Is a LRT referendum about to become a dead issue in Hamilton?

It could be, based on a confidential outside legal opinion given to the city.

According to George Rust-D'Eye, a leading municipal law expert and Hamilton's integrity commissioner, two-thirds of council would have to vote in favour of a referendum in order for it to proceed.

That means if all council's 16 members were present, 11 would have to support appending a LRT question to the 2018 municipal ballot.

That's virtually impossible given that six councillors unswervingly support the contentious $1 billion provincially-funded project.

Because of council's bungling, Rust-D'Eye's report likely won't be publicly released until a special LRT general issues meeting Oct. 25.

But The Spectator has learned Rust-D'Eye concludes that, rather than a simple majority vote, a referendum motion would be a reconsideration vote requiring two-thirds support, as all reconsideration motions made during the same term of council do.

That's critical because Coun. Chad Collins, an ardent LRT opponent, has vowed to put forward a referendum motion next spring before construction contracts for the project are finalized.

A number of councillors, including Donna Skelly, Terry Whitehead, Robert Pasuta, and Doug Conley, have expressed support for Collins' plan.

But according to Rust-D'Eye, given that the result of a referendum could be to suspend planning and implementation of the project currently underway, a motion "effectively constitutes a reconsideration of decisions made in this term of council to move forward on the LRT project."

Additionally, the report cautions it would not be "appropriate" to suspend or cancel planning of the project without "thorough consideration and legal advice" with respect to the implications.

City manager Chris Murray has refused to say who authorized or paid for the report.

But the green light, obviously initiated at the highest levels, clearly springs from a desire for procedural clarity as LRT becomes increasingly heated around the council table and across the community.

Rust-D'Eye also "strongly" advises council not to proceed with Sam Merulla's repeatedly delayed motion to reaffirm support for LRT.

The report doesn't mention Merulla by name, but it says the motion is problematic in view of the many protocols and actions the city and Metrolinx have already entered into.

Rust-D'Eye notes the reaffirmation motion could cause council and public confusion and, if unsuccessful, still wouldn't invalidate actions already taken.

If, however, council does go ahead, Rust-D'Eye says the wording needs to be more specific and a negative vote would require the approval of at least two-thirds of councillors present.

Why hasn't the report been publicly released?

Under the guise of solicitor-client privilege, it was originally supposed to have been discussed behind closed doors at Wednesday's council meeting.

But things went sideways when Merulla tried to make it public. His proposal got sidetracked by a prickly debate over referring the report to the aforementioned Oct. 25 meeting.

Announcing that he intends to formally withdraw his reaffirmation motion, Merulla said there was no longer a need for that meeting. That riled councillors who were looking forward to staff updates and asking questions.

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In the end, Merulla, Mayor Fred Eisenberger, Matthew Green, Jason Farr and Aidan Johnson — all strong LRT supporters — unsuccessfully opposed tabling the report until Oct. 25.

But, unfortunately, none of them, or anyone else for that matter, mounted a vigorous argument for releasing the report immediately, even while holding off the debate until Oct. 25.

In all the political squabbling and manoeuvring, it seems they all overlooked that most basic of democratic principles — the public's right to know.