This time it is David Daniels weighing in on the CAO contract affair. He has written an open letter to the mayor which we have received, with an explanatory preamble, not only from our often helpful reader who must be on his e-mail list, but also from Mr. Daniels himself. We have left off the preamble which explained that in this letter he doesn’t go into the contract details itself as Mr Becker has but concentrates on the process of approving the 2007 contract revision, “in the hopes that in the future the Town will be more open about such approval processes“. We copy below Mr. Daniels letter to the mayor in its entirety [but formatting may differ. The emphases are his].
November 4, 2008
Dear Mayor Stead:
I have read the draft minutes of the October 15, 2008 Committee of Council meeting in which James Dewar, Q.C., the Town Solicitor, explains the circumstances leading to your letter to Roy Brideau, dated February 15, 2007, by which Mr. Brideau’s employment contract with the Town was revised. Unfortunately, questions remain about how your letter came to be written.
The starting point of my analysis are the following observations.
**Mr. Brideau’s employment contract with the Town was revised by your February 15th letter.
**The powers of the municipality lie with the council and not with the mayor. Municipal Government Act (“MGA”) sections 14(1) and 15.
**One of the powers of the council is to make contracts. MGA section 47(5).
**I have reviewed the Town Council meeting minutes of February 5, 2007, February 20, 2007, March 5, 2007 and March 20, 2007 and I could find no reference to the Council’s approval of revisions to the Brideau contract.
Based upon the October 15th minutes and the above observations, the obvious questions are: Did the Council ever approve the revisions to Mr. Brideau’s employment contract? And if it did, when did the approval take place?
Mr. Dewar explains that at the Council’s In Camera session at the February 5th Committee of Council meeting “Council did ‘give direction to staff of or Solicitors for the municipality’, also permitted under that same sub section [22(3)] of the [Municipal Government] Act.” After this In Camera session you met with Mr. Brideau, who did not attend the In Camera session. You then met with Mr. Brideau a second time when Mr. Brideau accepted the contract offer which, at Mr. Brideau’s request, was set out in writing, that is, your February 15th letter.
Mr. Dewar asserts that no decision by Council was made at its February 5th In Camera session, but rather, by implication, you were directed to negotiate with Mr. Brideau. It appears from Mr. Dewar’s statements that such a “direction” was permissible based upon section 22(3) of the MGA which provides that “[n]o decision shall be made at a private council meeting except a decision concerning procedural matters or to give direction to staff of, or solicitors for, the municipality.”
It is unclear whether under this scenario you are being considered a member of Town staff.
I could find no definition of “staff” in the MGA or any other Nova Scotia statute. Common usage of the word would seem to preclude the head of the government being viewed as a staff member.
Perhaps most enlightening on this issue, and on the question of approving contracts, is the commentary found in INFORMATION BULLETIN #7 – OPEN MEETINGS of the Nova Scotia Department of Housing & Municipal Affairs – Revised March 2000 Municipal Government Act Resource Guide. It’s worth quoting from this Bulletin at length.
The only decisions that may be made at a closed council meeting are in regards to a procedural matter (such as an adjournment) or to give direction to staff or solicitor: S. 22(3). Council cannot make a decision at a closed meeting which would bind council. Binding decisions must be made in an open meeting. Closed meetings are intended to provide a forum for council to discuss these specified items in private, prior to making a decision. An example of giving direction to staff could be in the form of requesting staff to investigate alternative courses of action, or suggesting maximum or minimum values concerning land sales or acquisitions or wage settlements. Staff can only be directed to carry out actions that they have the authority to do. For example, staff could not enter into or accept a contract on behalf of Council, except as authorized by legislation, for example S. 31 of the MGA. They could, however, negotiate within the parameters given at a closed meeting with council giving the final approval at an open meeting.
Since substantive decisions may not be made at closed meetings, council cannot simply ratify the action agreed in the closed meeting, that is, for example, council cannot “ratify the action recommended at the April 2 closed meeting.” Council at an open meeting must put the specific
motion on the “floor” to discuss and vote on, for example: “resolve to dismiss [name]” or “agree to purchase the Smith property for the price of $97,000”. (My underlining.)
What appears to have happened was that in the In Camera portion of the February 5th Committee of Council meeting you were directed by Council to negotiate with Mr. Brideau within set parameters; that the negotiations took place between you and Mr. Brideau; that an agreement was reached within those parameters; and that for reasons which remain unclear, a binding decision by Council to approve the revised contract never took place at an open meeting.
At the October 20th Council meeting you observed that I seemed very interested in this issue. Let me make my interests clear: I hope in the future Town Council will not enter into contracts (and the Brideau contract revision obligates the Town to expend annually well over 1% of its annual budget four years running) where there is virtually no public record of those decisions and that the Town Council will in the future follow the practices set out in Bulletin #7. Democratic governments require transparency if they are to operate properly and to retain the trust of the people whom they serve.
David A. Daniels
The truism -and legal principle- that applies here is that an action should not only be fair but appear to be so. And everything surrounding this contract appears suspect even if it is not.
even if everything was above board, and approved openly, it is still TOO MUCH MONEY for a town this size. Mayor and Council are supposed to represent and protect the interest of the ratepayers.