Questions remain after NOTL council vacancy filled following lengthy closed meeting

It seemed to be going according to script.

Niagara-on-the-Lake Town Council had convened a special meeting on October 16th to deal with a vacancy created by the resignation of Nick Ruller. When faced with similar scenarios in the past, the Councils of the day had, in almost all cases, looked to the runner-up candidate in the previous municipal election. Allan Bisback, a councillor from 2018 to 2022, was next in line, just 66 votes behind eighth place finisher Councillor Maria Mavridis. 

The staff report on the evening’s agenda outlined Council’s options under the Municipal Act for filling the vacancy: pass a bylaw to trigger a by-election or appoint a qualified individual as outlined in the Municipal Elections Act.

The report went into detail on the historical “experience” in the municipality of filling council vacancies by direct appointment of runners-up from the previous municipal elections. 

“[P]revious Councils for the Town of Niagara-on-the-Lake have filled Council vacancies by appointment. In almost all cases, the candidate with the next highest number of votes (9th place for Municipal Council or 2nd place in the case of Regional Council) were appointed to fill the vacancy for the remainder of the term,” the report states.

Most recently, current councillor, Sandra O’Connor was appointed after the resignation of Stuart McCormack in July 2020. O’Connor, who missed out on 8th place in the 2018 election by a mere 37 votes, was appointed in August of that year to fill the vacancy for the remainder of the term. Even the Town’s current Lord Mayor, Gary Zalepa, first got on Town Council under the same circumstances. He came in ninth in the 2006 municipal election but was appointed in 2008, after the passing of Bob Howse.

With that background, Councillor Gary Burroughs was the first councillor to speak to the matter at the October 16th meeting.

Burroughs noted that he and the Lord Mayor were “part of the history” outlined in the report. When Burroughs became the Niagara Regional Chair in 2010, the runner-up in the election for Niagara-on-the-Lake’s Regional Councillor race, Dave Lepp, was directly appointed by the Council of the day as the Town’s representative around the Regional table. 

Councillor Burroughs moved the motion to appoint the runner-up from the previous election (Bisback) noting the method was “the traditional one used in Niagara-on-the-Lake.” His motion was seconded by Councillor O’Connor, who described it as the best way to proceed, especially in light of past precedent. Bisback told The Lake Report ahead of the vote that he was willing to stand for the position. 

Before a vote on the motion could take place, Councillor and Deputy Mayor Erwin Wiens inquired, “have we had any other people coming forward? Any applications, any emails?”

While the staff report had cited the numerous examples of when Council had appointed the runner-up or, in one example, the tenth-place finisher in the previous election for council, it also pointed out that Council has the authority to appoint any person who meets the definition of a qualified elector. 

A qualified elector has to be at least 18 years old, a Canadian citizen, a resident, owner of land or tenant in the local municipality, or their spouse, and not currently in prison. There is no requirement that the individual had to have previously run for municipal office.

The staff report suggested if Council were to go the route of a direct appointment, of someone who had not contested the previous election, that an open call for interested candidates would be advertised, culminating in an interview/presentation to Council in an open Council meeting setting. The report also indicated that Council had the legal authority to appoint someone “without an application process and without referencing the most recent election results.”

This fall has also seen vacancies on two other Niagara municipal councils (West Lincoln and Niagara Falls). West Lincoln Council chose the by-election route and Niagara Falls selected the runner-up from the previous election to fill their vacancy. Neither of the two councils seriously considered a direct appointment of a “qualified elector”, who had not contested the previous municipal election.

After Councillor Wiens raised his questions, the Lord Mayor promptly referred to the clerk as the discussion could involve “particular identifiable individuals”.

Grant Bivol, Town Clerk/Manager of Legislative Services, responded, “I certainly think that would qualify under section 239 of the (Municipal) Act. Identifiable individuals would be very pertinent.”

The section referred to allows Council to go into a closed session, away from the public.

After some discussion on procedural matters, in light of the duly moved and seconded motion on the floor, Councillor Mavridis indicated her preference to go into closed session to “discuss what the process is”, despite the staff report laying out the appointment process in some detail.

What followed was a 6-2 vote, with Councillors Burroughs and O’Connor opposed, that deferred consideration of the motion to appoint the next-place finisher until Council rose from its closed session.

The closed session lasted approximately 50 minutes. When the Council returned the Lord Mayor announced that there were motions to be considered. The deferred motion to appoint the next-place finisher was defeated in a 6-2 vote, with only Councillors Burroughs and O’Connor in favour of the option. 

The next motion considered was from the staff report in which Council would make a direct appointment of an eligible individual without going through any public calls for applications or requiring the appointee to have contested the previous election and/or been the next-placed finisher. The motion also passed on a 6-2 vote, with Councillor Burroughs and O’Connor opposed.

The final motion emanating from the closed session, moved by Councillor Tim Balasiuk and seconded by Mavridis was to appoint Andrew Niven to Council for the remainder of the term. 

Niven, Director of Marketing for Konzelmann Estate Winery and the Chair of Niagara-on-the-Lake’s Chamber of Commerce, had run in the 2018 municipal election, finishing 11th with 2,341 votes. He did not run in the 2022 election, but is on the Council’s Tourism Strategy Committee and Municipal Accommodation Tax Committee.

The motion passed 6-2, with Councillors Burroughs and O’Connor, again, in the minority.

Andrew Niven has been appointed to Niagara-on-the-Lake council following a direct appointment process that has been criticized by residents.

(Niagara-on-the-Lake)

While the majority of Town Council may have been satisfied with the decision, it drew criticism from a resident in attendance who admonished Council, stating, “You should be ashamed of yourselves.”

Tom Elltoft, a local realtor and lifelong community member, had a similar reaction.

"So, the council just selected our replacement councillor. Rather than going with the most democratic approach and going with the (person with the) next highest votes. As the previous councils have done for about 80 years!" he wrote on Facebook.

Reached by The Pointer, Elltoft was highly critical of the decision. 

“Because they hadn’t acted too quickly (to fill the vacancy) I had a feeling they were up to other plans. My suspicions were confirmed when Council went right into closed session soon after the meeting started,” he said.

Elltoft, a keen observer of Council’s meetings, explained his reference to “they” was regarding the bloc of five council members (Councillors Wiens, Mavridis, Wendy Cheropita, Adriana Vizzari and Lord Mayor Zalepa), who have regularly voted the same on the issues before Council. “In this case, they were also joined by Tim (Balasiuk).”

Regarding the timing, Councillor Ruller had resigned on September 11th. Council promptly called a special meeting on September 17th declaring the seat vacant. The report, at the time, indicated staff would come back with the options to fill the vacant Council seat at the next regularly scheduled meeting, the following week, on September 24th. However, it was announced on the evening of the 17th that another special meeting would be called when “everyone is available to attend”. Despite being almost a month after the first special meeting, Council was still well within the 60-day time frame to make a decision on filling the vacancy. 

When asked what bothered him most about Council’s decision, he says it was a “combination of everything”, noting Council’s failure to follow the established precedent and “most democratic” option of going to the runner-up; the secrecy of having the discussion behind closed doors; and the lack of transparency regarding how Mr. Niven’s name came up and who else had Council considered for the vacancy. 

While Elltoft understood that the decision to appoint Niven was permissible under the law, for him it was another example of the majority of Council not listening to the Town’s electorate, alluding to a number of recent planning decisions that have been met with criticism and protest.

The Pointer also reached out to Lord Mayor Zalepa, specifically asking him why he chose to vote in favour of the direct appointment of someone who had not run in the preceding municipal election, considering that he had benefited from the Council’s past practice of going with the runner-up.

“[I] was looking for a candidate who I felt had been engaged with this council's process in the committee structure, the strategic planning process, and being involved with the Council’s agenda. Mr. Niven checked those boxes for me.”

He continued: “I looked at myself back in 2008. Sure, I was the next person in line and that was fortuitous. But I was also deeply involved with the council on committees and involved with processes, before being appointed to that seat.

Andrew Niven fit the bill better, in my opinion, than the other option.”

The Lord Mayor quickly corrected himself to say “options”. The Town’s related media release that came out the day after the direct appointment indicated that Council had “the opportunity to consider a wide range of qualified candidates to serve the remainder of the term.”

The Lord Mayor would not confirm  the exact number of candidates considered, only noting there were “several”. He did shed some limited light on what may have transpired behind the scenes.

Reiterating that “several good candidate names came forward from other members of council, as suggestions,” the Lord Mayor indicated that he did not put forward Niven’s name.

“Mr. Niven had been one of the people that had reached out to me. I assume he probably reached out to other members of council as well.” 

Regarding criticism of Council’s lack of transparency in having the debate behind closed doors, Zalepa was unwavering in defending the decision.

“The duly elected council of the town was able to have a conversation around putting possible candidates to select. They did that in a closed session, so that information regarding individuals would not be in a public meeting which could be problematic for us.”

The Ombudsman of Ontario, the de facto investigator of closed meetings for municipalities, has upheld council decisions to go into closed session to discuss the qualifications and suitability of candidates for a vacant council position, as fitting under the open meeting exceptions for personal matters about an identifiable individual. 

The Ombudsman has drawn the line, however, when municipalities, in addition to discussing candidate qualifications, have also discussed the methods to fill the vacancy or voted behind closed doors. The comment by Councillor Mavridis to “discuss what the process is”, in introducing her motion to close the meeting to the public, is potentially problematic if such a discussion continued in the closed meeting. 

In regard to Council’s decision to go into a closed session, the minutes of the Special Council meeting state “to discuss identifiable individuals Council would need to proceed into a closed session.” This, however, is not accurate. Section 239(2) of the Municipal Act is permissive, not mandatory, noting that Council “may” go into a closed session.

Had any of the “several” candidates under consideration by Niagara-on-the-Lake Council contested the 2022 municipal election, their personal information (i.e., qualifications) would likely have been available in campaign literature, on social media pages, broadcast in interviews and shared during candidate debates.

As indicated, the report from Town staff contemplated such a public process with advertisements and candidates appearing at an open council meeting to pitch their qualifications and answer questions of the Town Council. Asked about the option, the Lord Mayor responded:

“That (staff report) wasn't written in the vein that that council had to do that. That was only one of the options in the report and Council chose not to do that.”

When it is pointed out that the staff report described the option as a “best practice”, the Lord Mayor replied:

“Yes, fair enough, but Council has the authority to make a decision that it did.”

When further pressed on the process and whether in retrospect, there could have more openness, the Lord Mayor correctly noted that when the Council emerged from the closed session, members could have had additional conversation. 

”I asked for it. There were no questions and then the various motions were considered for a vote.”

At the conclusion of the interview, the Lord Mayor was steadfast in his defence of how matters unfolded.

“Councilors are elected to make decisions, and yes, not everybody agrees with them, but it doesn't mean that there was a flaw or an error. It's just maybe not an outcome that other people might have thought of. Something different. That's all.”

For someone like Elltoft, however, the vacancy filling decision speaks to the problem he has with the current Town Council. He described Council’s decision making process as “we have no other reason, other than we can, so live with it.” 

Elltoft had no issue with Mr. Niven, though he felt the decision to appoint him was based on his potential alignment with the positions of Council’s majority bloc. He questioned why Niven would think he was the most suitable candidate for the vacancy, especially not having run in the last election. “I would like to know the answer to that question.”

The Pointer sent an email to Mr. Niven with a number of questions. He has yet to respond.

On October 22nd, Niagara-on-the-Lake Council met in their Committee of the Whole format. The roll call included “Councillor Niven”, who was present.

After Councillor Niven recognized the efforts of his predecessor, Councillor Ruller, and thanked Council for their trust in him, Councillor Burroughs asked, “Do we get to see a swearing in, with a bible and all that fancy stuff?”  

The Council learned that the swearing-in had already happened a few days prior in the Clerk’s office.

It seemed fitting, in light of Council’s closed-door process, that the swearing-in happened outside of the public eye.

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