HUMAN Capital - Fall 2016 - 33

removed his authority to chair Council meetings, sign bylaws and call special meetings. He was removed from boards and committees and restricted from attending meetings representing the Town or Council and acting as its official spokesman. All of this was done through resolutions and by passing a new procedural bylaw. In the first legal action (Gendre v. Fort Macleod (Town) 2015 ABQB 623), the Court examined the validity of the resolutions and the bylaw. The Mayor asked the Court to have them declared invalid on the basis of bad faith and improper purpose. The Town Council responded that its actions were for a legitimate purpose of good governance and that the Mayor's conduct adversely affected the operation of Council and Town administration. What then was the conduct which the Town Council objected to? They said he held himself out as having authority to speak when he had none, believed he had authority to direct Town administration, communicated his personal opinion as if it was the opinion of the Town, contravened the Town's advertising policy, contravened bylaws regarding public delegations at council meetings, unreasonably criticized staff and members of the public and issued direct orders to Town administration and volunteers. The Council cited further examples: soliciting business and negotiating sale of land, directing administration to discharge a caveat prohibiting development in the floodplain, corresponding directly with the Province without the approval of Council on "drag racing." Council removed the Mayor's ability to sign bylaws and call special meetings and transferred that power to the Deputy Mayor. But before they did this, they attempted informal resolution-which included a "standards of conduct" covenant-for Council and for Town administration. The Mayor objected to the covenant saying that it improperly delegated Council responsibility, there was no authority for the Chief Administrative Officer to be involved in his performance review, and that it contradicted the Municipal Government Act. All members of the Council, with the exception of the Mayor, signed the covenant. He said he would not do so until a legal opinion was obtained regarding the validity of the covenant. Council responded with a list of sanctions some examples of which were refraining from debating a topic where he had substantial involvement and not demanding changes outside of Town policy or procedure. The law is clear that a municipal council must use its powers in good faith: "reasonably, fairly and in a non-discriminatory way." The legal standard imposed is that of "reasonableness" or to put it another way: was Council behaving reasonably assuming that it was within its jurisdiction as a Council? The Court said it was. The law is also clear that a municipal council and its administration are separate in terms of the law. The Court found that 1. Council had authority to impose sanctions as it was bound to provide good governance. While the Mayor is the "chief elected official" according to the legislation, he is still, as the Court said, "the first among equals." He does not speak for Council as Council acts through a majority of its members. 2. The Court confirmed that administration takes its policy direction from Council but cannot otherwise exercise powers or perform a role assigned to the Chief Administrative Officer. 3. Council had the statutory power to remove the Mayor's authority to chair meetings, remove him from boards and committees and to restrict him form representing the Town or Council or acting as its official spokesman. All of which were exercised in good faith. 4. Council was not punishing the mayor for conduct as it was engaged in a legislative function. Particularly the Court also said "notably absent from the Mayor's submission to the Court was any recognition of his role in the conflict, the acceptance of any responsibility or any proposed solution to the conflict" concluding that "as was aptly stated by legal counsel for the Council, the Mayor is entitled to hold opinions at odds with his colleagues on Council. He is entitled to be passionate in advocating his position. His differing opinions, however, cannot undermine the operation of the municipality." So in this first legal action, the Mayor's claim that the bylaw and resolutions are invalid, was dismissed. However, this was not the end of the matter. A second decision was given some months later on the issue of court costs. Town Council, the winning party, applied for "elevated" costs. While court costs do not come close to compensating actual legal fees, the Court can express its displeasure with "elevated" court costs. It did that in this case. In the spring of this year, Bill 21 (The Modernized Municipal Government Act) received first reading. One of the highlights of the Bill, according to the Province, is the training of councillors and one wonders if the Gendre cases have precipitated this amendment as previously there was no training for councillors. The new legislation provides that a councillor must be offered training within 90 days of election. Specifically, the new legislation proposes that the following topics be addressed: 1. The role of municipalities in Alberta 2. Municipal organization and functions 3. Key municipal plans, policies and projects 4. Roles and responsibilities of council and councillors and chief administrative office and staff 5. Budgeting and financial administration 6. Public participation 7. And "any other topic prescribed by regulation." The legislation does not appear to make the training mandatory but it is the first step in helping make councillors more accountable to the public. In conclusion, the Gendre case demonstrates that human behaviour is much the same from organization to organization. Publicly elected officials have extra protection, as they should, but are not immune from the actions of their peers. O HUMAN CAPITAL | FALL 2016 | 33

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