Why Tracy Samra should apologize (at minimum)

Censure actions against two councillors who raised questions about CAO's unusual hiring leads to bitter behind-the-scenes legal battle and businessman being unfairly removed from city committee.
Almost two weeks ago, Nanaimo City Manager Tracy Samra blindsided City Council with an extraordinary public statement that made serious unsubstantiated allegations against Mayor Bill McKay and Councillor Diane Brennan. She did so knowing full well that her targets would be unprepared and legally hamstrung from rebutting her allegations.

Nanaimo CAO Tracy Samra at May 16, 2016 Council Meeting
City of Nanaimo City Manager Tracy Samra addresses Council meeting on May 16, 2016.

However, new information and fact checking of several of her accusations against the public record strongly contradicts the veracity Ms. Samra’s account of certain allegations she made before council and on live television. Specifically, her allegations that Councillor Brennan leaked confidential council information to the media and public about the process of Ms. Samra’s hiring for the interim City Manager position are wholly contradicted by the public record.

In fact, the record shows that Ms. Samra, a trained lawyer, spearheaded a biased and procedurally inept inquisition into the alleged leak in a process that can best be described as a kangaroo court. The result has been a gross abuse of process that has caused harm to Councillor Brennan, Councillor Ian Thorpe and Mr. Don Bonner, an active and respected member of the community.

In this post, I provide links to publicly available records that show that Council approved the release of information to the public about the process used to appoint Ms. Samra interim City Manager. I also show that due in part to one councillor’s rush to judgment, which sparked a vicious Facebook polemic, Ms. Samra was instrumental in a miscarriage of fair process, which she continued to perpetuate on May 16, 2016 when she made her extraordinary public statement in open council.

The Leak that Never Happened

Ms. Samra’s allegations against Councillor Brennan are chiefly that the councillor breached council confidentiality by speaking to the media and the public about the unusual nature of council’s decision to appoint her interim City Manager. In her statement on May 16, 2016, Ms. Samra said, “the corporate record clearly shows there was no motion to release anything about the hiring process or me.”

However, that is simply not the case. The recently released minutes of the November 13, 2015 in-camera meeting of the City Manager Selection Committee, comprised of all of council, record the following motion to rise and report on the selection process:

“It was moved and seconded that the Committee recommend that Council rise and report on the selection process and outcome at a future Open Council Meeting. The motion carried unanimously.”

Three days later on November 16, the Mayor read a statement in a public council meeting announcing that council had earlier, in an in-camera council meeting, made an unnamed selection for the interim CAO position.

The minutes of the earlier in-camera meeting show that the council decision to offer the job to Ms. Samra was rushed. It was made just minutes before the start of the public meeting. Councillor Gord Fuller was in the chair at the time since the Mayor had excused himself from the meeting because he believed he had a conflict of interest with Ms. Samra, who I understand had at one point acted as his lawyer. The recording secretary had left the room and only HR Director John Van Horn and former Legislative Services Manager Chris Jackson remained with councillors. The in-camera meeting terminated at 7:01pm and councillors immediately went into the public meeting, which was late in starting at 7:02pm.

The relevant part in the Mayor’s public statement on November 16, written for him at his request by Councillor Brennan since he wasn’t in the meeting, said council also decided to “rise and report on the selection and the process used to make the selection once the candidate has accepted the offer.”  Ms. Samra makes a special point of Councillor Brennan having written the Mayor’s statement that night. She suggests that Councillor Brennan made up the bit about the decision to rise and report, which has not been recorded in the in-camera minutes. Councillor Brennan denies this.

To decide this point, it is best to watch the video of the Mayor’s statement available on the city’s website. It shows that there was more than enough opportunity for council members present to correct the Mayor on the rise and report aspect of the statement, but none did. Indeed, the Mayor even turned to Councillor Wendy Pratt after making the statement to ask if she wanted to say something. She said no, and no one else interjected at that point either.

Consequently, the evidence on the public record clearly shows that, on a balance of probabilities, council agreed to rise and report once Ms. Samra accepted the offer. It’s unclear exactly when Ms. Samra accepted the offer, but the fact that she had done so was made public in an official City news release distributed at 3:43 pm on November 17, 2015.

From that point onwards — 3:43 pm on November 17, 2015 — council had risen and reported to the public. According to local practice, all councillors were free to discuss the hiring process and the appointed candidate. At least two of them did just that, telling a tale of a highly irregular selection process that went against the committee’s own motion to “contact those on the applicant submission list with Chief Administrative Officer experience in communities of similar size as Nanaimo.”

The fact is, Ms. Samra had no past CAO experience. Her previous position at the city a couple years earlier, which she left with severance after six months, was as a manager, four rungs below her new position. However, she was well known to several councillors and they singled her out as their favored candidate. By a 5-3 vote, with Councillors Brennan, Thorpe and Pratt opposed, they decided to offer her the job without even an interview or a reference check.

Rush to Judgement Sparks Inquisition

Among the first people to publicly relay information about the unusual hiring process was Mr. Bonner, a business owner who is active in several service organizations and who is an administrator of the A Better Nanaimo group on Facebook. In camera minutes reflect that Mr. Bonner spoke to Councillors Thorpe and Brennan.

Mr. Bonner told me he spoke with Councillor Thorpe after a city Grants Advisory Committee meeting, a day after the city’s news release and the rise and report had been effected. Minutes of that committee meeting at 2:00pm on Nov. 18, 2015, show that Mr. Bonner and Councillor Thorpe both attended. Bonner says he spoke with other councillors the next day, Nov. 19, 2015.

A review of Facebook posts and comments shows that Mr. Bonner’s first comments about the unusual hiring process appeared on November 19 around 10:00 am — two days after council’s decision to rise and report on the process took effect.

He relayed information about the unusual process, without divulging names but giving a fairly detailed account of what had transpired in terms of the selection process. You can see a screenshot of one of his comments here.

While Mr. Bonner’s account was detailed (albeit slightly inaccurate), remember that council had already reported on the appointment and councillors were free to discuss  “the selection and the process used to make the selection.”

Soon afterwards, Councillor Fuller, who can fairly be described as a novice to parliamentary procedure and administrative law, posted a comment in his Facebook group, Gord Fuller’s Municipally (A)musing, drawing attention to Mr. Bonner’s comments and asking who was “releasing confidential info to him (Mr. Bonner).”

What followed can best be described as a Facebook mob on a rampage. There were calls for Mr. Bonner to be removed from the city’s Grants Advisory Committee and for his business to be banned from receiving any city contracts. Someone suggested that the Chamber of Commerce and United Way be pressured to remove Bonner from their boards and committees. The RCMP and Attorney General were mentioned. It was nasty, and it’s all still public at the above link and elsewhere.

But the real action was yet to come.

At her very first in-camera meeting as City Manager, an in-camera Committee of the Whole meeting on November 23, 2015, Ms. Samra went to work immediately. Her very first order of business, according to the minutes, was to bar all staff from the in-camera meetings except for when their agenda item is being discussed. This would mean in future that even the recording secretary would not be present during portions of these secret meetings.

The minutes show that shortly after 11:00 pm that night, Ms. Samra led a discussion on councillors’ duty to respect the confidentiality of in-camera deliberations “in response to allegations that deliberations from “In Camera” meetings were released to the public and media.” The minutes claimed that there was no motion carried to rise and report. According to the minutes, Councillor Thorpe and Councillor Brennan admitted to talking to Mr. Bonner and giving him information. The minutes state that council “acknowledged that these confidentiality breaches occurred” and directed Ms. Samra to “provide censure options at a future meeting.” The meeting ended after midnight at 12:12am.

We should pause here to note that Ms. Samra, a member of the BC Law Society, was not only leading the discussion, but council was also giving her the task to come back with censure options against the “offenders.” This put her in a clearly conflicted position as the supposed leaks related to the unusual process of her own hiring. There was also a serious issue of Ms. Samra’s bias towards Councillor Brennan, whom she had 12 months earlier publicly branded a “law breaker.”

At their next in-camera meeting a week later at 3:00pm on Nov. 30, 2015, councillors were greeted by a new face in the room: Sandra Carter, a lawyer from Valkyrie Law in Vancouver. Two weeks into her new job, Ms. Samra had terminated the city’s prior law firm Young Anderson and — through a direct award that seems at odds with the city’s procurement policy — appointed Valkyrie. The new lawyer gave a verbal half-hour report of two legal opinions concerning confidentiality, left the meeting at 5:30pm, and the discussion was suspended to deal with other items on the agenda.

When it resumed after 7:12 pm, an hour of deliberation with the conflicted Ms. Samra in attendance led to two motions. First, that Councillors Brennan and Thorpe work with Ms. Samra to write apologies and read them out in an upcoming public meeting. And second, that Ms. Samra write to Mr. Bonner to advise him of “his obligations as a member of a Council advisory committee and his requirement to meet provisions of Council policies and bylaws, committee terms of reference, and Provincial Legislation.” The minutes note that both motions passed unanimously.

However, there is a different, less sterile account of these meetings contained in a recently leaked letter from Councillor Brennan’s lawyer Peter Behie Q.C., of Nanaimo law firm Ramsay Lampman Rhodes, to Mayor McKay. It describes councillor Brennan “being intimidated by the rapid move to judgement” and apologizing even though she believed she had done nothing wrong. It says she was threatened with being removed from committees, and was not given notice of the censure or an opportunity to consult a lawyer. Her lawyer describes the censure proceedings as “the antithesis of due process.”

At the next in-camera meeting, on Dec 7. 2015, before an open council meeting, Councillor Brennan announced that she would not be making a public apology and intended to consult a lawyer. According to accounts from Councillor Fuller, Ms. Samra did not leave that meeting in a rage (she was upset but composed, he claims) and only threatened to sue Councillor Brennan for defamation, not for getting legal advice. Councillor Brennan’s legal counsel describes the threatened litigation “completely inappropriate” for a member of City staff.

At the public meeting that followed later that evening, Mayor McKay read a statement saying council had completed its investigation into breaches of confidentiality. Councillor Thorpe, looking tired, then read an apology in the open meeting — and with that the unprocedural censure against him was complete. He now mostly votes with the councillors that voted for his censure.

In the same statement, the Mayor said Councillor Brennan was seeking legal advice and would make an apology at a future meeting. She never has.

However, while to the public it seemed that the issue was over, behind the scenes things were getting uglier. A week later at the December 14, 2015, special in-camera council meeting Mr. Bonner was dealt some rough justice.

Without notice of the censure or an opportunity to be heard, and with Ms. Samra the lone staff member in attendance, council voted to remove Mr. Bonner from the city’s Grants Advisory Committee and to ask the United Way to put forward a new representative. Mayor McKay and Councillors Brennan and Pratt opposed the action, which falls far short of any standard of procedural fairness and in any event was without foundation.

It was clear now that the stakes were rising for those seen as opposing the process that had selected Ms. Samra without even an interview.

Councillor Brennan Fights Back

The next day, Ms. Samra and Mayor McKay received letters from Councillor Brennan’s lawyers. The letter to the Mayor argued that there was no breach of confidence and the censure actions initiated against Councillor Brennan were illegal both on a process and substantive basis.

It went further to say that the hiring process that appointed Ms. Samra also was illegal and that she had shown a willingness to threaten councillors and an ignorance of the conflict between her duty to council and her interest in keeping her position.

Saying Samra was in a “hopeless position of conflict,” the letter asked that the Mayor remedy the situation by suspending Ms. Samra until council had completed an independent review of both the hiring and censure processes. It “strongly” suggested that council not use the recently hired Valkyrie law firm but instead use its previous law firm Young Anderson for the work.

The letters were discussed in an in-camera meeting the very next day, December 16, 2015, at which Councillor Brennan excused herself from the discussion related to them. Councillor Pratt was absent and Councillors Hong and Yoachim attended by phone. At the end of the session, councillors had awarded themselves and Ms. Samra $5,000 each to obtain “independent legal advice” related to the allegations in Councillor Brennan’s letters.

A freedom of information release to the Nanaimo News Bulletin later reported that Councillors Bill Bestwick, Bill Yoachim, Jerry Hong and Gord Fuller each used $3,593, while Jim Kipp was given $212, a total of $14,584. It’s unclear why only those councillors obtained independent legal opinion and why no other council members made use of the allowance.

In her presentation May 16, 2016, Ms. Samra mentioned another outcome of this meeting saying: “Mayor McKay wrote to Councillor Brennan’s lawyer confirming that the city’s hiring process was lawful and that he had no grounds to suspend me at that time.” However, what she chose not to say is that the Mayor was made to do so by council resolution and that he voted against it.

The final resolution on the letters is also intriguing. Despite Councillor Brennan’s legal counsel’s  conclusion that Ms. Samra was in a “hopeless position of conflict” on the matter and should have nothing more to do with it, council voted, with the Mayor the sole dissenter, that the “City Manager be directed to obtain legal advice regarding the interim City Manager hiring process.” In other words, the chief beneficiary of the alleged flawed hiring process was put in charge of getting advice on its legality.

However, by the next in-camera meeting on January 7, 2016, after the city received a third letter dated December 17, 2015 from Council Brennan’s lawyer, Ms. Samra appears to have begun removing herself when issues related to her hiring and the censure are discussed. Ms. Carter, the Valkyrie lawyer, has attended.

In summary then, Ms. Samra’s remarks in that extraordinary public statement on May 16 repeated unsubstantiated allegations against Councillor Brennan that pour salt on the wounds of an ugly injustice perpetrated under her watch while she was clearly in a position of conflict and bias.

The public record provides strong evidence that the rise and report on the hiring process was in effect at the time that Councillors Brennan and Thorpe divulged information to the public. They did nothing wrong. Furthermore, Mr. Bonner has been harrassed, falsely accused, denied due process, and summarily stripped of his seat on the Grants Awards Committee without any justification.

That’s why Tracy Samra, most of council and many members of the public should, at the very least, issue public apologies to Councillors Brennan and Thorpe and Mr. Bonner, who also deserves to be reinstated to his seat on the Grants Advisory Committee.


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