Sunday August 24, 2008
Three issues dragged into public scrutiny
When Kelowna mayor Sharon Shepherd announced that she would fight her own council\’s in-camera decision, she opened a huge can of worms.
And three large worms crawled out — confidentiality, covenant, and competence.
The background, briefly, is this.
In 1946, lumber magnate Stanley Simpson sold a parcel of land to the city for $50,000, on certain conditions – principally, that it remain public land, not for commercial uses. His conditions were called a “covenant.” In recent years, city planners wished to replace the “covenant” with their own zoning bylaws, on the grounds that a covenant was unenforceable.
Simpson\’s family objected.
Last week, Justice Catherine Bruce of the B.C. Supreme Court ruled that the city could not override the terms of the Simpson Covenant.
Mayor Shepherd announced that the city would not appeal the judge\’s ruling.
Then, in what must have been a stormy meeting behind closed doors, city council repudiated the mayor\’s view, and decided that it would appeal, after all.
Mayor Shepherd then broke ranks. She declared that she opposed council\’s decision, and that she would make her opposition an issue in this fall\’s civic elections.
It was a gutsy move. And whether she intended it or not, she ripped open three issues that most councillors and staff would rather keep quiet – confidentiality, covenant, and competence.
First, confidentiality
In-camera meetings are supposed to be confidential. There is no public record of who said what. All parties are supposed to support the decision, whatever it is, even those who lost the argument.
By going public with her opposition, by vowing to fight council\’s decision, Mayor Shepherd blew the principle of solidarity out the window.
Good for her!
I oppose in-camera meetings in principle. Secret meetings smack of star-chamber trials, back room deals, and hypocrisy. They do allow staff and councillors to speak freely; they also make it possible to say one thing in private, another in public.
The need for in-camera meetings implies that the participants do not trust the citizens they\’re supposed to be serving – or, more likely, they recognize that those citizens no longer trust them.
If you\’re strongly opposed to a decision made in-camera, you have two equally unpalatable options. You can attempt to defend a policy you deeply disagree with. Or you can resign. But if you resign, the principle of confidentiality prevents you from explaining why you resigned.
It\’s a lose/lose situation.
Second, covenant
Justice Catherine Bruce ruled the Simpson Covenant is not really a covenant but an “enforceable charitable trust.” Regardless of words, the effect is the same. The agreement cannot be altered unilaterally. Period.
That reality reflects the original meaning of covenant. A covenant is not just a contract. Contracts can be torn up or renegotiated, as Gordon Campbell\’s provincial government has demonstrated. But covenants cannot.
The original covenant, according to the Bible, came in the ancient story of Noah. God made a covenant with Noah and with all creation never to repeat the destruction of The Flood.
Once that covenant was made, not even God could revoke it.
City planners apparently wanted to surpass God.
Kelowna city hall hoped to replace the Simpson Covenant with its own zoning bylaws, which, it claimed, would be a better way to protect the land.
But unlike a covenant, bylaws can be amended. Even though this council insisted that the proposed uses of the Simpson lands conformed to Stanley Simpson\’s intent, subsequent councils could change the zoning by a simple majority vote.
There, I suspect, is the crux of the matter. Far from being unenforceable, a covenant is enforceable upon the city itself.
Which means that control has been taken out of the hands of the elected councillors and their planning department.
City councillors do not develop their own long-term plan for downtown re-development. With a three-year term, few councillors are around long enough to envision and carry out a long-term plan for anything.
Beyond that, few councillors have the skills to visualize how all the infrastructure elements will dovetail together.
So they have to take advice from their staff.
It seems to me – from far outside the loop – that city staff devised a plan for re-development of Kelowna\’s downtown areas. Now they\’re unwilling to let go of it. Having considered all factors, they\’re convinced this is the best plan for the city.
Except for one small legal hurdle that, they believe, can be overcome. Because they don\’t want to go back to square one and start over again.
Which raises the third issue.
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City staff displayed a similarly single-minded attitude towards development of the Mission Creek Greenway. So far, that legal fiasco has cost the city of Kelowna well over a million dollars in fees and settlements.
Judge Bruce ruled that the city must pay the legal costs incurred by the Simpson family. Add in the city\’s own legal fees, and the amount of time expended by top city officials (at roughly $100 an hour just for their salaries), and this case and appeal will cost at least as much.
Now, if any city employee had embezzled more than $2 million from the public purse, that person would be investigated, prosecuted, and probably put behind bars.
But if city administrators give bad advice that costs more than $2 million, they\’re likely to get raises and/or promotions.
Something askew there, don\’t you think?
That\’s why I say, good for Sharon Shepherd.
She will probably get a rough ride in this November\’s elections. I expect other councillors will attack her – not so much for her stand on the Simpson Covenant as for breaking confidentiality, for exposing sores they\’d rather keep covered.
Some city staffers may even look for ways of sabotaging her credibility.
Still, by speaking out, the mayor has dragged into public scrutiny the serious issues of staff competence, biased legal advice, and the under-the-counter nature of in-camera meetings.
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Copyright © 2007 by Jim Taylor. Non-profit use in congregations and study groups permitted; all other rights reserved.
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