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2007-07-16&17_Supplemental Agenda Packet--Dossier de l'ordre du jour supplémentaire City of Saint John Common Council Meeting Monday & Tuesday, July 16 & 17, 2007 Supplemental Agenda Re: 8.2 Saint John Community Arts Board Re: 9.1 Letters submitted Relating to Proposed Re-zoning 233 Westmorland Rd Re: 13.2 Committee of the Whole Report - Engagement of Barry Spalding 13.0 Committee of the Whole Report - Appointments to Committees 13A Committee ofthe Whole Report - Response to Decisions of the Pension Board on Disabilities 13B Committee of the Whole Report Legal Personnel Matter - Staffing in the Legal Department 13C Committee of the Whole Report Property Acquisition 13D Committee of the Whole Report Request for Legal Opinion - Conflict of Interest City of Saint John Seance du conseil communal Le Lundi et Ie mardi 16 et 17 juillet 2007 l'ordre du jour supplementaire Alinea 8.2 Lettre relativement a la presentation du Conseil des arts communautaires de Saint John Alinea 9.1 Lettre relativement au projet de modification du zonage visant Ie 233, chemin Westmorland Alinea 13.2 Rapport du comite plenier relativement a la nomination de Barry Spalding 13.0 Rapport du comite plenier relativement aux nominations pour sieger aux comites 13B Rapport du comite plenier relativement a une question d'ordre juridique afferente au personnel, soit la dotation dans Ie service juridique 13C Rapport du comite plenier relatif a I'acquisition de biens-fonds 13D Rapport du comite plenier relatif a une demande d'avis juridique afferente a un conflit d'interet Saint John Community \~ BOARD CONSEIL D'ADMINISTRATION de la communaute de Saint John Chairman / President Michael Wennberg Stewart McKelvey Vice-Chairman / Vice-president Peter McKelvey Fundy Engineering I Secretary / Secreta ire Bernard J. Cormier Cultural Affairs Officer, City Hall Tim Blackmore Musician, Educator Michele C. Brideau Saint John Immigration! Avantage Saint John Advantage Peter Buckland Peter Buckland Gallery Michelle Hooton Deputy Mayor/maire supplE~ante John Foster Investors Group Philip Huggard Gothic Arches Dr. Robert MacKinnon Dean of Arts - UNB Saint John Leslie Oland Resource Centre for Youth Andrea Scott Port City Dance Academy Janet Scott Enterprise Saint John Jill Whitehouse Efficiency New Brunswick Address P.O. Box / c.P. 1971 Saint John, NB / N-B E2L 4L1 (506) 649-6040 Fax (506)632-6118 sjcab@saintjohn.ca , Logo based on City Hall sculpture "Progresssion" by Claude Roussel, CM, ONB, RCA f}. ~\ April 2, 2007 Mayor Norm McFarlane and Members of Common Council City of Saint John P.O. Box 1971 Saint John, NB E2L 4L 1 Your Worship and Members of Council; On behalf of myself and fellow members of the Saint John Community Arts Board, I want to express our gratitude for the continuing support Common Council gives to the Saint John Community Arts Board, and to its programs directed at the development of arts and culture in our community. We are especially appreciative of Council's decision to increase the Board's 2007 budget allocation to $70,000. Thank you - and we assure you that this funding will be put to good use! Grants Proaram - 2007: One of the most important uses of the City's increased budget allocation is the continuation in 2007 of a new initiative that our Board established last year - the Saint John Community Arts Funding Program. This small grants program, to be announced for 2007 very shortly, helps the City achieve (through our Board) some of its social, economic and cultural goals. The grants program represents a form of partnership with community-based arts organizations which, in turn, contribute to developing arts capacity, equitable access, diversity, civic pride and excitement in our community. New City Developments - and - Arts Policy Requirements: Our Board is also very excited about the new developments that are now proceeding, or are planned, in the City, including: o the City's new police headquarters buildinq, new parkinq qaraqe structure, new transit qaraqe, new West Side Saint John Enerqv headquarters, and new water and sewerage facilities; o the Province's new Justice Complex; o Saint John Port Authority's new waterfront cruise ship terminal; and o Coast Guard site and other waterfront developments. You will recall that, after almost two years of public and private consultation, Common Council unanimously adopted the Saint John Arts and Culture Policy on September 26, 2005. In so doing, Saint John became the first city in Atlantic Canada to adopt a comprehensive arts policy that formally acknowledged that: The City of Saint John is committed to being a city in which the arts are accessible to all, artistic achievement, cultural diversity and heritage are valued and celebrated, and the community's uniqueness and vibrancy are reflected in its arts, culture, and citizens, and in its commerce, buildings and facilities. Integral parts of the Policy state: [Public Art} Common Council recognizes the importance of public art to the quality of life in Saint John. The City (through the Saint John Community Arts Board) will: (a) catalogue and document Saint John area public art; and (b) create a public art plan that identifies appropriate public art projects that will aesthetically enhance its urban spaces. Common Council will allocate at least one percent (1%) of the cost of appropriate City capital projects to the creation and installation of public art as part of such municipal projects. It will also encourage private sector developers, other Saint John area municipalities and other levels of government and government agencies (including the Saint John Port Authority) to do the same. - 2- {Heritage Properties and Heritage Development] As part of this policy and other policies of the City, ... Common Council will continue to support this unique Saint John asset ..., by ensuring that new City buildings, parks and walkways incorporate compatible heritage and architectural styles into the projects' designs. One of the Policy's specific goals is to create unique and stimulating environments in the City: {Unique and Stimulating Environment] Public buildings, facilities, displays and spaces (both "built" and "natural ") act as showplaces for what is uniquely Saint John. They enhance both its image and the quality of its overall environment. The landscapes, cityscape, and heritage of Saint John not only attract visitors; they stimulate and inspire artists, writers and performers. The City has a responsibility to support, maintain and develop the distinctive natural and built features of Saint John. Each of the City's new buildings will be large and very prominent facilities. Each of them will create a lasting legacy of Common Council - a legacy of which all residents (and, for that matter, visitors) should be proud. As developments by other governmental bodies (such as the cruise ship terminal and the Justice Complex) and private interests (such as the Coast Guard site and other sites) proceed, the best way for the City to encourage them to incorporate public art and compatible and interesting architectural styles in their developments is to lead by example. Our Board will provide Council and City staff with whatever assistance you consider appropriate to ensure that the City's Arts Policy objectives are implemented - both as they relate to the City's own developments mentioned above and (by way of example and encouragement) those of others. If these new developments are sensitive to their sites, and to Saint John's history and heritage; and if they incorporate public elements, the City will be the richer for it - and it will become even more unique and appealing to its citizens and visitors alike. Inclusion of public art and public elements in the City's own developments (includinq all those mentioned above) can be accomplished in any number of creative ways (through exterior works, interior works that the public can view, public exhibits/displays, etc. - the ideas are almost endless); and our Board is equally willing, and excited, to provide assistance in this area as well. Yours very truly, J--~ Michael D. w.ennbera ~//' . Chairman~ 632-2771 cc. Terry Totten, City Manager SMSS\\575001.1 /1 (\ 1"-J J Purpose of Presentation . Board is appointed by Common Council and is required to provide a report of its activities annually . Response to Councillor Bill Farren's letter to Council, dated April 3, 2007, requesting a presentation to Council on arts and culture in the community. 1 Board Members Appointed by Common Council . Michael D. Wennberg Chair . Tim Blackmore . Michele Brideau . Peter Buckland . John Foster . Deputy Mayor Michelle Hooton . Philip Huggard . Dr. Robert MacKinnon . Leslie Oland . Janet Scott . Andrea Scott . Jill Whitehouse . Peter McKelvey Vice-Chair . Bernard J. Cormier Cultural Affairs Officer Secretary I Staff Support Board Activities / Accomplishments continued.. . 2003 to 2005 Assists in the revitalization of the Saint John Arts Centre and supports its request for funding from the Greater Saint John Regional Facilities Commission . Hay 2004 With a municipal election to be held, the Board hosts the "first ever" Forum for Candidates Board Activities / Accomplishments continued .. . June 2004 to April 2005 Engages in extensive public participation through a series of consultations with community stakeholders, including by means of a major public forum and a roundtable discussion with the then federal Minister of Canadian Heritage - all to gain input on requirements of an arts and culture policy . June 2005 Final draft of Arts and Culture Policy presented to Council for adoption - Council refers Policy to City Manager for staff report Board Activities / Accomplishments continued.. . September 2005 Council unanimously adopts the Saint John Arts and Culture Policy The City of Saint John is committed to being a city in which the arts are accessible to all, artistic achievement, cultural diversity and heritage are valued and celebrated, and the community's uniqueness and vibrancy are reflected in its arts, culture, and citizens, and in its commerce, buildings and facilities. 2 Board Activities / Accomplishments continued.. . October 2005 City is host to the Atlantic Cultural Space conference, and Board members chair various panels . November 2005 Board participates in Making It Happen - a one-day forum on redevelopment and revitalization, featuring Gien Murray, former Mayor of Winnipeg, as workshop leader . Januarr 2006 (ounci approves a first-ever budget of $50,000, primarily for Board to develop a small grants program for local arts and culture organizations Board Activities / Accomplishments continued.. . f/iarcll 2006 Creates a Post-Secondary Education Sub-Committee to explore an arts institution in City's uptown; through thiS work the Board IS asked to participate in the True GroIVtlI Post-Secondary Education Strategy initiative . r'1arch-Hay 2006 Program criteria and forms developed for the City's first proposed Community Arts Funding Program- grants to range between $SOO and $5,OOOand to be used to assist arts organizations with funding their projects, events and/or festivals . 1'1av 2D06 Organizes Samt John's second Arts Summit - which attracts over 100 partiCIpants for one-day meeting on arts and culture Activities / Accomplishments continued.. . June 2006 Authority given to proceed with grants program . August-September 2006 First Community Arts Funding Program grants announced; project and festival grants total $38,100 to 14 organizations . f'1ay-June 2007 Second Community Arts Funding Program grants announced on June 29, 2007; project and festival grants total $46,600 to 23 organizations, 2007 ProjectGrant Recipients ORGANIZATION . L'ARCf de Samt-Jean . Early Music Studio of Samt John . InterAction Children's Theatre Co. . Key Industries . O.N.E. Change . New Brunswick Museum . Performing Arts NB . The Resource Centre for Youth . Saint John Jewish HistOrical Museum . Saint John String Quartet . Saint John Theatre Company . Shakespeare Society of Salllt John . Third Space Gallery . Third Space Gallery TOTAL Project Grants GRANT $ 2,000 2,000 2,500 2,000 3,000 2,000 1,500 2,000 1,600 3,000 3,000 2,000 2,000 1,000 $29,600 Board Priorities for 2007/2008 . Cultural Capitals of Canada application for 2010 - coinciding with the City's 225th anniversary of incorporation . Continued ~ of the Arts and Culture Policy . 2008 Community Arts Funding Program . Develop and hold a biennial celebration of arts and culture - to recognize the accomplishments of our artists and arts organizations . Obtain and develop arts and culture statistics - including statistics on cultural diversity 3 Board Priorities for 2007/2008 continued" . Permanent re-Iocation of People Waiting to appropriate outdoor public setting CSt. Andrews Square) . Administer funds budgeted in the City's Art Reserve to commission new public art in public spaces . Ensure 1% for art is incorporated in new City developments - eg: new Police Headquarters, new parking facilities, new Saint John Energy offices, and new Saint John Transit facility . Encourage Council to playa leadership role in encouraging the Province, Saint John Port Authority and private developers to "!lliiliLJjgI}):" and to include public art elements in their developments. Council Support for Arts and Culture - since the 2004 election . Establishment of Councillor portfolios with the portfolio of Arts, Culture and Heritage assigned to the Deputy Mayor . Arts, Culture and Heritage assigned to the Mayor as alternate portfolio . Mayor's annual New Year's Day Levee moved from City Hall to Saint John Arts Centre . Adoption of Saint John Arts and Culture Policy (September 2005) Council Support continued. . Budget support for our Board in 2006 ($50,000) and 2007 ($75,000) Agreement to develop the Saint John Community Arts Funding Program, providing small-sized project andlor festival grants to artsjcultura organizations and community groups Support for restoration and relocation of the John Hooper sculptures entitled People Waiting Willingness to support the Saint John Arts Centre and Uptown Saint John initiatives. 4 Saint John ARTi-Facts . The City's Cultural Affairs Office was first in Eastern Canada to develop a Cyber Events Calendar (now reaches over 4,000 subscribers) . The Cultural Affairs Office was first to issue State of the Arts - an electronic-newsletter on arts and culture . Over 3,000 [~c.9rdecl arts and cultural events/activities were held in Saint John in 2006 Saint John ARTi-Facts continued.. . Since 1993-94 - over 5 million people have attended Harbour Station events and over! million people have attended Imperial Theatre performances . Between 1987 and 2007 (a 20 year period) there has been a 550% increase in the number of arts and cultural organizations in Saint John . First Atlantic Canadian city to adopt a "comprehensive" arts and culture policy Saint John ARTi-Facts continued.. . Home to numerous arts/culture organizations with province-wide and regional mandates: lit New Brunswick Museum lit Opera New Brunswick lit Performing Arts NB lit Symphony New Brunswick '" Saint John Theatre Company '" NB Competitive Festival of Music '" New Brunswick Musicians Association 5 Some Statistics . Cultural industries now account for $2.1 billion of Atlantic Canada's GDP, an increase of 42% since 1996 . Cultural industries generate 34,557 direct jobs, representing 3.29 per cent of Atlantic Canada's total workforce. Source: Study publIshed by the Canadian Institute for Research on Regional Development (CIRRD). Saint John's Arts and Culture Volunteers . Estimated number of volunteers: 1,500 . Estimated volunteer hours: 216,000 per year . Estimated value: $2.85 million per year . 216,000 hours volunteered in arts and culture is equivalent to 129 full-time, full year jobs (at 35 hours per week and 48 weeks per year) . These are <::.onservative estimates. Source: City's Cultural Affairs Office, 2007 Community/Cultural Diversity . Three fastest growing communities in Saint John are: $ Chinese " South Korean " Iranian . In 2006 - 347 individuals came to Saint John through the Provincial Nominee Program (this figure does not include immigrants outside this program). Cultural Affairs Office . Provides programs and services to promote arts and cultural affairs in community development . Liaises with local arts and cultural community groups including festivals and special events . Co-ordinates promotional signage / banner placement in city . Curates and directs the City of Saint John Gallery . Provides staff support for Saint John Community Arts Board, and assists in implementation of Arts and Culture Policy Cultural Affairs Office conttiwed. . . Represents the City at numerous arts/cultural functions, serves on boards and committees - and provides the City and groups with protocol advice . Assists arts/cultural community groups on grants and partnerships, assists andlor prepares grant applications for community groups . Serves as custodian of the City's Permanent Art Collection . Produces the City's Events Calendar . Produces and issues weekly Cyber Events Cafendarand monthly State of the Arts. Cultural Affairs Office Current and Ongoing Projects, Activities and Services in addition to all the activities just described . New Brunswick Day Merit Awards . Cultural Capitals of Canada Program . Saint John Community Arts Funding Program . Professional Artist in the Community Grants Program (a new initiative - 3 partners) . Saint John-Elsibogtog Partnership (a new initiative) . Millennium Artplace, Saint John Free Public Library . Dialogue New Brunswick - Ambassadors Program (a new initiative) . Sheila Ross Memorial Scholarship . Art and Antiques in the City brochure. 6 Continuing Council Support is Critical . For effective implementation of Saint John's Arts and Culture Po/icy in relation to w Public art " Heritage development, and " Saint John's unique physical environment . SO - relating to exciting new developments of the City, the Province, the Port Authority, the Hardman Group and other private developers " ensure compatible designs " include 1% for public art w Please refer to our April 2, 2007 letter to Council 7 Fundy Funeral Home ~ ,0, I Paul A. Daigle J? ' Managing Funeral Director 230 Westmorland Road Saint John, N.B. Phone: 646-2424 E2J 2G3 Fax: 646-2425 Email: fundyfuneralhome@nb.aibn.com Web: www.fundyfuneralhome.com Support From: Fundy Funeral Home Contact Person: Paul A. Daigle / Managing Funeral Director Comments: Full support of Re-zoning to Business for a Beltone Better Hearing Aid Center. ~, \ It' J Support From : Lochlomond Villa Contact Person: Cindy Donnovan / CEO Contact Person: Shirley Johnston / Health and Wellness center @ villa Comments: We are infull support ofre-zoning 233 Westmorland property to Business to facilitate a new Beltone Better Hearing Aid Center. Pamela has shown excellent community support and has been a good community partner for our Seniors for several years now. This location would be within walking distance and convenient for our residents. We would highly recommend approval for re-zoning 233 Westmorland to Business for a new Beltone office. This would ensure continued professional hearing services for our residents and for East Side Saint John. The City of Saint John /"1 0 / j, July 16, 2007 Deputy Mayor and Councillors, Subject: Appointments to Committees The Committee of the Whole Meeting having met on July 16, 2007 makes the following recommendations: Saint John Industrial Parks Commission - that upon the expiration of his present term on September 30,2007, Claude MacKinnon be re-appointed until December 31,2008, or until recommendations resulting from the Mayor's Task Force on Industrial Parks are adopted. zrs ~ly, Norm Zane Mayor ~ SAINT JOHN -- P.O. Box 1971 Saint John, NB Canada E2L 4L 1 I www.saintjohn.calc.p. 1971 Saint John, N.-B. Canada ElL 4L 1 The City of Saint John .. , :' .-'< ;,"~ 1"'-. , l.~"'" 1"'1 JLf2 ~ July 16, 2007 His Worship Mayor Norm McFarlane And Councillors Your Worship and Councillors: Subject: Committee of the Whole Report - Engagement of Barry Spalding At the May 28, 2007 meeting of Committee of the Whole, the Assistant Clerk was directed to engage the law firm of Barry Spalding, Saint John to provide advice on pension matters when the City Solicitor needs to withdraw from meetings because of a conflict of interest as it relates to his serving on the City's Pension Board of Trustees. It is appropriate that this engagement be referred to open session of Council, and if Council wishes the following resolution is in order. Recommendation: that Council engage the law firm of Barry Spalding, Saint John, and specifically David O'Brien, to provide advice on pension matters when the City Solicitor needs to withdraw from meetings because of a conflict of interest as it relates to his serving on the City's Pension Board of Trustees SinCere?r It;{ ~ Michelle Hooton Deputy Mayor ~ SAINT JOHN - P.O. Box 1971 Saint John, NB Canada E2L 4L 1 I www.saintjohn.calc.p. 1971 Saint John, N.-B. Canada ElL 4L 1 The City of Saint John "~, /)_ t -' July 17, 2007 RESPONSE TO DECISIONS OF THE PENSION BOARD RE: CONTINUANCE OF DISABILITY PENSIONS RECOMMENDATIONS: $ SAINT JOHN - Whereas the Board of Trustees has, and continues to review the eligibility of persons in receipt of a disability pension from the Pension Fund, And Whereas, the City of Saint John has been provided legal advice that the City, based on wording in the Pension Act, is under no legal obligation to reestablish an employer-employee relationship with these persons who have been advised they are no longer eligible to be in receipt of a disability pension. And whereas the Employer acknowledges that these persons had, at the time of disability, met the requirements of the Act, have been in receipt of a disability pension and have adjusted their life styles accordingly. And Whereas the City recognizes that, in some cases, given the health condition, time away from the workplace, and age of many of these persons, there exists little realistic opportunity that these persons could effectively be reintegrated into the workplace. Be it resolved that Common Council adopt the following policy position with respect to any persons in receipt of a disability pension and who has been advised that this disability pension is about to cease that; 1) The City would encourage those persons who in fact are eligible to retire under other provisions of the Pension Act, i.e. (over 55 years of age) to make application to do so. 2) Where circumstances are such that a person, having been advised by the Pension Board that he or she is no longer eligible to receive a disability pension, and that person is eligible on the date that he or she has been so advised, to receive a Pension under other sections of the Act, and his or her pension entitlement is less than the amount the former employee had been receiving in the form of a disability pension, the City of Saint John shall pay to the person, the difference so as to ensure the formerly disabled person does not experience a sudden drop in their pension income. P.O. Box 1971 Saint John, NB Canada E2L 4L 1 I www.saintjohn.calc.p. 1971 Saint John, N.-B. Canada ElL 4L 1 3) That benefits, i.e. health, dental and group life be extended to these former disability pensioners on the same basis as all other employees who are not disabled and have chosen to retire under the normal pension provisions. 4) That each formerly disabled pensioner now entitled to a Pension under other provisions of the Pension Act, be paid an annual amount of $1,200.00 until such time as he or she reaches age 65. 5) That the City shall work in a positive and sincere way with any former disability pensioner who has been advised that his or her disability pension is about to cease, and is not entitled to a Pension under the Plan because of age, i.e. less than 55 years of age. The City's efforts will be aimed at finding a satisfactory resolve to the situation given due consideration to the cost to taxpayers, the individual's health, the suitability for meaningful re-employment of each individual, and any other relevant circumstances. 2 >{ \~ City Solicitor's Office Bureau de l'avocat municipal P.O. Box/C.P. 1971 Saint John, NB/N.-B. Canada E2L 4L1 www.saintjohn.ca Section lO.2(4)(j) The City of Saint John COMMITTEE OF THE WHOLE June 29, 2007 Common Council of The City of Saint John y our Worship and Councillors: Re: Personnel Matter Provision has been made as you know in our Department's 2007 Budget to engage an additional lawyer. That initiative in addition to bolstering personnel resources generally, was intended to permit a smooth transition of the by-law, enforcement and contract areas, which are areas dealt with by Mr. Cullinan who will be retiring early in 2008. As a result of both formal and informal recruitment efforts I am pleased to advise that a number of promising candidates have expressed interest in working in the Department. Preliminary interviews have been conducted and the assessment and interview process is continuing. I hope to be able to make final decisions by mid July. My purpose in this correspondence is to recommend that you authorize my hiring two people this year, should I conclude we have two very good applicants with whom we can come to terms. Based upon preliminary discussions I am anticipating additional salary requirements for two positions would be approximately $150,000 annually, plus benefits. The impact on our 2007 Budget of hiring two people this fall (hiring's would probably be staggered in September and October) would be approximately an additional $12,000 to $14,000.00. This is based upon initial estimates relating to the renovation and office outfitting costs that would be incurred. In 2008 the projected budget for salary and benefits costs would represent very little variance, I believe, from what would be the actual experience given the anticipated change in personnel. ... /2 Common Council June 29, 2007 City Solicitor Page 2 Re: Personnel Matter It may be that we will not be able at the conclusion of the interview and assessment process to come to agreement with two candidates, however, I would like to be able to make final decisions by mid July and for this reason bring the matter to you at this time. Respectfully Submitted, oNUgentJr olicitor " " .:.i' The City of Saint John July 17, 2007 His Worship Mayor Norm McFarlane And Members of Common Council Your Worship and Members of Council SUBJECT: Property Acquisition The City of Saint John is actively involved in a number of development initiatives including a new transit facility, police justice complex, parking garage, works garage, one-mile interchange, and major water and sewerage infrastructure. There is a need to negotiate the acquisition of properties for these developments. These negotiations are time sensitive and can affect the overall scheduling and ultimately the cost of these projects. Staffhave concluded that engaging outside resources to represent the City in negotiations is the most expeditious method of securing these properties on a timely basis. Resolution: That the City engage Investment Securities Limited as its agent from time to time at the discretion of the City Manager as the need arises to negotiate agreements of purchase and sale for the acquisition of real estate for the purpose of various potential development projects throughout the City. ~~ Submitted \ \/ \'~a-- ~J l,,- 1krrence L. Totten" t City Manager . ~ SAINT JOHN -- P.O. Box 1971 Saint John, NB Canada ElL 4L 1 I www.saintjohn.calc.p. 1971 Saint John, N.-B. Canada ElL 4L 1 \) STEWART MCIQLVEY \~ Suite 600 Frederick Square 77 Westmorland Street Fredericton, NB Canada E3B 623 Correspondence: P.O. Box 730 Fredericton, NB Canada E3B 5B4 Telephone: 506.458.1970 Fax: 506.444.8974 fredericton@smss.com www.smss.com Frederick C. McElman, C.M., Q.c. Direct Dial: (506) 444.8979 Direct Fax: (506) 444.8974 fmcelman@smss.com Our file: NB702346-8 June 28, 2007 Common Council The City of Saint John P.O. Box 1971 Saint John, NB E2L 4 L 1 Dear Sirs: Re: Opinion regarding potential conflict of interest involving City Solicitor, John Nugent We were asked to provide the City of Saint John (hereinafter the "City') with an opinion in relation to the following question: Does Mr. Nugent (City Solicitor) have a conflicting interest with respect to advice which he might provide to Common Council or the Committee of the Whole of Common Council and which advice would or could relate to the conduct of Councillor Ferguson in matters distinct from and unconnected with the subject of the action brought against Councillor Ferguson by the Pension Board of Trustees? We obtained documents from the City Solicitor but we did not consult with him concerning our opinion and he took no part in the preparation of our opinion. The Facts: Based on our review of the documentation provided to us as well as our review of the pleadings between The Board of Trustees of the City of Saint John Employee Pension Plan et at. v. John Ferguson in Court File No. S/C/53/07 (hereinafter the "Court File No. S/C/53/07"), the facts in this matter as we understand them may be summarized as follows: In the Fall of2003, Mr. Nugent was appointed as a member of the Board of Trustees of the City of Saint John Pension Plan as a representative of non-bargaining employees of the City (hereinafter the "Board of Trustees"). In October 29, 2004, Mr. Nugent filed a Disclosure of Interest with the Common Clerk with respect to his membership in the Pension Plan due to the possibility that Council might consider amendments to the Plan. 153570.vl smSSJom Charlottetown Fredericton Halifax Moncton Saint .John SI. .John's Page 2 In the Statement of Claim in Court File No. S/C/53/07, the Board of Trustees and the individually named Trustees, including Mr. Nugent, have alleged that Mr. Ferguson made statements during the April 11, 2005 open session meeting of Common Council regarding an alleged conflict of interest because both Mr. Nugent and Terry Totten are Trustees as well as senior staff employed by the City. On April 25, 2005, Mr. Nugent again filed a Disclosure of Interest form with the Common Clerk. The reason for doing so stated in Mr. Nugent's cover letter of the same date was as a "result of the accusations made by Councillor John Ferguson at the open session meeting of Common Council held on April 11, 2005". The Statement of Claim by the Board of Trustees in Court File No. S/C/53/07 alleges that Mr. Ferguson made several defamatory statements against the Board of Trustees and against individual Trustees, including Mr. Nugent, throughout 2006. The Claim alleges that Mr. Ferguson made statements during the April 11, 2005 open session meeting of Common Council regarding an alleged conflict of interest because both Mr. Nugent and Terry Totten are Trustees of the Pension Plan and City staff. On January 22, 2007, the Board of Trustees and the individual Trustees commenced their legal action against Mr. Ferguson in Court File No. S/C/53/07. Particulars were exchanged in February, 2007 and Mr. Ferguson's Statement of Defence was filed on February 12,2007. In his Statement of Defence, Mr. Ferguson denies that he made the alleged defamatory statements and pleads, in the alternative, several defences including the defence of justification, qualified privilege and fair comment. On February 12, 2007, Mr. Nugent again filed a Disclosure of Interest form immediately preceding a meeting at which he anticipated there would be a discussion concerning the treatment of non-pensionable earnings, a topic relevant to his own circumstances. It would appear that at some point in March or early April, 2007, a situation arose involving Margaret Totten, the City's Manager of Tourism who had been on an extended sick leave since earlier in 2007 which culminated in Ms. Totten em ailing her resignation to the Deputy City Manager. On April 4, 2007, Mr. Nugent provided verbal advice to the Deputy City Manager and the Manager of Human Resources regarding the City's responsibilities and obligations to Ms. Totten. Mr. Nugent informed the Committee of the Whole of the situation regarding Ms. Totten and of the advice he had given to the Deputy City Manager and Human Resources Manager during a meeting of the Committee of the Whole, from which the public was excluded, on April 10, 2007, none of which was discussed in any subsequent public session of either Common Councilor the Committee of the Whole. Mr. Nugent confirmed his advice to the Deputy City Manager and the Manager of Human Resources in writing on April 11, 2007. At a meeting of the Committee of the Whole on April 23, 2007, a request was made of Council by the City Manager to meet on April 30, 2007 and a resolution of Council passed wherein it was agreed to meet on April 30, 2007. At the April 30, 2007 meeting, a motion was passed for Council to go into Committee and exclude the public. 153570.vl Page 3 Mr. Nugent states that on May 1, 2007 he listened to a voice message left on the telephone of the Deputy City Manager by Telegraph Journal reporter John Mazerolle wherein Mr. Mazerolle stated that Councillor Ferguson had informed Mr. Mazerolle "on the record" that Ms. Totten was still an employee of the City. On May 2, 2007, the Telegraph Journal published a story regarding Ms. Totten's employment situation entitled "To Resign or Not to Resign" and quoted statements made by Councillor Ferguson regarding Ms. Totten's employment. Also on May 2, 2007, Mr. Nugent sent an email to all members of Council with an attached letter advising of the circumstances surrounding the telephone voice message from Mr. Mazerolle of the Telegraph Journal and expressing the view that the circumstances represented a breach of confidentiality of information discussed during the private meeting of the Committee of the Whole. On May 3, 2007, Mr. Ferguson sent an email to all members of Council expressing the following VIew: "1 regard any legal opinion to Council that he [Mr. Nugent] states in some way relates to me is to be viewed as a conflict of interest. 1 remind Council that Councillor Tait and the City Solicitor are party to a lawsuit against me. " Relevant Le2islation: We have reviewed the following legislation: Charter of the City of Saint John There are no provisions in the Charter which are directly relevant or applicable to the question as to whether Mr. Nugent is in a conflict of interest with respect to advice relating to Councillor Ferguson. City of Saint John Government Act There are no provisions in the City of Saint John Government Act which are directly relevant or applicable to the question at hand. However, upon our review of this particular Act, we noted the following provision: 12(1) The Council shall meet at least once in each fortnight. All meetings shall be open to the public, unless business is being discussed with the City Solicitor which involves the liability of the City from a legal standpoint, when the council may in its discretion sit in private session. The Council shall make rules providingfor the time ofholding regular sessions. (See also sub-section 14(6) respecting the direct responsibility of the City Solicitor to Council and not to the City Manager) 153570.vl Page 4 City of Saint John Pension Act Section 2 establishes the Board of Trustees for the City of Saint John Pension Plan. Section 2(2)(j) provides that the Board shall include "one trustee appointed by and being a member of the non-union employees of the City". Mr. Nugent holds that position. Of significance are the requirements of2(2)(a) and (b) which provide that the Mayor and 2 members of Council must be trustees and 2(2)( c ),( d) and (e) which provide that the Commissioner of Finance, the Clerk and the City Manager (or other employee) also must be trustees. Mr. Totten holds his position by virtue of the Act. In addition, under 2(8) the Mayor, Treasurer and Common Clerk are the Officers of the Pension Board. Section 7 mandates the City's contributions. By virtue of the City of John Pension Act requirements as to composition of the Board of Trustees, and the other provisions of the Act, the operations of the Board are interwoven with the interests of Council. This Act contains no provision precluding the City Solicitor or any employee of the City from holding a position on the Board of Trustees Municipalities Act Sections 90.1 to 90.91 of the Municipalities Act deal with conflicts of interest. The term "senior appointed officer" is defined as follows: "senior appointed officer" means a person employed or appointed by a municipality or local board who fulfills the responsibilities of any of the following: (d) a municipal solicitor, or the person who has the primary responsibility to advise council on legal matters... Section 90.2(1) identifies the circumstances in which a senior appointed offer has a conflict of interest and states: 90.2(I)Subject to subsection (I.1) and section 90.3, for the purposes of this Act a member or a senior appointed officer has a conflict of interest if (a) he or afamily associate (i) has or proposes to have any interest in any contract in which the council or local board of which he is a member or by whom he is employed or was appointed has an interest; or (ii) has an interest in any other matter in which such council or local board is concerned that would be of financial benefit to him or the family associate,' (b) he, his nominee or a family associate is a shareholder in, or is a director or a senior officer of, a private company that 153570.vl Page 5 (i) has or proposes to have an interest in any contract with such council or local board; or (ii) has an interest in any other matter in which such council or local board is concerned that would be of financial benefit to the company; (c) he, his nominee or a family associate has a controlling interest in or is a director or a senior officer of a public company that (i) has or proposes to have an interest in any contract with such council or local board; or (ii) has an interest in any other matter in which such council or local board is concerned that would be of financial benefit to the company; or (d) he or a family associate would otherwise benefit financially by a decision of such council or local board in any contract, proposed contract or other matter in which the council or local board is concerned. 90.2(1.1) A member or a senior appointed officer does not have a conflict of interest by reason of a family associate's interest as described in paragraph (l)(a), (b), (c) or (d) unless the member or senior appointed officer knew or ought reasonably to have known of the family associate's interest. Section 90.5 provides the procedure for a senior appointed office to disclose any conflict of interest he or she may have knowledge of and states: 90.5 (l) Upon the coming into force of this section, and thereafter upon assuming office, a senior appointed officer shall file with the clerk in the form prescribed by regulation a statement disclosing any conflict of interest of which he has knowledge or should reasonably have knowledge; but a senior appointed officer need not disclose particulars of his financial interest or the extent of any interest in any matter giving rise to a conflict of interest. 90.5(2) A disclosure similar to that described in subsection (1) shall forthwith be made by each senior appointed officer where a conflict of interest arises while he is in office. Although it is not relevant to the questions as to whether there is a conflict of interest it should be noted that section 10.2(4) of the Act also provides that the public may be excluded from a meeting of Councilor Committee in certain circumstances, including information on legal opinions or advice by a municipal solicitor. The above noted statutes contain no description of the job duties or responsibilities of City Solicitor. However, the "Job Description for City Solicitor" states that the nature of work is as follows: 153570.vl Page 6 This employee, by virtue of legislation applicable to Saint John, reports to Common Council and works cooperatively with the civic administration of the City of Saint John. The City Solicitor is the chief legal officer for the City. The duties may be broken down into those terms strictly "legal" as differentiated from those which are essentially "administrative". The most important is rendering advice to the Council, as it functions within the source of its legal authority, Work involves responsibility for the administration of the City's Legal Department and coordination of the services it provides. The incumbent provides legal interpretation and advice to Common Council, departments, public officials and other government boards with respect to laws, regulations and policies of the City. The solicitor should be experienced in and capable of handling the most difficult legal issues and problems and be trained in a branch of the law related to . government operations. Rules of Professional Conduct: The Canadian Bar Association Code of Professional Conduct (hereinafter the "Code") adopted by the Council of the Law Society of New Brunswick in Chapter 3 outlines the primary obligation of the lawyer in providing advice to a client as follows: RULE The lawyer must be both honest and candid when advising clients. Commentary Scope of Advice 1. The lawyer's duty to the client who seeks legal advice is to give the client a competent opinion based on sufficient knowledge of the relevant facts, an adequate consideration of the applicable law and the lawyer's own experience and expertise. The advice must be open and undisguised, clearly disclosing what the lawyer honestly thinks about the merits and probable results. Impartiality and conflict of interest between clients are covered at Chapter 5. The general rule is set out as follows: The lawyer shall not advise or represent both sides of a dispute and, save after adequate disclosure to and with the consent of the clients or prospective clients concerned, shall not act or continue to act in a matter when there is or is likely to be a conflicting interest. The rule noted above provides that a lawyer who has acted for a client should not take a position where the lawyer might be tempted or appear to be tempted to breach the Rule relating to confidential information with respect to another client. Commentary 16 under this Rule applies to a lawyer retained by an organization, as follows: 153570.vl Page 7 16. A lawyer who is employed or retained by an organization represents that organization through its duly authorized constituents. In dealing with the organization's directors, officers, employees, members, shareholders or other constituents, the lawyer must make clear that it is the organization that is the client whenever it becomes apparent that the organization's interests are adverse to those of a constituent with whom the lawyer is dealing. The lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of this Chapter. Chapter 6 of the Code deals with conflicts of interest between the lawyer and client and largely deals with business transactions between a lawyer and his or her client. The relevant portions of the general rule are as follows: 1. The lawyer should not enter into a business transaction with the client or knowingly give to or acquire from the client an ownership, security or other pecuniary interest unless: (a) (b) (c) 2. The lawyer shall not enter into or continue a business transaction with the client if: (a) (b) 3. The lawyer shall not act for the client where the lawyer's duty to the client and the personal interests of the lawyer or an associate are in conflict. 4. 5. The lawyer must comply with the terms of all professional liability insurance policies. Chapter 7 of the Code respecting outside interests and the practice of law contains the following rule: RULE The lawyer who engages in another profession, business or occupation concurrently with the practice of law must not allow such outside interest to jeopardize the lawyer's professional integrity, independence or competence. Commentary Guiding Principles 153570.vl Page 8 1. 2. Whenever an overriding social, political, economic or other consideration arising from the outside interest might influence the lawyer's judgment, the lawyer should be governed by the considerations declared in the Rule relating to conflict of interest between lawyer and client. Relevant Case Law: The Courts have clearly established that two fundamental duties underlie any analysis of conflict of interest problems: the duty of confidentiality and the duty of loyalty. The Supreme Court of Canada emphasized the former in MacDonald Estate v. Martin and Rossmere Holdings (1970) Ltd., [1990] 3 S.C.R. 1235 and the latter in R. v. Neil, [2002] 3 S.C.R. 631. In MacDonald Estate, supra, the Court commented on how the Code should be accepted as the standard imposed by the profession and emphasized the importance of the duty of confidentiality. The standard to be applied by the Court in determining whether a disqualifying conflict of interest exists was discussed by Mr. Justice Sopinka in MacDonald Estate, supra, where it was stated at page 14 as follows: Typically, cases require two questions to be answered: (1) Did the lawyer receive confidential information attributable to a solicitor and client relationship relevant to the matter at hand? (2) Is there a risk that it will be used to the prejudice of the client? The standard to be applied in answering the first question was described as follows: In my opinion, once it is shown by the client that their existed a previous relationship which is sufficiently related to the retainer from which it is sought to remove the solicitor, the court should infer that confidential information was imparted unless the solicitor satisfies the court that no information was imparted which could be relevant. This will be a difficult burden to discharge. The standard to be applied in answering the second question was explained as: The second question is whether the confidential information will be misused. A lawyer who has relevant confidential information cannot act against his client or former client. In such a case the disqualification is automatic. No assurances or undertakings not to use the information will avail. The lawyer cannot compartmentalize his or her mind so as to screen out what has been gleaned from the client and what was acquired elsewhere. Furthermore, there would be a danger that the lawyer would avoid use of information acquired legitimately because it might be perceived to have come from the client. 153570.vl Page 9 In R v. Neil, supra, the Court established what is often referred to as the "bright line test" which was described as follows: ...a lawyer may not represent one client whose interests are directly adverse to the immediate interests of another current client - even if the two mandates are unrelated - unless both clients consent after receiving full disclosure (and preferably independent legal advice), and the lawyer reasonably believes that he or she is able to represent each client without adversely affecting the other. Most recently in the case of Strother v. 3464920 Canada Inc. 2007 SCC 24, the Supreme Court stated the following regarding a solicitor's fiduciary duty to his or her client and the avoidance of conflicts of interest: When a lawyer is retained by a client, the scope of the retainer is governed by contract. It is for the parties to determine how many, or how few, services the lawyer is to perform, and other contractual terms of the engagement. The solicitor-client relationship thus created is however overlaid with certain fiduciary responsibilities, which are imposed as a matter of law. The David factum puts it well: The source of the duty is not the retainer itself, but all the circumstances (including the retainer) creating a relationship of trust and confidence from which flow obligations of loyalty and transparency. [para. 95J Not every breach of the contract of retainer is a breach of a fiduciary duty. On the other hand, fiduciary duties provide a framework within which the lawyer performs the work and may include obligations that go beyond what the parties expressly bargained for. The foundation of this branch of the law is the need to protect the integrity of the administration of justice: MacDonald Estate v. Martin, 1990 Can LII32 (SCC, [1990 3 SCR. 1235, at pp. 1243 and 1265. "[IJt is of high public importance that public confidence in that integrity be maintained": R. v. Neil, 2002 SCC 70 (Can LII), [2002J 3 SCR. 631, 2002 SCC 70, at para. 12. Fiduciary responsibilities include the duty of loyalty, of which an element is the avoidance of conflicts of interest, as set out in the jurisprudence and reflected in the Rules of Practice of The Law Society of British Columbia. As the late Hon. Michel Proulx and David Layton state, "[tJhe leitmotif of conflict of interest is the broader duty ofloyalty", Ethics and Canadian Criminal Law (2001), at p. 287. Analvsis and Conclusion: As described in Professor Beverley G. Smith's text Professional Conduct for Lawyers and Judges, there is a lack of clear provision in the Code and the Commentaries, and indeed in the caselaw, with respect to the duties of a solicitor engaged by government or another organization as in-house counsel. There is judicial commentary, as referred to in Professor Smith's text, that 153570.vl Page 10 the standard to be applied to a government lawyer should not be higher than the standard applied to a lawyer in private practice. In those situations that are analogous to circumstances that arise between a lawyer in private practice and a client or clients, the Code is to be applied to the corporate solicitor, to the extent possible. Accordingly, our analysis and conclusions are based on the premise that the Code, with such adaptation as is necessary to fit the circumstances of the City Solicitor acting as in-house counsel, is to be applied to Mr. Nugent's situation, and our opinions are provided on that basis. With respect to the primary issue as to whether Mr. Nugent is in a conflict of interest with respect to any advice he may provide Council regarding Mr. Ferguson, (unconnected with the Trustees' action in Court File No. S/C/53/07) the first question which must be addressed is whether a solicitor-client relationship exists between Mr. Nugent and Mr. Ferguson. Applying the principles of the Code and the statutes discussed above, it is clear that Mr. Nugent acts as solicitor for the Council and that the City is his client, not Mr. Ferguson. As identified in Chapter 5, Commentary 16 of the Code, in providing legal advice to Common Council he may interact with individual members of Council but his duties of confidentiality and loyalty relative to Mr. Ferguson's role as a Councillor, or on any other matter, are owed to Council and not to Mr. Ferguson. We are of the view that Mr. Nugent's membership on the Board of Trustees does not conflict with his position as City Solicitor provided that he complies with the provisions in Sections 90.1 to 90.91 of the Municipalities Act when required - when his personal interest is affected. Based on the information and documentation provided to us, it appears that Mr. Nugent has complied with those requirements by filing with the Common Clerk Disclosure Notices when appropriate. Additionally, in our opinion no conflict arises simply from the fact that Mr. Nugent and the City Manager both hold positions as Trustees pursuant to the provisions of the City of Saint John Pension Act. The subject-matter in Court File No. S/C/53/07 relates to alleged defamatory comments by Mr. Ferguson against the Board of Trustees and individual Trustees. The alleged defamatory comments were made at public meetings of Common Council or elsewhere. There would therefore not appear to be any use or misuse of confidential information obtained by Mr. Nugent in his capacity as City Solicitor. Mr. Nugent is not representing himself or the Board of Trustees in the litigation in Court File No. S/C/53/07. Further, Mr. Nugent is therefore not representing anyone whose immediate interests are directly adverse to Mr. Ferguson. Mr. Nugent would undoubtedly be in a conflict of interest if he were to provide advice to Council regarding Mr. Ferguson and the issues which are the subject-matter of the claim in Court File No. S/C/53/07. He would also be in a conflict of interest if he were to use confidential information he obtained regarding Mr. Ferguson as a result of his position as City Solicitor against Mr. Ferguson in the ongoing litigation. Based on the provisions of the Code as they apply to the City Solicitor, we are of the opinion that Mr. Nugent's involvement as a party in Court File No. S/C/53/07 is not in itself a conflict of 153570.vl Page 11 interest and that Mr. Nugent is not precluded from gIvmg advice to Council regarding the conduct or actions of Mr. Ferguson which does not relate to the subject-matter in Court File No. S/C/53/07. There is no evidence to suggest that the City Solicitor's advice and opinions to his client, Common Council, are influenced by his role as a Trustee in the legal action. So long as the advice and opinions that may relate to Councillor Ferguson are with respect to matters other than the legal action, there is no impediment to the City Solicitor carrying out his duties to Council. Mr. Ferguson's comments of May 3,2007 that he regarded any legal opinion to Council from the City Solicitor respecting him as a conflict of interest, related to advice by the City Solicitor on whether Mr. Ferguson had breached the confidentiality of a private Council session. The advice and opinion provided were unrelated to the subject matter of the Trustees' legal action against Mr. Ferguson in Court File No. S/C/53/07. There was in our opinion no conflict of interest in Mr. Nugent providing that advice and opinion. Yours truly, STEW ART McKELVEY ?&#t~ Frederick C. McElman, C.M., Q.C. FCM/sem 153570,vl