Bestwick-led group’s move to cement control sparks committee uproar

Mayor’s vote against new structure plunges committees' legal status into doubt as key members revolt
Councillor Bill Bestwick’s majority group on Nanaimo City Council this week moved to cement their control over all city policy and administrative functions by scrapping 11 committees and striking six powerful new ones.

Bill Bestwick
Bill Bestwick

The move will give the five-man team of councillors central oversight over who receives almost $9 million in annual handouts that the city distributes to community, arts, culture, sports, religious and charitable groups. The grants were previously handled by several arm’s-length committees.

The streamlined new committee structure also downplays environmental, social and cultural issues by disbanding an environmental committee and merging separate culture and social planning ones into a single mega-committee.

Introduced without consulting existing committee members, the sweeping changes were immediately condemned by prominent committee members.

Gail Adrienne, chair of the former Advisory Committee on Environmental Sustainability (ACES), which was disbanded in the committee overhaul, said she had received “lots of reactions from several directions, all of it shocked and upset over this sudden and unexpected recommendation from the CAO at City Hall, and it’s swift approval by a majority of Council.”

Daniel Appell, a member of four of the disbanded committees, spoke out against the move on Facebook: “From my point of view this looks like something arbitrary. A couple of new committees look like they have been put together with binder twine and not much else.”

Legality in question

Meanwhile, the legality of the new committees was thrown into question due to Mayor Bill McKay’s vote against them. He initially tried to block the complex overhaul by using his power not to allow a vote, saying that provincial law gives mayors sole authority to strike standing committees, which is what he believes the new committees are.

Mayor Bill McKay
Mayor Bill McKay

The mayor wanted to get an opinion from the province on the question, but was rebuffed. At that point, he exercised his power to not permit a vote, but his block attempt was defeated in an appeal by councillors.

In the end, council voted 6-2 in favour of the new committee structure, with only the Mayor and Councillor Diane Brennan voting against. Councillor Ian Thorpe was absent from the meeting.

Two senior municipal lawyers told News Nanaimo that any committee with a continuing function that is created by a council but not supported by a mayor has no legal authority to carry out tasks council assigns to it. In BC, only mayors can create committees with ongoing briefs, or standing committees, while councils can strike select committees, which have limited scope and duration.

Lorena Staples Q.C., one of BC’s leading municipal law experts, explained that committees are not defined by naming a committee as either a standing or select committee, but by their functions and their intended period of operation.

“A committee that has the function of a standing committee but whose creation lacks the mayor’s vote, is not a standing committee and has no authority to carry out any duties assigned to it,” she said. “The municipality’s corporate officer would be legally correct in refusing to recognize such a ‘committee’ as legally created or empowered.”

(Ms. Staples’ complete explanation of the law on committees for BC councils is posted at the end of this article.)

Another QC with a Vancouver law firm described Mayor McKay’s vote against as “a deft move” by the mayor to defend his powers. He said it was “highly problematic” for a council to establish general advisory committees without a mayor’s support, and lawyers advise against it.

But Nanaimo city manager Tracy Samra told News Nanaimo that the committees are select committees, and as such are within council’s power to establish even without the mayor’s support. However, she indicated that she had not obtained a specific legal opinion on how the mayor voting against the new committees affects their legality.

Tracy Samra
City manager Tracy Samra

Sources say Ms. Samra spent part of the week answering questions from council about the legality of the committees following the Mayor’s vote against. This culminated Friday in Ms. Samra telling council members she had contacted staff at “the Ministry” and she believed the city was in compliance. Ms. Samra told councillors she believed the issue was closed.

However, it reared its head again Friday night when comments on Facebook prompted Ms. Samra to email News Nanaimo at 9:23 pm to say she “got confirmation today from office of the inspector of municipalities we aren’t non-compliant with Community Charter.”

Asked to forward the opinion in writing or provide a contact for follow up, Ms. Samra did not reply. Instead, at 9:29 pm she sent a terse new email to News Nanaimo that was copied to the mayor and all of council, which read in part: “Whose your QC. Ministry is fine with our committee structure.  As is our lawyer, previous law firm and renowned governance expert.”

Bestwick cementing control and sidelining mayor

Sources close to council told News Nanaimo that the new committee structure is the initiative of Councillor Bestwick, who is widely seen as preparing to run for mayor in 2018, with construction of a multiplex to house a Western Hockey League team as a centrepiece of his platform.

The new committee structure is seen as a key component of the Bestwick group’s plan to take control of city hall from the mayor, which began with the controversial hiring of Ms. Samra last November.

Councillor Bestwick commands the loyalty of councillors Jim Kipp, Bill Yoachim, Gord Fuller and Jerry Hong — giving him a majority of five that is bolstered to seven with acquiescence by Councillors Wendy Pratt and Ian Thorpe.

Sources say Councillor Bestwick tasked Ms. Samra with the tricky administrative challenge of executing and justifying his committee plan, which now gives his team a strong presence or control over all of the city’s operations and policy making apparatus.

At this week’s council meeting, Ms. Samra presented a set of 18 seperate motions to give effect to a committee structure that largely mirrors the city’s departments. The motions, which were not made available prior to the meeting, were still not available publicly on the city’s website at the time of writing.

Roll out of the new committee structure follows a series of actions that have seen the Bestwick faction grab control over key appointments and shift council members’ role from a strictly policy and decision-making one to becoming more involved in the city’s day-to-day affairs.

In March, council committed itself to a new portfolio system without prior public notice, with Mayor McKay and Councillor Brennan opposed. The system assigns each council member to a city department on a rolling quarterly basis and requires that they send weekly email updates about their portfolio department to the city manager and the rest of council.

In April, Bestwick’s group quietly removed the mayor from three joint committees with outside organizations, including the Nanaimo Port Authority (NPA) Working Group, Snuneymuxw First Nation (SFN) liaison committee, and the tripartite liaison committee, which is a joint committee of SFN, NPA and the city.

Meanwhile, Ms. Samra has twice shuffled the city’s management ranks and tightened her grip over key city functions as senior staff have left the city. According to HR director John Van Horn this week, 19 managers or higher have now left the city since the beginning of 2015. That is one more than was reported last month.

All community grants centralized under councillors

The latest move to cut the number of advisory committees to six enables the Bestwick faction to more easily install their five core members on each committee. Committee membership is also appealing to councillors as it raises their profiles with the public come election time.

The committee rejigger creates two entirely new advisory committees for finance and public works, three “enhanced” committees for parks, safety and planning, and one merged committee that combines culture and heritage with social planning. A previous committee on environmental sustainability is scrapped and its members will be dispersed to the new parks and planning committees.

Significantly, almost $9 million of yearly grants, tax exemptions and rent subsidies to almost 200 different service organizations and community groups will now be centralized under a new Finance & Audit Committee comprised only of councillors under the heading “community investments.”

All grants award activities for social planning, culture and parks have been stripped from the relevant new committees’ mandates. Additionally, a subcommittee will take over handing out tax exemptions and subsidies.

Diane Brennan opposed centralization of grants
Diane Brennan

All of these handouts and subsidies were previously handled by separate committees that were more arm’s-length from council, something considered good practice to avoid the appearance of political largesse and favoritism.

Speaking at the council meeting, Councillor Brennan criticized this aspect of the new structure saying “we need to have a grants and advisory process that doesn’t involve the politicians. It needs to be squeaky clean.”

Mayor McKay and Councillor Pratt also supported giving control over grants to arm’s-length committees.

Interestingly, the new Parks, Recreation & Wellness Committee has a new role that was not specified in the old committee’s mandate. It will now give council recommendations on “applications for funding and subsidies for recreation facilities,” which one observer believes is related to the multiplex proposal.

Environment, poverty, arts and culture downplayed

But the strongest criticism of the new structure was directed at how it seems to shift attention away from the environment, social issues like poverty, and arts and culture, while emphasizing public projects and political control over grants.

The former Culture & Heritage Commission and the Social Planning Advisory Committee are being merged into a single committee that will see artists provide advice to council on homelessness and poverty, and social planners making decisions on public art.

This drew strong criticism from councillors Brennan and  Pratt, who said she was “very concerned” about combining arts and culture with social planning, which was a “huge issue in our community” and needed to be dealt with separately from arts and culture.

In comments on Facebook, committee member Mr. Appell said: “I suspect that culture and heritage are being tied to social planning because the creative community is regarded as a marginalized group, and as a marginalized group is considered a liability rather than an asset.

“Frankly, if the creative community feels we are being yolked to another task we are not suited to, just to satisfy some misguided, short-sighted political objectives, our frustrations will be expressed with great clarity.”

But perhaps the most contentious issue is the scrapping of the Advisory Committee on Environmental Sustainability (ACES) at a time when climate action is a focus for senior levels of government. Both councillors Brennan and Pratt spoke out against it.

Councillor Brennan said that while she supported having people with environmental expertise on other committees it was a mistake to not also have a standalone environmental committee.

“People come to this community because of our environment, because of our ocean, because of our lakes, because of our forests,” said Councillor Brennan.

Gail Adrienne
Gail Adrienne, chair of scrapped environmental committee

Ms. Adrienne, the chair of the disbanded environmental committee, said she is opposed the city’s plans because it will diminish the importance of environmental issues at a time when all levels of government and other sectors are making it a priority.

She was also critical of replacing ACES with an internal staff committee, saying it would not provide council with “that critical link to the wants and needs of the community at large.”

The city’s plan to disperse members of ACES among three other non-environmental committees would “simply relegate each of us to serve as a minority voice on these other committees—an advisory role at best,” said Ms. Adrienne.

An informed source said that several members of the affected committees have already said they plan to resign their seats in protest.

Doubt over committees’ legality likely to persist

While angry committee members and resignations will be a headache for council and city staff, lingering questions about the legality of the committees may prove to be much more bothersome for the Bestwick-led majority and their city manager.

A court challenge to the legality of the committees could call into question recommendations to council on everything from grants to zoning applications to subsidies for recreation facilities.

It’s likely a compromise will need to be negotiated with the mayor if the committees are ever to be given legal certainty.

Councillor Bestwick did not respond to an email seeking comment while Mayor McKay referred to his statements at the council meeting as all he wished to say at this time.

Below is the complete explanation of the implications of a BC mayor voting against council committees as provided by Lorena Staples, QC, which she states should not be seen as a direct commentary on the situation in Nanaimo:

The role of standing and select committees are defined in Robert’s Rules of Order as follows:

“Standing committees are constituted to perform a continuing function, and remain in existence permanently or for the life of an Assembly that establishes them. …

“A (select) committee is a committee appointed, as the need arises, to carry out a specified task, at the completion of which – that is, on presentation of its final report to the Assembly – it automatically ceases to exist. A special committee may not be appointed to perform a task that falls within the assigned function of an existing standing committee.”

The Community Charter is the source of the governance rules for municipalities in British Columbia, including the powers of a mayor and a council, respectively. Those rules adhere to the principles in Robert’s Rules described above. Committees are not defined by naming a committee as either a standing or select committee, but by their functions (terms of reference) and their intended period of operation.

Select committees are established by the council (by resolution) under the authority of section 142 of the Community Charter “to consider or inquire into any matter and report its findings and opinion to the council”. At least one member of a select committee must be a member of the council. The others may be persons who are not council members. A select committee is defunct (ceases to exist) once it has completed its assigned task and reported to council.

Section 116(2)(e) of the Community Charter gives the mayor of a municipality the sole statutory authority “to establish standing committees in accordance with section 141”. The council cannot usurp the mayor’s authority by establishing a committee with a continuing function and calling it a select committee.

Section 141 of the Community Charter deals with the composition of standing committees – at least half of the members of a standing committee must be members of the council. Section 141(1) reiterates the authority of the mayor “to establish standing committees for matters the mayor considers would be better dealt with by committee” and empowers the mayor to appoint the members of the standing committees.

Standing committees have a continuing existence throughout the term of a council unless or until terminated or changed by the mayor. Even if standing committees appear to be established in the council procedure bylaw, the mayor has the sole authority under section 141 to change their names, composition, membership and terms of reference at any time, subject to the membership composition rule in section 141(2).

The mayor need not take his or her decision to create a new standing committee, or make changes to any existing standing committee, to council for approval. A committee that has the function of a standing committee but whose creation lacks the mayor’s vote, is not a standing committee and has no authority to carry out any duties assigned to it. The municipality’s corporate officer would be legally correct in refusing to recognize such a “committee” as legally created or empowered.