LIES, EXCUSES & DESTRUCTIVE BEHAVIOR - Long Read of The Mayor's Juducial Review

Justice Rosemary Nation

Legal counsel for impeached Mayor Linnsie Clark attacked the credibility of the report used to sanction her while questioning the honesty of city manager Ann Mitchell during a judicial review held Tuesday in Calgary. However, lawyers for the city defending the actions of councillors who removed most of Clark’s duties as mayor argued they were simply following the municipality’s code of conduct process.

Calgary Court of King’s Bench Justice Rosemary Nation heard from both sides during the one-day hearing about what she described as a two-and-a-half-minute exchange between the mayor and city manager nearly a year ago – the core of the legal arguments. And she was pointed in her questioning of the rational for council’s sanctions against the mayor.

Clark’s lawyer, Grant Stapon, described the actions taken against his client as “abhorrent,” arguing the Kingsgate report used to sanction the mayor is faulty and repeatedly insinuating Mitchell was a liar.

Stapon stated the mayor was told on several occasions by Mitchell there was an internal legal opinion backing the move to reorganize staff. That, despite the need to amend the bylaw before terminating staff.

According to Stapon, during closed council sessions prior to the Aug. 21, 2023 council meeting when the mayor brought up the subject of the bylaw amendment with the city manager, “she got excuses rather than an admission there was an error.”

Ann Mitchell

According to court records, documents and arguments, Justice Nation was presented evidence of a July 4, 2023 in-camera council meeting in which Mitchell claimed she had obtained an internal legal opinion backing the idea an amendment wasn’t required.

The mayor, unable to obtain that legal opinion, sought her own. Clark utilized her own funds to obtain that opinion and received it days prior to the Aug. 21, 2024 council meeting. That opinion appeared to contradict what Mitchell claimed was provided to her from the city solicitor, the court heard. Clark first revealed the opinion to council and the public at that meeting, reading it on the record.

During the same council meeting, Mitchell admitted to councillors to not following the process regarding the need for council to pass an amendment prior to terminating staff.

But Mitchell, according to emails filed to the court, continued to maintain there was a legal opinion from city solicitor Ben Bullock.

The Mayor and her lawyer, Grant Stapon.

In an email dated Oct. 30, 2023, the mayor wrote to Mitchell still seeking the legal opinion, stating “it has been over two weeks since you committed to provide the information I have outlined below. So, I would appreciate it if you could provide it to me this week.”

Mitchell’s response to the request for the opinion minutes later was, “I have recently been advised by external legal counsel that this matter falls under the purview of human resources and must remain confidential under the human resources department.”

With the investigation into the code of conduct complaint against the mayor three weeks from being presented to city council in early February, Bullock emailed Clark a response to a query she made to him about access to the legal opinion.

“It appears there has been some misunderstanding,” wrote Bullock in his Feb. 6 email to the mayor. “Please see attached my email to Ann of Oct. 23, 2023 in response to yours of that same day.”

That October email sent by Bullock to Mitchell on the topic stated, “I don’t know what she is talking about. I never gave that advice.”

Stapon argued in court Mitchell put the “kybosh” on any attempt to move the discussions about the process she followed into an in-camera meeting by insisting she had a legal opinion backing her position in previous meetings.

Asked by Justice Nation as to why the mayor couldn’t have engaged in a different fashion to de-escalate the situation, Stapon responded, “my client was under the misapprehension there’s a legal opinion out there which says this was done properly.”

Questioned again by Nation as to whether there was another way around the interaction that would have avoided getting into a circular discussion, Stapon stated the open council meeting amounted to “live theatre.” He described the situation to Nation as an on-the-spot judgement call and indicating the mayor shouldn’t be subject to sanctions under those conditions.

While the Kingsgate report found the mayor acted maliciously against Mitchell during her interaction, Stapon questioned the reasonableness of such a finding.

“When the foundation is rotten, the decision collapses,” argued Stapon during his description of the Kingsgate report authored by Michael Solowan and its use by council to sanction the mayor.

Clark’s lawyer questioned the legitimacy of Solowan’s finding that the short verbal exchange between the mayor and city manager could be found to be a personnel issue and prohibited to be discussed during a public council meeting.

In Clark’s statement to Solowan as part of the investigation, she said, in part, “it was just questions that I do feel like should have been straightforward to respond to.”

In the Kingsgate report, Solowan rejected the description of the exchange with Mitchell as being as simply asking questions. Instead, Solowan found in his report that the mayor’s line of questioning, “went beyond merely ‘probing.’”

Stapon cited to the court the mayor’s statutory responsibilities to ensure the municipality follows its own bylaws. Bylaws which Mitchell admitted she didn’t follow while undertaking an administrative reorganization at city hall until questioned at the open meeting.

“If the city administrator doesn’t follow her own bylaws, why should the citizens of Medicine Hat,” Stapon told the court.

He later stated that council was going to stand by the city manager regardless of her misrepresentation to them that she had a legal opinion backing her actions. Stapon highlighted council agreed to fund a legal action by Mitchell against the mayor concerning Clark’s questioning during the August meeting. He also noted this happened in November 2023 while the code of conduct investigation took place and before the Kingsgate report was presented to council.

Lawyers for city councillors argued the municipality followed provincial legislation and city bylaws, including processes outlined in its code of conduct statutes dealing with peer-to-peer complaints.

One of two legal counsel for city councillors, Michael Swanberg, methodically listed off the process followed by the city and investigator as well as council. He went through the inventory of the laws outlining parameters for code of conduct complaints, citing the legislation used.

Swanberg noted the city manager revealed to council during a July. 4, 2023 closed meeting that she already moved forward with the administrative reorganization and council discussed those actions at that time.

The agenda item at the August meeting was to retroactively approve those actions, Swanberg told the court, and not to perform a performance review of the city manager’s actions.

“The performance of the city manager was not something that was on the agenda,” said Swanberg.

Justice Nation questioned council’s lawyers about whether this was about council simply going through a checklist in an effort to penalize the mayor.

Nation specifically questioned the rationale of council taking away the mayor’s duties to preside over meetings. The justice noted there were no identifiable issues with Clark chairing of the Aug. 21, 2023 council meeting outside of the short interactions with Mitchell.

“There can be overkill, right?” Nation asked. “It would appear council went down and checked boxes doing everything that they could do.”

Stapon added there were no issues raised regarding any meeting Clark chaired in the seven months between Aug. 21, 2023 meeting and the March 2024 sanctions being placed on the mayor either. Nor were any raised beforehand.

Council meeting june 3rd, 2024

In relation to Nation’s questions on the sanctions preventing Clark presiding over meetings, Diana Young, counsel for city councillors, said council had lost confidence in the mayor’s ability to constructively conduct a meeting.

Young told the court that council didn’t have faith in the mayor’s ability to preside over meetings based on that August 2023 interaction between Mitchell and Clark. And a similar issue might arise during a contentious issue in the future.

She highlighted the mayor is bound by bylaws to maintain order at council meetings. As the Kingsgate report concluded she failed to do so by not treating the city manager with respect, it is city council’s position she should no longer have the ability to chair meetings.

Young called the mayor’s actions at the August meeting, “destructive.”

She added the bar which the court needs to see met to reverse council’s decision is that no other reasonable council would take the same steps in similar circumstances. Young added that bar has not been met.

While Clark’s counsel focused on the actions of Mitchell as well as councillors inaction in addressing issues the mayor alone was raising, the city’s chief elected officials had options she chose not to exercise, Young told the court.

But Nation indicated there are boundaries to penalties which should be governed by the nature of the impugned behaviour and the seriousness of those actions.

Nation indicated she was struggling in finding a linkage between the offence and sanctions in relation to several of the restrictions leveled against the mayor.

Stapon closed by stating his client has only the single code of conduct complaint leveled against her based on a brief interaction with the city manager where even the Kingsgate report recognized she was polite – though pressing – in her questions.

“No municipality in the province can be regarded as acting reasonably if they do something like this,” Stapon told the court, warning that to find otherwise will have impacts in all other municipalities in Alberta.

Stapon is asking the court to strike down all of the sanctions that council levelled against the mayor, restore her salary retroactively and cover legal expenses.

Justice Nation noted that given the nature of the judicial review and public interest in it, she will be providing a written decision by Sept. 30, providing prior notice if that timeline can’t be met.