Tehkummah councillors alerted recent motions may be ‘illegal’ since council vacancy remains

Tehkummah Council photo by Michael Erskine

TEHKUMMAH—Tehkummah clerk-treasurer Karen Gerrard cautioned council at a special meeting held November 21 that any council motions made following November 10 could be overturned because council “broke the law” by failing to fill the vacant council seat following former councillor Laird Lee’s resignation within the mandatory period required by legislation.

Ms. Gerrard provided reeve and council with a memo concerning correspondence she had received from the municipal solicitor on not filling the vacant council seat.

“Council should know that they may be acting in bad faith and in breach of their fiduciary duties which could impose personal liability to each of them,” the memo reads in part. “Council is advised that future decisions could be jeopardized due to its failure to act and disregard for its clear obligations under the Municipal Act, 2001.”

“If council wilfully ignores its obligations under the statutes, there may also be the question of whether the members are acting in bad faith and in breach of their fiduciary duties and responsibilities to the electorate,” the memo continues.

“With regards to filling a vacancy on council: the statute itself does not set out a remedy as the requirement to fill a vacancy on council is mandatory. Interestingly, even if council eventually fills the vacancy, it will still have been in breach of the Act after November 10, 2017, but we’re not certain what consequences that failure may have created, if any,” the memo states.

“Ramifications of this failure to comply with the Municipal Act in filling a vacant seat or by not paying for the property repairs, or by failing to adhere to its own bylaws and policies, may jeopardize any decisions made by council by potentially rendering them voidable if someone should challenge any bylaws or resolutions enacted.

“Council cannot believe that it can continue to operate as normal,” the memo stresses.

“Any qualified elector can go and challenge council business,” Ms. Gerrard told council.

It was noted that a vacant council seat does not have to be filled if it falls six months prior to the next election. This instance falls outside of that scope, however, as the next election is almost a year away.

There was much discussion, and confusion, over the inability to vote on a motion to overturn a vote regarding how to deal with the vacant seat, which Councillor Paul Bowerman attempted to do at council’s regular meeting held earlier this month.

Councillor Lori Leeson accused Ms. Gerrard of leading them to believe falsehoods about filling the vacant seat. Ms. Gerrard pointed to the Municipal Act and what it states concerning the subject.

With this new information in hand, Reeve Eric Russell asked council if they wished to go ahead with the meeting.

“I’m willing to go forward,” Councillor Bowerman said. “I’m not afraid of anything I’ve done.”

“I’ve tried to represent everybody fairly,” the councillor added. “I always thought of everybody else when sitting at this table,” going on to note that he’s been “threatened, bullied, discriminated against and intimidated.”

In reference to Councillor Bowerman trying to overturn his vote, Reeve Russell said he thought that while the motion had to be made by someone on the prevailing side, it is not clear whether whoever seconds Councillor Bowerman’s proposed vote has previously had to be on a particular side too.

Councillor Ron Hierons asked what was wrong with holding an election. “It would have been over and done by now,” he said, noting that this is how council had filled a vacancy during the last term of council.

“Because it was three years until the next election,” Councillor Leeson responded.

Reeve Russell asked the clerk-treasurer why items he asked to be put on the agenda were being left off. Debate followed on whether it was an intentional move, with Ms. Gerrard assuring the reeve that it was not.

When reeve and council got to the business of approving the agenda, Councillor Bowerman said that he would not approve the agenda because he too failed to see items on the agenda that he had requested to be there, well in advance.

The meeting went ahead.