Bias, Buy Us, or Alright By Us?

Trustees George Ehring and Christine Torgrimson, in response to the civil action filed against them, today stated in the Driftwood (http://www.bclocalnews.com/vancouver_island_south/saltspringislanddriftwood/news/132108983.html :

[Note – comments in brackets throughout this post are mine]

“At no time did we believe that we were doing anything wrong….[there is] a contract[s] for [all] work authorized by the Trust’s treasurer and supervised by Trust staff….we agreed to become directors of the new societies [Climate Action Council Society and Water Council Society]….They [their private Societies] do valuable work, and in our [your elected Trustees] opinion deserve public [your tax dollar’s] support…..The model is used in other communities, where elected officials have a seat at the table of some of the community groups they fund [I want examples]…If any of the petitioners had contacted us with their concerns, we certainly would have looked carefully into the issue and sought advice….We have no wish to incur the expense associated with legal action….We think there is a better way to address this.”

Alright, so, what is the problem? In my personal experience as a Trustee, it is now crystal clear to me that the Trustees:

(a) have ignored their legislative duties as Trustees,

(b) have ignored Islands Trust policy,

(c) have ignored the Community Charter provisions of conflict,

(d) have ignored the provincial Ministry Ethical Guidelines regarding conflict of interest,

(e) have improperly participated in the affairs of the two Societies they helped to create,

(f) have misunderstood the total inappropriateness of relying upon the “models” referred to in their relationship to the legislative requirements and restrictions of a quorum of the Local Trust Committee,

(g) do not recognize that their use of the term “they” in reference to the very Societies of which they, themselves, (in their capacities as Island Trustees), are Directors and Chairs, is absurd. It is akin to pointing at their reflection in the mirror and referring to the mirror image as a separate entity. Are they, or are they not, sitting on the Societies as Trustees? The Societies’ bylaws specifically state – “Members shall be (c) duly elected Salt Spring Island local trustees of the Islands Trust or their authorized representatives.” I am not aware of any legal ability of a Trustee to “authorize” someone to act on their behalf. Considering the Trustees helped write the bylaws, it is clear they did not seek any advice from the Islands Trust’s legal counsel. If they did not, why not? It’s a pretty simple and prudent thing for a public Trustee to do.

(h) did not seek independent legal advice prior to their participation in the founding of the Societies, including the creation of the Society’s bylaws.

(i) have neglected to admit to the public the Societies’ customized bylaws (62(4)) allow Directors to “act in a professional capacity for the society…and they or their firm shall be entitled to remuneration for professional services as if they were not a director.”

(j) have neglected to admit to the public that one of the Societies’ bylaws Purposes states, “To advocate for appropriate government legislation, regulations and policies…” How do you square that “Purpose” with the fact that a quorum of the Local Trust Committee is sitting as Directors/Chairs of both Societies?

Am I to believe that as Directors, the Trustees are advocates of the private Societies, advocating to themselves, as a quorum of the Local Trust Committee, behind closed doors, the opinions created within the private Societies, and they don’t see the problem with that?

So, let’s get down to it and look at the applicable legislation.

Community Charter/Ethical Guidelines/Trust Policy

It is extremely difficult for anyone to wade through the gobbledygook of government legislation to try and understand what the law says on any particular subject, let alone one as confusing as conflict of interest, bias, non-disclosure of elected government officials.

To better understand the application of the Community Charter, Islands Trust Policy and the Ministry’s Ethical Conduct guidelines, to the current allegations against Trustees I have taken a few minutes to:

1. edit down the relevant portions of the Community Charter (in italics), and,

2. add the Ministry of Community, Sport & Cultural Development Ethical Conduct recommendations (in bold italics), and,

3. add Islands Trust Policy Guidelines on quorums of the LTC (underlined), and,

4. substitute the “words” Trustees, LTC meeting, Advisory Planning Commission, etc. (non-italicized, non-bolded) for “council members,” “council meetings,” “council commitees,” etc., and,

5. highlight, in red, sections which appear to me to be the basis of the allegations of conflict of interest and non-disclosure.

6. add my notes [in brackets]

The resultant combined text then will hopefully provide you with a clear understanding of the applicable Provincial and Islands Trust legislation:

Islands Trust Policy Guidelines

Any gathering of a quorum  [two Trustees] of local trust committee members at which the business of the local trust committee is advanced in a material way constitutes a meeting for the purposes of the “open meeting” rule in the Community Charter.

The purpose of the open meeting rule is to ensure that the local trust committee’s business is conducted in an open forum, except where the nature of the business comes within one of the statutory exceptions to the rule and the business may lawfully be conducted in the absence of the public.

The fact that a particular discussion may be occurring via telephone or e-mail does not prevent it from constituting a “meeting” for the purposes of the open meeting rule.

The fact that two persons may constitute a quorum of the local trust committee presents particular difficulties in the application of the open meeting rule. Local trustees need not avoid one another in social situations or impose other artificial constraints on their interaction as members of an island community.

Discussions of administrative and logistical matters connected to the local trust committee’s business agenda are unlikely to violate the open meeting rule. Trustees should ask themselves, in determining whether a particular discussion or other interaction should be avoided outside the forum of a trust committee meeting, whether the fact that the discussion or interaction has already occurred would enable the committee to get through a forthcoming meeting agenda more quickly as a result of the trustees having already exchanged views on the matter.

If the answer is yes, then the discussion or interaction should not occur outside the context of an actual meeting.

Community Charter provisions:

Conflict of Interest – Disclosure of conflict

The following applies to Trustees in relation to LTC meetings and meetings of any other body, like the Advisory Planning Commission.

If a Trustee attending an LTC meeting considers that he or she is not entitled to participate in the discussion of a matter, or to vote on a question in respect of a matter, because the Trustee has a direct or indirect pecuniary interest in the matter, or another interest in the matter that constitutes a conflict of interest, the Trustee must declare this and state in general terms the reason why the Trusee considers this to be the case.

Ministry of Community, Sport & Cultural Development Ethical Conduct provisions:

A Trustee must…declare a conflict if he or she has some other, non-pecuniary type of interest that places the person in a conflict position (e.g., bias). This could include any benefit obtained by relations, close friends, or associates of a member who is in conflict. Examples may include a rezoning application by a relative or close personal friend or a business license decision involving a competitor business to one operated by a close friend. The facts of each situation will be unique and will need to be considered when determining if a member is in a non-pecuniary conflict of interest situation.

In broad terms, a Trustee has a non-pecuniary conflict of interest if:

(a) the Trustee’s interest in the matter is immediate and distinct from the public interest;

(b) it can be reasonably determined that the Trustee’s private interest in the matter will influence his or her vote on the matter; 

(c) the Trustee, or one of his or her relations or associates, stands to realize a personal benefit from a favourable decision on the matter; and

(d) the potential benefit to the Trustee is not financial in nature.

The key consideration for Trustees is whether a reasonable person would conclude that the decision-making could be influenced or affected by the connection, such that a private interest could conflict with a Trustee’s public duties. When in doubt it is advised that Trustees err on the side of caution and declare any real or perceived non-pecuniary conflict of interest.

Community Charter provisions continued:

After making a declaration, the Trustee must not remain or attend at any part of an LTC meeting during which the matter is under consideration, participate in any discussion of the matter at the LTC meeting, vote on a question in respect of the matter at the LTC meeting, or attempt in any way, whether before, during or after the meeting, to influence the voting on any question in respect of the matter.

When such a declaration is made, the person recording the minutes of the meeting must record the Trustee’s declaration or statement, the reasons given for it, and the time of the Trustee’s departure from the LTC meeting room and, if applicable, of the Trustee’s return, and the Chair of the LTC must ensure that the member is not present at any part of the LTC meeting during which the matter is under consideration.

A person who contravenes these requirements is disqualified from holding an office as a Trustee until the next election, unless the contravention was done inadvertently or because of an error in judgment made in good faith.

If it appears that a person is disqualified and is continuing to act in office, 10 or more electors of the LTC Area may apply to the Supreme Court for an order. An application to disqualify a Trustee may only be made within 45 days after the alleged basis of the disqualification comes to the attention of any of the electors bringing the application.

[Note – I have heard a few people ask “Why are these charges being filed now?” It is clear the fuse was lit on the charges on September 1, 2011, and the time limit for filing the Petition would have expired on October 16, 2011]

Within 7 days after the petition commencing an application is filed, it must be served on the Trustee whose right to hold office is being challenged. On the hearing of the application, the court may declare that the Trustee is qualified to hold office, that the Trustee is disqualified from holding office, or  that the Trustee is disqualified from holding office and that the office is vacant.

A Trustee who is subject to an application and who considers that he or she is qualified to hold office may continue to act in office pending the determination of the Supreme Court respecting the application.

If a Trustee who is declared disqualified from holding office by the Supreme Court appeals the decision, the appeal does not operate as a stay of the declaration and the Trustee is disqualified pending the final determination of the appeal.

If a declaration of disqualification is overturned on final appeal and the term of office for which the Trustee was elected has not ended, the Trustee is entitled to take office for the remainder of the term if otherwise qualified, and,  for this purpose, any other person elected or appointed to the office since the declaration of disqualification ceases to hold office at the time the person declared qualified takes office.

In the case of an application made by a group of electors, if the court declares that the Trustee challenged is not qualified to hold office, the Islands Trust must promptly pay the electors’ costs within the meaning of the Supreme Court Civil Rules.

The court may order that costs to be paid may be recovered by the Islands Trust from the Trustee who was declared disqualified or any other person as directed by the court in the same manner as a judgment of the Supreme Court.

 Except as provided the costs of an application are in the discretion of the court.

Sources –

Community Charter – Conflict of Interest – Disclosure of Interest

http://www.bclaws.ca/EPLibraries/bclaws_new/document/LOC/freeside/–%20C%20–/Community%20Charter%20SBC%202003%20c.%2026/00_Act/03026_04.xml#part4_division6

Community Charter – Disqualification

http://www.bclaws.ca/EPLibraries/bclaws_new/document/LOC/freeside/–%20C%20–/Community%20Charter%20SBC%202003%20c.%2026/00_Act/03026_04.xml#part4_division7

Ministry of Community, Sport & Cultural Development – Ethical Conduct –  http://www.cscd.gov.bc.ca/lgd/gov_structure/community_charter/governance/ethical_conduct.htm

Islands Trust Policy – Local Trust Committee Meeting Guidelines:

http://www.islandstrust.bc.ca/tc/pdf/tcpol4-1-iidec052003.pdf

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