Three councillors have laid out their case against sanctions imposed on them in June, in open houses around Rocky View County (RVC) and sworn affidavits.
To rooms described by Coun. Samanntha Wright as “generally sympathetic,” she, along with Couns. Crystal Kissel and Kevin Hanson, maintained the sanctions prevent them from fulfilling their elected duties, and stated in the affidavits they are “unreasonable and disproportionate.”
“You actually, at this time, have more rights than we do,” Wright told the audience during the third open house, held Sept. 18 at Weedon Hall. “You can email the County – you contact staff members, and they can contact you back. We can’t do that.”
The open houses weren’t warmly received in all corners – Reeve Greg Boehlke said he viewed them as a tactic for the councillors to rally support.
“I haven’t been there, so I’m not sure – what I’m getting is hearsay,” he said. “The hearsay I’m getting sounds like…it is just to garner some sympathy.”
During the open houses, the councillors detailed a timeline of events leading up to their sanctions, which were mirrored in sworn affidavits dated Aug. 20, submitted to the Court of Queen’s Bench of Alberta and made available to the public.
According to the affidavits, the ordeal began with the search for a new CAO. In October 2018, RVC publicly announced the hiring of current CAO Al Hoggan, without a resolution passed by council. Hoggan’s hiring was approved by council through a 5-4 vote Dec. 11, 2018, with Wright, Kissel, Hanson and Coun. Jerry Gautreau opposed.
Due to “irregularities” in the hiring process, according to the affidavits, the four opposing councillors retained a lawyer. The timeline presented at the open houses indicated Chris Davis Law wrote a letter to the Minister of Municipal Affairs (MA) Dec. 12, 2018, outlining the concerns about the hiring and requesting an inspection. A copy was sent to RVC “out of courtesy.” Then-interim CAO Rick McDonald sought a legal opinion as well, and shared the report – known as the Brownlee report – with council as privileged and confidential.
In April, the three councillors brought a Notice of Motion to direct RVC administration to prepare a CAO Hiring Bylaw, based on advice from MA and the Brownlee report. However, the Notice of Motion was removed from the meeting’s agenda by a motion made by Deputy Reeve Al Schule, who addressed a formal complaint to Reeve Greg Boehlke the same day.
“The Notice of Motion as presented makes a statement in the background information making obvious that a RVC legal opinion was passed to an independent third party legal advisor without either the consent or authorization of council,” Schule wrote in the complaint, included as an exhibit with the affidavits. “This complaint is made that confidentiality was breached under [the Code of Conduct]…. The legal opinion that was delivered to County councillors was clearly labelled as ‘privileged and confidential.’”
Following the removal of the Notice of Motion, the three councillors submitted a Letter to the Editor to the Rocky View Weekly regarding the decision, which resulted in a second formal complaint by Schule to Boehlke.
“The article is offensive and derogatory in its entirety,” Schule wrote.
Then, according to the affidavits and the councillors’ statements at the open houses, Hoggan limited their abilities to communicate with County administration – referred to by Hanson, Kissel and Wright as “the Hoggan Sanctions.”
In an email dated May 8, included with the affidavit, Hoggan informed council that, “due to inappropriate contacts with staff and releasing of confidential information to a staff member,” he would no longer meet privately or have telephone conversations with Hanson, Kissel or Wright, and the three would have no access to staff outside of the CAO. As well, no staff would be present in any meeting with the councillors unless the reeve or deputy reeve was present, and any correspondence with the CAO from the three would require the reeve or deputy reeve be carbon copied.
Hoggan and RVC did not respond to a request for comment by press time.
A third formal complaint was made May 13, this time by Boehlke to Schule, about a voicemail Kissel left Schule “making disparaging remarks regarding the CAO.”
The next day, following an in-camera discussion, council appointed Reynolds Mirth Richards & Farmer LLP (RMRF) as investigator for Code of Conduct complaints.
In a May 27 report by Sean Ward of RMRF – included with the affidavits – Ward said he was forwarded the three complaints and accompanying materials, and prepared correspondence to the three councillors May 16 with the complaints enclosed, offering an opportunity to respond.
“Each of the letters requested that the councillors provide a response within a week’s time, by May 23,” Ward wrote.
After request for more time by Kissel and Wright, he advised he would accommodate a response up to May 27 but had committed to reporting back to council by May 28.
Meanwhile, the three councillors retained a lawyer – Michael Niven of Carscallen LLP. Niven sent a letter to Ward May 27 in response to the complaints, objecting to the appointment of RMRF because it is the solicitor of RVC administration, and requesting the firm recuse itself.
“The fact that RMRF answers to both RVC council (in its investigatory capacity) and to RVC administration (in its capacity as solicitor for that administration) is an untenable position, and seriously compromises its independence as an investigator,” Niven wrote.
Ward, in his report, countered, “it is not unusual in a municipal law context that solicitors for a municipality would have to answer in different contexts to both council and administration,” and asserted “the fact that RMRF has provided legal advice to the County is not indicative of any bias in favour of or against the three councillors.”
In the same report, Ward found the three councillors had breached the Code of Conduct by sharing the confidential legal opinion. While they had a right to obtain independent legal advice “in relation to what they perceive to be a defective procedure,” he wrote, “that right does not entitle them to disclose a privileged and confidential legal opinion provided to the County.”
“Had the councillors provided to their own lawyers the facts and issues which led to the Brownlee opinion, in order to obtain their own independent or second opinion, they may have been free to do so,” he continued. “They could then provide that independent opinion as a counterpoint to the opinion. However, they were not entitled to disclose the opinion itself.”
Ward also found the councillors to have breached the Code of Conduct due to the language used in their Letter to the Editor, acknowledging “such a determination is inherently subjective.”
“I do not find the language in [the letter] amounts to abuse, bullying or intimidation,” he wrote. “However, it is reasonable to conclude that the language used fails to treat the majority of council with courtesy and respect as required by [the Code of Conduct].”
He also found Kissel’s voicemail to be a breach due to the “insulting words towards an employee of the County.”
According to their statements in the affidavit, the report left the impression on Hanson, Wright and Kissel that “Ward was perhaps trying to send a message to council that council might deal with the complaints in a reasonable way that would allow [us] to continue to do our jobs. However…that was not to be.”
Council imposed seven sanctions on the three councillors June 11, including conditions requiring them to publicly apologize, removing them from council committees and reducing their pay by 30 per cent, among others.
Following the sanctions, Kissel brought forward a motion based on advice from MA to have a ministry representative assist with mediation, which failed 6-3. Then, June 25, on the recommendation of Minister of MA Kaycee Madu, Wright made a motion requesting an investigation of the County’s operation. This also failed 6-3.
The three indicated in their affidavits that they have not made public apologies, “as we believe that showing the document to our lawyer did not constitute sharing a document with a member of the public. Furthermore, our Letter to the Editor was within our rights to exercise our right to freedom of speech under the Charter.”
Since the beginning, the three councillors have maintained the sanctions are an attempt to silent their often-dissenting opinions, and prevent them from representing their constituents. Attendees that spoke to the Rocky View Weekly at one of the open houses – Sept. 18 at Weedon Hall – agreed.
Division 9 resident Don Lee said he was opposed to the measures taken against the councillors.
“The sanctions should not have been put in place,” he said. “These people spoke their mind, and I don’t think they were out of line at all.”
Resident Charlene Needham agreed she no longer felt represented, calling the sanctions “a childish farce.”
However, Boehlke continues to dispute the claim that the three councillors cannot fulfill their duties under the sanctions.
“That’s fundamentally, absolutely incorrect,” he said. “They can absolutely do their job under the [Municipal Government Act]. It’s a councillors job to look after the governance and policy, and not day-to-day operations. They are to represent the interests of their electorate, and not act as an agent for one specific individual or cause.”
Boehlke did not dispute the general timeline of events presented at the open houses and in the affidavits.
Now, the councillors wait for their day in court. Already postponed from Sept. 18 to Oct. 10, the councillors revealed during the open houses the hearing has again been delayed to Jan. 22, 2020.
