Surprise, You’re Ostracized!: The Necessity of Procedural Fairness in the Discipline of Elected Officials

How should a council or board respond when one of its members has engaged in inappropriate or undesirable conduct? What sort of process is required? Controversial social media posts by the mayor, public fallout, and the disciplinary steps council attempted to take in response, are at the heart of the BC Supreme Court’s recent ruling in Michetti v. Pouce Coupe (Village), 2022 BCSC 472 (“Michetti”).

In February 2021 the mayor of Pouce Coupe posted comments on her Facebook page questioning the honesty of media reports that unvaccinated individuals were driving COVID-19 hospitalizations in British Columbia. Those comments sparked considerable outrage from health care workers, among others, and became national news. While the mayor posted an apology the following day, the damage had already been done. Only two days later, at a special council meeting, council passed resolutions to censure the mayor for her conduct, remove her from all public duties including village boards and committees, and request that she resign. The mayor commenced a petition in BC Supreme Court to overturn those resolutions; however, it did not proceed to the point of a judge considering the merits. Instead, the village agreed to a consent order invalidating the resolutions, conceding that the statutory requirements for the special council meeting (including notice to the mayor) had not been met.

Meanwhile, two members of council resigned, and those seats were filled through a by-election in September 2021. Following orientation sessions for the new members, a council meeting was held in early October, and one of the items on the agenda was the matter of appointments of the mayor and council members to various “portfolios” or public duties, including regional district director, and liaison to different community and stakeholder groups. The court noted this was not an unusual agenda item, and that the subject would typically be considered by council following an election. Moreover, the portfolio item was included on the agenda at the direction of the mayor, and it was not linked with the issue of the mayor’s social media posts. In fact, the issue of the mayor’s COVID-19 comments was later added to the agenda as a separate item. At the time of the October meeting, the mayor held a substantial number of those portfolios.

During the portfolio review discussion at that October meeting, one of the newly elected council members proposed a resolution to remove the mayor from all portfolios, and to direct that letters be sent to all portfolio partners advising them to communicate through the assigned council representative or village staff (effectively cutting the mayor out of the communications loop). All of council, except the mayor, voted in favour and the resolution was passed. Council went on to consider each of the 15 or 16 portfolios in turn, and assigned a council member to each, without the mayor being considered for any of them. Later in the same meeting, when the agenda item concerning the mayor’s COVID-19 comments came up for discussion, another resolution was passed, directing issuance of a press release to say the mayor’s comments were her own personal views and not those of council.

Following the meeting, the mayor commenced another petition in BC Supreme Court. This time around, there was no order by consent, and the case proceeded to a judgment by the court, which held that the resolution barring the mayor from all portfolios, and the subsequent reassignment of portfolios, were invalid because the common law requirements of procedural fairness had not been met. Factors that led the court to that conclusion include the following:

  • The matter of portfolio assignments was included on council’s agenda in the manner it had typically been done in the past, as new business, without being linked to the mayor’s conduct, or to any suggestion that council would consider shutting the mayor out of all portfolios.
  • The introduction of the motion to remove the mayor from all portfolios, which occurred at the very outset of council’s consideration of the agenda item, was contrary to the mayor’s legitimate expectation that portfolio assignments would be handled in the “usual” manner. It was also in violation of the village’s council procedure bylaw, which prohibits council from considering matters outside those listed in its agenda unless added as late item in accordance with the bylaw (which did not occur in this case).
  • While the village’s CAO stated at the meeting, in response to an objection from the mayor, that the removal motion pertained to the business item on the agenda, the court did not find that position compelling, and held that the agenda item did not give adequate notice to the mayor. The agenda item suggested the “usual” portfolio review, while at paragraph 50 of the reasons for judgment the court characterizes council’s concern with the mayor as “specific and personal”.
  • The CAO’s response about the relevance of the motion to the agenda item appeared to the court to be a prepared one, contemplated in advance, and that (along with other evidence, including the previous, failed attempt by council to censure and remove the mayor, which was in substantially similar terms) suggested that perhaps both staff and other members of council knew what was coming, even though the mayor did not.
  • The village’s council code of conduct sets out a procedure for addressing violations by members, which included specific notice of the allegations, a minimum of two weeks to prepare a response before consideration at a council meeting, and an opportunity to be heard. The code of conduct was not referred to in relation to the motion removing the mayor, nor was the process in the code of conduct followed. It is worth noting that the code of conduct explicitly states its procedure is intended to “ensure procedural fairness”.

On the facts of the case, a reasonable observer might well ask, “Shouldn’t the mayor have known what was coming, whether it was specifically drawn to her attention or not? After all, they’d already tried it once, and her conduct was an ongoing matter of controversy at the time of the meeting in question.” From the perspective of common sense, there’s likely some truth to that. However, in a situation such as this, the law demands more than common sense and assumptions. When it comes to decisions by administrative bodies that affect the rights, privileges and interests of individuals, it’s not enough to simply presume the individual in question knows what is at stake. The law requires adequate notice, disclosure of material information, and an opportunity to be heard. There are, occasionally, statutory provisions that modify or limit aspects of procedural fairness, but they are the exception not the rule. Courts will strive to uphold the underlying principle of procedural fairness, articulated by the Supreme Court of Canada in the seminal 1999 case of Baker v. Canada (Minister of Citizenship and Immigration):

“…[T]hat the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decisions affecting their rights, interests or privileges made using a fair, impartial and open process, appropriate to the statutory, institutional and social context of the decision.”

Key takeaways from the Michetti case include the following:

  • When a municipal council or regional board seeks to discipline one of its members through censure, or by limiting or removing the rights, privileges or interests afforded the member as an elected official, procedural fairness is a “must have” component of the process.
  • Any such disciplinary process must be sensitive to its specific context, including applicable statutes, bylaws and policies, customary practices, and the facts of the situation, but the courts will consistently look to see that the basic requirements of procedural fairness are met, namely adequate notice, disclosure of material information, and an opportunity to be heard.
  • Having a thoughtful (and legally reviewed) code of conduct that includes a fair process, and following it when the circumstances arise, is one way to reduce the risk of successful legal challenge.