I wonder exactly what the role of the City Solicitor is at Council meetings. What is his job description? Does he just sit there until spoken to or asked a question or is his job meant to be proactive, to let Council know if they may be doing something wrong to stop it or at least to let them know that they are in dangerous waters?
Sitting beside our lawyer/Mayor in Chambers, is the CAO, an experienced Administrator and the Clerk who is supposed to be the expert on procedure. Without boring you about the details, the Procedural questions at the Council meeting were interesting ones about whether the Mayor's Motion that was passed was legal or not. Councillor Halberstadt's Motion had been introduced first and the Mayor was in the Chair when he introduced his Motion rather than leaving the Chair as he did with the whiteboard presentation.
I thought that Councillor Halberstadt did an excellent job setting out why his Motion had precedence and frankly thought that the Clerk was wrong legally in her decision. What if she was wrong and it was obvious....what is the City Solicitor supposed to do? Does he say something or just sit there because it is not in his job function to interrupt. If the City might be sued down the road because of a breach of procedure, can he say that I was not asked and so did not speak out.
What also is the extent of his role in protecting the Mayor and Members of Council on their personal legal position? Does he do so or does he tell the Member to get his/her own legal advice?
I ask all of this because of a note a reader sent to me in which he transcribed a key section of the Council meeting [Note it is clearly not a complete transcript and he has "editorialized" about some of what took place since we do not have the video. Watch it on Cogeco Council replays]:
- I have spent a good deal of time reviewing the VHS Video of the Aug 27th Council meeting with the purpose of determining WHEN the Mayor said he was going to leave the chair..That point is quite an obvious moment.
The Mayor had EARLIER consulted with the City Solicitor for a few seconds after saying: "Just so you're all clear . .I'm going to consult with our City Solicitor. I'm gonna get my own opinion …You guys govern yourselves accordingly."
then came back to the Chairman's position, turned-off his Microphone, tipped it over, picked up a pile of papers and appeared to be leaving (moved his chair back on the dias, looking as if he might be leaving..) etc.
As he did, he did say something in the direction of Councillor Valentinis (unheard).
It was after that that Wilkki turned on his microphone and spoke:
(Eddie Francis was still at the rear of the Council dias, listening, not in the Chair position.)
"Your Worship, Members of Council; if the issue is as to a position of conflict - - that the individual councillors who serve on either Enwin or the W U C Boards may or may not have, then my opinion they should not be debating, moving, seconding, participating whatsoever in the discussion of the issue."
The Mayor remained in his chair further back, then moved forward, to the normal "Chair" position, turned on his microphone and addresses Councillor Valentinis who replies asking the question about 7 out of 10 - -"7 people could be in conflict?" [on Halberstadt's Motion] and about "3 members of Council will play God!"
A Halberstadt explains his motion and its intent...
The Mayor: "Members of Council, There's a motion on the floor moved and supported. Legal Counsel has provided advice. I am going to remove myself from the Chair. The rest of you can govern yourselves accordingly; In fact, members of council, whether it's 3 or so becomes a quorum - - Councillor Valentinis, on this issue.
(E/F rises from the Chair, lifts a pile of papers, looking like he's about to depart)
Councillor Marra asks into his microphone: "So the legal advice is. Then if you are a member of WUC it's inappropriate to debate this motion?"
The Mayor points toward Wilkki (to answer this question.)
Wilkki replies: "That's correct. The way, as I see it, if you feel you have a conflict with regard to this issue of the audit- - you shouldn't discuss anything, --with respect to the terms of reference of the audit or whether in fact the audit should proceed in whatever manner."
As you know, the Mayor did not in the end leave nor did any of the Councillors and they kept on debating and voting.
Read what the City Solicitor said again because it is so important. He makes it clear that there is a big problem, the Mayor knows there is a big problem for him personally since he threatens to leave and then the City Solicitor, because he cannot give individual legal advice to Councillors, tells them if they have a concern, do not participate.
I don't get it...why didn't they leave? The Mayor was going to do so but didn't? Did they think there was no issue? Were they playing chicken with each other---you leave, no you leave, no you leave first...
Do you think that all of these experienced people are dumb? Why wasn't this issue raised when the Mayor introduced his Motion in the first place? But for Councillor Halberstadt not knuckling under and withdrawing his Motion this subject would not have come up publicly except in the rantings of the "usual cast" as we are described, the Amoebae!
Accordingly, the Mayor's Motion passed by Council is suspect legally, the Ministry Inquiry if it is based on the Motion is suspect legally and everything is open to legal challenge.
Moreover, we may no longer have a "legal" Council and may need a new election (Hmmmmm some may say that this is a good idea). Here's why: Section 5 of the Ontario Municipal Conflict of Interest Act:
- Section 5. (1) Where a member, either on his or her own behalf or while acting for, by, with or through another, has any pecuniary interest, direct or indirect, in any matter and is present at a meeting of the council or local board at which the matter is the subject of consideration, the member,
(a) shall, prior to any consideration of the matter at the meeting, disclose the interest and the general nature thereof;
(b) shall not take part in the discussion of, or vote on any question in respect of the matter; and
(c) shall not attempt in any way whether before, during or after the meeting to influence the voting on any such question.
Based on what was said at Council, 5 members of Council---the Mayor and Councillors Marra, Lewenza, Jones and Brister--- who have all received money directly from WUC may have a conflict because they have an interest in what the audit is.
Adding in the Enwin appointees makes it 7 members.
But remember that all of the money received from Boards is pooled and distributed to Councillors so if indirect interests are added in, then every member of Council may be in conflict!!!!
One could argue that Councillors did not know this when they debated and voted at the meeting re the Mayor's Motion but after the discussion at the last Council meeting AND NOTHWITHSTANDING THE CITY SOLICITOR'S OPINION, none left the meeting by declaring a conflict. I believe a good argument can be made to remove them all from office as the Act provides:
- Section 10. (1) Subject to subsection (2), where the judge determines that a member or a former member while he or she was a member has contravened subsection 5 (1), (2) or (3), the judge,
(a) shall, in the case of a member, declare the seat of the member vacant; and
(b) may disqualify the member or former member from being a member during a period thereafter of not more than seven years;
Now the Judge does NOT have to do this and there are saving provisions but there is this doubt out there now that has to be dealt with in respect of the Minister's Motion and the individual position of the Mayor and Councillors. We cannot have this uncertainty with all of the big issues that have to be handled.
Will the Senior Levels as an example negotiate on the border with a Mayor who may be unseated at any time? They just may move forward now on their own pointing to the uncertainty caused by Council itself. What a tragedy and disgrace that would be caused by our elected local officials!
What can be done---it's so simple and I do not know why this was not discussed at Council:
- Section 7. Application to judge
(2) Where in the circumstances mentioned in subsection (1), the remaining number of members who are not disabled from participating in the meeting is less than two, the council or local board may apply to a judge without notice for an order authorizing the council or local board, as the case may be, to give consideration to, discuss and vote on the matter out of which the interest arises.
(3) The judge may, on an application brought under subsection (2), by order, declare that section 5 does not apply to the council or local board, as the case may be, in respect of the matter in relation to which the application is brought, and the council or local board thereupon may give consideration to, discuss and vote on the matter in the same manner as though none of the members had any interest therein, subject only to such conditions and directions as the judge may consider appropriate and so order.
Now I knew this on Monday. So why didn't I speak up at Council you may well ask and save the day?
Very simple. I could not. The Mayor never permitted any mere citizen to speak at Council on any of this although permitted by the Procedural By-law to do so. And if I had tried, the Clerk would have ruled me out of order as she did earlier to another mere Windsorite. That is Windsor Democracy inaction.
Bring the Section 7 Motion and please let me know about it, Mr. City Solicitor. I may want to appear as an intervenor or will that application be kept in secret too!
Now I cannot believe that the smart people in Administration did not know all of this. The question that keeps going around in my mind is what is going on at City Hall? There is more here than meets the eye!
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