BY-LAW 2024-42 “Rules of Procedure” or “Procedural By-law”

August 22, 2024

To: Clerk Jeff Bunn & Councillors

The following is deemed to be official correspondence for attachment to the Official Minutes of the August 26, 2024 Township of Wilmot Council Meeting.

It also forms the substance of my delegation on item 14.1, By-laws, By-law 2024-42 which I will make in person. Place me on the agenda, of August 26, 2024, please.

The following are identified problematic issues within the present wording of the proposed By-law 2024-42, and are referenced by clause numbers.

2.6.1 (page 12) The Clerk/Committee Administrator will be the secretary of all Council or Committee Meetings as appropriate and will record the proceedings of the Meetings in the form of Minutes…” SUPERB!

2.6.3 (page 13) The Clerk/Committee Administrator as appropriate will endeavour to post the Minutes to the Township website within 72 hours (seventy-two) hours of the meeting, but no later than 2 Business Days before the next meeting…. One day is insufficient notice. In the past agenda items and Minutes have been posted at 5:00 pm on a Friday prior to a meeting on a Monday. THIS SHOULD BE AT LEAST 2 BUSINESS DAYS PRIOR, and preferably 10 days prior TO…

3.3 (page 17) DUTY OF MEMBERS

(i) Prepare for Meetings, including reviewing the Agenda and associated materials provided prior to the Meeting. This preparation may include consultations with professional members of the Corporation’s staff for any required clarification of terms’ and concepts’ meanings, financial and other implications of agenda items, and with constituents for input as deemed appropriate by the member.

4.3 (page 19) Seating Arrangement in Council Chamber

(i) Councillors will be seated to the left of the Mayor in the Council Chambers in Ward Number order. For wards with more than one Councillor, those Members will be seated in alphabetical order by last name.

(ii) The Clerk will be seated to the immediate left of the Mayor, between the Mayor and the Ward One councillor. (A position mandated by the OMA)

(iii) The Chief Financial Officer will be seated to the immediate right of the Mayor. (A position mandated by the OMA)

(iv) The Fire Chief will be seated to the immediate right of the CFO.

(v) Any other officers or Department Directors that may be hired by the will of Council (per the OMA), will be seated to the right of the Fire Chief. (This includes all Department Directors, and a CAO, as all these positions are optional per the OMA)

4.6 (page 19) What do the terms “Mx.”, or “Ind.” Mean? Do we have a choice of referring to anyone by the label of our choice, or will their identification be placed on their name tag?

4.7.2 (page 19) The Agenda for the Inaugural Meeting will be established by the Mayor, CAO and the Clerk… I hope this means that no formal “business” will occur at this meeting because the elected Councillors have had no input.  

4.10 (page 20) Regular Meetings of Council – Election Year

(i) During the year of a regular election, there will be no scheduled Council Meetings for the month(s) (sic) of September and October.

(ii) During the “Lame Duck” period between when an election is called and a new Council elected and seated, there will be no actions nor expenditures taken by any employee of the Township Corporation that have not been specifically authorized by the previous Council PRIOR TO THE LAME DUCK PERIOD.

4.15 (page 21) Regular Meetings – Late Additions

4.15.1 (page 21) Late addition reports, associated materials, and By-laws for an already-published Agenda must be approved by the Chief Administrative Officer Mayor, after consultation with the CAO for Council Meetings, or Department Head responsible for the committee in the case of Committee Meetings; and must be submitted in writing to the Clerk/Committee Administrator, Councillors and the CAO not later than 4 (four) hours in advance of the Meeting.

4.15.2 (page 21) Only reports and associated materials or By-laws that are time sensitive or deemed necessary by the Mayor, after consultation with the Chief Administrative Officer for Council Meetings, or Department Head responsible for the Committee, to be included on an agenda that is already published will be accepted as late additions to the Agenda.

4,23 (page 25) Consent Agenda – Council

4.23.1 (page 25) In preparing the Agenda for Council Meetings, the Mayor, Councillors, the Clerk, the Chief Financial Officer or the Chief Administrative officer may identify items to place under the heading “Consent Agenda”. (NOTE: 4.23.5 allows Councillors to remove an item from the Agenda, but NOT TO ADD an item in the first place. The Agenda belongs to the Corporation’s elected Council – the CEO and Executive Board-, not hired Administrators.) The first step in representing the will of the shareholders (tax payers) is to control the Agenda, what gets discussed.

4.23.6 (page 25) The Consent Agenda may include reports of a general nature, but is not limited to the following routine items:

This is bureaucratic speak for sure. “may “include, but maybe not. “but is not limited to the following routine items” Which means the CAO could put on the Consent agenda anything he/she/Mx/Ind wanted. Thus, the time period for Council meetings is already dominated by the CAO’s office. Let me repeat, The Agenda belongs to the Corporation’s elected Council – the CEO and Executive Board-  not hired Administrators.

 PART 5 CLOSED MEETINGS

5.3.2 (page 28) The Clerk, and CFO as appropriate, will attend all Closed Meetings of Council. Where the CAO has determined it is not appropriate for the Clerk to be in attendance for an item, the Clerk must delegate their authority in writing and in advance of the Meeting to the CAO or other as authorized by the CAO.

THIS IS BOGUS!!! and an affront to the OMA which specifically requires the existence of a Clerk. The Clerk does not have to be an employee of the corporation, but a Clerk MUST exist. The Clerk is trained in all aspects of Municipal government and an official record of ALL PROCEEDINGS must be kept by the Clerk.

The OMA provides for the Clerk to delegate their powers and duties to any person, but it does not specify the recipient of the authority must be the CAO. For the CAO to “determine that it is not appropriate for the Clerk to attend”, and then also grant those powers and duties onto themselves is a blatant conflict of interest, a potential source of undue influence, and probable abuse of authority as an administrator, not being a corporate executive body member (CEO and Executive Board).

The OMA specifies that a Chief Administrative Officer, “MAY” be hired by a Municipal corporation, but it is NOT a requirement, it is an OPTIONAL POSITION.

It is not legislated that a CAO exist in the first place, nor that it is essential that a CAO attend any or all meetings of the corporation. HOWEVER, IT IS LEGISLATED AND ESSENTIAL FOR “DUE PROCESS” OF THE CORPORATION’S BUSINESS THAT A RECORD BE CREATED, MAINTAINED AND PUBLISHED BY THE CLERK.

 If a CAO dictates that the Clerk cannot be present, then there is no official record. The CAO cannot be permitted to arbitrarily assume the powers and duties of the Clerk onto themselves. We do not have self-anointed Kings, nor do we have self-appointed Clerk’s. It’s “wrong”!

 Clauses 5.7.1 and 5.7.3, for examples, preclude the removal of the Clerk from a Closed Meeting. 5.2.3 is in contradiction of those stated needs of the Senior Executive Team (Mayor and Council).

THERE IS NO WAY ON THIS GREEN EARTH THAT THIS CLAUSE CAN BE ALLOWED TO BE INCLUDED. THIS HAS ALL THE POTENTIAL FOR AN ARBITRARY ASSUMPTION OF POWER AND AUTHORITY TO ANY CAO WHO WANTS TO CONTROL A MEETING BY WHIM!

THIS IS SHOCKING IN THE EXTREME!

I can’t make this point any bigger or any louder. Don’t do this!!!!!! Eliminate the second sentence entirely!

5.7.1…(page 29) If Closed Meeting Agendas and reports are circulated by hardcopy, the Clerk/Committee Administrator will collect all the materials for destruction at the adjournment of the Closed Meeting.

This is, perhaps, an oxymoron – saying one thing which is the opposite of the other. In 5.2.3, above, the CAO can arbitrarily remove the Clerk from keeping a legally required record at a meeting, but in 5.7.1, it is required that the absent official, the Clerk, must collect and dispose of any materials distributed. 5.2.3 has to be amended by elimination of the second sentence entirely.

5.7.3 (page 29) In preparing the Agenda, the Clerk/Committee Administrator will identify the most amount of detail possible to allow for Members to consult with the Integrity Commissioner with respect to identifying a potential conflict of interest. The Clerk has a role in conjunction with the integrity commissioner, but is not allowed into the meeting? 5.2.3 as written is, if not stupidity, then counter-intuitive!

5.8.1 (page 30) Minutes of all or part of a Closed Meeting will be recorded by the Clerk, subsequently approved in open session, and then retained. BUT, 5.2.3 says the CAO can kick the Clerk out? 5.23. as written is, if not stupidity, then counter-intuitive!

5.8.2 (page 30) Minutes of all or part of a Closed Meeting will only be made available to the whole of the Members, the Clerk, the Chief Administrative Officer, and those staff or their designate who were in attendance for their individual item. Minutes of Closed Meetings may be open to inspection by any member of the public subject to the conditions specified in 5.8.1.  Minutes of Closed Meetings may be disclosed to new Township staff at the written approval and direction of the Chief Executive Officer, Mayor, after consultation with the Chief Administrative Officer.

The wording in separate clauses contradicts the wording in another. A legal document, such as a By-law must have cohesion, and logical integrity. This version DOES NOT HAVE EITHER!

PART 6 PRESENTATIONS, ETC

6.1.3 (page 31) The Clerk or the Chief Administrative Officer reserves the right to determine what is acceptable or unacceptable materials per Sections 6.2 and 6.3. The Clerk is trained to know what is legally acceptable. A CAO is trained in administration (or simply hired out of a clerical pool at the will of Council) and is not an authorized “judge” of materials. A CAO often has a vested interest in agenda items proceeding along a path which is deemed appropriate by that CAO. There is a strong potential for bias to enter into any CAO’s arbitrary decision about which facts, evidence are “presentable” for the Council and shareholders (public) to receive. This may be evidenced when a CAO includes as recommendations in a report, those items or directions that the CAO prefers or assumes from previous Councils, but does not include recommendations that reflect the direction given to the Council by the corporation’s shareholders during an intervening election, and as reflected in discussions and delegations at Council meetings. This may be considered as mis-direction by omission, rather than manipulation by commission, but it could be, in effect, both.

“He who controls access to information, controls knowledge. He who controls knowledge controls power.”

THE CAO IS AN OPTIONAL POSITION UNDER THE OMA FOR A REASON. CAOs are administrators, not arbitrators of “acceptable” or “unacceptable” materials which may advocate for an outcome different than that preferred by an administrator. This has all the potential for intellectual censorship by a CAO. The Clerk, only, needs to be the independent arbitrator.

6.2.2 (i) (page 31) Must have received prior approval by the Mayor Chief Administrative Officeror Clerk to appear before Council or Department Head to appear before a Committee;

6.2.2 (ii) (page 32) confirms the role of the Clerk and Department Head and eliminated the CAO as is appropriate.

6.4 (page 33) General Interest Delegations

6.4.1 General Interest Delegations may register to speak to matters that are of general interest in the Township of Wilmot.

6.4.4 (page 33) The Clerk shall have the authority to determine if the subject matter does in fact relate specifically to a matter contained in the Regular Meeting Agenda for purposes of allowing or denying the Delegation and the Clerk will introduce such Delegation Request Form(s) at the time of adopting the Published Agenda. Here we go again. If it’s not on the Agenda, and presently the Agenda is controlled by the CAO’s office, then one cannot delegate on a topic within the jurisdiction of Council.

6.6 (page 36) Written Submissions

6.6.1 Members of the public may submit Written Comments regarding any item on the Agenda that is not listed as a Public Meeting item, subject to the following.

What does this mean?

The public can submit written documents regarding any item on the Agenda BUT IS NOT LISTED AS A PUBLIC MEETING ITEM. What’s the difference between an Agenda item and a Public Meeting item? 

This section 6 changes nothing from present practice. Regardless of what format one chooses, presentation, delegation, etc. etc. the item must be on the Meeting’s Agenda. There is provision in this proposed By-law for an agenda to be amended with 4 hours’ notice, but a shareholder (Public) must submit all their thoughts, in writing, with attachments, 5 Business Days prior to a Meeting.

This shareholder’s conclusion is that a bureaucrat has produced another 58 pages of ways to restrict or prevent Wilmot citizen’s from being heard.

 This document, as presented, contains inconsistencies and contradictory items. Bureaucrats love inconsistencies, because they can latch on whichever one they want to back up a position on a matter – regardless of whether an contradictory statement is elsewhere in the same document. 

This proposed By-law contains many problematic items.

There are clauses which contradict each other and thus subject to mis-interpretation or erroneous interpretation.

There are clauses that contradict the separation of duties and powers between the elected Executive Board of Directors which is superior (Mayor and Council) and the Corporation’s body of hired administrators which are inferior.

I remind Council of the contents of this By-law where it states on pages 5 and 6:

“WHEREAS Section 5 (1) of the Municipal Act, 2001, S.O., c. 25 as amended, states the powers of a municipality shall be exercised by its council;”

“AND WHEREAS the Township of Wilmot Accountability and transparency Policy states that accountability, transparency and openness are standards of good governance that enhance [public trust and are achieved through the municipality adopting measures ensuring, to the best of its ability, that all activities and services are undertaken utilizing a process that is open and accessible to its stakeholders;”

“AND WHEREAS the general principles of parliamentary law should be upheld in the rules of any meeting, these rules are based on a regard for the rights of:

  • the majority,
  • the minority, especially a strong minority – greater than one third,
  • of individual members,
  • of absentees, and
  • of all these together.” 

Therefore, as a shareholder in the Corporation of the Township of Wilmot, I request that its Chief Executive Officer and its Executive Board do one of the following:

  • Defeat this motion. OR
  • Refer the motion back to the Clerk for editing. OR
  • Defer the passing of the By-law motion for further consideration. OR
  • Defer third reading of the By-law motion indefinitely. OR
  • Postpone third reading of the By-law motion until a time after which Councillors in consultation with the Manager of Legislative Services and the Municipal Clerk’s Office have had an opportunity to identify and amend problematic items within the present version, and no later than the October General meeting of the Council.

 Personally, I prefer #5.

Get it fixed, and get it done!

Respectfully submitted,

Barry Wolfe,Baden