Province says censure against veteran councillor overstepped council’s authority, public rejects council rulings as biased



Diane Brennan is fighting back against her accusers after provincial officials on Friday said unprecedented censure actions taken against her had overstepped Nanaimo council’s legal authority.

The four-term councillor, who was twice put on trial at secret council hearings this week, defended herself in comments to News Nanaimo that are likely to increase the ire of city manager Tracy Samra and the five-man council majority led by Bill Bestwick.

“These censure hearings are biased, politically motivated, and a continuation of a concerted campaign against me by certain councillors over several years,” Ms. Brennan said.

“It’s extremely disappointing that they have put their own petty personal agendas ahead of the interests of Nanaimo residents. They have disgraced our city and I am tired of it — our entire community is tired of it.”

Torrid week

At two closed-door meetings — one on Monday and the other Wednesday — councillors held secret court against Ms. Brennan, convicting her of disrespectful conduct towards the city manager and finding that she twice violated provincial laws on privacy and confidentiality.

But provincial officials and a prominent municipal lawyer told News Nanaimo on Friday that the council’s actions usurped the role of the courts and infringed on provincial jurisdiction.

The Ministry of Municipal Affairs and Housing, the Office of the Information and Privacy Commissioner, and a prominent municipal lawyer all said that council had exceeded its powers.

Meanwhile, the influential Nanaimo Chamber of Commerce complained that ongoing council hostilities were chasing away investment.

“We know of projects that aren’t being proceeded with at this time,” president Kim Smythe told CHEK television news on Friday evening.

Earlier, Mr. Smythe came under fire from Ms. Samra when she accused him of being political in comments he made in the Times Colonist that “everybody is just sick and tired” of the conflict and the October election will be a “bloodbath.”

This echoed a statement by the grassroots Our Nanaimo group that slammed the council for ignoring the “many serious issues” in the city and being “almost exclusively focussed on the allegations and complaints” of Ms. Samra.

The week also saw the Bestwick-led majority fire chief operating officer Brad McRae for cause in a 5-4 vote, while the city manager took heavy criticism on social media for arbitrarily suspending a webcast of Monday’s shambolic council meeting and not posting a replay for almost 12 hours.

Kangaroo court

But it was the onslaught of censure hearings that dominated the week’s events and which could mark a turning point in this council’s term.

The ruling majority and Ms. Samra had hoped they would cast Ms. Brennan and mayor Bill McKay as the instigators of the ongoing feud at city hall.

But the gambit backfired, with one online poll showing people overwhelmingly saw the secretive censure hearings as politically motivated, unfair or illegitimate kangaroo courts.

Friday’s statements from provincial officials added to the criticism by calling into question the legality of the censure decisions.

The first hearing on Monday, to consider legal advice and deliberate on evidence from a Nov. 21 hearing, resulted in seven members of council issuing resolutions of censure and sanction against Ms. Brennan and Mr. McKay. The decision arose out of a workplace complaint filed against them last March by Ms. Samra.

The resolutions said council accepted the findings of a still-secret report by labour lawyer Roslyn Goldner, who investigated Ms. Samra’s allegations. They said the two accused council members were guilty of “disrespectful conduct towards the complainant” and breaching the city’s respectful workplace policy.

The council said it “recommends” that the two apologize in writing to Ms. Samra before January 30. It also “directed” them to comply with the workplace policy in future and attend training by July 30. “Failure to comply may result in future sanctions,” the council said.

The decision was unanimous, but privately sources close to councillors Ian Thorpe and Sheryl Armstrong said the two had voted with the majority in the belief it would shield the city from potential liability to Ms. Samra. They said the two did not believe the mayor and Ms. Brennan were solely at fault.

“Mockery of justice”

In comments to News Nanaimo, Ms. Brennan hit out at the ruling, saying the council majority and Ms. Samra “have ignored many sections of the report that reflect poorly on themselves.”

She slammed the censure process as “irregular” and “a mockery of fairness and justice,” adding that she would welcome public release of the full Goldner report “so that Nanaimoites can finally see the truth.”

Ms. Brennan said she had not decided yet if she would apologize but would gladly attend a training program.

After Ms. Brennan’s second censure hearing on Wednesday, the council issued a statement saying it had determined that Ms. Brennan twice “violated section 117(1) of the Community Charter and Section 30.4 of the Freedom of Information and Protection of Privacy Act.”

However, the provincial Ministry of Municipal Affairs and Housing on Friday said in a statement that councils had no authority to make “a legal ruling regarding a violation of an Act.”

Said the ministry: “It would be up to the courts to determine if a local government’s censure process falls within common law and if a member of council is in violation of an Act.”

This was echoed by municipal lawyer John Alexander of Cox Taylor in Victoria who said Nanaimo council had “apparently sat in judgement on whether there have been statutory violations. That is not a role for a council. That is a role for a court.”

Meanwhile, the provincial Office of the Information and Privacy Commissioner (OIPC) said it was “the responsibility of the OIPC to oversee the legislation and investigate potential contraventions” of the freedom of information and privacy laws in the province.

“Based on the lack of specific detail in the statement, we cannot verify whether the city has reported this alleged breach to our office,” the OIPC said.

The comments from provincial authorities will be a blow to Ms. Samra, a lawyer by education and a non-practising member of the BC Law Society. At Wednesday’s hearing, Ms. Samra led the case against Ms. Brennan and advised council on the wording of its decision.

Contradicted by official record

Ms. Brennan, refuted the allegations that she breached confidentiality and privacy “in their entirety.” The claims were “without merit and contradicted by the official record,” she said.

The two incidents from which the accusations against Ms. Brennan arose involve and were brought forward by Ms. Samra.

The first concerned the councillor allegedly breaching council confidentiality to raise concerns about the truncated process used to appoint Ms. Samra as interim city manager in November 2015.

News Nanaimo has previously reviewed public council records, video and other documents and determined that there was no breach of confidentiality. When Ms. Brennan spoke out, there were two “rise and report” motions minuted, one of which is referenced on video, and council had already announced Ms. Samra’s hiring in a news release.

The record also shows that Ms. Samra made the breach of council confidentiality allegation against Ms. Brennan at her first in-camera meeting after joining the city on November 23, 2015. Later, Ms. Brennan’s lawyer, Peter Behie, QC, would write to the mayor saying Ms. Samra was in a position of conflict since the allegations involved her own hiring.

Samra dragged MLA into spat over news article

The second allegation against Ms. Brennan centres on a News Nanaimo article published on October 19, 2016, quoting Nanaimo NDP MLA Leonard Krog.

The article quoted Mr. Krog calling on council to clear the air over why the city paid for an overnight trip to Vancouver during which Ms. Samra attended a Liberal Party fundraiser for Peter Fassbender, then the minister in charge of local government.

Released in-camera records say that Ms. Samra emailed Ms. Brennan at 9:31pm on the night the article was published. She accused Ms. Brennan of helping Mr. Krog with his response to our request for comment, and claimed that the MLA did not deny it.

Ms. Brennan forwarded Ms. Samra’s email to Mr. Krog for his input, but didn’t notice that Ms. Samra had copied legal counsel on the email.

Ms. Samra later accused the councillor of breaching the Community Charter and the Freedom of Information and Privacy Act by disclosing “confidential and privileged city records and staff’s personal information” without authorization.

For the record, News Nanaimo is unaware of Ms. Brennan playing any role in Mr. Krog’s comment in the article. Our request to Mr. Krog simply referred him to a prior article and asked if he had any comment to make. He responded as any MLA would to media in his riding.

“I forwarded Ms. Samra’s email to Leonard Krog, a member of the BC Legislature, because it put words in his mouth and I thought he should know,” said Ms. Brennan. “The email was about a public news article, which I never dreamed would be considered personal. I didn’t notice that Ms. Samra had copied the lawyers on her email, but I still don’t think that made it privileged information.”

“Hell of a 5-day stretch”

If her council accusers had hoped the week’s censure announcements would damage Ms. Brennan’s political fortunes, they will likely be disappointed.

Late Friday night, Ms. Brennan posted a message to residents on the popular A Better Nanaimo group on Facebook that drew hundreds of reactions and comments expressing support.

“It has been a hell of a 5-day stretch and I doubt I would have weathered it without all the comments and expressions of support from everyone on this site and others,” said Ms. Brennan in her message.

Nanaimo council will next meet for a censure hearing on January 22, when it is expected to consider allegations against Mr. McKay. The meeting had been scheduled for Monday but has been moved because the mayor’s lawyer is out of the country.

The statements by provincial authorities that council overstepped its legal authority against Ms. Brennan will likely loom large in Mr. McKay’s hearing.

The city is accusing Mr. McKay of a host of breaches of provincial Acts, allegations provincial authorities say they don’t have jurisdiction to judge.