Irregularity (or Deception?) in the Budget Vote of January 21, 2014 (Craig Gammie 4-5)

The main budget issue – free parking for tourists

The very controversial policy to have free parking for tourists at Sauble was passed December 3, 2013 by a 5 to 3 vote with Paul McKenzie, Janice Jackson, and Matt Standen unsuccessfully voting against the free parking proposal, and John Close, Jay Kirkland, Jim Turner, Marilyn Bowman, and Karen Klages voting for free parking for tourists. (Chris Thomas was absent).

The draft 2014 budget, which came up for vote and discussion January 21, 2014, included about $245,000 extra taxes to make up for the net revenue lost by going to free parking.

The irregularity/deception

Councillor Kirkland was absent January 21, 2014.  Councillors Jackson, Standen and Thomas signalled they would vote against the budget, largely because of the extra $245,000 taxes required to make up for the lost parking revenue.  Mayor Close and Councillors Turner, Klages, and Bowman, who apparently did not care that they were taking an extra $245,000 in taxes from the residents of the Town of South Bruce Peninsula, were keen to have free parking for tourists, and signalled they would be supporting the draft budget.

This effectively put the budget in Paul McKenzie’s hands.  If he voted for the budget it would pass.  If he voted against the budget it would be a tie vote, and the budget, and the extra $245,000 tax, would fail (all motions fail on a tie vote).  And staff would then have to go back and generate a new budget, without the extra $245,000 tax, and thus without free parking for tourists.

Councillor McKenzie faced a difficult dilemma.  He indicated he was dead set against  free parking for tourists and against the extra $245,000 taxes that would have to be collected from all TSBP residents to make up for the lost parking revenue, but he did not really want to bring the whole budget down.   So he asked whether he could vote for the budget and also bring the free parking resolution of December 3rd back for reconsideration.

Clerk Cathrae responded to Councillor McKenzie’s question.  She told McKenzie and all of council that in the last version of the procedural by-law, the rule regarding reconsideration of a decided matter had been changed so as to allow any member, regardless of whether they were on the prevailing or losing side of the decision, at any time after the meeting where the matter was decided, to bring any decided matter back for “reconsideration”.  Paul McKenzie, confident he could bring the parking matter back, vote for the budget, and passed it.

But Clerk Cathrae had not answered Mr. McKenzie truthfully.

Clerk Cathrae had said the losing side could now bring a matter back after the meeting where the matter was decided.  That was false.  The rule regarding the losing side is that the losing side can never bring a decided matter back for reconsideration.  Not at the same meeting, not at a subsequent meeting, never.

And Clerk Cathrae also said that the rule had been changed to allow this.  That too was false.  The rule regarding the losing side has never changed.

Was the budget vote improper?

How could Ms. Cathrae, the clerk for several years now, have got it all so wrong?

Someone desperately wanted free parking for tourists, someone desperately wanted $245,000 extra taxes on the residents, and someone desperately wanted the bad budget passed.

If on January 21, 2014 the Clerk had answered Councillor McKenzie truthfully, by saying that the good councillor could not bring the parking decision back for reconsideration, (because it could only have been brought back in the December 3 meeting by the prevailing side, and because he had been on the losing side, and because the December 3 meeting had long passed), Councillor McKenzie would almost certainly have voted against the budget, and the budget would have failed, and staff would have had to come up with a new budget, without the extra $245,000 taxes, and without free parking for tourists.

In my opinion there is only one plausible explanation for Ms. Cathrae telling Councillor McKenzie that he could bring the parking decision back for reconsideration when in fact he couldn’t.  It appears to me that Ms. Cathrae wanted to deceived Councillor McKenzie into voting for and passing the budget.  And it appears to me that she did exactly that.

What’s wrong with deceiving a councillor?

 I am not saying that I know for sure that the deception of council member McKenzie in order to influence his vote was deliberate, but if it was, it is a very serious matter.

First of all, it cost the taxpayers at least $245,000, which is not good.

And it may have been criminal conduct.

This is condensed from the Canadian Criminal Code section 123. (2):

Influencing municipal official

 

123. (2) Every one is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years who, by deceit or by any unlawful means influences or attempts to influence a member of council to vote in favour of or against a measure, motion or resolution.

Corrective Action Required

If the budget vote was really improperly influenced by deceipt, as I believe it was, Councillor McKenzie should be allowed to recast his January 21 vote, while keeping the votes of all others the same.  That would fail the budget, and fail the free parking.  And it would save the taxpayers $245,000.

And Clerk Cathrae should be sanctioned.

The great cover-up of the great deception

Paul McKenzie was deceived into passing the budget.  It seems that an elaborate dance was created to cover-up the deception.

Below the dance moves are documented.  If you can follow the moves, you will be able to judge for yourself whether the deception was deliberate or not.

What was said in the January 21, 2014 council, meeting is documented above.

The draft minutes of the January 21st meeting were completely inconsistent with what was actually said in the meeting.  If you looked only at the draft minutes you would think that Cathrae had on January 21st stated the reconsideration rule correctly.  Here is from the minutes:

Councillor Bowman  ….  asked what the procedure would be to reconsider the resolution to eliminate Paid Parking. She questioned whether bringing it back would require it to be brought forward by the prevailing side. The Clerk/CEMC explained that that would be the case for reconsideration in the same meeting. After the meeting has occurred, staff have taken action and as such, an alternate resolution would be required.

 (“An alternate resolution would be required” means that after the meeting the decided matter cannot be brought back for reconsideration, by either side.)

While according to the draft minutes it appeared that Ms. Cathrae had correctly stated the rule, in fact she had not.

It looked like a cover-up to me.

The exposé

 When the draft minutes of the January 21st came up for approval in the February 4th council meeting, Councillor Jackson indicated that the draft minutes had stuff included that was not said in the meeting, and had important stuff omitted that was said in the meeting, and so the minutes did not properly reflect the January 21st discussion.  Ms.  Jackson was very polite in explaining the problem, but the message was still very clear.  To fix the minutes, Councillor Jackson proposed that these two sentences (which had never been said) be removed:

The Clerk/CEMC explained that that would be the case for reconsideration in the same meeting. After the meeting has occurred, staff have taken action and as such, an alternate resolution would be required.

In addition Councillor Jackson proposed that the following three new sentences, which in fact had been said, be added in place of the ones she insisted be removed.

The Clerk/CEMC explained that both sides can bring an issue back. Another Councillor asked when that was changed from being the just the prevailing side with the ability to bring an issue back. The Clerk/CEMC explained that Council made that change during the last update of our Procedural Bylaw.

Ms. Cathrae objected to the removal of her two contested draft minutes sentences, but grudgingly agreed with Councillor Jackson’s additional three sentences, and after a long discussion council decided to add Councillor Jackson’s three sentences but leave the Clerk’s two original sentences in.

No one seemed to notice that the minutes as agreed now said two opposite things.  The minutes now said not only that either side can bring back a decided matter for reconsideration at any time after the meeting where the matter was decided, but also that neither side can bring back a decided matter after the meeting where the matter was decided.

 The cover-up of the cover-up   

 It gets even more interesting.  After the February 4th discussion, the January 21st draft minutes were modified.  But they were not modified as council had agreed on February 4th.  Contrary to the council agreement of February 4th this sentence was removed from the draft minutes:

After the meeting has occurred, staff have taken action and as such, an alternate resolution would be required.

With this change, the inconsistency in the minutes was removed, and the cover-up was covered up.

The reversal

When Councillor Jackson pointed out to the clerk (or deputy) that the words “After the meeting has occurred, staff have taken action and as such, an alternate resolution would be required” had been removed contrary to the February 4th agreement, the clerk put the words back in, making the minutes say two opposite things again. And that’s how the minutes currently read on the town’s website.

 The audio recording

If there was such a controversy over what was actually said in the January 21st meeting, then why, one might ask, didn’t someone just listen to the audio recording?

Because it turns out that by the strangest coincidence the audio recording of the January 21st meeting got corrupted, and is inaudible, just at the point where all this discussion of the “reconsideration” rule took place.

The February 4th discussion

Because there was so much confusion, the reconsideration rule was discussed again at length in the February 4th meeting, where Clerk Cathrae clearly said that: 1) in the same meeting where a matter is decided only the prevailing side can bring the decided matter back for reconsideration, but, 2) at any time after the meeting where the matter was decided either side can bring it back for reconsideration.  The first part is consistent with the procedural by-law. But the second part is absolutely contrary to the by-law.  The procedural by-law was not read or consulted at all in the February 4th meeting.

In the February 4th meeting Councillor Bowman summed up the discussion nicely:

08:58 on the audio tap: MB:  I was under the impression it was prevailing side only, so it’s been great that this has been brought forward.  Now we know that at the same meeting the prevailing side are the only ones that can bring it forward again, but the next meeting or any subsequent meeting thereafter, it can keep coming up and coming up and coming up, which is really too bad, but it can.

 The February 4th draft minutes

The February 4th draft minutes read:

Council discussed how an item can continue to come up at future meetings unless there is a resolution to close the item.

 The February 4th draft minutes are correct, but the minutes do not capture very well the point made that after the meeting in which a matter is decided, either side can bring the matter back (over and over) for reconsideration.

The Jackson motion for reconsideration

In spite of some back-and-forth, everyone was repeatedly assured that the losing side could bring a decided matter back for reconsideration any time after the meeting in which the matter was decided.   So Councillor Jackson decided to make a motion, in the February 18th meeting, to bring the free-parking-for-tourists matter that had been decided December 3, 2013 back for reconsideration.  It may have looked like a new matter, but it was not.  It was a motion to reconsider.

Mayor Close was absent, apparently holidaying in Cuba.   Jim Turner chaired.  It was anyone’s guess how the chair would handle Councillor Jackson’s motion.  Would he rule Councillor Jackson’s motion out of order because the written rule did not allow the losing side to bring a decided matter back?  Or would he allow Councillor Jackson’s motion because the Clerk had repeatedly assured everyone that the losing side could bring a decided matter back for reconsideration at any time?

No point-of-order was raised.  The chair allowed Councillor Jackson’s motion to be made, discussed, and voted.  The motion, which proposed reducing the daily rate from $15 to $10 and proposed a free pass for each taxpayer residence, was defeated on a tie vote.

Then they had a real problem

But this left a bit of a problem.  The oral rule (Councillor Jackson can bring it back) had been used in place of the proper written rule (Councillor Jackson can’t bring it back).  This set a bit of an awkward precedent.  It seemed to mean that Councillor Jackson (or anyone else) could keep bringing the parking matter that had been decided December 3, 2013 back for reconsideration, as many times as she wanted.  It seemed to mean that she could keep bringing it back every meeting until enough pro-free-parking councillors were absent and the pro-pay-parking councillors could get Councillor Jackson’s motion passed.

That of course would not be acceptable to the free-parking supporters.  And it could seriously cripple council.

So Clerk Cathrae proposed to change (her word is “clarify”) the rule again.

Clerk Cathrae’s final word – the rule change proposal of February 18th

The agenda of February 18th contained the following proposed “clarification” to the reconsideration rule:

Reconsideration at a future meeting is not permitted. Any member wishing revisit a decision must put forward a notice of motion in the manner outlined in this by-law for Council discussion, consideration and  action. (bold added by Craig)

This is not really a clarification of the rule, as the rule was already clear.  It is in my view a signal that now that the deception and cover-up and cover-up of the cover-up have met their purpose, and are no longer necessary, and could in the future be a problem, we’re going back to the original written rule.

In the January 21st and February 4th meetings Clerk Cathrae made perfectly clear that the losing side could bring a decided matter back for reconsideration anytime after the meeting in which the matter was decided.  At the February 18th meeting Councillor Jackson was allowed to bring a matter that had been decided December 3 back for reconsideration.  Twenty minutes after Councillor Jackson’s motion was defeated the rule was “clarified” to say that reconsideration at a future meeting is not permitted.

(The rule clarification still needs to be presented at a public meeting before council can vote on it.)

Summary – Sixteen times around the dance floor

The rule is 1) the prevailing side (and the prevailing side only ) can bring a decided matter back for reconsideration in the same meting in which it was decided, and 2) neither side can bring a decided mater back for reconsideration after the meeting in which it was decided.

Between January 21, 2014 and February 18, 2014 the rule appeared to go from the written rule (neitherside can bring a decided matter back for reconsideration after the meeting where the matter was decided), to either (Jan 21 draft minutes), to both either and neither (January 21 minutes second draft), to neither (January 21 third draft minutes), to both either and neither (January 21 minutes final), to either (February 4 discussion), then confirmed as either (February 4 draft minutes), then further confirmed as either (handling of Jackson February 18 motion), then finally “clarified” as neither (February 18 proposed “clarification” of the reconsideration rule).

Could someone please pass the Gravol?

Please log in to my blog at http://craiggammieblog.com to leave your comments.

Craig

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