There are relatively few Court decisions relating to the provisions of the Local Government Act as they apply to the filing requirements of election officials. A decision from the 2008 election, Alpha v. The Board of School Trustees of School District 61 (Greater Victoria) highlights the importance of making sure that proper paperwork is filed in a timely way, but creates uncertainty as to the effect of a failure to file. The decision may be inconsistent with the subsequent Court of Appeal decision in Stow v. Attorney General (British Columbia), which is summarized later in this edition of LoGo Notebook.
Section 90 of the Local Government Act, which also applies to school trustees in addition to local government elected officials, requires every person who was declared a candidate under section 74 of the Local Government Act, every elector organization and every campaign organizer to file with the designated local government officer a “disclosure statement” within 120 days of the election. This mandatory requirement of the Local Government Act is designed to provide transparency with respect to the receipt and expenditure of campaign contributions. It applies whether or not the candidate is elected, received campaign contributions, incurred election expenses, is acclaimed, dies, withdraws from the election or is declared by a Court to no longer be a candidate.
There is a 30 day “grace period” available for late filing provided that a $500.00 late filing fee is paid within that 30 day period under section 90.2.
Section 92(1) of the Local Government Act provides that unless a Court order under section 91 relieves the candidate from the obligation to file a disclosure statement, a candidate for whom the disclosure statement is not filed before the end of the late filing period is subject to the following disqualification penalty:
“(a) in the case of a candidate who is declared elected, at the applicable time under subsection (2) the council member ceases to hold office and the seat of the member becomes vacant.” (my emphasis)
School Trustee Alpha had not filed her statutory declaration within the 120 day period; and her failure to file was not brought to her attention until after the 30 days later filing period after the school district’s election officer did his final review of all of the paperwork. With the assistance of staff, School Trustee Alpha immediately completed the missing declaration.
Despite the wording of section 92 of the Local Government Act, the Court in Alpha made a declaration granting Ms. Alpha a 30 day extension for filing her financial disclosure materials. The Court found that the trustee’s failure to file the statutory declarations was “an honest error and not through a lack of diligence”. The trustee failed to file the candidate’s personal declaration until advised of the failure to do so, which did not occur until after the expiry of the 30 day “grace period” or late filing period under the statute.
While the Court did not find any duty on the School District’s staff to review the documentation filed by the trustee to look for deficiencies and alert the elected official of the deficiencies, the effect of the decision is to create considerable uncertainty in a situation where a candidate has failed to file all of the information properly. In the result, even though the statute may very clearly indicate that an elected official has been disqualified for failure to file necessary documentation, a Court may still find that the elected official has exercised due diligence, acted in good faith and is entitled to an extension of time after the fact.
The Alpha case creates difficulties for local government staff and uncertainty for everyone including the elected officials. In the case of a late filing in future, there will be uncertainty regarding the actual status of an elected official. An application will have to be made to the Court to determine whether the elected official is safe in accordance with the Court ruling in Alpha or was disqualified in accordance with the statute. Since a local government is under strict timelines to have a vacancy filled, this places the proper administration of a local government or school district into confusion, and could make the whole process more vulnerable to the vagaries of politics.
In the result, local governments should strive to avoid a situation similar to this where elected officials are, in strict accordance with the statute, disqualified from holding office, obliging the local government to conduct a by-election, as that whole process may be set aside following a successful application to the Court based on the precedent established by the Alpha decision.
This can be done by even more direct blunt information being provided to candidates (perhaps including “mock up” samples of each required form) and reminders both before the expiry of the 120 day period and the further 30 day grace period. Given the uncertainty created by Alpha, no one wants to miss a deadline.