending closed
meetings] should be exercised in relation to a Council meeting.
165.2(2) A
part of a Council meeting must be closed to the public if the subject matter
being considered relates to one or more of the following:
(a) a request under the Freedom
of Information and Protection of Privacy Act, if the Council is designated
as head of the local public body for the purposes of that Act in relation to
the matter;
(b) the consideration of
information received and held in confidence relating to negotiations between
the city and a provincial government or the federal government or both, or
between a provincial government or the federal government or both and a third
party;
(c) a matter that is
being investigated under the Ombudsperson Act, of which the city has
been notified under section 14 [ombudsperson to notify authority] of
that Act;
(d) a matter that, under
another enactment, is such that the public must be excluded from the meeting;
(e) a review of a
proposed final performance audit report for the purpose of providing comments
to the auditor general on the proposed report under section 23(2) of the Auditor
General for Local Government Act.
165.2(3) If
the only subject matter being considered at a Council meeting is one or more
matters referred to in subsection (1) or (2), the applicable subsection applies
to the entire meeting.
None of the listed items in Vancouver Charter s. 165.2 (1) (a) – (n) dealing with matters in
closed section relate to the reorganization of a department or the Park
Board. I suspect from your comments
that, the Manager is relying on Vancouver Charter s. 165.2(1) (k) repeated for
convenience below:
(k)
negotiations and related discussions respecting the proposed provision of an
activity, work or facility that are at their preliminary stages and that, in
the view of the Council, could reasonably be expected to harm the interest of
the city if they were held in public”
Your motion is clearly not captured by subsection (k). The section can only apply when Council
itself formulates the view that it could be reasonably be expected to harm the
interest of the city if discussions respecting the matter were held in
public. When did Council put the topic
under lock down? The fact that the Park
Board had public meetings on the matter clearly indicates that it never
happened.
Harming the interest of politicians is not the same
as harming the interest of the public.
If the Council, however, wants to try to keep it out of the lime-light it can do so in response to your motion and
determine that to discuss matters of policy could threaten Vancouver’s economy. The point is that it is Council and not the
Manager that is required to make that decision.
It cannot delegate it to the Manager.
The phrase “Preliminary Stages” in
subsection (k) does not apply either. This
discussion about CCA’s is not in its “preliminary” stages. It has been going on publicly at least since
early in the summer 2012. Opposition has
arisen to the proposal. But opposition
and dissent does not trigger s. (k) nor does it justify an iron curtain of
secrecy when the general rule is required to be openness. The negotiations, if they are really taking
place at all, pertain to a system that has been around for decades. It relates to the delivery of services by the
Parks Board that the City funds. It is
not a new activity, work or facility that
is at the preliminary stages.
The entire matter has already been the subject of
an extensive meeting held by the Park Board that ended at 3:15 am on February
5. At that meeting the Park Board
General Manager presented information on the value of financial contributions
by the CCA’s which is the topic for report back in your motion. Given that the Park Board itself has already
initiated discussion of this issue in public your motion cannot be considered
to pose risks, or harm the interests of the City. A court would likely hold
this assertion to be made in bad faith.
Vancouver Charter s. 165.2(1) (c) matters pertaining to labour relations or
other employee is also to be in closed sessions. You have asked whether the subject of your
motion might be analogous to or relate to labour relations. They are not analogous and it would not
matter if they were. The section does
not speak of things “analogous to” labour relations. The members of the CCA are not employees of
the City or Parks Board and the section does not apply.
Vancouver Charter s. 165.2 (2) (supra) lists matters that must be closed to the
public if the subject matter relates to one or more of listed items (a) through
(e). None of the listed items are
applicable in this case.
We assume that Council has not already resolved
that all discussions on this matter must be conducted in a closed meeting. You would know if they had. However, under s. 165.3 before holding a
closed meeting, the Council must state by resolution passed in a public meeting
the fact that the meeting or part is to be closed and the basis under 165.2 for
closing it.
Your motion is that Council receive a report back
on monies raised by CCA’s, costs of replacing volunteers with paid staff and
impact on childcare spaces. It is
preposterous to suggest that the answers to these questions have any effect
whatever on negotiations with the Parks Board under (k) or on negotiations.
Even
if your motion dealt with a matter that is arguably outside of the City’s
jurisdiction the Manager has no power to prevent it from coming forward. The most she could do is provide wise counsel
in this regard. The matter, however, is
clearly within Council’s jurisdiction. Section
489 of the Vancouver Charter sets out the Powers of the Parks
Board. The Parks Board has no power to
tax. It is wholly dependent upon City
Council since the City provides its budget.
The section specifically confers a power on the Board to do anything
that the Council shall from time to time authorize.
489. Powers of Board
489(1) The
Board shall have power to provide for
(a) – (p) omitted
(p) Council
may add to powers
— doing such
other things with respect to any of the parks as the
Council
shall from time to time authorize;
(q) Implementing
powers
— doing such
other things in furtherance of any of the above powers as shall be deemed
expedient;
(r) Recreational
programs
— organizing
and conducting, and contracting with others to organize and conduct,
recreational programs of all kinds, either in parks or in such other locations
as may be approved by the Board or any of its employees designated for this
purpose, and for fixing and collecting fees for such programs.
489(2) Fees
and charges imposed under this section may be different for different classes
of persons and activities.
The
Board of Administration Bylaw no. 4017
Nothing in this bylaw
provides the slightest glimmer of support for the Manager’s claim to be able to
prevent your motion from coming to Council. The Board has broad administrative powers.
“5. The Board shall be
responsible for: (a) Supervising and directing the affairs of the City and the
employees thereof in accordance with the policies of Council established from
time to time. (b) Advising and assisting the City Council.
The phrase Supervising
and directing the affairs of the City must be construed in the context of
powers delegated to the Manager and could not be construed to mean “supervising
and directing elected Councilors in the appropriateness of the conduct of their
legislative duties.” Section 5(a)
confers a power to supervise and direct the employees of the City in accordance
with Council policies. Councilors are
clearly not employees within the context of the section of the bylaw nor
under the Vancouver Charter.
Section 5 (b) says only
that the Manager can advise and assist council.
It is significant that s. 6(2)
states that the Manager shall not exercise any direction or control over the
City Clerk or any other official in the performance of their statutory duties. In providing your notice of motion, you are
carrying out your statutory duties in the manner required. Section (1) (o) states that that the
Manager may at meetings speak to
reports and advise Council as to the technical, financial and administrative
aspects of any other matter under consideration, but shall have no right to
vote. The interference with your
political, legislative duties in this case would be tantamount to a right to
vote. Only Council can defeat your
motion by a vote. This is not a
task for the hired help.
Procedure
Bylaw 9756
Section 10.1 and 10.2 of
the Procedure Bylaw clearly sets out
the criteria required for a Council member to move or give notice of
motion. If the Councilors motion meets
the criteria, the City Clerk must add the motion to
the agenda for the meeting. The Manager
by her action has interfered with the actions of both you and the Clerk in violation
of Board of Administration Bylaw 4017 (6) (2)
Section 10.3 provides the
procedure for a Council member to call notice of motion at a regular meeting as
new business and that the Chair must place the motion on the agenda for
the next regular meeting, The Manager has also interfered with the performance
of the these duties.
The
Policy of the law is to encourage Councilors to speak freely.
In Cardwell
v. Hutchinson 1995 CarswellBC 2007, [1995] B.C.W.L.D. 1943, a
defamation case, the Court quoted Lord Diplock in Horrocks v. Lowe, [1974] 1
All E.R. 662 [H.L.] said at p.
671:
My Lords, what is said by members of a
local council at meetings of the council or of any of its committees is spoken
on a privileged occasion. The reason for
the privilege is that those who represent the local government electors should
be able to speak freely and frankly, boldly and bluntly, on any matter which
they believe affects the interest or welfare of the inhabitants. They may be swayed by strong political
prejudice, they may be obstinate and pig-headed, stupid and obtuse; but they
were chosen by the electors to speak their minds on matters of local concern
and as long as they do so honestly, they run no risk of liability for
defamation of those who are the subjects of their criticism.
CONCLUSION
Council may defeat your resolution, table it, refer it to committee,
adopt it or deal with it any other way allowed by its procedure bylaw. The most the Manager can do in this instance
is to offer valuable suggestions. She can
tell Council whatever she wants. She cannot,
however, simply refuse to allow the notice of motion to be delivered to Council
as that would be an improper assumption of power.
Sincerely yours,
BAKER & BAKER
JONATHAN BAKER
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