ABSTRACT

In order to excuse the Mayor and Council from their failure to act in compliance with aspects of their Procedural Bylaw, at the October 3, 2023 Committee of the Whole Meeting, Ms. Jaylene Knight, the town’s Director, Legislative & Administrative Services, hatched a narrative that it was a consequence of a purported lack of clarity in those sections. It was nothing of the sort, but rather a case of a cavalier attitude of the Mayor and Council towards the Procedural Bylaw 19/2019 that they had adopted in 2019. If our mayor and town councillors are unable to discern what was clearly said in the Procedural Bylaw, then that raises a general concern about their competence to manage our town.
Noteworthy, that Ms. Knight, as the town’s Director, Legislative & Administrative Services and author of the town’s procedural Bylaw 19/2019, avoided making a pronouncement as to the propriety of the mayor’s actions with respect to sub-section 4.2 (c) of the bylaw or the council’s actions with respect to section 7.2 (Notices of Motion) of the bylaw, which prompts one to ask ‘why not’?

FULL BLOG

While the appearance of Jaylene Knight, the town’s Director, Legislative & Administrative Services, before a Committee of the Whole Meeting on October 3, 2023, was supposedly to set the stage for a review and update of the Town’s Procedural Bylaw, it became clear that she used this time to try to provide a cover, act as an apologist, for the failures of the Mayor and Town Council to uphold aspects of their Procedural Bylaw 19/2019, which they had passed with unanimous consent in March 2019.

Her main argument to absolve the mayor and council from any responsibility for not complying with their Procedural Bylaw and contributing to a procedural mess was a supposed lack of clarity in the wording for some sections of the current Procedural Bylaw passed in 2019, which, by the way, she was the author of. Not surprising, the words “clarity”, “clear” or “clarification” popped up quite frequently in her discussion with Town Council that evening. The reality is that it is not a case of a lack of clarity that is the problem, but rather the cavalier attitude by the Town Council towards their Procedural Bylaw.

Her argument or thesis for excusing the mayor and council for not complying with aspects of their Procedural Bylaw was spelled out in the very first sentence of the Executive Summary of the Town of Cochrane Council Report she had prepared for the meeting, namely, “During a presentation by a delegation earlier this year it became clear that the Town of Cochrane’s Procedural Bylaw was creating confusion for residents and upon further review included sections that created challenges for Council and Administration as well”. There you have it, sections of the procedural bylaw “created confusion” and “challenges” such that the council and as well, residents like myself, who in a “delegation earlier this year” drew attention to a failure by the mayor to comply with the procedural bylaw, can be excused for whatever actions they took because they suffered from confusion. Thereby she sought direction from Council as being “imperative to ensure the Procedural Bylaw created provides clarity (emphasis added) on the processes to be followed”.

Commentary on Committee of the Whole Meeting on October 3, 2023

With the above in mind, let’s embark on a review of the proceedings related to agenda item 5a, Procedural Bylaw Guiding Principles, at the October 3, 2023 Committee of the Whole Meeting.

The presentation, “Procedural Bylaw Review and Update”, by Jaylene Knight, the town’s Director, Legislative & Administrative Services, is found between 16:04 and 20:12 minutes in the video for the meeting.

She began with some background, mentioning, “Earlier this year a delegation came forward and shone a light on challenges within our procedural bylaw. At that time Council directed Administration to review our current bylaw and bring forward revisions for Council’s consideration”. That delegation “earlier this year” refers to a presentation that I made to Council at a Committee of the Whole Meeting on March 20, 2023, and discussed in detail in my blog post, Quest for Town Council Accountability.

The so-called ‘challenge’ that I raised was that Mayor Genung was violating a rule, sub-section 4.2 (c) of the town’s Procedural Bylaw. As only councillors could lodge a complaint against the mayor according to the current wording of the town’s Code of Conduct bylaw, I tried to get the councillors to do so, but, disappointingly, not one of them agreed to do so. Consequently, the core of my presentation was to request that the town’s Code of Conduct bylaw 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 was followed. As reported by the media, “Voss wants public to have right to lodge complaints against councillors”, that was primarily what I was seeking with my delegation. As far as the Procedural Bylaw, I expected there to be an interim tweak, presumably to remove sub-section 4.2 (c), such that the mayor would not continue to act out of compliance. That never happened as Mayor Genung has continued to ignore this requirement, seemingly with the blessing of Ms. Knight and the town’s Administration.

As a refresher, sub-clause 4.2 (c) of the town’s Procedural Bylaw dealing with the function and responsibility of the Presiding Officer clearly 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”.

This requirement should be perfectly clear to anyone with a reasonable understanding of the English language! However, Ms. Knight can’t bring herself to acknowledge the clear fact that the mayor is acting out of compliance with the Procedural Bylaw. The first statement in her Background slide should have properly pointed out that I wasn’t raising concerns about “perceived issues” with the Procedural Bylaw, but actual non-compliance. With respect to the second bullet, my recall was that Administration was instructed to look into amending the Code of Conduct in response to my delegation. With respect to the review and update of the Procedural Bylaw, there was no such instruction by a Council member “to ensure that Council was in alignment with the MGA (Municipal Governance Act)”.

To avoid being in noncompliance with sub-section 4.2 (c), the mayor who rails against “misinformation” put forward the preposterous suggestion that what 4.2 (c) actually says was something totally different, namely,
“That section of the bylaw is specific to the mayor making motions within the meeting, not the ability to provide comments on any item on the agenda. It is the mayor’s responsibility to be an active participant during Council meetings, which is not limited by the Procedural Bylaw”.
Thereby, defiantly refusing to comply with sub-section 4.2 (c) of the Procedural Bylaw.

Point:
“In reviewing our bylaw, it was clear that it was drafted very formally which can create confusion for residents, but also can create challenges in consistent application here in Council chambers”. – Jaylene Knight
Counterpoint:
The language was quite clear and understandable to anyone with a basic knowledge of the English language. I wasn’t suffering from confusion in drawing attention to violations by the mayor and council, as Ms. Knight condescendingly suggests. If our mayor and town councillors are unable to discern what was clearly said in the Procedural Bylaw, then that raises a general concern about their competence to manage our town. Ignorance should not be an excuse for failing to do what is right.
Keep in mind that Ms. Jaylene Knight, at that time the town’s Manager, Legislative Services, was the author of the Procedural Bylaw 19/2019 that was presented to the members of Council, the same members as today, for adoption on March 25, 2019.  Her recommendation was “That Council give all three readings to Procedural Bylaw 19/2019”, which, in fact, they did in short order without requesting any amendments. No one on Council complained that there were parts of the Procedural Bylaw that were unclear. Interesting her claim now that there are parts of Procedural Bylaw that she, herself wrote are supposedly confusing to both residents and members of council. That prompts one to ask the question, does Ms. Knight, as well, suffer from confusion with respect to some portions of the Procedural Bylaw that she, in fact, wrote? Noteworthy, that Ms. Knight, as the town’s Director, Legislative & Administrative Services, avoided making a pronouncement as to the propriety of the mayor’s actions with respect to sub-section 4.2 (c) of the bylaw or the council’s actions with respect to section 7.2 (Notices of Motion) of the bylaw, which prompts one to ask ‘why not‘?

Point:
“Creating a clear precise bylaw that is not too prescriptive in nature but makes clear to residents the process of how Council makes these important policy decisions is the end goal with this amendment”. – Jaylene Knight
Counterpoint:
Again, positing that the problem is a lack of clarity in some segments of the Procedural Bylaw. As a resident who has drawn attention to failures to comply with the Procedural Bylaw, there is nothing wrong with the clarity of subsection 4.2 (c) or the clarity of the section 7.2 dealing with Notices of Motion. The problem is our mayor and council having a cavalier attitude with respect to their Procedural Bylaw and thereby failing to uphold those requirements as the Procedural Bylaw requires. As per 4.3(a)(ii) of the town’s Procedural Bylaw related to Conduct, “Members shall not: disobey the rules of the meeting”. However, Ms. Knight, as Director, Legislative & Administrative Services has failed to bring the mayor and council to account, but, instead, endeavours to paper over their misdemeanours.

Point:
“What I have always appreciated is that when we ask you for clarification about the rules, you have always been able to clearly tell us because it isn’t always clear in the paperwork”.
– Councillor Flowers
Counterpoint:
Playing a supporting role by going along with Ms. Knight’s narrative about a lack of clarity. Keep in mind that Councillor Flowers along with the current mayor and members of council buzzed through three readings to unanimously approve the Procedural Bylaw 19/2019 on March 25, 2019. No issues were raised at that time. If it wasn’t clear, one would think that would have been the time to ask for clarity, assuming that they even bothered to carefully read the draft Procedural Bylaw presented to them by Ms. Knight, who had authored it.

Point:
“You talked about removing some of the provisions. I am just curious if that would be under Conduct, personal attacks on character and motives of others of Council”.
– Councillor Fedeyko
Counterpoint: This reference to 4.3(a)(i) (“Members shall not use offensive words or unparliamentary language in the meeting and shall refrain from abusive conduct, personal attacks or verbal attacks upon the character or motives of other Members of Council, boards, commissions, committees, staff or the public”) in the Procedural Bylaw was clearly a dig at Mayor Genung given his behaviour at the September 25, 2023 Council Meeting as covered in a recent DWAB blog post, “Procedural Mess at Town Council Meeting”.

Point:
“Those items are not intended to be removed. What we are trying to do is create clarity so there are sections within the bylaw in regards to the presiding officer say, where there is confusion in the community about the mayor participating actively in conversation”.
– Jaylene Knight in response to Councillor Fedeyko.
Counterpoint:
Sorry Ms. Knight, there is no confusion, particularly by this resident of the community, as to what sub-section 4.2 (c) of the town’s Procedural Bylaw clearly says (see above). And, frankly, for you to say so is disingenuous on your part with respect to a clause that you, yourself included in the draft Procedural Bylaw which was presented to the same council members for their approval on March 25, 2019. In addition, if there is confusion, Ms. Knight may be confused as to whose interests she is to serve.

Point:
“All I have to say about the procedural bylaw, is it becomes somewhat a bit embarrassing when we get called out too many times in the public at large that we are not following it. And this is certainly not a reflection of you at all. I think it is a reflection of this council. So, we need to make sure that we are following the Procedural Bylaw that we put in place. And, if we are not, I would suggest every single of one of us sitting around this table, call it out because it is not appropriate if you choose to say nothing.”
– Councillor Fedeyko
Counterpoint: Encouraging that at least one councillor, Councillor Fedeyko, takes some responsibility on this matter. Disappointing, however, that she and the other councillors did not call it out when I had asked that one of them step forward and lodge a complaint against the mayor for his failure to comply with  sub-section 4.2 (c) of the town’s Procedural Bylaw, as only councillors, according to the current wording of the town’s Code of Conduct bylaw, are allowed to so.
It is not only inappropriate that the councillors say nothing in response to infringements of their Procedural Bylaw, but as per sub-section 7.1 of Section 7 (Adherence to Policies, Procedures and Bylaws) of their Code of Conduct, the councillors are obliged to “uphold…the bylaws, policies and procedures adopted by Council”.
As far as the failures to comply with aspects of the Procedural Bylaw not being a reflection of Ms. Knight, disappointing that she stood by and said nothing as these infringements took place and is now trying to excuse the mayor and council of any misdemeanours.

Point:
“The intent is to ensure that we have that clear direction for the council and where some of these areas have been a bit wordy and sometimes hard even for residents to interpret. We want to ensure that there is some clear language in there. So, it can be very clear for council and be very clear for residents that we are actively following this bylaw”.
– Jaylene Knight in response to Councillor Fedeyko.
Counterpoint:
I object to this condescending attitude that because of a purported lack of clarity in the language in some areas, mere residents like myself are deemed incapable of understanding or interpreting them properly. It is very clear to me that the mayor has violated 4.2 (c) of the town’s Procedural Bylaw and the entire Council, especially the mayor who according to 4.2 (a) of the bylaw should know better as the Presider, have violated the section, 7.2, of the bylaw dealing with Notices of Motion.

A Notice of Motion is simply that a “notice”, a notice of a motion to be made at some point in the future, a courteous forewarning to the rest of Council to let them know of an event that will happen in the future.
It is clear from the section, 7.2, of the town’s Procedural Bylaw relating to notices of motion that a Notice of Motion per se is not subject to debate and vote!
For example, apart from the reference to “A notice must be given without discussion of the matter” in sub-section 7.2(b), according to sub-section 7.2(a)(i), “A Member may make a motion introducing any new matter only if 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”. Note, in particular that, “A Member may make a motion introducing any new matter only if notice is given at a previous regular Council meeting”, that is, the motion is made at a Regular Council meeting after the Notice of Motion was given at a previous Regular Council meeting. The example of section 32(4) of the City of Edmonton’s Procedural Bylaw, couldn’t make it any clearer, “The giving of notice of motion is not debatable”.

While we are on the topic of failing to act in compliance with respect to the Notices of Motion section of the town’s Procedural Bylaw, it is of interest to consider what transpired with respect to attempted notices of motion at the September 11, 2023 Regular Council Meeting. At the outset, it is important to point out that there were no entries for Notices of Motion under agenda item 8, in the Agenda that was sent out for that meeting.
When Councillor Fedeyko tried to bring her notice of motion forward related to a vote of confidence with respect to the leadership direction under the CAO Mike Derricott, quite correctly, the mayor as presider for that meeting, disallowed it, 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 4:00 pm on the seventh complete day preceding the meeting”.
When Councillor Nagel brought forward a notice of motion, it likewise should have been ruled out of order by the mayor as Councillor Nagel had failed to meet the deadline for submitting a notice of motion as per 7.2(c) of the Procedural Bylaw. However, the mayor as presider inappropriately allowed it to proceed because of a two-thirds vote by Council. In addition, his notice of motion should not have been allowed according to section 5.6 of the Procedural Bylaw. According to section 5.6 of the Procedural Bylaw, “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”. That was not the case for either of those attempts to bring forward a notice of motion on that day. So, technically, Mr. Nagel’s notice and the debate and vote on it as a motion should be declared null and void! And Administration sat by and allowed it to happen.
This reveals as well that the two thirds vote, permitting a motion to come forward on that day as a motion for debate and vote, referenced in sub-section 7.2(a)(ii) (“Council on a two-thirds (2/3) vote waives the requirement for Notice”) of the Procedural Bylaw related to Notices of Motion, is only relevant for notices of motion properly submitted as per 7.2(c) of the bylaw and therefore appearing on the agenda and allowed to be considered (section 5.6 of Procedural Bylaw). To recap, only Notices of Motion properly submitted (sub-section 7.2 (c) and appearing on the agenda under Notices of Motion can be considered (sub-section 5.6) and be subject to sub-section 7.2(a)(ii) (“Council on a two-thirds (2/3) vote waives the requirement for Notice”) of the Procedural Bylaw. That was not the case for Mr. Nagel’s so-called ‘notice of motion’.
Noteworthy, that no two-thirds vote occurred for Councillor Fedeyko’s Notice of Motion presented at the Regular Council meeting on September 25, 2023. At one point at the September 25, 2023 Regular Council Meeting, Councillor McFadden correctly pointed out (at 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, who seemed intent on delivering his 10-minute diatribe, 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 Procedural Bylaw. Nor was there any intervention by the Administrative staff present at that meeting.

Point:
“One thing we forgot to mention was my Notice of Motion, which did not follow the Procedural Bylaw at all. I had no intent of having that Notice of Motion debated, discussed”.
– Councillor Fedeyko
Counterpoint:
On this point Councillor Fedeyko is quite correct! Appreciate that at least one councillor is prepared to acknowledge this. Despite claims of a lack of clarity, as described above, section 7.2 of the Procedural Bylaw is clear that notices of motion are not subject to a debate and vote, (unless, as per 7.2(a)(ii), there is a two-thirds vote to proceed to having the motion on the floor for debate and vote on that day, which was not the case on that day.)

Point:
“For clarity Councillor Fedeyko I would say the language in that section is one of the ones that needs some revamping. Certainly, when a Notice of Motion comes through the process where it comes through on the date and where it becomes part of the Council agenda package, the way this council has handled that, those votes have taken place in that space. So, my intent in ensuring the language around that is very clear so that everyone on council has a greater understanding of how those Notices of Motion are being handled and everyone in the community as well.”
– Jaylene Knight in response to Councillor Fedeyko.
Counterpoint:
As discussed above, the language around Notices of Motion, is very clear, especially with respect to notices of motion not being subject to debate and vote. Saying that Councils have “handled it” by improperly debating and voting on the notices of motion, does not make it right when such action is clearly at odds with the language of the Notices of Motion section of the Procedural Bylaw. Disappointingly, Ms. Knight, who authored the Procedural Bylaw and should have a clear understanding as to its meaning, should have long ago put a stop to such practice. I am reminded of the night of my delegation on March 20, 2023, where Councillor Nagel, while on one hand agreeing with me that Mayor Genung had been violating sub-section 4.2 (c) of the town’s Procedural Bylaw, indicated, on the other hand, that as long as he could remember, the mayor had participated in debate without vacating the chair, as if that somehow made it right even though it was clearly against the rules of the bylaw that had been adopted by the Council.
To rectify the actions of Council being out of compliance with the current clear wording of Section 7.2 (Notices of Motion) of the current Procedural Bylaw 19/2019, Ms. Knight here reveals her intent to change the wording of that section in a future (not yet adopted) bylaw such that it will conform with the current practice (“the way this council has handled that”), which is at odds with the wording of that section in the current bylaw.

Point:
“We had that structure more defined where the role of the chair was to chair the meeting, not to participate and if they were going to participate, they had to remove themselves from the role of the chair”.
– Councillor McFadden.
Counterpoint:
Councillor McFadden now into her fifth term as a councillor reflected on some of the procedures she experienced in the past. What she said here is precisely what sub-section 4.2 (c) of the town’s Procedural Bylaw says with respect to the conduct of the presiding officer.

Point:
“I am really looking forward to the first draft. In many ways it will reaffirm in so many ways what we are currently doing. If I understood you correctly, it isn’t that there have been problems with those, some members of our community, actually one member of our community in particular, who has been raising procedural questions. It is their interpretation of that, and so if you provide clarity to them that would be great. What I took from that though is that there is nothing that we have done to date would violate any of those principles as they are currently constituted. It’s just making clarity around it, including around the motion that happened at our last meeting”.
– Councillor Reed.
Counterpoint:
Hearing such arrogant patronizing comments by Councillor Reed comes as no surprize given his past performance as described in DWAB blog post, “Cochrane Councillor Shows His Disdain for Residents”.
Sure, with the new draft, with, for example, sections like 4.2 (c) being expunged from the Procedural Bylaw, it will put the mayor, currently out of compliance, into compliance.
According to Reed, the problem with that “one member of our community in particular”, that is, me, I am incapable of properly interpreting what is said in the Procedural Bylaw. As far as his confidence “that there is nothing that we have done to date would violate any of those principles as they are currently constituted”, I very much doubt that Councillor Reed has even looked at the Procedural Bylaw again ever since he and the others unanimously passed it in rapid first, second and third readings in March 2019. I expect that he, like the others, might actually have trouble actually locating a copy of it.

Point:
“We have found places where we need some improving. And need some clarification. But I would not say in any place that we have gone so far outside that council has stepped outside its own authority and jurisdiction and process.
– Jaylene Knight in response to Councillor Reed.
Counterpoint:
As far as declaring that the mayor and council have not stepped outside the process, which is not the case, it is disappointing that Ms. Knight is doing her best to help the mayor and council save face in light of their misdemeanours. Again, one wonders whose interests Ms. Knight, as the town’s Director, Legislative & Administrative Services, is expected to serve.

Point:
“There are things within the MGA that require certain things, including the mayor’s conduct and what his role is in the organization. And as the MGA supersedes everything we create, it is very clear that the mayor is to be an active participant. The language within the MGA speaks to him being having a role as a councillor which is active debating and discussing items and then also having the role of the presiding officer. The MGA speaks to both of those very clearly. And, so, we have to ensure that anything we put within the Procedural Bylaw does not contravene the direction which is in the MGA which is our guiding document where municipalities get their authority.
– Jaylene Knight in response to Councillor Reed.
Counterpoint:
Ms. Knight here reveals her plan to explain away the mayor not having complied with 4.2 (c) of the Procedural Bylaw and what one expects to see in the new draft, that is, clause 4.2 (c) will be expunged form the Procedural Bylaw. I would question her proposed rationale for expunging that clause from the Procedural Bylaw based upon the MGA, but, nonetheless, the fact remains that the mayor, according to the current Procedural Bylaw, prepared by Ms. Knight and adopted by this Council in 2019, has been acting in violation of clause 4.2 (c).
According to sub-section 7.1 of section 7. Adherence to Policies, Procedures and Bylaws of the town’s Code of Conduct, “Members shall uphold the law established by the Parliament of Canada and the Legislature of Alberta and the bylaws, policies and procedures adopted by Council”. Noteworthy, that Council must uphold “the bylaws, policies and procedures adopted by Council, and not be responsible for upholding bylaws, policies and procedures that may be adopted in the future!
Odd that Ms. Knight, who was the author of the Procedural Bylaw that was presented to Town Council for adoption in 2019, has suddenly discovered what she believes to be a discrepancy with respect to the Municipal Governance Act so as to conveniently absolve the mayor of violating the Procedural Bylaw unanimously adopted by Council in 2019.

Point:
“It hasn’t been updated in the 6 years that we’ve been in Council.”
– Councillor Flowers
Counterpoint:
Here, Councillor Flowers presumably was hoping that the Procedural Bylaw was adopted before her time and therefore offering up an excuse for not being familiar with it. Ms. Knight, in turn, pointed out that the bylaw, known as Procedural Bylaw 19/2019, was adopted in 2019, and, thereby, Councillor Flowers was among the other councillors who had adopted the bylaw at that time. I doubt that she would be able to easily locate a copy of the bylaw since her involvement in its passage in 2019.

Point:
“I don’t have a lot to add other than If I have a strength as a councillor, it’s not in meeting procedure”.
– Councillor Wilson, acting as Deputy Mayor, and wrapping up the meeting
Counterpoint:
A shocking admission by a councillor and certainly nothing to be proud of. According to 4.3(a)(ii) of the town’s Procedural Bylaw related to Conduct, “Members shall not: disobey the rules of the meeting”. However, sadly this appears to be an attitude shared by the mayor and the other councillors.

UPDATE, October 17, 2023

The entry for Jaylene Knight’s presentation, “Procedural Bylaw Guiding Principles”, in the minutes for the October 3, 2023 Committee of the Whole meeting, emphasized the notion that “challenges” arose with respect to the bylaw because of a supposed lack of clarity in some sections making it prone to misinterpretation:
Ms. Jaylene Knight, Director, Legislative & Administrative Services presented to Committee of the Whole a revised Procedural Bylaw for Council’s consideration. With the Town’s ongoing commitment to civic literacy and responsible municipal governance, as well as identified challenges with the bylaw being too prescriptive and prone to misinterpretation, Administration has been in the process of developing a revised Procedural Bylaw for Council’s consideration. Ms. Knight presented some of the themes and challenges identified within the existing bylaw which facilitated the discussion around the principles.

However, the text for sections such as 4.2 (c) and Section 7.2 (Notices of Motion) of the current Procedural Bylaw 19/2019 are perfectly clear. What Ms. Knight is trying to do is concoct an excuse for why both the Town Council and she, as well, have not ben properly upholding these sections of the current bylaw.