Staff Report: Financing Positions in an Assent of Electors Process

FINANCING POSITIONS IN AN ASSENT OF ELECTORS PROCESS

RECOMMENDATION:

THAT this September 18, 2012 report entitled “Financing Positions in an Assent of Electors Process” prepared by the Director of Corporate Administration be received.

CHIEF ADMINISTRATIVE OFFICER’S COMMENTS:

I concur with the recommendation.

PURPOSE OF REPORT:

To present information on legislation related to funding positions in an assent of electors process.

TIME CRITICAL:

This information may be useful to individuals or businesses in the Town in relation to the upcoming assent of electors process for Bylaw No. 839, 2012.

BACKGROUND:

At the September 4, 2012 Council meeting, staff was requested to provide information on the legislative requirements in relation to financing positions in an elector assent process.

DISCUSSION:

There are several aspects to consider in relation to financing positions in an assent of electors process that revolve around what a municipality can undertake as well as what individuals and/or businesses can do.

Municipal Expenditures

With respect to a local government, there have been a couple relatively recent legal cases that have examined the authority of a municipality to expend funds in referenda or assent of electors processes. The most recent case is Morton v Quesnel (City) 2005 CarswellBC 991, 2005 BCSC 610, [2005] B.C.W.L.D. 3786, 11 M.P.L.R. (4th) 274, 45 B.C.L.R. (4th) 359. In this case, Quesnel held a referendum to determine whether the city should borrow money for the purchase of city hall property. The Petitioners alleged that Quesnel exerted an unfair advantage by using councillors to influence voters and by misinforming the public regarding material facts of the loan. The BC Supreme Court held that the councillors were acting within their proper statutory powers prior to referendum, their advocacy in the run-up to the referendum was not to be faulted, but rather to be commended for transparency, and that Quesnel was authorized to take steps to promote only one side of the referendum as it saw fit.

In the above-described Morton case, the BC Supreme Court also made reference to the Garner v. White Rock (City) 1987 CarswellBC 40, 11 B.C.L.R. (2d) 352, 34 D.L.R. (4th) 628, 35 M.P.L.R. 1 case. In Garner v. White Rock, the BC Court of Appeal dismissed an appeal by an elector who had attacked certain expenditures of White Rock that had been used for advertisements urging electors to support a loan authorization bylaw. The Court of Appeal considered s. 287 of the Municipal Act (the legislation in effect at that time) which provided that council, in addition to powers specifically allotted to it, had power to do anything incidental or "conducive" to the exercise of allotted power. The Court of Appeal interpreted the word "conducive "to mean "to bring about or to lead or tend towards a result".

In conclusion, if the Town does decide to advertise its position on the elector assent issue and spend money to do so, any spending should be modest and reasonable as the courts could consider exorbitant costs in a different light than how the above cases were decided. As well, exorbitant spending may cause some electors to vote against the proposal simply to express disagreement with the municipality’s active support.

Individual and/or Business Expenditures

For individuals and businesses, the campaign financing rules that apply for a general local government election do not appear to apply to other voting used in an assent of electors process. This means that there is no need for individuals or businesses wishing to support one side or the other of a question to become campaign organizers, set up bank accounts to deal with funds related to promotion, or file financial requirements at the end of the process.

If an individual or business wishes to assist the Town with promotion costs, this can be done through donations to the municipality. Donors should be advised that any surplus funds remaining will be utilized for other municipal purposes – in other words, while the donor can indicate where they would like their funds to be applied, the municipality is not accepting donations for a single purpose.

While possible to donate directly to the municipality, staff note that it would be simpler and clearer to the broader community if individuals and businesses showed their support for the loan authorization bylaw as a separate entity or entities to the municipality’s promotional initiatives.

Advertising

With respect to advertising, some of the same restrictions for general elections do apply to other voting. As regards the legislation and advertising rules applicable to other voting:

• Section 158 (3) of the Local Government Act provides that for the purposes of applying section 152.1 [prohibition against certain election advertising on general voting day] to other voting, advertising is deemed to be election advertising if it is used to promote or oppose, directly or indirectly, a particular outcome in the vote.
• Under Section 152.1(2), on a voting day, a person or unincorporated organization must not conduct election advertising by publishing it in a newspaper or magazine or on radio or television.
• Under Section 152.1(3), a person or unincorporated organization must not act as sponsor or agree to act as sponsor of election advertising that is or is to be conducted on general voting day, whether the publication is done within British Columbia or outside British Columbia.

Accordingly, it seems that election advertising is prohibited only on general voting day, and even then only “publishing” in a newspaper/magazine/radio/TV is prohibited. Other forms of advertising or promoting/opposing a particular outcome would be permissible even on general voting day, provided that they are carried out outside of a 100 metre radius of a voting place (section 153(4) of the Local Government Act). However, staff recommend that the Town not conduct any advertising at all on voting days.

RECOMMENDATION:

THAT this September 18, 2012 report entitled “Financing Positions in an Assent of Electors Process” prepared by the Director of Corporate Administration be received.

SUBMITTED BY: S. Jones, Director of Corporate Administration

REVIEWED BY: K. Anema, Chief Administrative Officer