The issue of whether an elected official can step in and out of their role was up for debate at the Jan. 27 Strathcona Regional District board meeting, a debate which may end with the disqualification of one of its directors.
For discussion at the SRD board table was the latest in an ongoing issue involving Cortes Island Director Noba Anderson. The SRD decided on Jan. 13 that they were considering a motion to authorize the Supreme Court of B.C. to disqualify Anderson from holding office based on allegations she had violated the Community Charter regarding inside influence. As part of that motion, Anderson had the right to have her legal counsel present a defense to the board before the final decision is made, and that presentation was made in open session at the Jan. 27 meeting. That meeting occurred online between board members and staff without the public present due to COVID-19 restrictions. A recording of the meeting was made public two days after it occurred.
Anderson recused herself from her position as director. However, she remained present in the meeting with her lawyer, Matthew Voell, representing her.
The board received emails between SRD staff and Anderson about a rezoning application on a property of which she shares ownership. The board was to determine whether those emails were an instance of inside information and whether Anderson was interacting with staff in her capacity as elected official or as a regular person.
Voell started his presentation by reminding directors that only information that was presented to them as part of the staff report was relevant, and that if any other information influenced their decision it would be a breach of procedural fairness.
Section 102 of the Community Charter says “a board member must not use his or her office to attempt to influence in any way a decision, recommendation or other action to be made or taken at a meeting, or outside of a meeting by an officer or an employee of the municipality, or by a delegate… if that director has a direct or pecuniary interest in the matter.”
Voell said, however that “you can’t, as a director attempt to influence an officer or an employee. This is somewhat different than a conflict of interest. You can do that in a personal capacity. Because otherwise there wouldn’t be the language ‘use his or her office’ that would be meaningless.”
Voell argued that Anderson had made it clear early on in the discussion about the rezoning that she was acting “in her personal capacity… and not in her role as a director.”
“This email, in order to be a breach of section 102, needs to be Noba using her office in an attempt to use her office to influence a decision or an action by [planning staff member] Mr. [John] Neill. Once, again, this email is from Noba on her personal email address, hearkening back to March 2019 when she said that this is a personal matter, and was copied to Mrs. [Lovena] Harvey, [Anderson’s land partner].”
“Noba made an express statement that she was communicating with Mr. Neill in her personal capacity only and requested that he use her personal email in these matters,” he continued. “Sections 100 and 102 do not prohibit a director from engaging with staff in a matter where they have a pecuniary interest. They only can do that in their personal capacity. Section 102 only prohibits a director from using his or her office to affect an employee’s decision. There’s simply no facts that support this allegation.”
After his arguments, Voell took questions from the directors. Campbell River Director Claire Moglove asked about the perceived “blurring of roles” that elected officials have with staff.
“What do you say to the suggestion that I’ve heard that councillors and directors have this personal capacity, but when it comes to relationship with staff, there’s always a blurring of roles and staff can misinterpret?” she asked.
“I would say there has to be room as contemplated by the legislation. We don’t get to overrule it. The legislation says there is room for a director to act in their personal capacity, provided they don’t use their office,” Voell answered.
Other questions included one from Electoral Area D Director Brenda Leigh, who asked “If director Anderson wasn’t acting as a director in this case, why would she instruct the planner that the fees being charged for zoning would apply, but the fees for an OCP amendment would not be? If she was a private citizen, she wouldn’t be instructing the regional staff to not apply an OCP amendment.”
Voell responded that the use of the word “instruct” was “begging the question” and that “we’re not saying that Director Anderson is not entitled to know things about OCPs in her personal capacity. I’m not a director and I know a little bit about OCPs.”
“With respect, a private citizen would not know anything about the OCP on Quadra or the Cortes application in detail,” Leigh replied. “In there, she’s acting as a director.”
“With respect, I know about that, and I’m not a director, so that’s simply not accurate,” said Voell.
Campbell River director Charlie Cornfield asked Voell about whether he thought staff could tell the difference between when a director is acting in an official capacity and when they were acting in a personal capacity.
“It is about whether that staff member can separate in their mind whether it’s you the director or you the individual,” he said. “In my opinion, staff cannot separate, hence when they write back, they use any email which is easiest, and that’s what they did.”
Voell responded that Anderson had been “expressly clear” that she was not acting as a director.
Chair Brad Unger asked about any previous instances in which Anderson attempted to influence staff beyond her authority, which Voell reminded him was not being considered at this time. Quadra Island director Jim Abram had the final question, asking whether the staff member felt “uncomfortable with the direction Anderson was taking in relation to him.”
“There’s no evidence before you of [John Neill feeling uncomfortable] and if there is evidence of that, it was required to be provided to me and my client before today’s hearing,” Voell replied. “To continue to make that point is grounds to overturn any decision made by the board.”
The SRD board thanked Voell for his presentation and moved to refer the issue to their legal team before moving forward.