ABSTRACT

That was quite the spectacle on the Notice of Motion brought forward by Councillor Fedeyko at the September 25, 2023 Council Meeting. A case can be made for this whole episode being deeply flawed in that a Notice of Motion, according to the town’s Procedural Bylaw, is not subject to debate and vote.

As well, The whole episode comes across as a well-orchestrated attempt to deep-six the Notice of Motion put forward, and, at the same time, to personally attack Councillor Fedeyko for having the gall to do so, led by Mayor Genung with supporting roles by Councillor Susan Flowers and Patrick Wilson.

It was demonstrated that Town Council did not properly follow its own Procedural Bylaw in addressing Councillor Fedyeko’s Notice of Motion. As well, disappointingly, administration stood by and watched the spectacle unfold and may have had a hand in crafting it.

Accordingly, Councillor Fedeyko’s Notice of Motion stands as having been properly presented in a formal way at the September 25, 2023 Regular Council Meeting. However, the other aspects of the proceedings, namely, the debate and vote on the Notice of Motion, should be deemed as Out of Order, and thereby considered null and void.

FULL BLOG

In a Letter to the Editor by Cochranite Judy Stewart, related to our town’s Chief Administrative Officer (CAO), Mike Derricott, having taken a second part-time job with his wife’s consulting business, Ms. Stewart cited Aristotle having written in ‘Politics,’ that “Illegality creeps in unobserved”, cautioning citizens to be vigilant in holding their rulers to account.

As explained in a previous blog post, Quest for Town Council Accountability, in March 20, 2023, I made a presentation as a Delegation to a Committee of the Whole Meeting pointing out that our mayor had failed to comply with respect to clause 4.2 (c) of the town’s Procedural Bylaw (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”.). Nonetheless, as well as presenting misinformation with respect to the actual content of clause 4.2 (c), Mayor Genung continues to ignore this requirement, seemingly with the blessing of the town’s Administration.

I have observed other issues which raise a concern about our Town being lax in upholding its own bylaws, specifically its Procedural Bylaw and its Code of Conduct.

A recent troubling example of our Town failing to properly understand and apply its Procedural Bylaw occurred with respect to a Notice of Motion brought forward to town council by Councillor Fedeyko at its Regular Council Meeting held on September 25, 2023. That Notice of Motion sought “That Council hold a public vote on whether each Council member remains confident in the leadership direction under Mr. Derricott”.

Before considering what transpired that evening with respect to Councillor Fedeyko’s Notice of Motion, a little background is helpful to better understand the situation.

Background

First of all, according to the town’s Procedural Bylaw, a “Notice of Motion” is described as “the means by which a Member of Council brings business before Council”. The process for doing so is described in detail in Section 7.2 Notices of Motion of the bylaw, as reproduced below:

7.2 Notices of Motion

(a) A Member may make a motion introducing any new matter only if:
(i) Notice is given at a previous regular Council meeting and a legible copy of the content of the notice is made available to the Manager, Legislative Services; or
(ii) Council on a two-thirds (2/3) vote waives the requirement for Notice.

(b)  A Notice of Motion must give sufficient detail so that the subject of the motion and any proposed action can be determined, and it must state the date of the meeting at which the motion will be made. A notice must be given without discussion of the matter, but any written copies distributed may include explanatory paragraphs.

(c)  To be placed on the meeting agenda, the Notice of Motion and any supporting documents must be submitted in the form of a Council Report to the Manager, Legislative Services by 4:00pm on the seventh complete day preceding the meeting.

(d) If a motion is not made at the meeting indicated in the notice, it will appear on the agenda for, and may be made at any of, the next two Regular Meetings; thereafter, it will be removed from the agenda and may only be made by a new Notice of Motion.

The Notice of Motion simply gives the Council members advance notice of a matter that will come before them at a subsequent council meeting. As such, a Notice of Motion is not subject to debate. That is implicit according to 7.2(d) of the bylaw, namely, that it will appear on the agenda as a motion to be debated and voted on at a subsequent Regular Council Meeting. As well, note, according to 7.2(b), that a “A notice must be given without discussion of the matter (emphasis added)”. On perusing the Procedural Bylaws of several other municipalities in Alberta, I note that many are explicit in declaring that a Notice of Motion is not subject to debate. For example, according to section 32(4) of the City of Edmonton’s Procedural Bylaw, “The giving of notice of motion is not debatable”.

Councillor Fedeyko had earlier tried to bring her Notice of Motion forward at the September 11, 2023 Regular Council Meeting when it came to the Notices of Motion portion of the agenda even though there was no entry for a Notice of Motion on the agenda under agenda item 8, Notices of Motion. Quite correctly, the mayor as presider for that meeting, disallowed it as a formal Notice of Motion, pointing out that it failed to meet the deadline, as prescribed under 7.2(c) of the Procedural Bylaw, namely, “To be placed on the meeting agenda, the Notice of Motion and any supporting documents must be submitted in the form of a Council Report to the Manager, Legislative Services by 4:00pm on the seventh complete day preceding the meeting”.  Accordingly, the mayor referred to Councillor Fedeyko’s attempt to bring forward a Notice of Motion at that meeting as “a notice of notice of motion”, a term which nowhere appears in the Procedural Bylaw.

As well, such an attempt to bring a Notice of Motion forward in such a way should be disallowed according to section 5.6 of the Procedural Bylaw, whereby, “only material which has been received in accordance with Subsection 5.5 of this Bylaw shall be considered at the meeting for which the Agenda is prepared”, where  Subsection 5.5 of the bylaw requires “All submissions for the Agenda of all Public Hearings and Regular Meetings shall be received by the Legislative Services Manager no later than 4:00pm on the seventh complete day before the day on which the meeting is held”.

With that background in mind, now let’s examine what transpired at the September 25 Regular Council Meeting with respect to Councillor Fedeyko’s Notice of Motion.

September 25, 2023 Regular Council Meeting

Despite a Notice of Motion not being subject to debate, with the encouragement of the mayor, as presider, that is precisely what occurred as documented in the video for that portion (from 1:41 to 48:15 minutes) of the meeting.

First of all, one sees that Councillor Fedeyko’s Notice of Motion was properly referenced in the agenda for the meeting as appearing under Section 8, Notices of Motion and is entitled “Notice of Motion – Leadership of CAO Derricott” in the Town of Cochrane Council Report prepared by the Manager, Legislative Services for that meeting, meaning that it had been properly submitted as a Notice of Motion according to the requirements of 7.2(c) of the town’s Procedural Bylaw.

The mayor began the meeting (1:41 minutes) by proposing an amendment to the agenda to move Notice of Motion 8a (Councillor Fedeyko’s Notice of Motion) to follow 3a (adoption of previous minutes), “so we are not holding our entire agenda ransom with that item”. None of the councillors, who dutifully approved the amendment, questioned what the mayor meant by “not holding our entire agenda ransom with that item” and why this change to the agenda was necessary. Perhaps this item was advanced for the benefit of the gallery crowd, who were largely supportive of the mayor, not having to wait on this item to be dealt with, thereby revealing from the start that this was a well-orchestrated event. Surprized that Councillor Fedeyko, who must have been taken by surprise by that unusual amendment, joined the other councillors to approve that amendment.

With Councillor Fedeyko’s Notice of Motion up on the agenda after the approval of previous minutes, Mayor Genung in a prepared text started out by laying forth some ground rules (2.41 to 4:21 minutes) related to that particular Notice of Motion. He advised Council of a legal opinion received “with respect to limitations related to personnel matters”.

He then said that “Councillor Fedeyko can put her motion on the floor and council can debate the general nature of the motion itself”. Noteworthy according to section 7.2 Notices of Motion of the town’s Procedural Bylaw, he was wrong on both accounts.  However, according to 7.2(a)(ii) of the Procedural Bylaw (“Council on a two-thirds (2/3) vote waives the requirement for Notice”) the motion could have been brought to the floor for debate and vote had there been a two-thirds vote by Council in support of such. No such vote took place. Thus, from the outset, the mayor improperly framed what presenting a Notice of Motion entails.

With respect to the legal opinion received, the mayor advised Council that he would “call a Point of Order if any member of Council delivers remarks that venture into the specifics of Mr. Derricott or his leadership”, in other words, declaring a departure “from this (Procedural) Bylaw (which, in fact, he was doing with his treatment of the Notice of Motion) or the customary proceedings in debate or in the conduct of Council’s business”. He later on explained (5:50 minutes) that in providing the legal opinions the town received, he wanted “to protect the municipality from the associated liability we will incur if any discussion specific to Mr. Derricott were to be held publicly”.

Councillor Fedeyko responded (4:29 minutes) to the process outlined by the mayor saying, “Tonight I was just assuming to put the Notice of Motion on the floor, to be debated, and I was hoping to push the vote tonight.”

Here it is clear that Councillor Fedeyko, as well, like all the other Council members lacked a full understanding of the Notice of Motion process as per section 7.2 of the town’s Procedural Bylaw. A motion, not a Notice of Motion, is put on the floor for debate. Having a motion on the floor, up for debate, could have been achieved that evening had there been a two-thirds vote by Council to support such, as per 7.2(a)(ii) of the Procedural Bylaw. However, no such two-thirds vote took place. Hence, the motion was never brought to the floor for debate and vote that evening.

Discouraging Council’s seeming lack of familiarity with the content of their Procedural Bylaw, despite the fact that we are not dealing with a bunch of rookies on council, with all of them into their second term, and two of them, Councillor Nagel and Councillor McFadden into their third and fifth terms, respectively. Noteworthy, that the exact same Council members as today unanimously approved Procedural Bylaw 19/2019 at their Regular Council Meeting held four years ago on March 25, 2019, buzzing through all three readings of the bylaw in approximately 5 minutes.

Not surprising that several councillors, Councillors Nagel and Wilson, expressed that they were a little confused by the convoluted process at hand. In response to a query from Councillor Nagel, the mayor got tangled up in his explanation and referred to Stacey Loe, Executive Director, Protective and Community Process, (6:50 minutes) for help, saying, “Ms. Loe, please save me from this?”, thereby showing that Administration was involved in how this event was orchestrated.
(Stacey Loe, left front, beside CAO, Mike Derricott).

At one point (9:13 minutes), Mayor Genung advised Councillor Fedeyko, “I am simply following procedures outlined in our procedural bylaw”, when, in fact, that was not the case. Laughable, as well, his claim to following procedures given that the mayor has continued to not to follow the procedure, clause 4.2 (c) of the town’s Procedural Bylaw.

At that point, Councillor McFadden correctly pointed out (9:22 minutes), “I was also expecting that if we wanted to hear it tonight, we would have to do the two thirds vote tonight”. However, neither the mayor nor any of the other councillors picked up on that correct interpretation of the Procedural Bylaw with respect to Notices of Motion as per section 7.2 of the bylaw.

At the 10:59 minute mark of the meeting, the mayor looked over at Councillor Fedeyko and said, “Councillor Fedeyko, your Notice of Motion”, and she then presented her Notice of Motion, which did not mean that it was a motion on the floor for debate and vote, which could only have been the case if allowed by a two-thirds vote of Council, as per 7.2(a)(ii) of the Procedural Bylaw.

Then followed prepared statements by Councillor Flowers (12:44 to 17:48 minutes) and Councillor Wilson (20:52 to 23:24 minute). Councillor Flower’s statement got a little weird, of questionable relevance to the subject at hand, as she spoke about an “ongoing circus on social media”, whereby she claimed to have had her “reputation threatened” and had to deal with supposed fake profiles on social media which are “so phony that a kindergarten child can figure it out”. Specifically, one posing as a man and one as a woman.

Wilson, in turn, spoke in defense of and provided many positive opinions about the CAO in his prepared statement. That occurred in spite of the mayor’s warning at the start of the meeting that he would “call a Point of Order if any member of Council delivers remarks that venture into the specifics of Mr. Derricott or his leadership”. However, after Councillor Wilson had completed his written statement, the mayor (23:25 minutes) reminded Council “to keep it off the person and not on the leadership in general.” Not intervening as he said he would, showing that positive comments about the CAO would be tolerated.

Councillors Nagel and McFadden used the time as a chance talk about some of their pet grievances with respect to deliverables from the town’s Administration.

Around the 24:23 mark, Councillor Fedeyko sort of threw in the towel, acknowledging that “looking around the table” there was likely little support for her Notice of Motion. Nonetheless, the mayor wanted to get his pound of flesh and launched into a prepared long-winded, often angry, 10-minute-long big scold (30:45 to 41:19 minutes). Around seven minutes into his statement (37:47 minutes), Councillor Fedeyko, apparently having heard enough of his opinionated diatribe, said, “I’m done”, got up and proceeded to walk out of the meeting. As she was leaving behind him, he raised his finger as if pointing to Councillor Fedeyko while saying (37:50 minutes), “The negativity and drama these antics are creating is not good for our organization and it’s a distraction from the work our taxpayers elected us to do”. Looking in her direction while she departed as he said the latter.

The tongue-lashing administered by Genung in his 10-minute diatribe was met with applause from those in attendance in the gallery and applauded by Councillor Nagel, saying (41:27 minutes), “Well Mr. mayor, I would venture so far as to say that was the best speech or remarks I’ve heard ever in these chambers”.

Around 48 minutes the mayor said, “I am going to call the question. The vote in favour would be to support a public vote, a vote against is to defeat the Notice of Motion. All those in favour of the notice of motion?  Those opposed. It is defeated.” The unanimous defeat was met with applause from the public gallery.

The problem, as already stated, as per the Procedural Bylaw, a Notice of Motion is simply that, a “notice” given of an upcoming motion and is not subject to debate and vote.

And with that, mercifully the drama came to a close.

There were two local media reports on the drama that occurred that night, one by Cochrane Now, “Motion soundly defeated, Fedeyko storms out”, and the other by Cochrane Eagle, “Drama at Cochrane council as confidence vote motion defeated”. If it wasn’t enough that Councilor Fedeyko had to endure a drubbing at the Council meeting, the Cochrane Eagle came across as a snarky hit piece heavily siding with the Town. It is worth pointing out that the Cochrane Eagle received $37,700.84 in payment from the Town in 2022 for advertising, such as the weekly Municipal Matters. Today’s advertising rate in the Cochrane Eagle for a full page in colour is approximately $1000.

The whole episode comes across as a well-orchestrated attempt to deep-six the Notice of Motion put forward, and, at the same time, to personally attack Councillor Fedeyko for having the gall to do so, led by Mayor Genung with supporting roles by Councillor Susan Flowers and Patrick Wilson.

Such incompetence on the part of our Town Council, failing to act in accord with their Procedural Bylaw, makes one wonder how that carries over to how they manage the town’s affairs in general.

Cochrane Town Council Meeting Marred by Procedural Violation

I contend that Town Council did not properly follow its own Procedural Bylaw in addressing Councillor Fedyeko’s Notice of Motion. Disappointingly, administration stood by and watched the spectacle unfold and may have had a hand in crafting it.

Accordingly, Councillor Fedeyko’s Notice of Motion stands as having been properly presented in a formal way at the September 25, 2023 Regular Council Meeting. However, the other aspects of the proceedings, namely, the debate and vote on the Notice of Motion, should be deemed as Out of Order, and thereby considered null and void.

SUPPLEMENTAL

Most will not likely be aware of another side drama that played out that night.

At the Special Meeting held on July 25, 2023, the Council barely meeting quorum with Councillors Flowers, Fedeyko and Reed being absent, met to hear a presentation from the auditor relative to the 2022 Audit Findings Report. There were several concerns raised at that meeting (see video here) re red flags for the late audit report, which is to be submitted to the Provincial Government by May 1 of each year.

As the auditor was coming forward to make his presentation, Mayor Genung suggested that Council meet with the auditor privately during this session in camera, which he thought should become a standard practice and would like a motion to that effect to start that practice that evening. The presentation from the auditor took approximately 23 minutes. The Q&A with Council took up 31 minutes.

At that point the mayor suggested going in-camera to talk to the auditor. He invited a motion to do so, and it was made by Councilor Morgan Nagel, which received unanimous consent.

The in-camera (secret) session lasted about 2 hours. According to the Council Code of Conduct Bylaw 12/2018, “the establishment of a code of conduct for members of council is consistent with the principles of transparent and accountable government”. Having the Council, upon the encouragement of the mayor, to proceed with a private, secret discussion with the auditor for 2 hours, 4 times the discussion that took place in public, hardly speaks of a Council that values transparency and accountability.

Councillor Nagel’s motion to go in-camera was simply expressed as, “I move that council goes into camera to speak to the auditor”.  This prompted me to write an email, “Questionable Proceedings by Mayor and Council”, on September 7, 2023 to Ms. Jaylene Knight, the town’s Director, Legislative & Administrative Services, (with a copy top the Town Council), pointing out that his motion to move into an in-camera session was improperly put forward given that section 6.4(a), In-Camera Sessions, of the Town’s Procedural Bylaw specifies that one could do so “if a matter to be discussed is within one of the exceptions to disclosure as set out in the Freedom of Information and Protection of Privacy Act”.  Mr. Nagel’s motion to go in-camera was missing an exception to disclosure as per the Freedom of Information and Protection of Privacy Act, a necessary condition to justify going into an in- camera meeting? I asked if she agreed with me that Mr. Nagel’s motion was improperly put forward.

The Agenda Package sent out for the September 11, 2023 Council Meeting included the minutes for the July 25, 2023 Special Council Meeting. However, I was shocked to find that Mr. Nagel’s motion was reported in the minutes as, “RES # 152/07/22 Moved by Councillor Nagel that Council go In Camera ~ Exception under Section 24(1)(a), Freedom of Information and Protection of Privacy Act ~ Advice from Officials at 6:25pm”. Of course, Councillor Nagel did not make such a motion. Minutes from a meeting are expected to accurately reflect what occurred at a meeting. I sent an email to Town Council on September 11, 2023, the day of the Regular Council meeting, notifying them of this and pointing out, “the minutes cannot be adopted in the current form. I trust you will act accordingly”.  Thankfully, one of the councillors, namely, Councillor Fedeyko, did act accordingly and objected to approving the draft July 25, 2023 minutes at the September 11, 2023 Council Meeting.

On September 14, 2023, I received an unsatisfactory comment on this matter in an email from Ms. Jaylene Knight. I wrote back to her on September 19, 2023 with a copy to Town Council, wherein I pointed out that “I have witnessed a troubling trend of a laxness by the Town of Cochrane with respect to following the town’s own procedural and code of conduct bylaws, where by ‘town’, I mean both our elected councillors, as well as the unelected administration”. By way of example, I pointed out that the mayor, continues to violate section 4.2 (c) of the town’s Procedural Bylaw and seemingly does so with the blessing of the administration. I concluded by saying, “Asking the Council to approve the minutes with your fabricated motion would essentially be asking Council to approve a falsehood to try to gloss over the impropriety. Again, I trust Council to act accordingly”.

When it came to the Approval of Previous Minutes in the agenda for the September 25, 2023 Regular Council Meeting, while the Agenda Package sent out to Council, included a Town of Cochrane Council Report from Ms. Jaylene Knight specifying that “Council adopt the minutes of July 25, 2023 Special Meeting and September 11, 2023 Regular Council Meeting”, Councillor Flowers only made a motion to approve the September 11, 2023. Later on, after the vote on the Councillor Fedeyko’s Notice of Motion, Administration recognized the oversight and brought it to Council’s attention that the minutes for the July 25, 2023 meeting needed to be adopted as well.

The happy ending to this story, is that the draft minutes for the July. 25, 2023 Special Council meeting now included a more accurate representation of Mr. Nagel’s motion to go in-camera, namely, “RES # 152/07/22 Moved by Councillor Nagel that Council go In Camera at 6:25pm”! Although technically, the motion made by Mr. Nagel was in violation of section 6.4(a), In-Camera Sessions, of the Town’s Procedural Bylaw.