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17TH FLOOR 808-NELSON STREET VANCOUVER, B.C.

V6Z 2H2 TEL: (604) 891-0208 Dir: (604) 642-0107 FAX: (604) 681-3504 EMAIL: jbaker@bakerbaker.ca jonathanbakerster@gmail.com

BAKER & BAKER


Municipal Litigation

February 11, 2013 Councillor Adriane Carr EMAIL: adriane.carr@gmail.com Dear Councilor Carr

SUMMARY OF OPINION
Re: Powers of the City Manager to prevent a notice of motion from being presented to Council (Condensed Version) You advise that in full compliance with the Procedures Bylaw you delivered to the City Clerk a notice of motion for a report back on (1) the fundraising activities by Community Centre Associations, (2) cost of replacing volunteers with paid staff, and (3) the number of child-care spaces managed by Community Centre Associations. On Tuesday evening February 5, 2013, The City Manager, Penny Ballem, sent you an email stating: It would put both the Park Board and the City at risk if there was an airing of these issues in regard to impact publicly. *** For this reason the motion is out of order and I will not be allowing it to go out with the agenda. I have reviewed this with the City Solicitor and the Clerk. In our opinion, Council must hear your motion. Council and only Council may vote to defeat, table, refer, adopt, amend or deal with it any other way allowed by its procedure bylaw. If the City Manager had been present at the creation of the world, she no doubt would have made some valuable suggestions. That is all she can do in this instance. She cannot declare the motion out of order and simply refuse to deliver it to Council. This is an abuse of public office.

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February 12, 2013

Your notice of motion is a legislative act. The power to prevent it from going to Council could not be delegated to the manager by bylaw or by any other means other than an amendment of the Vancouver Charter. Although Council can delegate administrative powers, there are no executive or administrative powers that it could delegate to the manager to stop your motion, from being presented. The Council must, under the Vancouver Charter, by bylaw establish the procedures that it follows. The bylaw once enacted must not be altered except by a bylaw amendment passed according to proper procedures. (Vancouver Charter s. 164.1) The procedures bylaw already provides how notices of motions are brought before council. The Manager cannot ex cathedra overrule the process. The Manager suggests in her email that part of the reason for her action is that the subject matter of the motion should have been in camera. This insistence on an iron curtain results from a startling misreading of the Vancouver Charter. Council meetings must generally be open to the public except as provided by Vancouver Charter s. 165.2 to 165.8. A few specific matters may or must be closed to the public (165.2) but the general rule is openness. An anti-democratic 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. The items listed in Vancouver Charter s. 165.2 (1) (a) (n) are the only ones that may take place in closed session. None of them apply to this case. The one that she seems to be relying on is (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, in advance, formulates the view that it could reasonably be expected to harm the interest of the city if discussions were held in public. The Council never put the topic under lock down. To the contrary, the Park Board has held an extensive public meeting on the topic. 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 the public in the dark it can do so by responding to your motion. It would vote that to discuss matters of policy could harm the interest of the City. The point is that it is Council and not the Manager that is required to make that decision. Council cannot delegate this legislative decision to the Manager nor can the Manager spontaneously generate power.

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February 12, 2013

Under such circumstances, 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. The question contained in your Notice of Motion is clearly within Councils jurisdiction. Section 489 of the Vancouver Charter sets out the Powers of the Parks Board. It is wholly dependent upon City Council. The section specifically confers a power on the Board to do anything that the Council shall from time to time authorize. If the Council wishes to dispose of the matter by saying it is outside its jurisdiction, they are free to do so. As elected politicians, they reap the benefits or pay the price. They cannot hide behind the skirts of the City Manager. Nothing in the Board of Administration Bylaw no. 4017 provides a glimmer of support for the Managers claim to be able to prevent your motion from coming to Council. It is true enough that 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 their policies as they perform their legislative duties. Also, 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 bylaw or the Vancouver Charter. Section 5 (b) says only that the Manager can advise and assist council. However, 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. 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:

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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.
Sincerely, BAKER & BAKER

JONATHAN BAKER

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