The highly unusual case centres around well-known administrative assistant Marilyn Smith whose more than 42 years of service to the city covered six mayors and more than a dozen councils.
News of her sudden departure from the city after clashing with new city manager Tracy Samra stunned former mayors and councillors, who universally praised Ms. Smith’s professionalism and dedication to the city.
Filed Wednesday in Nanaimo Supreme Court, the lawsuit is believed to be the first time in BC that a city has sued a sitting mayor for damages.
It also raises legal questions about how a city can sue a current council member when it has a legal obligation to defend them in such actions.
Caught in the crossfire of council war
Several sources have told News Nanaimo that Ms. Smith found herself in the crossfire of the ongoing council war between the mayor and councillor Bill Bestwick, who commands a five-man majority on council and the steadfast loyalty of Ms. Samra.
After a run-in with Ms. Samra over the mayor, Ms. Smith was reassigned in April to a union position in the legislative services department and had her council support job cut to half days. Neither the mayor nor council were officially consulted on the move, sources say.
Shortly after being reassigned, Ms. Smith went on stress leave and made constructive dismissal and human rights claims against the city and Ms. Samra. The claim was finally settled in October.
In its notice of claim, the city alleges that Mr. McKay helped Ms. Smith in her case against the city by providing her with confidential information, including an April 19 email Ms. Samra sent to council about Ms. Smith.
The city alleges the mayor’s actions “caused or contributed to loss or damage incurred by the city” related to the settlement paid to Ms. Smith.
The court filing does not specify the damages the city is seeking but sources have previously pegged the amount at $80,000.
The city is also asking the court to find that the mayor breached his duties of confidentiality to the city and broke information access and privacy laws.
None of the allegations have been proven in court and Mr. McKay was not available to comment at the time of publication. He has previously denied any wrongdoing.
Case to linger into next race for mayor
The lawsuit was authorized by Mr. Bestwick’s council majority in November, according to a city press release (PDF) issued at the time.
With Mr. Bestwick expected to run for mayor in 2018, the case will likely linger over his arch rival into the next election.
It is also likely that the Bestwick controlled council will try to force Mr. McKay to pay his own legal costs in the case, which are likely to amount to tens of thousands of dollars.
An existing 2005 city bylaw, enacted under authority of the Local Government Act, requires the city to defend council members and pay any judgements against them. The city can recover costs and damages only if a court finds the council member guilty of “dishonesty, gross negligence or malicious or wilful misconduct.”
In essence, this means that taxpayers may be required to pay the legal costs for both suing and defending the mayor they elected.
However, at least one councillor, Gord Fuller, has said he believes council can deny the Mayor’s legal costs based on a March 2016 policy that gives council discretion to pay legal costs for councillors, but not the mayor, up to a predetermined limit.
This policy was approved to retroactively authorize $14,500 in legal costs incurred by Mr. Bestwick and four of his council allies to defend themselves against allegations related to the unusual hiring of Ms. Samra without so much as an interview in November 2015.
Outpouring of support for Smith
The city’s lawsuit may finally make public the details surrounding Ms. Smith’s unannounced departure from the city after such a long career as well as the terms of city’s settlement with her.
When News Nanaimo broke the news that Ms. Smith had left the city, there was an outpouring of support for her from former council members.
John Ruttan, who was mayor from 2008 to 2014 said he holds Ms. Smith in “the highest esteem” and that she always acted in the best interest of the city.
“She never failed to contribute her very best efforts at all times and to not recognize and support this long-serving employee is both callous and disrespectful. If this is the manner in which employees with long service records with the City of Nanaimo are treated, it effectively serves as a clear warning to all employees of this City that their services could be abruptly terminated without reasonable notice or cause. I very much doubt that Marilyn Smith could ever have anticipated that her many years of outstanding service would end this manner.”
Gary Korpan, who was mayor from 1993 to 2008 and councillor from 1984 to 1993 said: “Any person who has dealt with Marilyn Smith directly will attest to her consummate professionalism, common sense, ingenious problem-solving, and apparent unlimited energy dedicated to bettering Nanaimo and helping its citizens. I think her core attitude and belief is to “help people” and they liked working with her because of her warm and engaging personality.
“It is impossible for me and, I expect, any city councillor who has worked with her, to think that anyone could have done a better job as Secretary to Mayor and Council than Marilyn Smith. The City of Nanaimo is far better because of the decades of Marilyn Smith’s dedicated work for them. She will be greatly missed. I wish her an excellent, enjoyable, and well deserved retirement.”
Former mayor Graeme Roberts (1984 to 1986) said: “Marilyn was one of the finest, brightest, warmest, willing and most personable persons that I could ever wish to have known. When I did learn of her being a casualty of the travesty that has taken place at Nanaimo City Hall I did so with dismay and quite frankly total disbelief.”
Former councillors also spoke out in support of Ms. Smith.
“When it comes to this employee I get extremely hot under the collar at the way she was treated by this council. In my years in newspapers and later as a councillor, over 30 years, Marilyn was always top drawer, you could not ever ask for better. The vindictive way she was treated is totally unacceptable, and whatever settlement was reached was not enough,” wrote former councillor Merv Unger on Facebook.
His sentiments were echoed by former councillor Fred Pattje who wrote: “Marilyn Smith was City Hall’s treasure, not only from a perspective of acquired knowledge and experience but much more so just because of the person she was/is, loyal, always optimistic, honest and hard-working to a fault! She most definitely deserved better than this!”
Former councillor Joy Cameron said: “For many, many years, Marilyn was the #1` community contact for Mayor and Council for our Community. Always, she treated inquiries, requests with great respect and followed through with answers to whatever questions or information inquiries that were presented.
“In my role as a Councillor, Marilyn gently, kindly, went out of her way to help us fulfill the responsibilities of our elected positions. Most importantly, always she kept confidences and kept confidential information of and about everyone she worked with.
“The Marilyn Smiths in our world are rare and irreplaceable.”
If you know about something that you believe the public should be told, see how to send us sensitive information.