Councillor Bruce Phinney
In a 6-2 vote Monday, Sackville Town Council approved applying for more money to complete Phase III of the Lorne Street flood control project at a cost to the town of between $1.24 and $1.52 million.
If the application is successful, the rest of the project’s estimated $4.6 million cost would come from the federal and provincial governments.
The Phase III project would include a retention pond in the old Pickard Quarry, now owned by Mount Allison University, as well as a 40,000 cubic metre pond behind the community garden on Charles Street along with ditches and piping to carry storm water through the industrial park to a provincially owned aboiteau on the Tantramar River near the town’s main sewage lagoons.
In expressing his opposition to the project, Councillor Bruce Phinney called on the town to replace Crandall Engineering, the Moncton-based consulting firm that so far, has led the design and oversight of all three phases of the Lorne Street project.
“I have no faith in Crandall Engineering,” Phinney said, adding he’s also starting to have concerns about the town’s senior staff.
“I’m actually even making a recommendation that Mr. [Jamie] Burke, Mr. [Dwayne] Acton and Mr. [Phil] Handrahan be removed from the employment of this town and find somebody to replace them as well.”
When Mayor John Higham warned Phinney that his words carried no immunity and that legal action could be taken against him, the councillor responded that he was recommending replacement of the Senior Manager of Corporate Projects, the Town Engineer and its Chief Administrative Officer because their mistakes cost $525,000.
Phinney was referring to the discovery of 14-thousand tonnes of contaminated soil and other materials on land the town acquired on an “as is” basis from CN Rail in order to dig a 40,000 cubic metre retention pond that is still under construction as part of Phase II of the flood control project.
To read a transcript of Phinney’s remarks, click here.
Mayor explains need for Phase III
Mayor John Higham
Mayor Higham prefaced the debate over whether the town should apply for more funding to complete Phase III by reminding councillors that in 2014, CN Rail had threatened to sue Sackville because of flooding.
Although CN withdrew its threat then, the mayor described the company as “very litigious” believing that the courts would side with it if flooding caused a shut down that would disrupt its whole system.
“Any train that’s stalled here affects basically a supply line that goes across North America,” Higham said.
“If we’re lucky and it’s only for an hour or two, that’s significant, but it does delay a whole variety of other trains for an hour or two. So, if it’s going to be a day or two, recall this is going to be tens of millions of dollars of potential liability. Tens of millions of dollars.”
The mayor suggested that insurance would cover the town’s liability only if it invests in flood control projects designed to handle one-in-one-hundred-year storms.
“The reality of the insurance industry is if you do not build to what is a one-in-one-hundred year event that you’re aware of and know of, then your insurance doesn’t apply because you consciously chose not to build to the acceptable standard of the day,” Higham said.
To read a transcript of the mayor’s remarks, click here.
Fire insurance
Councillor Bill Evans
In supporting the motion to seek more funds for completion of Phase III, Councillor Bill Evans said the town would be preparing itself for a worst-case scenario, flooding that may never happen.
“Most of the time, it’s going to look like we don’t need this,” Evans said. “The retention ponds will be empty most of the time and even when there’s significant rainfall events, they’re not all going to be full,” he added.
“This is preparing for the worst case. So I just want to make that point to all the people who say ‘we don’t need to do this’ because it’s like I had a house for 40 years and had fire insurance for 40 years and never got a penny, so I guess that was a big mistake having fire insurance. I don’t think so.”
Councillor Shawn Mesheau, who voted with Phinney against the motion to apply for more Phase III funds, suggested that council was being pressured into making a quick decision.
Town manager Jamie Burke responded that the town didn’t know the cost-shared, funding program would be going ahead until May 7th when the province invited municipalities with “shovel-ready” projects to apply by June 28.
Tax increase?
CAO Phil Handrahan sounded exasperated at the criticism of town staff saying that he and the department heads have always worked hard in the best interests of the town and its citizens following directions given to them by the mayor and council.
“You people were elected to make the decisions and be accountable to the public. We’re here to do what you want us to do and you direct us to do it. That’s all we’re trying to do,” Handrahan said.
CAO Phil Handrahan
The CAO picked up on Treasurer Michael Beal’s financial analysis showing that although it’s unlikely, council might have to raise taxes to cover its share of the costs of the flood control project.
“It pushes us financially. It doesn’t fit with where we hoped to be,” Handrahan said. “It might mean a tax increase in a year or two, but our financial position compared to other municipalities and our borrowing capacity, we’re in very good shape in Sackville,” he added.
“If it scares you, don’t do it,” Handrahan told council. “Sit back and do nothing and we’ll just see what happens because you’re right, we haven’t had a flood in a few years, but you had three of them in my first two years here that weren’t supposed to be the one-in-one-hundred, but it shut us down and there was lots of criticism and complaints,” he said.
To read a transcript of the CAO’s remarks, click here.
Bill Evans was the only councillor to respond to Bruce Phinney’s call for the dismissal of senior staff. To read his comments, click here.
To read the motion that was approved by Deputy Mayor Ron Aiken, Councillors Allison Butcher, Andrew Black, Joyce O’Neil, Bill Evans and Michael Tower, click here.
This story is just the tip of the iceberg….
One thing is sure, Councillor Phinney is a man of principle and courage. We rarely see politicians of this calibre nowadays, at all levels of Government and in all countries. Warning him (or threatening?) him of being sued is not only ridiculous. It also appears like bad faith, according to my non-expert citizen opinion. Is this a political faux-pas?
People usually threaten when they feel cornered. Did Councillor Phinney hit the nail on the head?
Councillor Mescheau is a pragmatic man. I trust his pragmatism and wisdom thus far.
I do not know Mr. Handrahan that well, except for seing his face in court during the Town legal saga with Louis Béliveau when many Sackville citizens drove to Moncton and some even to Fredericton to support Louis.
Councillor Evans accompanied Mr. Handrahan to court, I recall well. Anyone writing to support the staff pointed at in this story would have had my admiration for their compassion BUT Councillor Evans, he is the king of empty words.
This being said, I am not saying that firing these people will solve the issue. However, calling for something as serious as this is the equivalent of an urgent call for ACTION.
Thank you Councillor Phinney for your courage and competence. Thank you for being our voice.
We are MANY citizens behind you and with you.
Of course, some citizens remain or will remain silent due to fear. Some others are pro-actively voiceless to protect their families or jobs. Maybe others do not care about local issues (not sexy like trendy global affairs), even when they involve our OWN tax money.
As Mr. Percy Best has called for it more than once, an investigation (not Lordon-report style!) is what is needed and ASAP. Again, I echo his words. Today more than ever!
Rima, I echo your concern as to why the John Higham was so quick to warn of legal action for a concerned councillor to call for accountability on such an oversight. We see by this statement where the mayor stands on things, and I was unaware that he was a legal expert? As for Evans and Handrahan, I have seen how they react when questioned on anything. Evans went on the local university radio station to basically say that a citizen who would question the statement he made in a council meeting was rude to him. I believe that citizen was me. Maybe the fact that he implied he’d like to explore the option to shut down the existing drive thru’s in the town was rude to the business owners and employees of those businesses. And don’t even get me started on some of the others that councillor Phinney mentions. We are hopefully seeing a change in how things are going to be done going forward at town hall, but it will take more than 2 councillors with a spine to make any progress.
Kelly, The town of Sackville has a by-law (no. 250) that outlines the relationship between council, the CAO and town employees. Councillor Phinney’s call for the dismissal of the CAO and senior staff members in public at council was in violation of that protocol. He has not followed proper procedure and has opened himself up to libel. As a long time councillor Mr. Phinney should be aware of the rules and procedures of the Town and Council. If Mr. Phinney chooses ignorance over accountability he should be prepared step down. Councillors are there to make laws not break laws.
Just more virtue signalling from Councillor Phinney.
Dear Wrayton,
Actions speak louder than words. If there is one councillor who does NOT choose “ignorance over accountability” that is councillor Phinney. I appreciate that councillor Phinney stands up and the fact that he is responsible.
Also, Contrary to what the CAO says, the staff of the town hall are not ROBOTS to take orders from the Council and act accordingly. Councillors rely on the staff report as each one of them is hired based on their experiences. But unfortunately, the staff don’t report all issues to the council (as they did not when I was on Heritage Board), hence the concern.
Hello “Mysterious Wrayton on the Warktimes”:
I am starting to think that you may come from a Royal family :), related to the *King of empty words*? I am allowing myself to tease you, as you can see.
Seriously, you forgot to mention the MAIN role of a Town Councillor: To “represent” residents. Councillor Phinney excels in this role. He has earned his good reputation.
To borrow the words of GNB itself: “….Together, not individually, they exercise all the powers of the municipality. In addition to their representational role, the members may perform a variety of other functions: e.g. deputy mayor, chair of standing or ad hoc committees, members of commissions or mayor’s representative or delegate”.
Reference:
https://www2.gnb.ca/content/dam/gnb/Departments/lg-gl/pdf/LocalGovernmentResourceManual2.pdf
Rima, The Local Government Resources manual does not state anywhere that a councillor can break the law. You may like Mr. Phinney but no one in government is above the law. I would think you would agree with this, no? I thought you were all for accountability?
Are you suggesting that it’s against the law for a Councillor to recommend the dismissal of Town staff? If so, why even have elections?
After reading By-Law 250, I wonder why we even bother having a mayor, also.
The tail *is* wagging the dog. I appreciate your pointing me in the right direction with By-Law 250, because I now fully understand what the problem is. Council has no real power… or at the very least no will to exercise that which it has.
Louis, I am not suggesting anything, that’s what the bylaw states. Council approves the hiring of the CAO, but all other staff are hired and dismissed by the CAO. Also, the council handles all HR issues ‘in-camera’ to respect the privacy of employees and to avoid issues of libel, like the one Mr. Phinney has run into. This is not unusual, most organizations follow similar practice as outlined in various provincial and federal labour codes. Mr. Phinney’s ignorance of these basic principles exposes the fact he has no experience as an employer or manager. I’m sure if he was treated in the same manner by his employer he would protest.
Calling for an employee to be fired at work in front of their peers and the public, during an event involving the press, recorded live to the internet, is totally unacceptable in Canada and New Brunswick for obvious reasons.
Wrayton, you wrote: “You may like Mr. Phinney but no one in government is above the law.”
I would replace “like” with “respect” to be most accurate. Does that word mean anything to you or to our town, Wrayton? Respect of citizens? Respect of their voices?
I will add the following: When we respect ourselves, it becomes natural to respect others. When we respect others, we usually and truly believe that everyone (others and ourselves) are under the law. Plus, when we respect each other, perhaps we resort less to the threats of legal actions? When the legal system is the best impartial system that it can be, we can all have faith in it.
I see laws as a reflection or an extension of whom we aspire to be as a society, starting from ourselves and moving further away: Better persons. A better community. A better province and country. Better international laws/treaties, etc.
We are sadly very far from being the best of of what we can be collectively, as a province. I learned this from Louis’ legal saga with our Town. To illustrate this, I will borrow Louis’ own words published in an earlier article on the Warktimes, “New Brunswick doesn’t have a justice system. It has a court system… This is what really should get media attention in this story.”
You can guess that for an immigrant, even an old one like myself, Louis’ legal saga was an eye-opener… I feel for my fellow New Brunswickers who have to deal with the system. Without wanting to dive in the past (thank Goodness, it is behind us), I saw practices that even in Beirut I did not see or hear of: Not being able to consult one’s own file ahead of a hearing. Can you imagine? Louis happens to be bilingual and a lawyer in another jurisdiction. What do other less legally-knowledgeable or linguistically skilled citizens do? And I am not even talking about the costs in terms of finances, time, and energy.
I will stop here. To you, I say, have a good evening. To Councillor Phinney, I will repeat: Thank you for your honesty and courage.
Rima, You support Louis epic battle, all the way to the Supreme Court, to force the town to adhere to its Heritage by-law, but you ‘respect’ Councillor Phinney for not adhering to the town’s by-law regarding the treatment of staff?
The by-law Mr. Phinney disregarded deals specifically with the respect and the treatment of employees within the town’s organization. Mr. Phinney’s actions were deeply disrespectful, and only move to create a dysfunctional work place for all town staff, not just the persons he singled out.
There is no conflict between respecting citizens and respecting employees, it’s not one or the other. Mr. Phinney boorish actions have no place in the running of our Town.
Wrayton, for an articulate answer, please see the reply of my preferred lawyer above.
Preferred lawyer = the one I respect, like, and in love with 🙂 :)!!! Yes, I am biased for sure but I trust his wisdom and would support again and again– not only to the Supreme Court but also to Heaven….above us all :).
I hope you still have a sense of humour, although I mean all my words above!
Seriously, Louis is one of the most honest folks I have ever met in my life.
I say the same about Coucillor Phinney in his role of a politician.
Mayor Higham will probably be remembered as the big spender pond guy who blew threw the cash because his climate hysteria culture club pushed him to do – I appreciate Bruce Phinney’s honesty and concern about the decisions, staffing and management and shenanigans going on in the technocratic echo-chamber we call ‘town hall’ where a lot of talk goes on but not a whole lot of common sense is present — the opposition to the Alders’ drive-thru and pipeline Energy East put our town on the map as being non-serious and prone to making a series of big farts in a small town of comfy university academics with no real life work experience… thanks Bruce Wark.. I had hoped you would do a good write up – you never fail to cover the details for locals.. so we are lucky to have you making the effort… I have encouraged people to follow the youtube channel for the Town and leave their commentary there too .. that would give Phinney some more voices of support as he will no doubt be feeling targetted after the Mayor’s inappropriate response to Phinney’s decision to speak out against such waste. Everyone has a duty to say something when they see such obvious financial mistakes taking place. I won’t vote for Higham in 2020.. nor Evans.
I’m always amazed at how many legal and insurance “experts” there are out there and how threats of potential liabilities are used as a means of arm-twisting elected officials into a course of action.
So far, just in the course of this article, we see vaguely worded threats that:
– Phinney will be held personally liable for recommending the replacement of some Town staff.
– CN will sue Sackville because of flooding, and that Sackville will be liable for indirect damages as well.
– That insurance won’t cover it (but without specific details as to what is stated in the policy).
Now, here’s the thing: New Brunswick doesn’t really have a legal system. Rather, it has a “power” system, and the written law is just a vague suggestion, at best. It’s clear that the Town ranks above a regular citizen (such as myself) in that paradigm. What I don’t know is where the Town ranks with respect to CN and with respect to its insurance company. Pragmatically, this would be useful information to have.
In a normal common law jurisdiction in Canada, i.e., one where law – as opposed to power – matters more, the following would be worth looking into:
– The concept of “Qualified Privilege” and how it applies to statements made by elected municipal officials. A beginner guide is here:
http://www.duhaime.org/LegalDictionary/Q/QualifiedPrivilege.aspx
– The extent to which flood prevention (especially with regards to railroads) is a municipal problem in the first place, vs a federal one, given federal jurisdiction over “navigable waterways” and railroads. Maybe it’s even the railroad’s problem. It would be good to know.
– The extent to which the fact that the railroad was knowingly built in a flood zone would limit this liability.
– The extent to which, should the above point to liability of the Town, the Town would be liable for indirect damages (i.e., resulting from late trains) vs only being responsible for direct ones (i.e., a boxcar’s content getting wet). The dollar value of the indirect ones is likely much greater – if they apply.
– What the actual insurance policy says, and what the cost of insurance would be from an insurance company that has full knowledge of the situation and insures the risk “as is” (and, obviously, how that compares to the cost of an alternative engineering “fix”).
A normally run operation would be looking into these questions. In Sackville, vague statements that can be perceived more as warnings than as useful information, seem to take the place of looking into these questions.
In a normal, democratic society, I would suggest that in light of the hundreds of thousands being thrown about with little concern, a few thousand spent on legal research to answer the above questions would be well in order.
In the abnormal society in which we live, the tail wags the dog: CN intimidates the Town, “legal advice” intimidates decision makers, bosses are intimidated by employees… and at the bottom of the heap lies the citizen, intimidated by all.
I read with interest this statement by Wrayton: “Calling for an employee to be fired at work in front of their peers and the public, during an event involving the press, recorded live to the internet, is totally unacceptable in Canada and New Brunswick for obvious reasons.”
I would like to point out that the Mayor’s actions during the question period at the end of the meeting were also ‘totally unacceptable’, to quote the mysterious Wrayton personage.
After Mr Wark had asked his questions and received his replies, Mayor Higham called him back to the microphone and proceeded to ‘ambush’ him with questions regarding a separate previous issue.
I would also like to point out that this Mayor has done the same thing with other questioners at previous meetings.
The idea of “Question Period” is for the Press and then the Citizens to have an opportunity to ask questions of Council or Staff, and the Mayor’s role in that process is to ensure that the questions are answered. It is NOT to act as if he were a judge presiding in a courtroom, to basically ‘cross-examine’ the questioner on other matters.
Sharon, There are no guidelines regarding question period in the Sackville town by-laws or the New Brunswick Local Government Resource Manual. It is poor comparison. Mr. Wark is in no way beholden to the Mayor and could simply walk away or refuse to answer the mayors questions. The relationship between a councillor such as Mr. Phinney and the town staff is considerably different and is governed by a town by-law and provincial labour codes.
FYI, libel and slander are governed neither by by-laws or labour codes.
There is also a legitimate place for privacy and confidentiality, and a place where it is used to cover ill-doing. Discussing a Town employee’s medical problems which affect job performance in public wouldn’t be appropriate. Discussing their work performance on a major file, which they presented publicly, is to me clearly *appropriate*. For me, for you, for anyone… and also – especially – for Councillors.
What I find worrisome in your world view is that, if correct, it essentially makes elected officials irrelevant. It also forgets that this is supposed to be a public body, not a privately held corporation. If it were a privately held corporation, I would fully agree with your take on things. As things stand, it feels as if shareholders of public corporations are often entitled to more information than we get as “citizens” in this town!
The tail really does wag the dog. The employees “run” elected officials, which in turn interrogate the press – it’s supposed to be the other way around!
The very problem with Sackville is that it is de facto being run as a privately held corporation. A “company town” of old, if you will.
Wrayton, if everyone was responsible we didn’t need guidelines and vague bylaws to run a small town like Sackville. No one can justify what is wrong based on the fact that there is or there is no guidelines/bylaws. We are not basic machines to check mark things we are humans and we can analyse.
Wrayton … even though there may be no guidelines specifically to cover how a question period should be handled, there ARE guidelines as to how Mayors of municipalities are expected to conduct themselves.
In the NB Local Governance Act (passed in 2017), we find the following:
– section 48 (1) subsection (d) – indicates the Mayor shall speak on issues of concern to local government ON BEHALF OF COUNCIL …
– section 48 (2) – indicates the Mayor is SUBJECT TO THE DIRECTION AND CONTROL OF COUNCIL AND SHALL ABIDE BY THE DECISIONS OF COUNCIL.
That being said, it would seem that the Mayor ‘should’ be required to at least alert Councillors of his intention to pursue such a line of questioning, prior to the meeting, to GAIN COUNCIL’S APPROVAL for such actions. Otherwise he is ACTING ON HIS OWN VOLITION, and NOT “on behalf of Council”.
From past experience, it has been determined that on occasions when he has done this, the Councillors were completely unaware of his intentions in this respect, and were as surprised as the citizens who were being cross-examined.
Louis, The separation of elected officials from the bureaucracy is a cornerstone of modern democracies. It’s designed to curb nepotism, patronage, and political interference in the day to day operation of government. It’s not difficult to find current examples where this line has been crossed. The outcomes are negative and often dangerous.
Sharon, I do not follow your argument, the sections you pulled from the Municipal Government Act are not applicable to question period. Nevertheless, even if the mayor was in the wrong, that does not absolve Mr. Phinney from having broken the rules.
Azi, People are not responsible that is why we have laws.