ABSTRACT
A review of the Town’s handling of notices of motion has revealed inconsistencies and generally a failure to comply with the procedures as set out in section 7.2 (Notices of Motion) of the town’s Procedural Bylaw 19/2019 in that notices of motion, as is clear from the Procedural Bylaw, should not be subject to discussion and vote.
While at the May 8, 2023 council meeting, the council with ‘guidance’ from Legislative Services came close to getting the process correct, were it not for the council being encouraged to determine by vote whether it “comes back at the next council meeting with the report from Administration”, even that flawed process was not followed at subsequent council meetings.
On one occasion, July 10, 2023, Council followed the proper procedure for addressing a notice of motion by bringing the motion to the floor for debate and vote in accord with Section 7.2(a)(ii) (“Council on a two-thirds (2/3) vote waives the requirement for Notice”) of the town’s Procedural Bylaw 19/2019.
On some occasions, ‘notices of motion’ were considered even though they did not appear on the agenda for that meeting, thus being in violation of section 5.6 of the Procedural Bylaw 19/2019 in that “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 4:00 pm on the seventh complete day before the day on which the meeting is held”. Failing to comply with sections 5.5 and 5.6 of the Procedural Bylaw, those attempts to bring a ‘notice of motion’ forward at a meeting should have been ruled out of order by the mayor.
On other occasions, while notices of motion were noted on the agenda for a council meeting, they were debated and voted on even though, according to section 7.2 (Notices of Motion) of the town’s Procedural Bylaw 19/2019, notices of motion are not to be discussed on the day that they are presented.
On one occasion, the proper procedure was followed whereby there was no vote or discussion on a presented notice of motion because of an arrangement a councillor made with Administration to create a new rule, not to be found in the Procedural Bylaw, that debate and discussion on a motion can be deferred to a future meeting should the author of a notice of motion request such a deferral, when in fact such deferral to a subsequent council meeting for debate and vote after the notice of motion was given at a previous council meeting should be proper procedure when considering notices of motion.
Such violations of section 7.2 (Notices of Motion) of the town’s Procedural Bylaw 19/2019 have consistently occurred despite section 7.1 of the Council Code of Conduct Bylaw 12/2018 requiring that “Members (Councillors) shall uphold (emphasis added) the law established by the Parliament of Canada and the Legislature of Alberta and the bylaws, policies and procedures adopted by Council (emphasis added)”. As well their failure to address, even ignore (as per their refusal to respond to my October 23, 2023 email, Time to Do What is Right!) my concerns, leads to a breach of other aspects of their Code of Conduct, such as clause 7.3 (A Member must not encourage disobedience of any bylaw, policy or procedure of the Municipality in responding to a member of the public, as this undermines public confidence in the Municipality and in the rule of law), clause 8.2 ( Members shall treat one another, employees of the Municipality and members of the public with courtesy, dignity and respect), and clause 19.2. (Members are expected to co-operate in every way possible in securing compliance with the application and enforcement of this Bylaw.)
I have come to realize that the councillors can’t think for themselves, but largely rely upon Administration to guide them on these procedural matters, such that ultimately the failure to comply with aspects of the town’s Procedural Bylaw and Code of Conduct rests with the Administration. Based upon disappointing interactions with Ms. Stacey Loe, Executive Director, Corporate Services, in response to my efforts to seek some clarification on these matters, I concluded a previous blog post, “Stonewalled by Town Administration – Part 2“, with the observation that “the bottom line is that Cochrane’s municipal government, top to bottom, namely, elected Council plus Administration, has been remiss in ensuring compliance with aspects of the Procedural Bylaw and Council Code of Conduct. And that is unacceptable”.
While the Council Code of Conduct notes that, “the establishment of a code of conduct for members of council is consistent with the principles of transparent and accountable government”, one sees little evidence of such principles from this Council. As far as being “accountable”, in the view of the Minister of Municipal Affairs, “municipalities have authority under the Municipal Government Act, to create, interpret, and enforce their own procedure bylaws”. Note, in particular, that the authority to enforce the procedural bylaws in essence rests with those who violate those bylaws. Therefore, it looks like the only way to hold this Council accountable, which has a low regard for upholding their bylaws and Code of Conduct, will be through the ballot box at the municipal elections to be held in October 2025.
FULL BLOG
On watching council meetings more closely, I discovered that the Town was not properly following its procedure for dealing with notices of motion as set out in section 7.2 (Notices of Motion) of the town’s Procedural Bylaw 19/2019, 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 4:00 pm 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.
According to section 7.2 of the town’s Procedural Bylaw, a council member “may make a motion (emphasis added) introducing any new matter only if (emphasis added) notice is given at a previous (emphasis added) regular Council meeting”. In addition, “A notice must be given without discussion (emphasis added) of the matter”, and “To be placed on the meeting agenda, the Notice of Motion…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”.
It is clear from section 7.2 of the town’s Procedural Bylaw that a notice of motion is not to be subject to discussion or vote when it is first presented at a 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”.
The record below illustrates the inconsistency in application, as well as, the failure of the Town to properly follow the Notices of Motion procedure as detailed in section 7.2 of the town’s Procedural Bylaw 19/2019. For this review of cases, it is recommended to start at the last item and work your way up.
1. February 12, 2024, Notice of Motion, City Status, by Councillor Flowers
Observation: After the notice of motion was presented, Mayor Genung, as presider, allowed the notice of motion to be debated and voted on even though, according to section 7.2 (Notice of Motion) of the Procedural Bylaw 19/2019, a notice of motion, the means by which a Member of Council brings business before Council, is not to be subject to debate or discussion.
While Stacy Loe, Executive Director, Corporate Services, appears to have recognized, as per Procedural Bylaw 19/2019, that “A Member may make a motion introducing any new matter only if notice is given at a previous regular Council meeting ” in her judgment with respect to the September 25, 2023 Council Meeting Minutes, she seemed to have forgotten that requirement when it came to Councillor Flower’s Notice of Motion.
2. January 8, 2024, Notice of Motion, Whistleblower Program & Policy by Councillor Fedeyko
Observation: The proper procedure for addressing a notice of motion was followed in this particular case. Having been presented at a previous Regular Council Meeting (Dec. 11, 2023) as per 7.2(a)(i) of the Procedural Bylaw 19/2019, it was now subject to debate and vote. However, as discussed below, this only happened because Councillor Fedeyko had worked out such an arrangement with Administration.
With notice already having been given at the December 11, 2023 Regular Council Meeting, the motion should now have appeared under agenda item 6 (Business) of the agenda for the January 8, 2024 meeting and not under Agenda item 8 (Notices of Motion). Presumably this improper placement of the the location of the motion in the agenda was done to continue to cover for the improper handling of notices of motion by council, seemingly with the blessing of the Administration.
3. December 11, 2023, Notice of Motion, Whistleblower Program & Policy by Councillor Fedeyko
According to a report, “Fedeyko introduces whistleblower motion at Cochrane Council“, by the Cochrane Eagle, “Coun. Fedeyko decided she wanted to postpone discussion on her notice of motion to the next regular council meeting in January.” Indeed, (see video starting at 2:41:42 minutes) when Councillor Fedeyko brought forward her notice of motion, she declared “before anybody pulls out any sort of pieces of paper to do big speeches, I am not looking to debate or actually discuss this notice of motion tonight. It will come back at our first meeting in January”. At that point Ms. Stacey Loe, Executive Director, Corporate Services, jumped in to advise Council that if, as per Councillor Fedeyko’s request, the motion was to be “postponed to January, then all discussion and debate should be retained until then”. Mayor Genung was taken aback by this, acknowledging it as a “deviation from what we’re used to”, namely, a deviation from the way that he had improperly handled notices of motions in the past, and asked for further clarification from Ms. Loe. Ms. Loe then explained that because Councillor Fedeyko had asked not to have her motion discussed or debated that evening, “so it should not be”, and that discussion should be deferred to January as per Councillor Fedeyko’s request. With that explanation, Mayor Genung then moved on with the agenda.
Observation: While Councillor Fedeyko had indeed asked for no discussion or debate with respect to her notice of motion, her request of such is irrelevant and unnecessary since as per section 7.2 the Procedural Bylaw 19/2019, there is to be no discussion or debate to be held on a notice of motion, unless that requirement is waived through a two-thirds vote by Council as per 7.2(a)(ii) of the bylaw. Any other councillor could have chosen to call for such a vote to bring the notice of motion to the floor for debate and vote on that day through a two-thirds vote whether Councillor Fedeyko was in favour of such or not.
On the one hand, it was satisfying to note that Administration, in this case, remained consistent with the proper application of the requirements for dealing with notices of motion as per the Procedural Bylaw 19/2019. However, it is clear that such an arrangement had been worked out in advance between Councillor Fedeyko and Administration. In fact, in response to a query I made to Councillor Fedeyko, she informed me that she had consulted with Ms. Jaylene Knight, Director, Legislative & Administrative Services, who had advised her that the decision to defer the debate and vote was up to Councillor Fedeyko to make. However, there is no such language to be found in section 7.2 (Notice of Motion) of the Procedural Bylaw 19/2019.
In response to Councillor Fedeyko’s request at the November 27, 2023 Council Meeting that the September 25, 2023 minutes be amended, in her Town of Cochrane Council Report with respect to the September 25, 2023 Council Meeting Minutes, Stacy Loe, Executive Director, Corporate Services, argued that “Councillor Fedeyko provided the Notice at the September 11, 2023 Council meeting”, and, thereby, fulfilled the requirement as per section 7.2 (a)(i) of the Procedural Bylaw that notice is to be given “at a previous regular Council meeting”. However, as described below with respect to the September 11, 2023 meeting, that notice of motion was not properly brought forward on that day as it failed to meet the deadline “to be placed on the meeting agenda”. It was encouraging, however, that in making her flawed argument, Ms. Loe, nonetheless, appeared to recognize section 7.2 (a)(i) of the Procedural Bylaw, whereby “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.” One hoped, that such a requirement would henceforth be adhered to by Town Council and Administration.
An email, “Procedural Irregularities”, was sent to Town Council on December 8, 2023 with a copy to Ms. Loe, wherein I rejected Ms. Loe claim that, “Administration has reviewed the meeting of September 25, 2023 and can confirm that Councillor Fedeyko put the motion on the floor”, and explained in detail as to why that was the case.
4. November 27, 2023, Notice of Motion, Statement of Disclosure Bylaw by Councillor McFadden
Observation: While a Notice of Motion is not to be subject to debate or discussion, the mayor, as presider, allowed debate and discussion and eventually invited a vote, which carried, 4-2 (Reed and Genung opposed, and Flowers absent).
When it came to the adoption of the September 25, 2023 meeting minutes, Councillor Fedeyko asked that the minutes be amended, claiming she had never asked for her notice of motion to be placed on the floor and thereby be addressed that evening, believing that to be in accord with the Procedural Bylaw. Mayor Genung then referred the matter to Administration to referee. Councillor Fedeyko, nonetheless, was the first to engage Councillor McFadden with respect to her notice of motion that evening.
5. September 25, 2023, Notice of Motion, Leadership of CAO Derricott by Councillor Fedeyko
Observation: Whereas, the Notice of Motion properly appeared on the agenda for this Regular Council Meeting, as explained below, the Notice of Motion was not properly brought forward at the September 11, 2023 Regular Council Meeting. Thus, the requirement that the notice of motion had to have been presented at a previous Regular Council Meeting, as per 7.2(a)(i) of the Procedural Bylaw 19/2019, before a motion can be made at a subsequent Regular Council Meeting, had not been met. However, the Mayor encouraged debate, discussion, and vote on the Notice of Motion even though it is clear from the Procedural Bylaw 19/2019 that notices of motion are not subject to debate and vote on the day that they are presented (“A notice must be given without discussion of the matter” (7.2(b)), unless that requirement is waived by a two-thirds vote by council (7.2(a)(ii)).
6. September 11, 2023,Attempted Notices of Motion by Councillor Fedeyko (Leadership of CAO Derricott) and Councillor Nagel (Permitted uses available on 365 Railway Street West)
Important to note (see below) that neither of these ‘notices of motion’ appeared on the agenda under agenda item 8 (Notices of Motion) for the September 11, 2023 meeting.
Observation: When Councillor Fedeyko tried to bring her notice of motion forward at that meeting, quite correctly, the mayor as presider for that meeting, disallowed it, pointing out that it failed to meet the deadline “to be placed on the meeting agenda”, as prescribed under 7.2(c) of the Procedural Bylaw. He referred to her attempt to bring a notice of motion forward as a “notice of notice of motion”, although there is no such category in the Procedural Bylaw 19/2019. Furthermore, the attempt to bring such a notice of motion forward should have been ruled out of order, since according to section 5.6 of the Procedural Bylaw 19/2019, “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 4:00 pm on the seventh complete day before the day on which the meeting is held”. As well, the mayor probably wanted to stop this notice in its tracks so that he could have time to mount his case against Councillor Fedeyko and this notice of motion, which he found irksome.
When Councillor Nagel earlier 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 to have it placed on the agenda. However, the mayor, as presider, inappropriately allowed it to proceed because of a two-thirds vote by Council. In addition, Councillor Nagel’s notice of motion should not have been allowed according to section 5.6 of the Procedural Bylaw. So, technically, Mr. Nagel’s ‘notice of motion’ was illegal and the debate and vote on it as a motion should be declared null and void.
Both of the attempts to have brought forward a notice of motion on that day should have been ruled out of order. When the mayor came to item 8 (Notices of Motion) and seeing none placed on the meeting agenda, he should have simply moved on.
Interesting that Mayor Genung, as presider, while advising Councillor Nagel that, “The process is to have notice of motion in by Thursday to make it on the agenda”, he, nonetheless, despite it not making it upon the agenda, allowed it to proceed through a two-thirds vote by Council, neglecting that it should not have been allowed in the first place since, according section 5.6 of the Procedural Bylaw 19/2019, “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”. The two-thirds vote option (7.2(a)(ii)) only applies to a notice of motion that had properly appeared on the agenda.
Also interesting, that while Councillor Nagel did not properly place his notice of motion on the agenda, he did seem to appreciate that if it had, then he would need a two-thirds vote from Council to proceed on that day, saying, “As this is a notice of motion, procedurally that would mean that we wouldn’t vote on it for two more weeks (that is, the next Regular Council Meeting), but because this has been in the community for too long…I would ask that we could maybe get a two-thirds majority to direct administration tonight.”
7. July 10, 2023, Notices of Motion by Councillor McFadden (Facebook Comments)
At the outset, when the notice of motion, to restore comments at the Town’s Facebook page which Administration had disabled in September 2022, came up in the agenda, Mayor Genung explained, “We do have a notice of motion and just remind Council of the uh notice of motion process is to um this is the conversation we have about moving something forward into our next council meeting to vote on as a motion. Given the fact that we are at the last meeting before the summer break and that this likely is not going to come back until the fall, if the majority of council sees it fit to vote in favour of it. So, I would propose that we consider as we’re going through the debate on the notice of motion, that perhaps we test our two-thirds majority tonight on this and debate it and make it effective instead of having this drag out over the summer if that’s what council chooses to do with the vote on the notice of motion. So, I just want to put that out there as you’re thinking about this, that perhaps that’s a something we should exercise tonight.”
Before Councillor Nagel brought forward a motion requesting a two-thirds vote by council so as allow a vote on the motion that night, Councillor Reed jumped in to read a prepared speech about the notice of motion, seeking a “safe space” and showing his contempt for free speech, before it was on the floor as a motion to be debated and voted on. Other councillors participated as well in discussion of the notice of motion before Councillor Nagel’s motion was approved, thereby, bringing the Facebook motion to the floor for debate and vote. Nothing less than the cart before the horse. After the discussion concluded the mayor said, “we will vote on the notice of motion” at which point Administration jumped in to tell him that at first “you would need to vote get the two-thirds majority to proceed to the uh voting on the motion”, showing how the mayor, as the presider for the council meeting, is clued out as to process.
Observation: Mayor Genung began by reminding council of the notice of motion process or, rather, the flawed notice of motion process, that he had laid out at the May 8, 2023 council meeting. As explained previously with respect to the May 8, 2023 council meeting, there is no requirement, as per the Procedural Bylaw, for Council “to vote in favour of it” so as to move it “forward into our next council meeting to vote on as a motion”. The minutes for this meeting record with respect to agenda item 8 (Notices of Motion) that it was “Moved by Councillor Nagel that Council, by resolution of a two-thirds (2/3) vote agree to consider and vote on the Notice of Motion as per Section 7.2(a) (ii) of the Procedural Bylaw 19/2019”. Thereby, this was the very first case whereby the notice of motion process was properly handled as per the Procedural bylaw, specifically Section 7.2(a)(ii) (“Council on a two-thirds (2/3) vote waives the requirement for Notice”). The motion, then on the floor, was subsequently carried with Mayor Genung and Councillor Flowers voting in opposition.
8. May 8, 2023, Notices of Motion by Councillor Wilson (Expense Reporting) and Councillor Nagel (Cyclists)
When it came to the notices of motion, item 8, portion of the agenda (starting at 36:45 minutes in the video), Mayor Genung, as presider, noting that since “it’s been a while since we’ve had a notice of motion”, he felt obliged to remind council of his understanding of the process to be followed when dealing with notices of motion. He awkwardly explained, “I’ll just remind Council we are voting tonight to not on the motion itself but on the, um, whether or not this is something we wish to tax, not tax, but, uh, put in the administrative realm for council’s feedback. So, we could, should withhold from talking about what we see or what we don’t like or what we’d like to see. If the notice of motion passes, then that that comes back at the next council meeting with the report from Administration, so just a reminder on our process”. He concluded by indicating that Legislative Services had taken some time to coach him on the process to be followed, “I had to have Legislative Services walk me through that a couple of times today”.
Councillor Wilson after presenting his notice of motion, then provided his convoluted (“to not discuss, but discuss”) explanation of his understanding of what Mayor Genung had said, namely, “we’re not doing any debate tonight we’re simply voting to send this to Administration or not…I guess I’ll leave it to the floor to not discuss, but discuss if we want to send this to Administration for review at least, okay”. Nonetheless, considerable discussion did subsequently take place. How in the world does one “not discuss, but discuss”? Talk about confusing.
Observation: Too bad Legislative Services hadn’t walked the mayor through the proper process to be followed as set out in section 7.2 (Notice of Motion) of the town’s Procedural Bylaw 19/2019. On the one hand it was encouraging that there was a proper recognition that Council “should withhold from talking about what we see or what we don’t like or what we’d like to see” in the motion, as per 7.2(b) (“A notice must be given without discussion of the matter”), and that the motion “comes back at the next council meeting”, as per 7.2(a)(i) (“Notice is given at a previous regular Council meeting”). On the other hand, there is no such requirement in the Procedural Bylaw for Council to vote on the notice of motion and “If the notice of motion passes, then that that comes back at the next council meeting with the report from Administration” or “to send this to Administration for review”. As explained above at the start of this blog post, a notice of motion is not subject to discussion or vote. When the motion (not a ‘notice of motion’) is made at the next council meeting, that is when discussion (debate) and vote occurs.
A summary of the various situations is provided in the following table.
Note that the proper procedure was followed for Councillor Fedeyko’s January 8, 2024 Whistleblower Notice of Motion only because Councillor Fedeyko had made an arrangement with Administration to prevent debate and vote on her notice of motion when presented on December 11, 2023, which would normally had been allowed by the mayor as was the case for Councillor Flowers’ February 12, 2024 notice of motion.
As far as Councillor Wilson’s May 8, Expense Reporting Notice of Motion, the Mayor as presider introduced a flawed process for dealing with notices of motion which he had learned from the Administration, which was not followed for subsequent notices of motion.
UPDATE, March 11, 2024
March 11, 2024, Notice of Motion by Councillor Wilson (Charity Event Fees))
Observation: After the notice of motion was presented, Mayor Genung, as presider, improperly allowed the notice of motion to be debated and voted on.