City council does have the authority to sanction and censure councillor Brian Skakun based on his May conviction under the Freedom of Information and Protection of Privacy Act, City of Prince George lawyer Barry Williamson told the B.C. Supreme Court on Wednesday.
On Tuesday Skakun's lawyer Jon Duncan argued the case for the court to order an injunction to prevent city council from censuring Skakun until his appeal is heard by the B.C. Supreme Court.
"It is a discretionary matter for council and, in my submission, it is not a case for the court to substitute its discretion for that of council," Williamson said.
Williamson said the case law cited by Duncan deal with cases with substantially different circumstances than Skakun's case.
The case hinges on the jurisdiction of the city, under the Community Charter, to censure one of its members, he said. The conviction by the court does not undermine or replace council's authority to manage its own procedures.
If city council does proceed with a censure, Skakun could be removed from the acting mayor rotation, city committees and prohibited from traveling on city business.
"It may not be normal to remove those appointments for the background reasons in this case, but it is normal decisions of the city," Williamson said.
It is reasonable for the city to approve a censure based on the conviction, despite the current appeal before the courts, he added.
Skakun has requested the right to present additional information to city council at the hearing and call witnesses to explain, "the whole story," Williamson said.
"Council is not obligated, and should not be forced by this court, to go further than the findings of Judge Ball... in considering the whistleblower defense," he said. "The submission that councillor Skakun should be allowed to call evidence is really a question if council has the authority to embark on this endeavor. It is my submission that while couched in procedural fairness language... really the argument is one that goes to jurisdiction."
The whistleblower defense was considered at length and rejected by Judge Ball, he said. There would be no advantage to retrying that issue in front of city council, Williamson said.
"The attempt here is to distract attention from the actions of councillor Skakun to others, whose conduct was reviewed by Kitty Heller and Judge Ball," he said.
In his rebuttal, Duncan said removing Skakun from committees would have a serious impact on his ability to do his job as an elected official.
In addition, Duncan said, the city does have the authority to administer its procedures through bylaws. But the city's bylaws don't provide council the authority to censure one of its members.
"There is nothing in the procedural bylaw that allows this to happen," Duncan said. "[And] in exercising municipal powers, you must do it for a municipal purpose. I fail to see a purpose to having Mr. Skakun not serve on committees or commissions. It can't just be a punishment because three years ago he did something wrong."
B.C. Supreme Court Judge Robert Crawford said in his view the case comes down to the issue of jurisdiction.
"It just becomes an issue if council has the authority to sanction conduct unbecoming [a councillor]," Crawford said.
Crawford said he expects to render his decision quickly, although no specific timeframe or court dates were set.
Below is the full, unredacted letter Mayor Dan Rogers sent to the courts explaining his intention to recuse himself from council proceedings regarding Coun. Brian Skakun.
Re; Proposed Censure of Coun. Skakun
Coun. Skakun has called into question my ability to participate in any decision by City Council whether or not to censure him as a result of his conviction by the Provincial Court on May 24, 2011. As I understand the allegation that has been made against me, it is that there is a reasonable apprehension that I am biased against Coun. Skakun based on previous statements and my testimony at Coun. Skakun's Provincial Court trial.
I reject Coun. Skakun's allegations in their entirety. I truly believe that I would be able to approach the proposed censure resolution impartially and, further, that I would be open to a fresh consideration of the circumstances of Coun. Skakun's breach of the Freedom of Information and Protection of Privacy Act as I stated in my affidavit. I believe this approach and my fundamental respect for procedural fairness has been demonstrated in consideration of the matter to this stage. However, I have been advised that Coun. Skakun no longer opposes the participation of Councillors Bassermann and Krause in any consideration of a censure motion. With Coun. Munoz having earlier communicated her intention not to participate, I am then the sole member of Council whose proposed participation is being challenged.
I understand that if I withdraw from any further involvement in consideration of the resolution of censure and sanctions that this will remove one of the main issues raised in the Petition filed by Coun. Skakun. I have therefore decided that I will not participate in any further Council proceedings with respect to the consideration of possible censure and sanctions of Coun. Skakun. It follows that I will not be discussing the matter of censure and sanctions further with any of my Council colleagues. I have made this decision not because of any sense that it would be wrong for me to participate, on the contrary, as stated previously I believe that any suggestion of bias is _without merit. This decision is being made solely for the purpose of reducing the number of issues that the Court will have to consider. I am hopeful that with one major issue no longer before the Court the proceedings may be dealt with in a timelier fashion, with a reduction of valuable court time given to this matter and of course a consequential cost saving to the City.
I would be grateful if you would inform my Council colleagues and the City Manager of my decision.
Sincerely City OF PRINCE GEORGE
Dan Rogers
Mayor
