By Roy L Hales
Cortes Island Director Noba Anderson violated an agreement that one of her land partners would communicate with staff regarding the subdivision of her property on Cortes Island, according to the Strathcona Regional District (SRD).
Anderson’s lawyer, Matthew Voell, pointed out that staff made a request, which Anderson acknowledged receipt of – that is not an agreement. He produced a long stream of emails demonstrating that staff repeatedly initiated the direct contacts with Anderson. Voell maintained that Anderson ‘communicated with Regional District staff in her personal capacity and not in her role as a director,’ used her personal email address, and ‘almost always copied her land partner Ms. Lovena Harvey.’
Though the SRD lawyer, Kathryn Stuart, was present, there is no public record of any presentations she may have made (They would have been in the closed session). At the close of their Jan. 27 meeting, the SRD Board referred the matter to their legal council before deciding whether to proceed with the motion to seek legal action to have Anderson disqualified from holding office.
“The key requirement...for a breach of section 102, is that the board member must not use their office to attempt to influence a staff member in respect to a decision being made … It does not prohibit a board member from acting in a personal capacity with respect to their property, rather there has to be an attempt to leverage their position as a Director. To use the language from 102, ‘use his or her office to influence a decision,” explained Voell.
“This is somewhat of a unique situation because there are a number of owners. Imagine a situation where there is only one owner and that owner is a board member. Of course the board member is entitled, in their personal capacity and not as a board member, to engage with staff in the issues involving their property," he added.
Voell then added that there was "a little bit of miscommunication and a little bit of confusion about how the conflict and insider influence provisions work together, but also remain separate and distinct. We can see that in the Chair’s letter and also the staff report."
“Abram/Cornfield: SAD 51/21 THAT Director Anderson be advised that on January 27, 2021 the Board will be considering a motion to authorize an application to the Supreme Court that she be disqualified from holding office on the basis that she has violated the relevant provisions of the Community Charter and Local Government Act regarding inside influence and that she has the right to present a defence at that time through her legal counsel.”
“This issue came to the Board’s attention as a result of an email dated December 17, 2020 that was sent by Director Anderson to a staff member in which she asked that person to delay his review of the referral package from the Approving Officer for the Ministry of Transportation and Infrastructure in relation to a subdivision application for a Cortes Island property that she owns together with other parties. The parties had earlier agreed that all communications between the Regional District and the property owners would be handled by somebody other than Director Anderson in order to avoid conflicts of interest.”
The email in question was sent to an SRD staff member, John Neill:
"John: I am sorry this whole application isn’t more straightforward. We have been unable to get any direct information out of MoTi [Ministry of Transportation and Infrastructure] on what they would accept as far as roads go for our application, and it seemed the only way to get that was through an on site visit, which they would not do until all the referrals were in. That is why we paid our referral fee and asked you to proceed. I just got a call from MoTi today saying that they are now willing to have a call with us and our development consultant in January to really go over options. They are not willing to proceed as submitted …So unless you have already completed the referral, it would be wonderful if you could hold off until the new year. All the very best to you. Warmly, Noba," Anderson wrote.
Voell said that she had written that because Anderson believed it was going to be a "waste of time."
“She said that because it was going to be a waste of time. The application to the Ministry, that she had sent with the other landowners, on a personal basis, was going to be changing. So this would be a waste of Mr. Neill’s time and the landowner’s money because they weren’t proceeding with the current application. They were going to change it. There is nothing in this email that suggests Noba was communicating in any capacity other than as a owner of the land,” explained Voell.
Regional Director Jim Abram pointed out that Neill received an email from a director, not a person, and that email made him feel uncomfortable.
“She is asking him to hold off in doing his job, that is reprehensible,” he said.
Voell replied to the statement made by Abram.
“That’s certainly not in the material before you and if the board has considered any material from Mr. Neill saying that he was uncomfortable and did not disclose that material to Director Anderson before making a decision today, that is a serious breach of procedural fairness and certainly would be ground to quash any decision by the board," Abram.
Overview of correspondence
Voell gave an overview of the SRD’s correspondence with the landowners, showing that they were directly contacting Anderson:
- In March 2019 SRD staff advised the landowners, including Anderson, that they would have to decide to remove or alter dwellings, apply for a rezoning from the SRD or for a subdivision from the Province.
- On March 8, 2019 Mr. Neill emailed Anderson about her possible application to amend the Zoning Bylaw. He emailed her at her email email@example.com.
- On March 9, 2019, Anderson emailed Neill from her personal email firstname.lastname@example.org and specifically stated “
lease when communicating about this matter, which is a personal one rather than one in my RD role, use my personal email address here” which Neill acknowledged by return email.
- Various emails were exchanged between the landowners (including Anderson) and SRD staff relating to the property in 2019.
- In July 2019, the owners decided to proceed with a subdivision application to the province and advised SRD staff of this fact. Anderson was part of this communication
- In 2019, the owners took various steps to advance the subdivision application, and the subdivision application was submitted to the province in February 2020. After various back and forth with the province final documents and fees were completed in October 2020.
- On Oct. 27, 2020, Neill emailed Anderson, unprompted and on his own initiative, enclosing an SRD invoice for the MoTI referral package (Attachment Page 9). 1
- Anderson responded on Oct. 27, copying Ms. Harvey (Attachment Page 10).
- The parties then exchanged emails on Oct. 27, 28 and 30. With respect to this correspondence:
- a. All of this email communication was to and from Anderson's personal email address, as per her request in March 2019;
- b. Harvey was copied on all emails from Anderson to Neill;
- c. Neill regularly replied to Anderson directly and did not copy Harvey, and every time Anderson would reply copying Harvey;
- d. All of the correspondence uses the plural term “we” referencing all of the landowners in question; and
- e. None of the correspondence suggested that Anderson was communicating in any capacity other than as an owner of the land.
- The same thing happened again on Nov. 3, 2020 and Nov. 24, 2020 when, without any prompt Neill emailed Anderson and she responded copying Harvey. These emails related to the timing of the SRD’s response to a referral from MoTI.
Campbell River Director Claire Moglove asked about the "blurring of roles" in the director and councillor roles.
“What do you say to the argument or suggestion that I’ve heard in the past that, yes councillors and/or directors can operate in a personal capacity, but when it comes to relations with staff … because of the position of power … there is this blurring of roles. What do you say to that?” Moglove asked.
Voell replied to the Campbell River Director.
“We do not get to overrule legislation here. The Legislative Assembly decides what the law is. We interpret it and we act based on that legislation. The legislation says there is room for a Director acting in their personal capacity providing they don’t use their office. We can’t say because there might be blurring of office, there is no room for a director to engage with staff on personal matters. There has to be room for it, so we look to the communication," Voell said.
“… I’ve taken you through a number of examples of why we say it is clear she was acting in a personal capacity, The use of the plural ‘we.’ The fact she was communicating with her personal email address. The fact that every time Mr. Neill would reply or send an email only to Noba, she wrote the point person back in. Those, to me, are indicia that this falls within the room contemplated by legislation," Voell continued.
The OCP email on March 9, 2019
Regional Director Brenda Leigh said that in one of the emails, Anderson instructed staff not to do an OCP change.
“I don’t think that any private citizen would be able to instruct a staff member to do that,” she said.
Voell responded to Leigh's statement.
“I think you have to look at the (March 9, 2019) email to see if there is, in fact, instruction. So let’s do that.”
“ … This is a response to Mr. Neill saying the fee for amending the zoning bylaw will be $2,000. There is no need to amend the OCP. That’s what Mr. Neill wrote to her. She wrote back saying, this is a personal matter. Then she said:
“I would respectfully disagree about the need to apply for an OCP amendment …”
Voell pointed out, “the Regional District is not applying for an OCP amendment, that’s not instructing him to do anything.”
“ … as we went through this on Quadra – and then again with Cortes Senior’s application. Although the OCP text strongly supports the kind of we …” he added.
Voell pointed out that this ‘we’ did not refer to the board, but Anderson and her fellow landowners:
“ … would apply for, the map does not, and I strongly believe that we would need to update the OCP map layer concurrently to stay out of the sticky situations that we have been in ..”
“Who’s been in the ‘sticky situations’? Not the board, the landowners. So she is not instructing him, I disagree with that assertion, and she doesn’t tell him to do anything,” said Voell.
Leigh responded by stating that private citizens may not know about the OCP.
“With respect, a private citizen wouldn’t know anything about the OCP on Quadra or the Cortes Senior’s application in detail. There, she is acting as a director,” said Leigh.
Voell responded to Leigh on this point.
“With respect director Leigh, I know about that and I am not a director. That is just simply inaccurate," Voell said.
Where are the rules laid out?
“I would like to know in either the Community Charter or Local Government Act, does it identify how an elected official can step in and out of their role, when dealing with staff on a conflicting issue," Chair Brad Unger asked.
Voell replied to Unger's question.
“The answer is Section 102 Chair, it says it right there. They must not use his or her office. It doesn’t provide prescriptions. It doesn’t say you can use your personal email address, but not your office email. Or you can say it by email, but you can’t say it in person. Or it can only be for the CAO and not the corporate officer. It doesn’t give specific descriptions. What you are required to do, as the administrative tribunal here, is [decide] what is the reasonable – or correct – interpretation of this section?” replied Voell.
“The Board needs to decide, based on these materials before you and specifically with respect to the December 17th email … was Director Anderson using her office to influence, unduly, a decision, an action or recommendation?”
Chair Brad Unger thanked Mr. Voell for his presentation.
The two lawyers, Matthew Voell and Kathryn Stuart, left the meeting.
Following the public meeting, the board held a restricted session.