ABSTRACT

At the May 27, 2024 Regular Council Meeting, the Administration presumably had  hoped that its revised Procedural Bylaw 17/2024 would be adopted by Council. However, its hopeful completion of the whitewashing of its failure to ensure compliance with aspects of the existing Procedural Bylaw 19/2019 was interrupted by several of the Council members, especially Councillors McFadden and Fedeyko, asking questions and seeking amendments. This was a departure from 2019 when the same Council adopted the existing Procedural Bylaw 19/2019 in short order, zipping through first, second and third readings in about 5 minutes. There was particular dissatisfaction with the wording of the new section on notices of motion. Councillor Fedeyko wondered why the notices of motion section (7.2) was being changed at all, basically being satisfied with the current wording and process described in the existing Procedural Bylaw 19/2019. The meeting concluded with a plan for Administration to come back with a revised procedural bylaw for discussion at one or more Committee of the Whole Meetings before proceeding to a vote at a Regular Council Meeting.

The discussion and handling of a notice of motion brought forward by Councillor Reed at the subsequent Regular Council Meeting held two weeks later on June 10, 2024, was especially revealing in many respects. When the notice of motion came up in the agenda, as was his usual practice, a practice at odds with the process described in the Procedural Bylaw 19/2019, Mayor Genung proceeded to allow discussion on the presented notice of motion. When Councillor Fedeyko voiced objections, Mayor Genung appealed to Administration for confirmation of his viewpoint that “we’re following our procedural bylaw”. Mr. Brett Hawken, Manager, Legislative Services, instead of answering the question if the existing procedural bylaw was followed, deceitfully dodged giving a direct answer to that question saying, “We are following our procedure based on what’s been set in precedent the last year and a half or so for how we’ve handled all of the notice emotions”. As I have pointed out in a previous blog post, “Total Chaos and Inconsistency in the Town’s (Mis)Handling of Notices of Motion”, contrary to his claim, not all notices of motion have been handled in a consistent manner, rather, being all over the map, and, importantly, not in accord with the process clearly described in section 7.2 of the existing Procedural Bylaw 19/2019.

When Councillor McFadden suggested deferring the vote and discussion on Councillor Reed’s notice of motion, until the next Regular Council meeting, thereby, “following our existing, what’s written down in our current procedural bylaw”, Mayor Genung disagreed and made a second appeal to Administration to confirm that Council was following its procedural bylaw by dealing with the matter that evening. This time the CAO (Chief Administrative Officer), Mike Derricott, responded. This time, unlike with Mr. Hawken, there was no such obfuscation in his answer to the question posed by Mayor Genung. His response to Mayor Genung’s query couldn’t be any clearer, namely, that they were not, with him saying, “The notice of motion process has…seen a number of variations over the last few years none of which were perfectly in line with how the procedural bylaw was written”. There you have it, the CAO agreeing with what I have been saying for some time. The solution, therefore, would be relatively simple, namely, commit to following the procedures as described for notices of motion in the existing procedural bylaw. However, in an effort to cover for its failure to ensure that the procedural bylaw was properly followed, the Administration is endeavouring to whitewash its failure by totally reworking the notice of motion procedure to create a confusing entity which no longer resembles a notice of motion, making a mess to save face, which could more correctly be called something like “Councillor Motions” (or “The Improper Process as It has Been Operationalized by Mayor Genung”).

Given the deadlock as to how to proceed with Councillor Reed’s notice of motion given that Mayor Genung’s practice was judged by the CAO as not being aligned with what was written in the existing procedural bylaw, Ms. Stacey Lowe, Executive Director, Corporate Services, advised Council, that “if Council wishes to adhere to the way the procedure bylaw is currently written, you do always have the opportunity to pass a motion by two-third majority to debate it this evening if you’re…wanting to follow your current procedural bylaw to the letter”. Despite all the prior claims by Administration that the notices of motion section of the existing procedural bylaw is unclear, here was another example of Administration understanding what it clearly says.

As the meeting concluded, I would wholeheartedly agree with Councillor McFadden who advised, “I think it’s very important that we be seen to follow our own processes”. Not only seen to be following, but as per 153(e.1) of the Municipal Government Act, councillors have the duty “to adhere to the code of conduct established by the council”, which includes section 7.1 of the code of conduct, according to which, “Members shall uphold … the bylaws, policies and procedures adopted by Council”. It’s time to restore some integrity to our Town Council as well as to our town Administration. How the revised procedural bylaw is handled in the weeks ahead will demonstrate if that hope will be fulfilled.

FULL BLOG

At the May 27, 2024 Regular Council Meeting, the Administration presumably had hoped that its revised Procedural Bylaw 17/2024 would be adopted by Council. However, its hopeful completion of the whitewashing of its failure to ensure compliance with aspects of the existing Procedural Bylaw 19/2019 was interrupted by several of the Council members, especially Councillors McFadden and Fedeyko, asking questions and seeking amendments. This was a departure from 2019 when the same Council adopted the existing Procedural Bylaw 19/2019 in short order, zipping through first, second and third reading in about 5 minutes.

Discussion with respect to the revised procedural bylaw took place from 6:32 to 1:06:22 minutes in the meeting’s video.

In her presentation of the revised Procedural Bylaw 17/2024, Ms. Jaylene Robertson (formerly Knight), Director, Legislative & Administrative Services, by way of background to the bylaw, mentioned that “last year a delegation came forward and shone a light on challenges within our own procedural bylaw”, seemingly, as providing the impetus for Council directing Administration to review the current bylaw and bring forward a revision for Council’s consideration. I was part of that delegation on March 20, 2023. At that meeting, I had shone a light on only one concern or challenge, namely, that Mayor Genung was acting in violation of a clause, namely 4.2 (c) of the town’s existing Procedural Bylaw 19/2019, which declares, “When the Presiding Officer wishes to participate in the debate on a question or motion properly before the Meeting, the Presiding Officer shall vacate the Chair and request the Deputy Mayor to assume the Chair”.  As only councillors could lodge a complaint against the mayor according to the current wording of the town’s Code of Conduct Bylaw 12/2018, I tried to get the councillors to do so, but, disappointingly, not one of them agreed to do so. Consequently, in my presentation as a delegation to Town Council, I asked that the Code of Conduct Bylaw 12/2018 be amended to allow the public to make a complaint given that I had clearly demonstrated that you couldn’t rely upon the councillors themselves to make sure that the Code of Conduct Bylaw was followed.

Many months later, in September 2023, I drew attention to the “Procedural Mess at Town Council Meeting”, whereby the Town failed to properly understand and apply its Procedural Bylaw with respect to a Notice of Motion.

In her presentation of the revised procedural bylaw, Ms. Robertson noted that questions had mostly centered on the notice of motion section of the existing procedural bylaw and gave examples of how four other municipalities, Airdrie, Fort Saskatchewan, Lethbridge and Okotoks, described a notice of motion in their procedural bylaws. The issue at hand, however, is whether Council was properly following its process for Notices of Motion as described in the existing Procedural Bylaw 19/2019, which contrary to claims by Administration that it lacked clarity, was quite clear, especially in that notices of motion per se are not subject to debate and vote.

Councillor McFadden led off the discussion advising that the revised bylaw was “going to require some more work to be done”, and that, accordingly, she intended to put option two from the Town of Cochrane Council Report for that item on the floor, namely, “That Council propose further changes to Bylaw 17/2024”. Areas from the draft Procedural Bylaw 17/2024 where she identified some need for revision or attention included sections 4.5 (Conduct), 4.5.(iii) (hand-held communication devices), 4.5.b (dress code), 4.12 (pecuniary interest), 4.13 (electronic meetings), 6.1(Organizational Meeting, suggested adding a land acknowledgement), 6.4 (Cancellation of Meetings), 6.6 (Public Hearings), 7.1 (Reports – proposed Councillor reports to be made in writing and included in the minutes), 7.2 (Notices of Motion), 10 (Repetitive Issues Coming Before Council – prefers 6 months instead of one year to allow issue to come back to Council), and 19 (Establishing Ad Hoc Committees /Task Forces).

In general, her areas of concerns were about how council was behaving towards each other and the criticism that had been received that Council was not following the current procedural bylaw as it’s been written.  With respect to her concern about how the Council members treated each other, she probably had in mind, for example, how Councillor Reed had treated Councillor Fedeyko at a Council meeting on December 11, 2023.

With respect to notices of motion, Councillor McFadden indicated that she has struggled “with where we have landed on this in its entirety”, mentioning that “the different iterations we’ve gone through have been confusing and have not worked”, and, thereby, calling for a “redo” of 7.2 being that she was “not comfortable with it at all”.

She began by expressing satisfaction with respect to section 4.2 of the revised procedural bylaw, whereby, “The Chair may participate in debate on any matter before Council without relinquishing the chair.”  Noteworthy, however, her saying “that’s a change from the previous iteration”, illustrated that she clearly understood that such was not permissible according to 4.2(c) of the town’s existing procedural bylaw, which required the mayor to vacate the chair to participate in debate on a question or motion before Council. However, in early 2023 when I asked her and other councillors to launch a complaint against the mayor, she and the other councillors refused to do so, despite the requirement as per 7.1 of the town’s Code of Conduct Bylaw 12/2028, for councillors to “uphold…the bylaws, policies and procedures adopted by Council”.

Councillor Fedeyko also expressed concern about the conduct expected of councillors (4.5(a)), suggesting the addition of “microaggression” as undesirable behaviour. With respect to notices of motion (7.2), she wondered why this was being changed at all, basically being satisfied with the current wording and process described in the existing Procedural Bylaw 19/2019. She expressed the view that members of council had changed the notice of motion over time whereby “all of a sudden now we’re debating it on the floor and that’s never what I understood a notice of motion to be”. With respect to her wondering, “I don’t know where how or why this has changed or why we’re even examining it to change to be voted on, on the fly”, as reported in previous blogs, here, here and here, the answer is that it was changed in order to whitewash Administration’s failure to ensure that the Town Council complied with this aspect of the existing Procedural Bylaw 19/2019. For the same reason, Administration removed 4.2(c) of the town’s existing procedural bylaw from its rework so that the mayor would no longer be in violation of this clause. which requires that he vacate the Chair and request the Deputy Mayor to assume the Chair in order for him to participate in the debate on a question or motion properly before the Meeting.

In response, Ms. Robertson explained that they tried “to put into written form how this Council has utilized notices of motion”, which I explained in a previous blog post, “Total Chaos and Inconsistency in the Town’s (Mis)Handling of Notices of Motion”, has been all over the map and not in accord with the process clearly described in section 7.2 of the existing Procedural Bylaw 19/2019.

With respect to Councillor Fedeyko saying, “I just don’t like the idea that…you…bring up a notice of motion and tonight we’re voting on and debating it”, time and again, I have explained that a notice of motion is not subject to debate and vote as is abundantly clear from the wording of section 7.2 (Notices of Motion) in the existing Procedural Bylaw 19/2019. So, the answer is not to change the wording of section 7.2, as it appears in the existing procedural bylaw, but, rather, the answer is to commit to following it.

Councillor Reed, while on the one hand saying that he liked the clarity related to the notice of motion process, on the other hand, expressed support for what Councillor Fedeyko had said about the notice of motion.

Councillor Nagel liked Councillor Fedeyko’s suggestion, in line with the current process for handling notices of motion in the existing Procedural Bylaw 19/2019, that the notice be given at one Regular Council Meeting and then come to the floor as a motion for debate and vote at a subsequent Regular Council Meeting. He appreciated such a “digestion period” as it allowed for some feedback to be received from the community.

When it came to Councillor Wilson’s turn to speak, he indicated that he came into the meeting prepared to vote in favour of the revised procedural bylaw as is, which comes as no surprise, given that when I pressed him at the 2024 Cochrane Chamber Trade Show at the SLS Centre on May 5th, he advised me that he is “bored” with such matters and ranks them low in importance with the thousands of things he has to deal with.

To no surprise, Mayor Genung, like Councillor Wilson, indicated that he had come prepared to vote in favour of the draft Procedural Bylaw 17/2024 as is, no doubt given that the new version will absolve him of his failure to comply with 4.2(c) of current Procedural bylaw 19/2019 by simply expunging it from the revised version. With respect to notices of motion, he indicated that he didn’t care where the Council landed on this matter, whether it be the old practice or a new, different practice, but that whatever was decided upon that Council follow it, which would be refreshing and appropriate especially given that according to the Municipal Governance Act councillors are obliged to uphold the bylaws, policies and procedures which they adopt.

The meeting concluded with a plan for Administration to come back with a revised procedural bylaw for discussion at one or more Committee of the Whole Meetings before proceeding to a vote at a Regular Council Meeting.

Revelations from June 10, 2024 Regular Council Meeting

The subsequent Regular Council Meeting two weeks later on June 10, 2024, was expected to be revealing in that there was an agenda item for a Notice of Motion related to a Natural Environment Sustainability Task Force to be brought forward by Councillor Reed. And revealing it was!

Discussion with respect to Councillor Reed’s notice of motion occurs between 41:08 to 54:24 minutes in the meeting’s video.

When the notice of motion came up, as was his usual practice, a practice at odds with the process described in the Procedural Bylaw 19/2019, Mayor Genung proceeded to allow discussion on the presented notice of motion. After about 7 minutes of such discussion, Councillor Fedekyo was acknowledged by the chair, whereby she stepped to raise a concern that the existing procedural bylaw was not properly being followed in that it was her expectation that there was not to be any debate that night, and that it would come back as a motion at a subsequent Regular Council Meeting for debate and vote – a perspective that aligns with the process described in the existing Procedural Bylaw 19/2019.

Mayor Genung, in turn, responded that he thought that the procedures were properly being followed and deferred to the Administration’s legislative services team for confirmation of his viewpoint that “we’re following our procedural bylaw”. At that point someone from Administration, presumably Mr. Brett Hawken, Manager, Legislative Services, responded, “We are following our procedure based on what’s been set in precedent the last year and a half or so for how we’ve handled all of the notice emotions, and, as well, it’ll be addressed in the new procedural bylaw that’s coming forward at the committee of the whole meeting.” What a weaselly response from the Administration. Administration was asked if the existing procedural bylaw was being followed and his devious response was that what was followed was the “precedent” set by what was how “all” notices of motion were handled over the last year and a half. As I have pointed out in a previous blog post, “Total Chaos and Inconsistency in the Town’s (Mis)Handling of Notices of Motion”, contrary to his claim, not all notices of motion have been handled in a consistent manner, rather, being all over the map, and, importantly, not in accord with the process clearly described in section 7.2 of the existing Procedural Bylaw 19/2019.

Councillor Fedeyko, to her credit, then noted how Mr. Hawken had ducked the mayor’s question by referring to the procedures that had been followed which were against the “actual bylaw that we have in place” and by referencing a procedural bylaw that had not yet been approved by Council as being irrelevant.

At that point the CAO, Mike Derricott, jumped into the fray suggesting that there has been a lack of clarity with respect to notices of motion in the existing procedural bylaw, which I challenge is not the case and, rather, that the problem is that the Administration has failed to ensure that the procedures as described were properly being followed.

At this point Councillor McFadden jumped into the debate expressing support for Councillor Fedeko and the perspective that Council needs to follow its procedural bylaw and had not been consistent in that regard. She suggested deferring the vote and discussion on Councillor Reed’s be deferred until the next Regular Council meeting, thereby “following our existing, what’s written down in our current procedural bylaw”.

Mayor Genung made a second appeal to Administration to confirm that Council was following its procedural bylaw by dealing with the matter that evening.

Behind CAO Derricott is Jaylene Knight, Director, Legislative & Administrative Services and author of the revised Procedural Bylaw 17/2024, and to his right, Stacey Loe, Executive Director, Corporate Services.

In response, Mike Derricott, indicated that in his time of just over three years as CAO for the town that he had observed a number of different procedures followed with regards to notice of motion and that about a year and a half ago, “we settled on a certain process that does not align specifically with what is written in our procedural bylaw”, thereby acknowledging that the processes followed were not in accord with the process described for notices of motion in in section 7.2 of the existing Procedural Bylaw 19/2019. Noteworthy, however, contrary to his claim of having “settled” on a process that does not align with the process described in the existing procedural bylaw, there has not been any consistency in the procedures followed over the last year and a half as clearly demonstrated in a previous blog post, “Total Chaos and Inconsistency in the Town’s (Mis)Handling of Notices of Motion”.

Despite the false claims by Administration that what is written about notices of motion in in the current procedural bylaw is unclear, here we have an acknowledgement by the CAO that the processes that have been followed were not aligned with “what is written in our procedural bylaw”, thereby clear to him as to what is written there.

His response to Mayor Genung’s query if they were following the procedural bylaw by dealing discussing and voting on the matter that night, couldn’t be any clearer that they were not, with him saying,  “to sum up, no this is not specifically aligned with how a procedural bylaw is written…The notice of motion process has…seen a number of variations over the last few years none of which were perfectly in line with how the procedural bylaw was written”. There you have it, the CAO agreeing with what I have been saying for some time. The solution, therefore, would be relatively simple, namely, commit to following the procedures as described for notices of motion in the existing procedural bylaw. However, in an effort to cover for its failure to ensure that the procedural bylaw was properly followed, the Administration is endeavoring to whitewash its failure by totally reworking the notice of motion procedure to create a confusing entity which no longer resembles a notice of motion, making a mess to save face, which could more correctly be called something like “Councillor Motions” (or “The Improper Process as It has Been Operationalized by Mayor Genung”).

Although being told that the notice of motion processes, the “number of variations over the last few years”, did not comply with the procedural bylaw as written, Mayor Genung enquired if the process he attempted to follow that evening was the same the five active notices of motion listed as an appendage to Council Report for Councillor Reed’s notice of motion, as if handling notices of motion in a manner not aligned with the existing procedural bylaw somehow justified their legitimacy.

Ms. Stacey Loe, Executive Director, Corporate Services, replied that the current process, that is, proceeding to a debate and vote on a notice of motion on the day that it is presented, as per Mayor Genung’s usual habit, was followed for the five listed notices of motion. That assertion is simply not true as was pointed out later by Councillor Fededyko. Councillor Fedeyko’s Whistleblower Program & Policy NOM (notice of motion), debate and vote were deferred to a subsequent Regular Council meeting as Councillor Fedeyko had worked out an arrangement to be able to request that debate and vote be deferred to the next Council meeting, even though no such rule exists in the existing procedural bylaw.

As explained in a previous blog post, Mayor Genung’s NOM should have been ruled out of order because he applied a rule that had not yet been adopted in the revised draft Procedural Bylaw 17/2024. I also pointed out that even though the draft, revised Procedural Bylaw 17/2024 was not adopted at the Regular Council Meeting on April 22, 2024, because Councillor McFadden couldn’t attend the meeting, nonetheless, Mayor Genung jumped the gun and brought forward a ‘notice of motion’ for the first time using a clause from the unadopted procedural bylaw. The Administration sat by and did nothing. Another example of the how the Administration is lax ensuring that the procedures are properly followed.

A previous blog post, “Total Chaos and Inconsistency in the Town’s (Mis)Handling of Notices of Motion”, attests to CAO Derricott’s observation of there being a “number of variations over the last few years”. Notices of motion have not been handled in a consistent manner, rather, they have been all over the map, and, importantly, not in accord with the process clearly described in section 7.2 of the existing Procedural Bylaw 19/2019. Even contradicts his own words on a previous occasion.  After the presentation of the draft Procedural Bylaw at the Committee of the Whole Meeting on April 2, 2024, Mayor Genung acknowledged with respect to the handling of notices of motion that, “we have stumbled over that in past”. To say that the town has ‘stumbled’ over that in the past, would be an understatement. The Council has been all over the map in how they have addressed notices of motion and rarely in accord with the language of Section 7.2 of the existing 2019 Bylaw.

She then proceeded to advise Council, that “if Council wishes to adhere to the way the procedure bylaw is currently written, you do always have the opportunity to pass a motion by two-third majority to debate it this evening if you’re…wanting to follow your current procedural bylaw to the letter”. Despite all the prior claims by Administration that the notices of motion section of the existing procedural bylaw is unclear, here another we have another example of Administration understanding what it clearly says.

Her also saying, “once again the procedural bylaw is council’s and it’s council’s decision on um how you conduct yourselves during your course of your meeting” is suggesting that there is no need for the Council to follow their procedural bylaw “to the letter” would, thereby, encourage them to act in violation of the Municipal Governance act and their Code of Conduct. It is not “Council’s decision” or freedom to not follow their Code of Conduct. Pursuant to section 153 of the Municipal Government Act, councillors have a duty to adhere to the code of conduct established by the council and thereby section 7.1 of the code of conduct, according to which, “Members shall uphold … the bylaws, policies and procedures adopted by Council”. The existing procedural bylaw was adopted by this Council in 2019.

I would wholeheartedly agree with Councillor McFadden who advised,  “I think it’s very important that we be seen to follow our own processes”. Not only seen to be following but as per 153(e.1) of the Municipal Government Act, councillors have the duty “to adhere to the code of conduct established by the council”, which includes section 7.1 of the code of conduct, according to which, “Members shall uphold … the bylaws, policies and procedures adopted by Council”. That sentiment was reiterated by Councillor Fedeyko, who said, “I just want us to follow the right process”.

With a two-thirds vote passed, then the council proceeded to vote on the motion arising from Councillor Reed’s notice of motion as per what is written in the existing procedural Bylaw 19/2019.