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BIA, town still at loggerheads over broken contract, BIA rep challenged
12 August 2010
Just before we went in camera, Monday, I asked Councillor Jeffrey if she had voted to pull the the BIA out of the contract it signed with the town. She said yes and indicated it was a unanimous vote (although it was not made clear who was at that meeting).
At that point, the mayor took over and shoved the rest of the discussion behind closed doors.
While some of that heated debate probably belonged there, how someone voted in a public meeting did not. I think that section should have been held in public. Instead we had an angry 90-plus minute "discussion" about it behind closed doors.
The public only knows, because I asked and she answered before we went in camera, that council's representative on the BIA - Kathy Jeffrey - voted against the town's interests in a matter that has many legal and social ramifications. How, for example, can a board withdraw from a legal, financial commitment it made to the community?
Aren't we elected to promote and defend the town's interests, not the interests of a board or committee? I always thought so.
The public already knew from the stories in the media last week that council was caught completely off-guard by the letter the BIA chair sent to the province, accusing the town of not living up to its side of the agreement. The letter declaring the BIA's withdrawal from the agreement - from a signed, legally binding contract - was sent to the provincial representatives of the project (OMAFRA), and later to council (did our BIA rep see it before we did?).
A no point in this project's history did our council rep tell the rest of us there was any problem, that there was any contention between the BIA and the town over the project, the hiring process, the terms of reference, or the management of the person hired to oversee this project. We had no inkling there was any issue at all, until this letter arrived in our in-boxes.
Nor did she inform us that a vote on withdrawing from the contract was coming forward, or later how she voted, or why she chose to side with the BIA against the town's interests.
In short, council was blindsided and embarrassed by the allegations made in the letter. Allegations that, I might add, will be challenged by the town as untrue. I contend our BIA rep has to shoulder the responsibility for not keeping the rest of council informed before the situation came to this impasse.
Let's clear a few things up. The BIA is a product of the municipality like any board or committee. It has a limited amount of independence, similar to what a municipal service board has. But the town has to oversee and approve its board and budget, and the town can actually set the BIA levies (and that means the town has the power to reduce them - keep that in mind if you BIA members are looking for an election issue to raise his fall).
Sections 204 to 216 of the Municipal Act contain the framework that allows a municipality to create and regulate a BIA:
That's a fairly limited focus, but the wording is open to interpretation as to what "promote" means. In the past it has meant the BIA has engaged in OMB challenges against developments that threaten its interests. More recently, it has meant the BIA has developed its own branding outside the town's efforts to do so. Not that these are wrong, just examples of the scope of interpretation.
The BIA, its role, authority and responsibility is further defined by the town's enabling bylaw. That bylaw further lays out what the BIA can and has to do, but essentially repeats what the Municipal Act says.
One distinct item in the bylaw requires the BIA to present the town clerk with the minutes of each meeting. That hasn't been done, nor did our BIA rep see fit to forward them to the rest of council, so we were unaware the board had issues with this project.
Further, the Municipal Act states (emphasis added):
So the town sets the rates, and approves the budget; we can remove items, but cannot add items to it. As I read it - and the reiteration of this in the bylaw - if the BIA pulls out of this agreement, that affects their budget (it's $25,000 a year they won't be spending). So the BIA will have to resubmit a budget to council for approval, rather than the money being spent on anything else (the BIA in fact CANNOT spend it on anything else without council's permission).
Council can even decide to have that money returned to the members, if we wish. BIA members, take note!
There's no reason the town cannot have more than one representative on the BIA board (it requires a minor adjustment to the bylaw which stipulates one rep).
In fact, given the current situation, it might be wise for council to intervene and appoint at least one more member for the remainder of the term to help prevent this sort of communication breakdown from happening again (we already have two council reps on housing, library, airport and other boards - why not on the BIA?):
And it is the town, not the members or the board, that approves the composition of the board, although the members:
But the BIA is not a permanent institution and both council and BIA members have the right to repeal the bylaw and thus dissolve the BIA:
In other words, BIA members can themselves request the dissolution of the organization, but it requires at least a third of the members to request it, then it needs at least half to say they agree. Not that I'm suggesting we dissolve the BIA, merely making the point that it can be done if members get that upset with their board over, say, the patio issue.
At that point, the mayor took over and shoved the rest of the discussion behind closed doors.
While some of that heated debate probably belonged there, how someone voted in a public meeting did not. I think that section should have been held in public. Instead we had an angry 90-plus minute "discussion" about it behind closed doors.
The public only knows, because I asked and she answered before we went in camera, that council's representative on the BIA - Kathy Jeffrey - voted against the town's interests in a matter that has many legal and social ramifications. How, for example, can a board withdraw from a legal, financial commitment it made to the community?
The public already knew from the stories in the media last week that council was caught completely off-guard by the letter the BIA chair sent to the province, accusing the town of not living up to its side of the agreement. The letter declaring the BIA's withdrawal from the agreement - from a signed, legally binding contract - was sent to the provincial representatives of the project (OMAFRA), and later to council (did our BIA rep see it before we did?).
A no point in this project's history did our council rep tell the rest of us there was any problem, that there was any contention between the BIA and the town over the project, the hiring process, the terms of reference, or the management of the person hired to oversee this project. We had no inkling there was any issue at all, until this letter arrived in our in-boxes.
Nor did she inform us that a vote on withdrawing from the contract was coming forward, or later how she voted, or why she chose to side with the BIA against the town's interests.
In short, council was blindsided and embarrassed by the allegations made in the letter. Allegations that, I might add, will be challenged by the town as untrue. I contend our BIA rep has to shoulder the responsibility for not keeping the rest of council informed before the situation came to this impasse.
Let's clear a few things up. The BIA is a product of the municipality like any board or committee. It has a limited amount of independence, similar to what a municipal service board has. But the town has to oversee and approve its board and budget, and the town can actually set the BIA levies (and that means the town has the power to reduce them - keep that in mind if you BIA members are looking for an election issue to raise his fall).
Sections 204 to 216 of the Municipal Act contain the framework that allows a municipality to create and regulate a BIA:
Quote
...to oversee the improvement, beautification and maintenance of municipally-owned land, buildings and structures in the area beyond that provided at the expense of the municipality generally; and
(b) to promote the area as a business or shopping area. 2001, c. 25, s. 204 (1).
(b) to promote the area as a business or shopping area. 2001, c. 25, s. 204 (1).
That's a fairly limited focus, but the wording is open to interpretation as to what "promote" means. In the past it has meant the BIA has engaged in OMB challenges against developments that threaten its interests. More recently, it has meant the BIA has developed its own branding outside the town's efforts to do so. Not that these are wrong, just examples of the scope of interpretation.
The BIA, its role, authority and responsibility is further defined by the town's enabling bylaw. That bylaw further lays out what the BIA can and has to do, but essentially repeats what the Municipal Act says.
One distinct item in the bylaw requires the BIA to present the town clerk with the minutes of each meeting. That hasn't been done, nor did our BIA rep see fit to forward them to the rest of council, so we were unaware the board had issues with this project.
Further, the Municipal Act states (emphasis added):
Quote
Budget
205. (1) A board of management shall prepare a proposed budget for each fiscal year by the date and in the form required by the municipality and shall hold one or more meetings of the members of the improvement area for discussion of the proposed budget. 2002, c. 17, Sched. A, s. 40 (1).
Council to approve
(2) A board of management shall submit the budget to council by the date and in the form required by the municipality and the municipality may approve it in whole or in part but may not add expenditures to it. 2001, c. 25, s. 205 (2); 2002, c. 17, Sched. A, s. 40 (2).
Limitations
(3) A board of management shall not,
(a) spend any money unless it is included in the budget approved by the municipality or in a reserve fund established under section 417;
(b) incur any indebtedness extending beyond the current year without the prior approval of the municipality; or
( c ) borrow money. 2001, c. 25, s. 205 (3).
Limitations on power
(4) Section 65 of the Ontario Municipal Board Act and section 401 of this Act apply to the municipality's approval under clause (3) (b) in the same manner as if it were incurring a debt of the municipality. 2001, c. 25, s. 205 (4).
Funds to be raised
208. (1) The municipality shall annually raise the amount required for the purposes of a board of management, including any interest payable by the municipality on money borrowed by it for the purposes of the board of management. 2001, c. 25, s. 208 (1).
Special charge
(2) The municipality may establish a special charge for the amount referred to in subsection (1),
(a) by levy upon rateable property in the improvement area that is in a prescribed business property class; or
(b) by levy upon rateable property in the improvement area that is in a prescribed business property class and that, in council's opinion, derives special benefit from the improvement area, which levy may be calculated using different percentages of the assessment for one or more separately assessed properties or categories of separately assessed properties in the prescribed class if the resulting levy is equitable in accordance with the benefits that, in council's opinion, accrue to the properties from the activities related to the improvement area. 2001, c. 25, s. 208 (2).
Minimum and maximum charges
(3) The municipality may establish a minimum or maximum charge or both, expressed for one or more separately assessed properties or categories of separately assessed properties in a prescribed class, as,
(a) percentages of the assessed value of rateable property in the improvement area that is in a prescribed business property class;
(b) dollar amounts; or
( c ) percentages of the board of management's annual budget. 2001, c. 25, s. 208 (3).
205. (1) A board of management shall prepare a proposed budget for each fiscal year by the date and in the form required by the municipality and shall hold one or more meetings of the members of the improvement area for discussion of the proposed budget. 2002, c. 17, Sched. A, s. 40 (1).
Council to approve
(2) A board of management shall submit the budget to council by the date and in the form required by the municipality and the municipality may approve it in whole or in part but may not add expenditures to it. 2001, c. 25, s. 205 (2); 2002, c. 17, Sched. A, s. 40 (2).
Limitations
(3) A board of management shall not,
(a) spend any money unless it is included in the budget approved by the municipality or in a reserve fund established under section 417;
(b) incur any indebtedness extending beyond the current year without the prior approval of the municipality; or
( c ) borrow money. 2001, c. 25, s. 205 (3).
Limitations on power
(4) Section 65 of the Ontario Municipal Board Act and section 401 of this Act apply to the municipality's approval under clause (3) (b) in the same manner as if it were incurring a debt of the municipality. 2001, c. 25, s. 205 (4).
Funds to be raised
208. (1) The municipality shall annually raise the amount required for the purposes of a board of management, including any interest payable by the municipality on money borrowed by it for the purposes of the board of management. 2001, c. 25, s. 208 (1).
Special charge
(2) The municipality may establish a special charge for the amount referred to in subsection (1),
(a) by levy upon rateable property in the improvement area that is in a prescribed business property class; or
(b) by levy upon rateable property in the improvement area that is in a prescribed business property class and that, in council's opinion, derives special benefit from the improvement area, which levy may be calculated using different percentages of the assessment for one or more separately assessed properties or categories of separately assessed properties in the prescribed class if the resulting levy is equitable in accordance with the benefits that, in council's opinion, accrue to the properties from the activities related to the improvement area. 2001, c. 25, s. 208 (2).
Minimum and maximum charges
(3) The municipality may establish a minimum or maximum charge or both, expressed for one or more separately assessed properties or categories of separately assessed properties in a prescribed class, as,
(a) percentages of the assessed value of rateable property in the improvement area that is in a prescribed business property class;
(b) dollar amounts; or
( c ) percentages of the board of management's annual budget. 2001, c. 25, s. 208 (3).
So the town sets the rates, and approves the budget; we can remove items, but cannot add items to it. As I read it - and the reiteration of this in the bylaw - if the BIA pulls out of this agreement, that affects their budget (it's $25,000 a year they won't be spending). So the BIA will have to resubmit a budget to council for approval, rather than the money being spent on anything else (the BIA in fact CANNOT spend it on anything else without council's permission).
Council can even decide to have that money returned to the members, if we wish. BIA members, take note!
There's no reason the town cannot have more than one representative on the BIA board (it requires a minor adjustment to the bylaw which stipulates one rep).
In fact, given the current situation, it might be wise for council to intervene and appoint at least one more member for the remainder of the term to help prevent this sort of communication breakdown from happening again (we already have two council reps on housing, library, airport and other boards - why not on the BIA?):
Quote
Composition
(3) A board of management shall be composed of,
(a) one or more directors appointed directly by the municipality; and
(b) the remaining directors selected by a vote of the membership of the improvement area and appointed by the municipality. 2001, c. 25, s. 204 (3).
(3) A board of management shall be composed of,
(a) one or more directors appointed directly by the municipality; and
(b) the remaining directors selected by a vote of the membership of the improvement area and appointed by the municipality. 2001, c. 25, s. 204 (3).
And it is the town, not the members or the board, that approves the composition of the board, although the members:
Quote
Refusal to appoint
(9) The municipality may refuse to appoint a person selected by the members of an improvement area, in which case the municipality may leave the position vacant or direct that a meeting of the members of the improvement area be held to elect or select another candidate for the municipality's consideration. 2001, c. 25, s. 204 (9).
Term
(10) The term of the directors of a board of management is the same as the term of the council that appointed them but continues until their successors are appointed. 2001, c. 25, s. 204 (10).
Reappointment
(11) Directors are eligible for reappointment. 2001, c. 25, s. 204 (11).
Vacancies
(12) Subject to subsection (9), if a vacancy occurs for any cause, the municipality may appoint a person to fill the vacancy for the unexpired portion of the term and the appointed person is not required to be a member of the improvement area. 2001, c. 25, s. 204 (12).
(9) The municipality may refuse to appoint a person selected by the members of an improvement area, in which case the municipality may leave the position vacant or direct that a meeting of the members of the improvement area be held to elect or select another candidate for the municipality's consideration. 2001, c. 25, s. 204 (9).
Term
(10) The term of the directors of a board of management is the same as the term of the council that appointed them but continues until their successors are appointed. 2001, c. 25, s. 204 (10).
Reappointment
(11) Directors are eligible for reappointment. 2001, c. 25, s. 204 (11).
Vacancies
(12) Subject to subsection (9), if a vacancy occurs for any cause, the municipality may appoint a person to fill the vacancy for the unexpired portion of the term and the appointed person is not required to be a member of the improvement area. 2001, c. 25, s. 204 (12).
But the BIA is not a permanent institution and both council and BIA members have the right to repeal the bylaw and thus dissolve the BIA:
Quote
Repeal of by-law
211. (1) Council shall give notice in accordance with subsection 210 (1) of a proposed by-law to repeal a by-law under subsection 204 (1) if the municipality has received,
(a) a resolution from the board of management requesting the repeal; or
(b) a request for the repeal signed by persons who are responsible for at least one-third of the taxes levied for purposes of the general local municipality levy on rateable property in all prescribed business property classes in the improvement area. 2001, c. 25, s. 211 (1).
Statement
(2) A person signing a request under clause (1) (b) shall state what amount of taxes on rateable property in the area that the person is required to pay. 2001, c. 25, s. 211 (2).
Time
(3) Council shall give the notice within 60 days after receiving the resolution or request. 2001, c. 25, s. 211 (3).
Repeal
(4) Council shall repeal the by-law under subsection 204 (1) if requests for the repeal are received by the clerk of the municipality within 60 days after the last day of mailing of the notices and,
(a) the requests have been signed by at least one-half of the total number of persons entitled to notice under subsection 210 (1) and under clause 210 (2) (a); and
(b) those who have signed the requests are responsible for at least 50 per cent of the taxes levied for purposes of the general local municipality levy on rateable property in all prescribed business property classes in the improvement area. 2001, c. 25, s. 211 (4).
211. (1) Council shall give notice in accordance with subsection 210 (1) of a proposed by-law to repeal a by-law under subsection 204 (1) if the municipality has received,
(a) a resolution from the board of management requesting the repeal; or
(b) a request for the repeal signed by persons who are responsible for at least one-third of the taxes levied for purposes of the general local municipality levy on rateable property in all prescribed business property classes in the improvement area. 2001, c. 25, s. 211 (1).
Statement
(2) A person signing a request under clause (1) (b) shall state what amount of taxes on rateable property in the area that the person is required to pay. 2001, c. 25, s. 211 (2).
Time
(3) Council shall give the notice within 60 days after receiving the resolution or request. 2001, c. 25, s. 211 (3).
Repeal
(4) Council shall repeal the by-law under subsection 204 (1) if requests for the repeal are received by the clerk of the municipality within 60 days after the last day of mailing of the notices and,
(a) the requests have been signed by at least one-half of the total number of persons entitled to notice under subsection 210 (1) and under clause 210 (2) (a); and
(b) those who have signed the requests are responsible for at least 50 per cent of the taxes levied for purposes of the general local municipality levy on rateable property in all prescribed business property classes in the improvement area. 2001, c. 25, s. 211 (4).
In other words, BIA members can themselves request the dissolution of the organization, but it requires at least a third of the members to request it, then it needs at least half to say they agree. Not that I'm suggesting we dissolve the BIA, merely making the point that it can be done if members get that upset with their board over, say, the patio issue.
This latest BIA fiasco is simply a petty power play. After all the only ones to benefit from the program in question are BIA members. The ones to get hurt by any legal action are BIA members. If the BIA board is unable or unwilling to resolve the issues, then the board should resign and let calmer heads prevail.
I think the bigger issue is the role Jeffery played. Her job is to act as liaison between council and the BIA. Again, she did not do her job. What kind of a mayor would she make with such poor communication skills and poor judgment. I would suggest not a very effective one.