Note: I removed the personal email addresses.
Subject: Trustee Loxam Motion of November 13 Board Meeting
Date: Tue, 15 Nov 2016 18:43:49 -0800
From: Susanna Kaljur mailto:
To: Peter Jacques , Glenn Loxam , Rick Bitten , Elliott Jim , UBID Admin mailto:email@example.com
CC: firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, email@example.com
To All UBID Trustees, Kevin Douville UBID Administrator, Landowners of Union Bay,
I write to you all with great urgency as we have been given only 3 days from Nov.13th Board meeting when Trustee Loxam presented a motion typed on a blank paper which stated: “Mr. Chair, I would like to make a Motion to instruct our administrator to contact our legal counsel, Mr. Peter Johnson, within the next three business days, with instructions to contact legal counsel for 34083 Yukon Inc. and Kensington Island Properties communicating the intent of this Board to enact the ‘Force Majeure’ clause granting the requested time extension to the Water Infrastructure Agreement dated April 8 2011.”
By presenting this motion Trustee Loxam has failed to act in the best interests of the landowner as is his declared duty as Trustee. Further Trustee Loxam and Chair Jacques have breached the Public Trust by not declaring their conflict of interest when dealing with matters related to KIP and the expired 2011 Water Infrastructure Agreement .
It is well known throughout the community that Trustee Loxam and Trustee Jacques socialize frequently together both publicly and privately on a regular basis with Brian A McMahon VP of Kensington Island Properties. Their relationship extends beyond socializing, during the spring 2016 UBID Annual General Meeting, where the election of Trustees Loxam and Jacques occurred. I observed Mr. McMahon sitting and speaking and interacting with the candidates Luxom and Jacques throughout the AGM seeming to act in role of an informal ‘campaign manager’.
There is, I believe, sufficient evidence of breach of trust, conflict of interest and a reasonable apprehension of bias and as such I declare that there is sufficient grounds to set aside the motion made by Trustee Loxam including the Chair’s declaration that the motion was carried. If my declaration is not sufficient I ask that UBID seek independent legal counsel on this matter from an appropriate lawyer one that is not named in the Loxam motion above for obvious reasons.
Based on sections 100 and 101 of The Community Charter councillors faced with a potential or real situation of conflict of interest or bias may be faced with two types of disqualification: disqualification from voting on the particular matter and/or disqualification from office. The charter also contains important provisions prohibiting councillors affected by bias/conflict of interest prohibits councillors from participating in discussions and voting.
Evidence of bias can negate the vote of councillor, or in some cases, an action of the local government. Courts have determined that a challenger need not prove actual bias to be successful. Thus the threshold for setting aside a vote or decision on this ground is whether or not there is a ‘reasonable apprehension of bias’ .
Publicly elected trustees have a fiduciary duty to act in the best interest of the landowners and UBID. Actions which are in conflict of interest or which demonstrate bias are not in the best interest of Union Bay. The Common Law recognizes two types of conflict of interest: non pecuniary or personal interest and pecuniary interest. Non pecuniary conflicts arise in situations of proximate personal relationships. The court examines whether there is a reasonable apprehension that the member is biased — would a reasonable person find it likely or probable that the member would favour one position over another? There are prohibitions which state that a council member must not participate in discussions of any matter or vote on a question regarding any matter because the member has either a direct or indirect pecuniary interest. In fact, council members with such conflict must make a declaration to this extent (section 100(2)), after which time four requirements of section 101 (2) must be met:
The member must leave the meeting while the matter is under consideration;
The member must not participate in discussion at all;
The member must not vote on a question in respect of the matter; and
The member must not attempt in any way to influence voting on the matter.
A council member in a situation of conflict must take these steps regardless of whether or not he or she made the declaration as statutorily required. Contravention of the four requirements under section 101(2) of the Community Charter disqualifies that council member from continuing to hold office unless the contravention was inadvertent or the result of a good faith error in judgement. A court would render the vote of a councillor invalid if made in contravention of these provisions. Source: An Introduction to British Columbia local Government Law – Basic Principles Young, Anderson July 2012.
None of the above steps took place at the UBID Board Meeting of November 13 2016.
I request as Trustee on behalf of all Landowners in Union Bay a full legal, judicial, criminal inquiry into the Union Bay Improvement District Board Meeting of November 13. This inquiry needs to review to procedure followed by the Chair, Administrator and all Trustees through the meeting. Several of the trustees where confused as to the exact meaning and nature of the Luxom’s motion. Indeed the motion is written in a very specific legal language. I am doubtful that Trustee Loxam wrote it without legal assistance. I would like to know who provided that assistance Trustee Loxam and why?
I further request that Luxom’s Motion be tabled until UBID Trustee’s and administrator have received legal advise as to the ramifications for UBID financially, legally and otherwise if the expired 2011 WIA is enacted. Three Trustee’s Bitten, Elliot and Kaljur have not even had their Board Member Orientation and Briefing yet. To proceed with this motion is to put UBID at financial and legal peril. There is NO legal requirement for UBID to extend this expired WIA agreement. UBID and KIP were free to negotiate a new water agreement in principle which they did of the June 2016 MOU which was signed off on by UBID.
In conclusion Trustee Loxam’s motion of November 13 2016 and Chair Jacques who carried the motion must be disqualified and both be declared invalid due to evidence of bias, breach of trust and conflict of interest. Both Trustee Loxam and Chair Jacques contravened The Community Charter and UBID Conflict of Interest Policy as well as violated the trustee oath of office and therefore must be disqualified from position of Trustee and Chair of the Union Bay Improvement District.
I received a letter today (as did all Trustees) addressed to Chair Jacques from two “disappointed and offended” land owners with regards to the re enactment of the expired 2011 WIA passed at the Nov. 13 2016 Board meeting which states “We believe you have abused your power as Chair…not to mention your conflict of interest in relationship to KIP.”
I am requesting a reply outlining the specific steps to be taken to rectify this serious contravention of public office and public interest. I have copied this letter to the facilitator JS Mattison and MLA Fassbender as well as the newspapers.
Susanna Kaljur UBID Trustee
Part five of five.