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Damn the iceberg, full speed ahead!
16 December 2009
[indent]
If a couple of our councillors were captain of the Titanic, I suspect they'd still chart a course full speed ahead after being told about the iceberg. That would be "new information" after all, and once a decision has been made, nothing should be allowed to change it, even when disaster looms.
Monday's lengthy wrangling over the procedural bylaw amendment I proposed was about allowing a change to the way things get reconsidered by council, and allow our municipal Titanic to change course when icebergs are reported.
While debates over procedure are very interesting and exciting to some of us, for most council watchers they're pretty dry stuff. Our procedural bylaw forms the vertebra that holds council up and it's very important that we make sure it's up to the job, but it probably sounds like the angels-dancing-on-pinheads sort of argument for outsiders.
A little background is necessary. Our previous procedural bylaw (2004) contained this clause (emphasis added):
That section about new information allowed a decision to be debated if something unforeseen or previously unknown, came up. Unfortunately, this was a little too loose and allowed debates to be rekindled almost indefinitely. The bylaw, rewritten in 2006, was much more comprehensive, but the section on new information was dropped:
A few notes on this new section. First, it restricts reconsideration to only once in a 12-month period. So in order to open up a debate again, unless you can convince two-thirds of council to agree, you have to wait until a year has passed. Second, it says that decisions of a previous council can be reopened, even if the 12 months haven't passed. That's how the mayor and his supporters were able to reopen the Admiral Collingwood debate in early 2007, even though it had been approved by the previous council less than a year before. To me, that's a quagmire of instability.
But there's nothing to allow a debate to be reopened if new information is received. And that's what happened last month, when the discussion over the location of downtown patios came back to the table.
Council had approved the basic downtown design last April, but as several of us recall it, patio location was left up in the air after comments about liability and others issues were voiced. We assumed it was still open to debate at a later point. Although council was assured that the Alcohol and Gaming Commission was on-board with this move, it turned out not to be, and in the interim, new restrictions and conditions - as well as additional costs - were placed on the move from building-side to curbside.
So in September, I asked for a staff report on this new information (requests for staff reports are all voted on by council) and how it would affect businesses and the town's liability. The minutes clearly say this was for "further consideration of patio locations." The CAO reported back with a recommendation in November, based on concerns from restaurateurs and liability issues, not to move licensed patios.
That annoyed the proponents of the move (mostly Councillors Jeffrey and McNabb*) who felt council was reconsidering an issue that had already been decided on, in a way that violated the procedural bylaw. Several of us argued the opposite, saying that the patio issue had not been decided on, merely postponed, when it was first presented, so reconsideration was not necessary.
So the mayor, clerk and CAO went into a 20-minute huddle to discuss it. When they returned, the mayor determined that, given the previous minutes and council's approval of my staff report request, that reconsideration was already underway. The mayor's decision was upheld by a majority of council.**
Well, that generated a kerfuffle of disagreement from McNabb as he tried to get his head around it. He demanded a legal opinion (your tax dollars at work) which he obviously hoped would prove the mayor wrong. Our lawyer provided an opinion that said, basically, the mayor was right. You can read it here.
Mr. Longo is wrong in one comment however: council did vote on the request for a staff report, as we always do.
My amendment to the procedural bylaw was intended to prevent such collisions by bringing back the provision for a debate to be reopened if new information has been received that could have substantially affected the decision. The AGCO report was such new information. Information about the onerous costs, licensing changes and liability of moving the patios was not presented when the debate was first opened, and could likely have changed how people saw the issue.
What I proposed (as massaged by the clerk) was (emphasis added):
But Jeffrey and McNabb argued against my amendment, suggesting that this would allow all sorts of spurious demands for reconsideration to bring back issues from the past. Both argued that the current bylaw was sufficient and that council should not change course once a decision had been made (somewhat ironic, coming as it it did from two who voted to repeal the permission granted the Admiral Collingwood development by the last council!).
Hence my Titanic analogy. Council has to be flexible, not hidebound. We have to be able to react to new information, to changes, to both opportunities and liabilities. The idea that we can make a decision, then stand by it against all opposition, even when it proves to be wrong, is clearly nuts. We're here to serve the people, not dictate.
We cannot govern like ostriches with our heads in the sand. We have to be able to respond as required. And if that means reopening a debate, even a contentious one, and changing our minds, so be it. Fortunately, the amendment passed.
The patio issue, however, won't be decided until January.
~~~~~
* McNabb's opposition came as a surprise. At the beginning of the meeting, when Mr. Longo was discussing his legal opinion, he mentioned my amendment as a possible solution to these procedural issues. McNabb then publicly acknowledged he was unaware the amendment was even included in the agenda. Despite not having read it, he still argued against it.
** Whenever a disagreement over interpretation of procedure arises, the bylaw says the mayor can make a ruling on that process. This can be challenged by council and put to a vote (which was done this time). A simple majority determines whether the mayor's ruling is accepted. Councillor Jeffrey argued this allowed the mayor to overturn the rule demanding a two-thirds majority for reconsideration, so was basically unfair. She wanted that percentage also increased to two-thirds. However, as I noted, there were others at the table who did not see this as a matter of reconsideration, but rather that the patio issue had not been decided, so was an ongoing issue.[/indent]
Monday's lengthy wrangling over the procedural bylaw amendment I proposed was about allowing a change to the way things get reconsidered by council, and allow our municipal Titanic to change course when icebergs are reported.
While debates over procedure are very interesting and exciting to some of us, for most council watchers they're pretty dry stuff. Our procedural bylaw forms the vertebra that holds council up and it's very important that we make sure it's up to the job, but it probably sounds like the angels-dancing-on-pinheads sort of argument for outsiders.
A little background is necessary. Our previous procedural bylaw (2004) contained this clause (emphasis added):
Quote
26.5 Reconsideration of a Council decision:
a) After a resolution has been passed, any member of Council who voted with the majority in respect of such motion, may give notice of a motion for consideration at the next regular meeting. The motion to reconsider shall only be seconded by a member of Council who voted with the majority;
b) No discussion on the main motion shall be allowed unless new information is shown to be brought forward or a mistake in procedure can be shown to have occurred.
c) After a notice of motion to reconsider has been made and accepted, no action shall be taken to carry into effect the main motion until after the motion to reconsider has been disposed of.
a) After a resolution has been passed, any member of Council who voted with the majority in respect of such motion, may give notice of a motion for consideration at the next regular meeting. The motion to reconsider shall only be seconded by a member of Council who voted with the majority;
b) No discussion on the main motion shall be allowed unless new information is shown to be brought forward or a mistake in procedure can be shown to have occurred.
c) After a notice of motion to reconsider has been made and accepted, no action shall be taken to carry into effect the main motion until after the motion to reconsider has been disposed of.
That section about new information allowed a decision to be debated if something unforeseen or previously unknown, came up. Unfortunately, this was a little too loose and allowed debates to be rekindled almost indefinitely. The bylaw, rewritten in 2006, was much more comprehensive, but the section on new information was dropped:
Quote
14.0 RECONSIDERATION
14.1 Introduction by majority voter - exception
A motion to reconsider a decided matter shall only be moved and seconded by two Members who voted with the majority on the original motion, unless the original motion was defeated by a tie vote, than one Member voting in support and one Member voting in the opposition of the original motion may move and second the motion. A Member absent is not entitled to move or second a motion for reconsideration.
14.2 Reconsideration two-thirds (2/3) vote Whole Council required
A motion to reconsider a decided matter shall require the approval of two-thirds vote of the whole Council.
14.3 Reconsideration - qualifications
A motion to reconsider:
(a) is not debatable;
(b) is not amendable;
© cannot be considered if the action approved in the motion cannot be reversed;
(d) suspends action on the motion to which it applies until it has been decided.
14.4 Members responsible determination how voted
Each Member of Council shall be responsible for making a determination on how the Member voted on a specific matter. The Clerk shall not record or note in the Minutes how a member votes unless a request for a Recorded Vote has been made.
14.5 Reconsideration once twelve months - debate
No motion shall be reconsidered more than once during a period of twelve (12) months following the date on which the question was decided.
No debate on a motion to reconsider a decided matter shall be permitted; however the mover of a motion to reconsider may provide or may make a brief and concise statement outlining the reasons for proposing such reconsideration.
14.6 Affirmative vote original matter next business
If a motion to reconsider is decided in the affirmative at a meeting, then consideration of the original matter shall become the next order of business.
14.7 Succeeding Council not reconsideration
When a question is brought before a succeeding Council, it shall be deemed to be new business and not a matter of reconsideration.
14.1 Introduction by majority voter - exception
A motion to reconsider a decided matter shall only be moved and seconded by two Members who voted with the majority on the original motion, unless the original motion was defeated by a tie vote, than one Member voting in support and one Member voting in the opposition of the original motion may move and second the motion. A Member absent is not entitled to move or second a motion for reconsideration.
14.2 Reconsideration two-thirds (2/3) vote Whole Council required
A motion to reconsider a decided matter shall require the approval of two-thirds vote of the whole Council.
14.3 Reconsideration - qualifications
A motion to reconsider:
(a) is not debatable;
(b) is not amendable;
© cannot be considered if the action approved in the motion cannot be reversed;
(d) suspends action on the motion to which it applies until it has been decided.
14.4 Members responsible determination how voted
Each Member of Council shall be responsible for making a determination on how the Member voted on a specific matter. The Clerk shall not record or note in the Minutes how a member votes unless a request for a Recorded Vote has been made.
14.5 Reconsideration once twelve months - debate
No motion shall be reconsidered more than once during a period of twelve (12) months following the date on which the question was decided.
No debate on a motion to reconsider a decided matter shall be permitted; however the mover of a motion to reconsider may provide or may make a brief and concise statement outlining the reasons for proposing such reconsideration.
14.6 Affirmative vote original matter next business
If a motion to reconsider is decided in the affirmative at a meeting, then consideration of the original matter shall become the next order of business.
14.7 Succeeding Council not reconsideration
When a question is brought before a succeeding Council, it shall be deemed to be new business and not a matter of reconsideration.
A few notes on this new section. First, it restricts reconsideration to only once in a 12-month period. So in order to open up a debate again, unless you can convince two-thirds of council to agree, you have to wait until a year has passed. Second, it says that decisions of a previous council can be reopened, even if the 12 months haven't passed. That's how the mayor and his supporters were able to reopen the Admiral Collingwood debate in early 2007, even though it had been approved by the previous council less than a year before. To me, that's a quagmire of instability.
But there's nothing to allow a debate to be reopened if new information is received. And that's what happened last month, when the discussion over the location of downtown patios came back to the table.
Council had approved the basic downtown design last April, but as several of us recall it, patio location was left up in the air after comments about liability and others issues were voiced. We assumed it was still open to debate at a later point. Although council was assured that the Alcohol and Gaming Commission was on-board with this move, it turned out not to be, and in the interim, new restrictions and conditions - as well as additional costs - were placed on the move from building-side to curbside.
So in September, I asked for a staff report on this new information (requests for staff reports are all voted on by council) and how it would affect businesses and the town's liability. The minutes clearly say this was for "further consideration of patio locations." The CAO reported back with a recommendation in November, based on concerns from restaurateurs and liability issues, not to move licensed patios.
That annoyed the proponents of the move (mostly Councillors Jeffrey and McNabb*) who felt council was reconsidering an issue that had already been decided on, in a way that violated the procedural bylaw. Several of us argued the opposite, saying that the patio issue had not been decided on, merely postponed, when it was first presented, so reconsideration was not necessary.
So the mayor, clerk and CAO went into a 20-minute huddle to discuss it. When they returned, the mayor determined that, given the previous minutes and council's approval of my staff report request, that reconsideration was already underway. The mayor's decision was upheld by a majority of council.**
Well, that generated a kerfuffle of disagreement from McNabb as he tried to get his head around it. He demanded a legal opinion (your tax dollars at work) which he obviously hoped would prove the mayor wrong. Our lawyer provided an opinion that said, basically, the mayor was right. You can read it here.
Mr. Longo is wrong in one comment however: council did vote on the request for a staff report, as we always do.
My amendment to the procedural bylaw was intended to prevent such collisions by bringing back the provision for a debate to be reopened if new information has been received that could have substantially affected the decision. The AGCO report was such new information. Information about the onerous costs, licensing changes and liability of moving the patios was not presented when the debate was first opened, and could likely have changed how people saw the issue.
What I proposed (as massaged by the clerk) was (emphasis added):
Quote
THAT the following replace Section 14.5 entitled Reconsideration two-thirds (2/3) vote Whole Council Required
Reconsideration two-thirds (2/3) Vote Whole Council Required
A motion to reconsider a decided matter shall require the approval of two-thirds vote of the whole Council, unless new information is brought forward that might have reasonably affected the debate or the decision, or a mistake in procedure can be shown to have occurred.
The Chief Administrative Officer and/or the Clerk shall decide whether the new information or mistake in procedure warrants reconsideration more than once in a twelve month period. The reconsideration based on new information or a mistake in procedure will require a simple majority of the Whole Council.
2. THAT the following replace paragraph two of Section 14.5 entitled Reconsideration once twelve months debate of By-law 2006-120:
No motion shall be reconsidered more than once during a period of twelve (12) months following the date on which the question was originally decided unless new information is brought forward that might have reasonably affected the debate or the decision, or a mistake in procedure can be shown to have occurred, pursuant to Section 14.2.
No debate on a motion to reconsider a decided matter shall be permitted; however the mover of a motion to reconsider may provide or may make a brief and concise statement outlining the reasons for proposing such reconsideration.
3. THAT By-law 2006-120 Section 1.0 - Definitions be amended to include the following:
By-law No. 2009-125 Procedural By-law Amendment Scheduled Meetings/Committee of the Whole 161 of 163
By-law No. 2009-125 Procedural By-law Amendment Scheduled Meetings/Committee of the Whole
New Information shall mean information that has not been previously presented or considered during the original debate and vote on the decided matter. The information must be new; credible; and otherwise not known nor available at the time of the original presentation, debate or decision; and could have affected such presentation, debate or decision. New information may include but not be limited to: a report from the Town Solicitor or Consultant; unsolicited proposal; or, an offer to purchase or sell.
Reconsideration two-thirds (2/3) Vote Whole Council Required
A motion to reconsider a decided matter shall require the approval of two-thirds vote of the whole Council, unless new information is brought forward that might have reasonably affected the debate or the decision, or a mistake in procedure can be shown to have occurred.
The Chief Administrative Officer and/or the Clerk shall decide whether the new information or mistake in procedure warrants reconsideration more than once in a twelve month period. The reconsideration based on new information or a mistake in procedure will require a simple majority of the Whole Council.
2. THAT the following replace paragraph two of Section 14.5 entitled Reconsideration once twelve months debate of By-law 2006-120:
No motion shall be reconsidered more than once during a period of twelve (12) months following the date on which the question was originally decided unless new information is brought forward that might have reasonably affected the debate or the decision, or a mistake in procedure can be shown to have occurred, pursuant to Section 14.2.
No debate on a motion to reconsider a decided matter shall be permitted; however the mover of a motion to reconsider may provide or may make a brief and concise statement outlining the reasons for proposing such reconsideration.
3. THAT By-law 2006-120 Section 1.0 - Definitions be amended to include the following:
By-law No. 2009-125 Procedural By-law Amendment Scheduled Meetings/Committee of the Whole 161 of 163
By-law No. 2009-125 Procedural By-law Amendment Scheduled Meetings/Committee of the Whole
New Information shall mean information that has not been previously presented or considered during the original debate and vote on the decided matter. The information must be new; credible; and otherwise not known nor available at the time of the original presentation, debate or decision; and could have affected such presentation, debate or decision. New information may include but not be limited to: a report from the Town Solicitor or Consultant; unsolicited proposal; or, an offer to purchase or sell.
But Jeffrey and McNabb argued against my amendment, suggesting that this would allow all sorts of spurious demands for reconsideration to bring back issues from the past. Both argued that the current bylaw was sufficient and that council should not change course once a decision had been made (somewhat ironic, coming as it it did from two who voted to repeal the permission granted the Admiral Collingwood development by the last council!).
Hence my Titanic analogy. Council has to be flexible, not hidebound. We have to be able to react to new information, to changes, to both opportunities and liabilities. The idea that we can make a decision, then stand by it against all opposition, even when it proves to be wrong, is clearly nuts. We're here to serve the people, not dictate.
We cannot govern like ostriches with our heads in the sand. We have to be able to respond as required. And if that means reopening a debate, even a contentious one, and changing our minds, so be it. Fortunately, the amendment passed.
The patio issue, however, won't be decided until January.
~~~~~
* McNabb's opposition came as a surprise. At the beginning of the meeting, when Mr. Longo was discussing his legal opinion, he mentioned my amendment as a possible solution to these procedural issues. McNabb then publicly acknowledged he was unaware the amendment was even included in the agenda. Despite not having read it, he still argued against it.
** Whenever a disagreement over interpretation of procedure arises, the bylaw says the mayor can make a ruling on that process. This can be challenged by council and put to a vote (which was done this time). A simple majority determines whether the mayor's ruling is accepted. Councillor Jeffrey argued this allowed the mayor to overturn the rule demanding a two-thirds majority for reconsideration, so was basically unfair. She wanted that percentage also increased to two-thirds. However, as I noted, there were others at the table who did not see this as a matter of reconsideration, but rather that the patio issue had not been decided, so was an ongoing issue.[/indent]
