In Michetti v. Pouce Coupe (Village) 2022 BCSC 472, the BC Supreme Court confirmed that a municipal Council owes a duty of procedural fairness to individual Council members (including the Mayor) whenever Council’s decisions affect the rights, privileges or interests of the individual member, even if there are misconduct allegations. The court confirmed that the content of the duty of fairness depends on the circumstances; however, the underlying notion of procedural fairness is to ensure that Council decisions affecting one member are made using a fair and open procedure, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the Council.
This decision stands as a reminder of the care that a municipal Council must exercise in making decisions that affect an individual’s interests, as well as the importance of thorough and timely training for Council members.
The underlying dispute in this case stemmed from a controversial Facebook post made by the Village’s Mayor in February 2021, which drew criticism from Village Council members and the public. In response to this Facebook post, the Village Council initially resolved, at a special meeting, to suspend the Mayor from all public duties and requested that the Mayor resign. Two Council members also resigned, which triggered the need for a by-election.
In May 2021, the Mayor applied to court for a judicial review of Council’s resolution to suspend the Mayor. Th e Village ultimately accepted that the resolution was invalid on the basis that Council had not involved the Mayor in calling the special meeting and had not provided sufficient notice.
Two new Council members were elected in a by-election in September 2021.
Approximately 2.5 weeks after the by-election, the Village Council resolved to remove the Mayor from various portfolios at a regular Council meeting. Th e portfolios related to several entities including the Peace River Regional District, RCMP and South Peace Health. The Council member assigned to a particular portfolio serves as a liaison between the Council and the particular entity.
One of the new Council members made the motion when the agenda item relating to assigning the portfolios was called, and the motion did not specifically appear on the meeting agenda. The Mayor alleged she felt “ambushed” by the motion.
Although the Village argued in court that the Council’s decision to remove the Mayor from the portfolios was not a form of censure or based on misconduct, the court concluded otherwise in finding that the decision was made to effectively censure and sanction the Mayor in relation to the Facebook post. Furthermore, the court found that the resolution prevented the Mayor from participating in the decision-making process for assigning portfolios; therefore, the duty of procedural fairness was triggered. In other words, the Mayor’s rights or interests were impacted. As for the content of the duty, the court remarked that the Mayor “should have been notified of her alleged misconduct in a timely manner, the evidentiary basis and the rationale for the allegation, whether based in the Code of Conduct or otherwise, and provided a meaningful opportunity to address the alleged misconduct.”
Ultimately, the court concluded that the Council had breached the duty of procedural fairness that it owed the Mayor and quashed Council’s motion.
A local government’s Council or Board decision can impact an individual’s rights, and in those circumstances the Council/Board must afford adequate notice to the individual, as well as the opportunity to be heard, before making its decision. Sanctioning an individual Council/Board member for misconduct is particularly fraught with risk in terms of the basis and procedure for doing so. Orientation for elected officials is valuable, but it’s equally important to ensure that legal and procedural information is covered. For example, consider including the following topics in Council/Board orientation:
- Procedural requirements for calling meetings, preparing agenda and proposing and passing resolutions;
- The duty of procedural fairness (when is it triggered and what does it entail?); and
- Does the Council/Board have a code of conduct, and if so what does it say?
Content originally drafted by Devin Buchanan for the LGMA and published in the quarterly LGMA EXCHANGE Summer 2022.