CBRM Solicitor Threatens Council With Legal Action

This Spectator has learned that Regional Solicitor Demetri Kachafanas threatened legal action against District 11 Councilor Kendra Coombes “and all Council” after a radio interview Coombes gave the CBC on 27 November 2018.

The interview (which I can no longer find online) was about the four in camera meetings during which CBRM Council discussed its own remuneration (an article based on the interview is still available on the CBC website).

The CBC’s Tom Ayers broke the story on November 8, reporting that council had met in closed-door sessions on 7 December 2016, 8 May 2017, 24 October 2017 and 26 June 2018 to discuss raising mayor and councilors’ pay to compensate for the federal government’s decision to abolish the one-third tax-free provision for municipal officials.

Although the Municipal Government Act (MGA) allows municipal councils to go in camera to discuss personnel issues, elected officials are not personnel.

In the online version of the interview, Coombes told Ayers she was still not confident CBRM’s closed-door meetings follow the rules.

 

Formal notice

Following the interview, she received an email from Kachafanas (addressed to her but sent to all councilors). Coombes, who was clearly taken aback that the email had been leaked, confirmed its contents for the Spectator on Monday.

Kachafanas wrote that he had listened to Coombes’ November 27 radio interview “with surprise and displeasure” as she had publicly implied:

…that I as Solicitor for the CBRM gave a legal interpretation that said meetings about Council remuneration could be held in camera, a statement which you know or ought to know is not true.

Please consider this formal notice to yourself and all Council that if you continue to make false public statements of that nature I will take legal action against you for slander/libel.

You should know that your position of Councillor does not afford you immunity from making false or misleading statements inside or outside of the Council chambers.

Coombes told the Spectator she’d had no intention of going public with the email, but that in the unlikely event the solicitor had taken her to court, she would simply have played the video from the November 20 council meeting, during which council discussed the in camera meetings based on an Issue Paper presented by Kachafanas.

 

Down the wrong road

In particular, Coombes said, she’d refer to the following exchange from that meeting, which involves District 2 Councilor Earlene MacMullin and Kachafanas (it begins at roughly the 4:31:20 mark).

MacMullin (who first notes that during the in camera meetings “staff was all here, everybody was here”) asks Kachafanas point blank:

[I]f we go down a road that we’re not supposed to be going down, say, in an in camera meeting, say the conversation just turns. If you’re aware that we’re going down that road and that we shouldn’t be talking about that, do we actually have to ask your opinion for you to tell us to stop or would you say, “Wait, you can’t do this?”

To which Kachafanas replies:

If staff realizes that council is doing something illegal, beyond policy, it’s incumbent on staff to say that. We’re not going to sit back and say, “Hmm…they’re doing something, we’re just going to let them do it because no one asked the question.

As for the four meetings in question, Kachafanas says:

…Staff set the agenda, we put it in, we were there, there’s enough blame for everyone, I think. Were we formally asked a question, “Let’s do an opinion and look at the MGA?” No, I think we all assumed this was a salary issue, it was done in camera. It’s a simple mistake, really. It seems to be a big issue over, to me, not a big issue.

By not stopping the remuneration discussions, Kachafanas implied what council was doing was correct — and, indeed, he admits he (and all “staff”) thought what council was doing was correct. So how could “implying” that, in the regional solicitor’s opinion, council was permitted to discuss its remuneration in camera be libelous or slanderous?

Your honor, the defense rests.

No, actually, there’s one more piece of evidence worth watching — it’s another exchange from the November 20 council meeting.

 

Consultation

It happens right at the beginning of the discussion, when Coombes, who is attempting to find out how council got to the point where it was running afoul of the MGA by discussing its own remuneration in camera, asks Kachafanas if they had contacted Municipal Affairs or looked at the MGA prior to going into in camera to discuss remuneration. Kachafanas replies:

Okay, um, it should be noted on two of the occasions, it wasn’t even on the agenda. So council brought it up, themselves in the meetings.

No, I was not asked for an opinion and I don’t believe the CAO was. That this was the way, it was, I guess, staff had done it in the past. It was done incorrectly and all I can say is [laughs] in the future it will be done in open.

But Coombes suggests that staff were, effectively, asked for an opinion on the issue, during a meeting on 7 March 2017, when District 7 Councilor Ivan Doncaster requested Council go in camera to discuss councilors’ $140 travel allowance (you can see it happen at the 38.29 mark in the video). Coombes presses Kachafanas:

So that is where I would start …did we look at the MGA? And did we, if the MGA was unclear to us, did we contact Municipal Affairs for their interpretation? Because, with all due respect, Councilor Doncaster did request to go into in camera to discuss the $140.

Kachafanas replies:

Okay, well I can’t even [laughs] actually recall discussing like, a year, two years back. I can’t recall what Mr. Doncaster asked or what was answered but, I mean, the issue is, that it was done in camera, it shouldn’t have been done in camera. It will be done not in camera from here on in….Whatever happened in camera, it shouldn’t have been there but I would consider it really minor to what we’re dealing with. It’s not like council made any decisions in camera.

Okay, stop.

First, while it’s good that council did not make any decisions on remuneration in camera, it doesn’t erase the fact that it shouldn’t have been in camera in the first place. It’s like slashing someone’s tires, getting caught, and telling the cops, “But that’s very minor compared to stealing a car and I didn’t steal the car.”

And second, during that 7 March 2017 meeting, Clarke huddled with Kachafanas and CAO Marie Walsh to discuss Doncaster’s motion to move in camera, after which Clarke said:

In terms of considering the matter…and I guess I need to get a better opinion and interpretation because there’s a disagreement, not a disagreement there’s professional opinion of what constitutes personnel, where elected officials are outside of that. And I don’t want to go and put something in camera and then, that was the concern that it really needed to come out of that process. So, the issue is, deferring it to a workshop and bringing in any appropriate consultants or anything like that would be the appropriate way…

This is the very issue that would later come back to plague council — can councilors go in camera to discuss their own remuneration? Here, they dodged it by removing the item from the agenda and promising to bring it back later in “another form.”

But anyone watching the debate could be forgiven for thinking Clarke intended to get a “better opinion or interpretation” on the matter.

Which means either he didn’t bother getting that opinion or the opinion he received was that council was indeed “personnel” and could discuss its remuneration behind closed doors, because council went on to do so three more times.

 

No comment

The big issue here, of course, is the propriety of a regional solicitor threatening legal action against a councilor (in fact, against the entire council).

I was hoping Kachafanas could shed some light on the matter, but he told me — through CBRM spokesperson Jillianne Moore — that he had no comment on the issue.

 

 

 

 

 

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