Fighting Town Hall

We publish below a submission from resident and taxpayer Lutz Becker concerning his case against the ToW and the mayor. We have a few questions and comments which will follow Mr. Becker’s piece.

The Court Case: Lutz E. Becker vs. Robert A. Stead and the Town of Wolfville (Part I)

Lutz E. Becker

On Dec. 08, 2009 I filed a court case (Judicial Review) against Robert A. Stead, Mayor of the Town of Wolfville, and the Town of Wolfville (Municipality) as Respondents with the Supreme Court of Nova Scotia. A first court appearance in front of the Honourable Justice Warner was scheduled for January 07, 2010.

As the Applicant I requested Judicial Review of the purported contract amendment and particular provisions in it, called hereafter “the Stead letter”, dated and signed by Stead on Feb. 15, 2007, between the Town of Wolfville and the CAO, Roy Brideau, in relation to the CAO’s original Employment Contract.

I received some of Brideau’s contract materials after I had filed a Freedom of Information and Protection of Privacy (FOIPOP) application with the Town on May 21, 2008, almost two years ago. I am still missing the CAO’s yearly salary records between May 1996 and April 2007 to explain the annual increases from a starting salary of $58,500 in 1996/97 to more than $100,000 in this coming budget year and the contents of a blacked-out portion of “the Stead letter” in which Brideau is provided with salary increases four years in advance and pension plan increases up to 18% of his yearly salary. {The Town Pension Plan Policy allows for 6%.}

The contents of “the Stead letter” alter the terms of Brideau’s employment with the Town. Prior to “the Stead letter” 5% of Brideau’s yearly salary was to be paid by the Town into his pension plan and his salary increases were to be based on full annual work evaluations and at the discretion of Council and for the very next budget year only. “The Stead letter” and its contents were never approved publicly at the Council table. Stead and the Councillors chose not to address my continuing questions regarding the Brideau contract issue which I had even published in many pamphlets at the Wolfville Post Office and on the internet. It appears that they hoped that over time the Brideau issue would fall silent and go away. And with this kind of attitude they created the backdrop for the court case.

Amongst different grounds for my requested Judicial Review I had stated:

·         The Mayor had no legal authority to enter into this contract amendment. The Council never authorized the Mayor to sign this contract amendment and the Council never approved the Town entering into this contract amendment.

·         The Court will be asked to review the validity of this contract amendment {“the Stead letter”} in total.

During the preliminary proceedings on Jan. 07, 2010 Justice Warner made the following comments:

”There is some suggestion in the materials and attached to the application for  Judicial Review filed by Mr. Becker that separate and apart from any in camera meeting and separate and apart from any negotiations there are no records of the authorization of the contract [“the Stead letter“], not negotiations, but of a contract.  And that if there is no approval by a town of a contract, by whatever method the Municipal Government Act authorized towns to make contracts, then it may or may not be a  contract of an individual who signs the contract. That may affect the issue of the illegality.”

“I quite candidly on the part of the respondents have some concern to suggest that even if discussions can take place in camera,  which obviously they can, that that means that the results of those discussions never need the approval of the Council in formal motion outside of an in camera meeting. “

“Quite candidly on first blush it is an issue the municipal unit may have some problems with.  There is a difference between negotiating and taking advice and then entering into a contract without a public approval of a contract. And quite candidly if there wasn’t in fact it may be an issue that affects the second named respondent, or the first name respondent, the Mayor himself, because apparently the document disclosed was signed by the Mayor.  It may be an issue that the Mayor should participate either through common counsel or otherwise that may be and if so, that’s a matter of process that should happen . . . .”

And I’m not so sure that someone can enter a contract without it being approved in a manner at the end of the day that is on a public record.”

{Underlined parts show my emphasis.}

It seemed obvious that Justice Warner had an excellent understanding of the issue on hand, and at least after reading all the papers submitted to him, “on first blush” agreed with my major contention. I was asked to provide a brief concerning legal issues to substantiate my position in writing to be forwarded to the Court and the Town’s lawyers by Jan. 28, 2010.

Eleven days after my court appearance, on Jan. 18, 2010, the Council passed a resolution to make sure that “the Stead letter” became “legal“ retroactively.

This Resolution changed the circumstances of my court case drastically. “The Stead letter” with amendments to the Brideau contract had now been approved by Council in public and I regard this outcome as a victory for all Wolfville residents. It would have been not necessary to pass this Resolution unless an improper procedure and “mistakes” were made by Stead and the previous Council back in 2007.

And there would have been no court case if Council would have passed a resolution after it had been made aware of “mistakes” in 2008.

(Part II, titled “The Town closed the barn door after the horse got out”, you will find in the next edition of the Mud Creek News.)

Our comments: Mr. Becker has done taxpayers in Wolfville a great service by taking this issue to court.  We do not think that this issue is as yet resolved or settled. Although Mr. Becker says the Council has passed a resolution making the contract “legal retroactively” we do not think this is the case AT ALL. Our reading of the resolution recently passed by Council claims that nothing improper was done.  It acknowledges no “defect or error”. But as we were often told, saying it’s so, don’t make it so.

It is doubtful in our mind that burying new and substantial financial terms of the CAO’s contract in a line item in the budget constitutes an approved decision or resolution of council. Budget expenditures, such as salary increases are subject to and follow previously determined policies or resolutions, otherwise all kinds of illicit payments could be made “legal” via the budget.  Was the original contract with Mr. Brideau “approved”  only via the budget? And not all the new amendments of the terms of the contract were financial. What about the dropped requirement for evaluations? Where was that “approved” or what policy does that follow?

There are others questions that should be answered.

The Municipal Government Act [MGA] states:

(2) The council shall establish a pension plan to provide pensions for full-time employees in such manner as the council shall, by policy, determine. (3) The council may, by policy, establish pension plans to provide pensions for some or all other employees of the municipality in such manner as the council may, by policy, determine.

A policy applies to everyone, and is made by a decision in open Council. Were the amended terms of the so called contract in accordance with the pension policy already established, decided, by the town, or did it deviate from policy?

Is the figure for the joint contributions to the CAO’s pension plan – 18% of salary – a matter of policy? In the recent resolution of Council there is this line: “The maximum Town contribution to the Registered Retirement Savings Plan is established at 18%“. How was this “established”? Where is the decision which established this amount as a matter of policy? Oddly and suspiciously the line in the original “Stead letter” read this way – “Council established the maximum Town contribution to the Pension Contribution at 18%“. When and how? We think they are attempting to establish this now in the recent resolution to hide the fact that it was not done as it should have been in 2007. [Also one might ask how this 18% contribution figure compares to other municipalities’ CAO’s packages.]

The MGA also states:

6) The municipality, the employees and, where a pension plan is established for the mayor or councillors, those for whom the pension plan is established, shall make contributions to the plan’s cost. [emph ours]

Shall not may. How then can the CAO’s  share of contributions go to zero % as is indicated in the Stead letter for the year 2009/10?

And what is so sensitive about the last line in the “Stead letter” that the Town refuses to disclose it? The Town will look very foolish indeed if they have gone to court and spent $17,000 + in taxpayers money to hide just “Have a nice day!”

As usual too many questions and too few answers. Perhaps a judge will have some for us yet.

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One response to “Fighting Town Hall

  1. Pingback: Fighting Town Hall – part II « Wolfville watch