Annapolis County’s new warden is questioning the legitimacy of council meetings held in between the Oct. 17 election and the first meeting of the new council.
“There’s been debate as to whether those were valid meetings,” said Alan Parish in an online recording of a virtual committee of the whole meeting hosted through Zoom on Nov. 12.
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Council voted in Parish as warden, and returning councillor Michael Gunn as deputy warden, following a swearing-in ceremony on Nov. 10.
Parish informed his council colleagues on Nov. 12 that he independently sought the legal opinion of Dennis James at Patterson Law regarding the validity of meetings held by the former council after the Oct. 17 municipal election that saw five incumbents unseated and six new additions voted in. There was a regular monthly council session on Oct. 20, as well as special council meetings on Oct. 28 and Nov. 4.
“My own legal opinion as a lawyer – retired lawyer – is that these meetings were illegal, so I retained an experienced municipal law lawyer after the meeting on Nov. 4 and I asked for his opinion,” said Parish, who acknowledged that Bruce Gillis, municipal solicitor for the County of Annapolis, contends that the meetings were valid.
Parish said that the opinion provided by James pointed to a letter from a representative of the provincial Department of Municipal Affairs that contains the following:
“It is the position of the department, based on the above-noted requirements, that the outgoing council is not permitted to pass any substantive motions before the swearing-in of the new council following the expiry of the ten-day recount period,” Parish read for council.
“Accordingly, any such motion would be considered invalid.”
Parish said that James, based on his own interpretation of the Municipal Government Act and Municipal Elections Act, disagreed with the legal opinion provided by the municipality’s legal counsel.
“I believe the interpretation offered by Mr. Gillis overlooks the legislative scheme that directs the immediate transition to the newly-elected council,” read Parish, in offering council an overview of the written opinion offered by James.
Recount period is key
James pointed to Section 12 of the Municipal Government Act, which states that the warden is to be selected “at the first meeting of the council in a regular election year after the time for applying for a recount has expired.” The opinion James offered Parish also noted that Section 174 of the Municipal Elections Act states the following: “the oath shall be taken and subscribed by each councillor at the first meeting of the council after his election, or within such extended time as the council allows.”
“The language clearly mandates a transition to the elected candidates at the first opportunity after the 10 days allowed for a recount,” said Parish in reading the opinion provided by James aloud for council.
“Even if one were trying to contend that the outgoing council could meet during the recount period, Section 12 of the MGA clearly prohibits them from meeting after the recount period.”
Parish informed council on Nov. 12 that he intended to table a motion in a week’s time calling for another legal opinion on the matter.
“I will ask for a motion at that meeting that the county retain a Nova Scotia solicitor experienced in municipal law to provide us with a second opinion to that of Mr. Gillis on the validity of the motions passed by council after the election,” he said.
Potential impacts to Gordonstoun activity
The warden said he’ll also be tabling a motion calling for payments to Gordonstoun Nova Scotia developer E. A. Farren Limited and other parties related to the project to cease pending further direction from council.
“The lease and the deed, I believe, were signed and delivered on Nov. 4, the day of the meeting, and they may be found to be null and void,” said Parish, referring to actions approved by two motions approved by the previous council on Nov. 4.
Parish also informed council that he intends to put forward a motion that would call on the chief administrative officer to direct the parties involved with the proposed development to stop working on the project until further direction comes from council.
“This is to reduce any potential damages which might arise if the council meetings after the election are deemed illegal,” he said, later noting that he is more concerned about the legitimacy of the Oct. 28 and Nov. 4 meetings than the session that occurred within the recount period on Oct. 20.
Concerns raised during Nov. 4 meeting
The special council called to, in part, discuss the lease agreement with Gordonstoun Nova Scotia on Nov. 4 started with several council members weighing in on whether or not the meeting should take place.
Gillis, who participated in the meeting as the county’s municipal solicitor, assured the group that it was OK to proceed.
“It’s absolutely permissible. This council still has full authority to do anything you could before… so it’s entirely appropriate,” he said.
Coun. Wendy Sheridan said she was going to call a point of order after hearing from concerned citizens and reviewing Section 12 of the Municipal Government Act. She told council that she didn’t feel comfortable proceeding without further clarification.
“I don’t feel comfortable doing this to the new councillors coming in,” she said. “I’m one of the ones that will be working with them. I want to go in graciously and respectfully and do the right thing. I can’t support the question today.”
Gunn, then speaking as acouncillor, echoed concerns about the discussion occurring prior to the new council coming in.
“The decisions that are being made are going to be worn by the new council,” he said, later adding that he felt nervous about making decisions during the meeting.
Timothy Habinski, speaking as the outgoing warden, said that the council of the day still had authority until the new group was sworn in.
“I don’t think we’re on shaky ground here at all,” he said.
Gordonstoun motions passed
The group ultimately voted 7-4 in favour of going in-camera to proceed with the agenda items. Two motions relating to the Gordonstoun Nova Scotia development were approved in open session following the in-camera meeting. The first, read aloud by Gillis, stated “that the officers be authorized to execute the lease to E.A. Farren, Limited as presented to the council in-camera today.” It was passed with a vote of 7-4, with the primary opposition expressed relating to the timing of the meeting more than the level of support for the project.
Gunn, who voted nay along with Sheridan, outgoing deputy warden Martha Roberts and outgoing Coun. Burt McNeil, said he’s nearly 100 per cent in favour of the project but “Mr. Farren has yet to present himself to council and I think that’s important.”
The second successful Gordonstoun motion, carried by a vote of 6-5, says “that on execution of the lease to E.A. Farren, Limited, the municipality shall convey the remaining property to E.A. Farren, Limited.”
