Wednesday, January 20, 2016

L'Affaire Tom Price: Who is Setting the Agenda in Greater Sudbury?

Public participation in our democratic processes is a sign of healthy discourse in communities.  When voices are heard, the community benefits - even in circumstances where decision-makers and others may not be in agreement with the message coming from those voices.  Discourse, however, helps build consensus on important matters.  Protecting the public's ability to provide input is something that all those concerned about the health of our local democracies should value.

Earlier this week at Greater Sudbury's Operations Committee (a committee of Council), one of those voices was silenced by an elected official - the Chair of Operations Committee.  Tom Price, who has been described as a "consultant", "shit disturber" and "enlightened member of the public", had been scheduled to give an abbreviated version of his presentation on the Maley Drive Extension.  Mr. Price has been one of the more vocal opponents in our community to the new Maley road project.


To communicate his points effectively, Mr. Price developed a Power Point presentation over a year ago.  He's given his presentation to community members and organizations.  A copy of his presentation has been available on YouTube now for some time.   Price's presentation is well worth watching, in my opinion, as it provides additional information about the Maley project which largely has filtered out to the public through the City or through local media.  

Believing that our Council would benefit from hearing his presentation, Price decided that he would approach Council through the community delegation process in order to be heard.

Eventually, Price was invited by the City's Clerk, Caroline Hallsworth, to give an abbreviated (10 minute) version of his presentation to Operations Committee on January 18th.  It's not clear why he was directed to Operations Committee, but the City's Procedural By-law gives the Clerk some discretion with regards to whether a deputation is heard at all, and if so, whether that's by Council or a Committee of Council (see Section 11.04 of By-law 2011-235).

However, when the Agenda for the Operations Committee meeting came out in advance of the Monday, January 18th date, Price's community delegation was not on it.  Price instead sat in the audience on Monday, watching the goings-on at Operations Committee.

Operations Committee Meeting

And what goings-on there were!  Almost at the outset of the meeting, questions were being asked by Council members of the Operations Committee regarding why Price's presentation wasn't on the agenda.   

The Northern Life reports that Committee Chair, Ward 5 Councillor Robert Kirwan said, “In discussing the agenda for tonight with staff a number of things came up, that in my view, made it inappropriate for tonight. So after the discussion it was decided that it would not be tonight, that's the only reason that I can give at this point and I accept full responsibility because it's up to the chair to decide what's on the agenda, but in discussion with staff and due to information that came up it was decided that it's not appropriate tonight.”  (see: "Ops committee clashes over questions of transparency," the Northern Life, January 18, 2016).

Kirwan's reluctance to provide his fellow Operations Committee members with a more fulsome explanation regarding why Price was left off of the agenda led some to wonder aloud just what was going on. 

Ward 3 Councillor Gerry Montpellier hit the nail on the head, in my opinion, when he asked (as reported by the Northern Life) that he was "...actually a little offended that I belong to a committee that goes around telling me that I can't be divulged of why something's been changed, or was omitted or brought in. The fact that I hear you're not privy or we can't divulge why something has been happening one way or the other and that truly is my comment."  A healthy democracy requires that our decision-makers be informed.  No one should be left in the dark.


As reported by the Northern Life, Ward 5 Councillor Evelyn Dutrisac followed up by asking about the timing of Price's presentation: "If not tonight, then when?". No answers were given to Councillor Dutrisac's germane question.  The fact is, we keep hearing that the federal government will be announcing whether they'll be providing funding to the Maley Drive project any day now.  If Council is going to decide whether it ought to revisit Maley Drive, Council really should do so sooner rather than later, for a number of reasons (not least of which includes the embarrassment of being seen to turn down federal infrastructure funds that have been put on the table).  To come to any decision, clearly its in Council's interest to have as much information as they can get, in my opinion.  

And Council has been asking for certain information from staff about the Maley project which doesn't appear to be forthcoming.  The status of a "business case" for Maley was raised again on Monday, but apparently staff have been too busy with the budget to action this item (see my earlier blogpost about the missing business case, "Is There a Business Case for the Maley Drive Extension?" Sudbury Steve May, January 19, 2016).  Every day that information isn't forthcoming is one more day in which postponing a decision could make the Maley project a fait accompli.

Procedural By-Law

Later in the meeting, Ward 10 Councilor Fern Cormier brought out the rule book - the City's Procedural By-law.  Quoting Section 6.01 of the By-law, the section pertaining to the Chair's authority, and indicating that this section was "silent" on whether or not the Chair has the authority to influence agenda items - or set them.

Section 6.01 reads, "The Chair of a meeting shall ensure that decorum, proper conduct and the Rules of Procedure contained herein are observed, and is authorized to rule on all points of order, questions of privilege, points of information and other matters relating to this

This part of the Procedural By-law indicates that it's the Chair's job to make sure the rules are followed at meetings.  But with regards to who actually sets the agenda, Councillor Cormier is correct - the section is silent.

Setting the Agenda

Section 6.01 is likely silent on who sets the agenda because this matter is covered off in Section 9.01, which reads, "The Clerk shall prepare the agendas of all meetings of Council and Committees in accordance with the provisions contained in this Part, and shall distribute the agendas in accordance with Article 8." (emphasis added by me).  Regarding changes to the agenda, Section 9.04 gives only the Clerk the authority to make changes/revisions to the agenda up until 12pm on the business day prior to the meeting.

Clearly, setting the agenda is the Clerk's responsibility - despite statements made to Operations Committee by its Chair on Monday, in which he claimed that it's "up to the chair to decide what's on the agenda".  The Chair does not have a role in setting the agenda.  While nothing prohibits the Clerk from consulting with the Chair (or with anyone, for that matter), it's up to the Clerk to determine which items are on the agenda - and which are left off. 

Community Delegations

The Clerk also has a role to play for "community delegations" such as the one proposed by Tom Price.  The by-law is clear: community delegations shall be heard by a Committee, an Advisory Panel or by Council, unless the Clerk determines that the delegation is an inappropriate item to be added to agenda (see Section 11.04, Clerk's Options).  If the item is appropriate, the Clerk shall "include it as an item on the agenda for the appropriate meeting" (Section 11.04 sub 1).  Basically, the Clerk gets to play gatekeeper with community delegations, but even where a delegation is not authorized by the Clerk to speak, the Clerk must provide Councillor's with the delegations supporting documentation, or refer a request to staff for action.

In this specific case, we know that the Clerk had determined that the appropriate meeting was the Operations Committee meeting of Monday, January 18th, because the Clerk advised Price of that fact.  To get to that point, Price had followed the application process for a community delegation, which ultimately led to his request to speak to Council (or the Operations Committee) being approved by the Clerk.

And yet the Clerk changed her mind, and Price was left off of the agenda.  What happened?

Behind the Scenes

Although not forthcoming at the Operations Committee, Councillor Kirwan shed some additional light on the series of events in a post he made to the Valley East Facebook Group, a group moderated by Kirwan in which he often posts and comments on City business.  In that post, Councillor Kirwan indicated that, "[Manager of Infrastructure] Mr. Cecutti asked for an opportunity to make a presentation after Mr. Price's so that he could respond to a lot of facts that Mr. Price would be presenting that were not supported by the evidence and data that the City has. Because Mr. Cecutti was not going to be able to be ready for January 18, he asked for the presentation by Mr. Price to be delayed. It was a reasonable request so the Clerk was asked for her opinion. She indicated that it would be up to me, so I told her that I would rather have Mr. Price make his presentation at a later time."

That seems pretty reasonable, doesn't it?  If a community delegation is going to speak about a matter, doesn't it make sense that Staff be given time to prepare a rebuttal - especially if there are concerns being raised by staff that some of the "facts" being presented are disputed.  It could certainly lead to some lively debate between staff and the delegation!

Well, actually the City's Procedural By-law has something to say about what staff's role is with regards to community delegations.  Section 11.08 sub 5 reads, "After the conclusion of the presentation and questions to the community delegation, [Committee/Council/Advisory Panel] Members shall be permitted to ask questions to staff."

According to the Proedural By-law, staff's ability to respond to a community delegation is actually limited to those circumstances only where Staff are directly asked questions by Committee members.  Staff isn't afforded the opportunity to prepare its own rebuttal presentation in advance of a community delegation - although that could also happen, I suppose, if Staff were able to have their own item placed on the agenda (which the Procedural By-law also contemplates in Section 9.02, "Items from Staff", in which approval from the CAO is required for staff items to be brought forward).

So perhaps delaying a Committee's hearing a community delegation because Staff need an unspecified amount of time to prepare a rebuttal isn't so reasonable after all - especially if the outcome is to silence the community delegation, and deny the deponent an opportunity to be heard by the Committee.


Although discussion at the Operations Committee table appears to have suggested that there was no violation of the Procedural By-law over a belief that there was room for interpretation in setting the agenda, that's not the way that I see it.  A closer look at the Procedural By-law suggests to me that the Clerk made a significant error in not including Tom Price on the Agenda.

The Clerk is required by the Community Delegations section of the by-law to provide time (a maximum of 10 minutes) to a community delegation at an appropriate meeting (which the Clerk must determine) unless the Clerk decides that the delegation is inappropriate.  In this case, the Clerk decided that the delegation was appropriate for Operations Committee to hear, and she notified Price that his delegation would be heard at the meeting of Monday, January 18, 2016.

The Clerk, who is completely responsible for the preparation of the Agenda, then omitted Price's delegation.  This is where the contravention appears to me to have occurred.  While the Chair of the Operations Committee eventually offered an explanation as to the series of events which led to the Clerk to omit Price from the Agenda, and despite that the Chair is now indicating that the Clerk said to him the decision to include Price on the agenda or not would be in the Chair's hands, the City's Procedural By-law is clear about who has the responsibility for setting the agenda and dealing with community delegations.

Intentions - Good or Otherwise

Look, I understand that those involved in this matter might sincerely believe that their intentions were good.  At the Committee meeting, Chair Kirwan brought up the idea that it may be in Council's interest to listen to a broad range of opinions on Maley Drive in certain circumstances, rather than just to one deponent.  I absolutely agree with and support his idea, especially since so very little public consultation occurred prior to past Council's selecting the Maley project as our City's Number 1 (and only) priority for infrastructure funding under the Building Canada program.

But 'l'affaire Tom Price' actually has very little to do with Maley Drive.  It has more to do with who has the power to decide which voices are heard at the Council table - and which ones are silenced.  Our City has a Procedural By-law to provide guidance on these matters, and it appears that for this specific matter, that guidance wasn't followed.  While I understand that not every circumstance is going to be a good fit for the Procedural By-law's guidance, this matter with Tom Price appears to me to be one which was a good fit.  Routine, in fact.

Price applied to be heard.  The Clerk did her job and advised Price to whom he would be speaking and when.  Price should have been afforded the maximum 10 minutes given to community delegations to say his piece to Operations Committee on Monday, January 18, 2016 - but it seems that behind-the-scenes discussions between staff and elected officials derailed his presentation, and led to Operations Committee not having the benefit of hearing his delegation.  Not only was Price left off of the agenda, but no time was set to have him give his 10 minute delegation in the future.  

Going Forward

Price was silenced by backroom maneuvering which appears to have taken place outside of the bounds of the City's Procedural By-law.  Even if the intentions of everyone involved were good, there really is no good excuse for the City to contravene its own procedures as established by the by-law.  At Monday's Operations Committee, Councillor Cormier opined that, "in the past, we err on the side of democracy and allow community delegations because information is never a bad thing and there's no such thing as too much information." If you err on the side of democracy too often, chances are that local democracy flourishes.

Whether it was the Chair who "made the decision" as he now claims, the By-law is clear that setting the agenda is the responsibility of the Clerk.  Our Clerk must step forward and take responsibility for the series of events which led to Tom Price sitting on the sidelines at Monday's Operations Committee.

And perhaps, in the future, the Clerk should be left to perform her responsibilities free and clear of interference from Staff who might feel slighted or unprepared by remarks made by a community deponent, and by elected officials who may want to do the "right" thing but who may not understand that there are clearly defined roles and processes to follow.  If Staff want on the agenda, let them go to the CAO as per the by-law.  If the Chair has reservations about a community delegation for whatever reason, that's just too bad - let the delegation be heard and move on.

The continued health of our local democratic processes is contingent upon open decision-making in keeping with established roles, responsibilities and procedures.  Let's make sure this doesn't happen again.

(opinions expressed in this blog are my own and should not be considered consistent with the policies and/or positions of the Green Parties of Ontario and Canada)

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