University of Victoria political scientist Dr. Michael Prince said the closed-door hearings remind him of the notoriously arbitrary court in England 500 years ago, which a succession of royalty used as a political weapon for bringing actions against opponents.“Where and how is the general public interest protected and promoted through this sort of process,” asked Dr. Prince, who is the Lansdowne Professor of Social Policy and the author of 10 books.
On Sunday, News Nanaimo broke the news that the fractious council had quietly scheduled four hearings to potentially sanction mayor Bill McKay and councillor Diane Brennan on a host of secret allegations.
The council gave no public notice about the nature of the hearings, while the allegations, proceedings, evidence and proposed sanctions against the council members are all being kept behind closed doors.
The council’s first public acknowledgment that it was holding hearings came late on Tuesday when it issued a carefully worded statement announcing the outcome of the first hearings on Monday.
However, even that statement failed to mention that the two councillors would still face a second censure hearing each — Ms. Brennan today and Mr. McKay scheduled for Monday.
The two are being judged by their seven council colleagues, all of whom are their potential rivals in the election later this year. The hearing panel is widely viewed as being stacked five-to-two against Mr. McKay and Ms. Brennan.
Dr. Prince said while councils often have in-camera meetings for labour and contract issues, the censure procedure was “a matter of administrative justice which would require certain safeguards of accountability and transparency.”
In Nanaimo council’s censure process, these were “glaringly absent,” which he found “worrisome indeed.”
‘Cheap political gain’
There is no specific provincial law governing censure hearings by city councils. The procedures are based on basic legal principles and past court rulings.
In the landmark case empowering councils to hold censure hearings, B.C. Supreme Court Justice Robert Crawford cautioned that censure “is a power to be exercised with great care and great discretion.”
He said such hearings could “far too easily … turn into an abuse of process for cheap political gain, and any council that sets out in this direction must be careful in what it is doing.”
Victoria-based lawyer Kathryn Stuart with municipal law firm Stewart McDannold Stuart is advising Nanaimo’s council on the censure process.
She did not respond to emailed questions asking on what legal grounds the hearings were being held in secret and why voters had not been informed in advance.
In 2014, Mr. McKay and Ms. Brennan were elected by a combined total of more than 12,000 votes.
The hearings are being chaired by councillor Jerry Hong in his capacity as rotating acting mayor. He failed to answer three emails seeking details on the hearings.
The statement issued after the first hearings said council “disapproves” of Mr. McKay and Ms. Brennan’s disrespectful conduct towards an unnamed complainant — known to be city manager Tracy Samra — as found in a report by Vancouver labour lawyer Roslyn Goldner.
They were ordered to take training by July 30 or face “future sanctions.”
The statement did not say whether the censure decision was unanimous or if any members had recused themselves due to bias, as has occurred in other cities.
It’s not known if Mr. McKay or Ms. Brennan will ask a court to review the council’s decision. Neither would comment yesterday, but it’s known that the council is requiring them to pay their own legal costs.
The Goldner report’s findings, which have not been released to the public, are shrouded in doubt.
An article based on the report in the Globe and Mail last August suggests that Ms. Goldner recommended that all council members “need tutoring on basic ground rules for respectful behaviour.”
Mr. Hong did not respond to a question asking if he and the other councillors would also undergo training.
Brennan’s second hearing today
Ms. Brennan is expected to face her colleagues again today in a censure hearing related to allegations dating back to November 2015.
At the time, she and councillor Ian Thorpe were accused of breaching council confidentiality when they spoke to media and the public about the unusual circumstances surrounding Ms. Samra’s hiring.
Mr. Thorpe later apologized saying he did not realize he was breaching confidentiality, but Ms. Brennan maintained that she was within her rights and council had in fact voted to “rise and report” on the hiring process.
In May 2016, News Nanaimo published a detailed review of released in-camera minutes, council video and other records that substantiates Ms. Brennan’s account.
Ms. Brennan hired lawyer Peter Behie, QC at her own expense in December 2015 to write to Mr. McKay requesting that council cease with censure against her and suspend Ms. Samra pending an independent review of the unusual circumstances surrounding her hiring.
In his letter, Mr. Behie said: “It is our view that there is a very significant issue of fairness raised here not just in relation to the treatment of our client but of integrity which goes to the heart of this Council. We are of the view that the public, once it realizes what has occurred here, will lose confidence in the Council. We are asking you to take active steps to reverse the tainted process and stand on the side of open, fair government.”
In response, councillors voted to award themselves and Ms. Samra up to $5,000 each to hire their own lawyers at taxpayers’ expense. Subsequent expense reports show that councillors Bill Bestwick, Jim Kipp, Jerry Hong, Gord Fuller and Bill Yoachim hired a Victoria law firm to represent them. Ms. Samra hired a Vancouver law firm.
Last year, councillors cancelled a pending censure hearing against Ms. Brennan related to the alleged leak, but it seems to have been revived by today’s hearing.
Mr. McKay is scheduled to appear before his second censure hearing on Monday. It is understood that he will face a raft of allegations related to a withdrawn civil action and an 11-month RCMP investigation that ended without a file being forwarded to the Crown.