Dear City Clerk: Don’t Mean To Be Picky But While We’re On The Subject Of Stuff You’ve Maybe Done Wrong…

City Hall-RWW petition_sad Jim Holmes-2After writing that last post about how the clerk’s office probably violated the Cities Act when they conducted two verifications of the waste water petition, I spent some time rooting through my “I’m No Lawyer, But…” file folder¹ and found a sheet on which was written the question, “Does the clerk’s office even have the authority to phone people who’ve signed a petition?”²

Kind of sounds like a dumb question. Why wouldn’t they? When people put their names on a public document knowing full well that it will be handed off to city hall, there really shouldn’t be anything stopping the city clerk from phoning them up to verify that they are who they say they are.

However, I’m not sure things are quite that cut and dried.

First of all, there’s the fact that the Cities Act doesn’t require a person include contact information with their signature. There’s a block for address — presumably to verify that the person is a Regina resident and thus eligible to sign the petition — but no requirement to list a phone number or e-mail address. From this, one could argue that by signing a petition you have indicated that you are willing to be counted as among the people who believe that a certain issue should be decided by a referendum. But, you haven’t by signing your name given consent to be contacted about your views on the matter.

I mean, if the people who drafted the Cities Act had wanted Saskatchewan’s city clerks to be phoning up petitioners, you’d think they’d have added a line to the legislation that there should be a box for phone number or e-mail address on every petition line. It would have saved city clerks across the province oodles of time. And would make it possible for them to contact people who own a cell phone but don’t have a landline. (I hear people like that actually exist nowadays. Weirdos.)

But if the Act doesn’t provide a city clerk with a way to contact petitioners, how’s she supposed to double check if the signatures have been collected correctly?

Well, the Act actually has something to say on this in section 107:

(4) The petition must have attached to it a signed statement of a person stating:
(a) that the person is the representative of the petitioners;
(b) that the city may direct any inquiries about the petition to the representative;

In other words, the Cities Act gives the clerk explicit authority to phone up the people who collected the signatures to verify that the signatures have been collected properly. It says nothing about phoning signees.

And that makes me think that maybe the intent here is to limit the clerk’s authority on the matter.

You can see how there might be a good reason for this. By phoning people who sign a petition, you could argue that the city clerk is giving people the impression that they’re keeping tabs on citizens who hold views that oppose the will of council.

It’s the “We know where you live” effect.

Am I going too far here? Maybe.

In fact, I should point out that I asked Jacklyn Demerse, that PhD candidate in political science from the University of Western Ontario I interviewed for that last blog post, and she thinks I’m going way too far in my fussy interpretation of the Cities Act.

In an e-mail conversation on July 8, she says,

From my interpretation of what is written, the legislation is silent on the matter of directly contacting petitioners, meaning there is nothing that is stopping the city clerk’s office from contacting petitioners directly. Municipalities do have the right to apply legislative discretion as they see fit, so if it is not stated in the legislation it does not mean they can’t do it. In other words, they are allowed to look past what is and is not written in the legislation and apply it as they deem appropriate with the exception of sections where it states otherwise (please refer to sec. 7 of the Cities Act).³

And in our interview from earlier today, she pointed out…

One issue with reading some of this legislation is that it’s silent on a lot of things and so it can be broadly interpreted by municipalities. And that’s something that the province has purposefully done because municipalities have been asking for more and more power and more and more control over their jurisdiction which is certainly in their right to do so. And the province has purposefully made the legislation quite broad so they can do that.

It’s a compelling argument. And I concede Demerse is an expert on this subject. She’s far better qualified to be interpreting the Act than I am.

But you know what? I’m going to disagree on this. After all that’s happened and all I’ve heard and read over the last few days, I’m not inclined to grant the city clerk the sort of latitude Demerse’s argument demands.

As I wrote before, if the clerk is going to strictly define date as including day, month and year, then I think it’s fair to expect her office to follow a similarly strict interpretation of the Cities Act. And if we want to get really picky with the Cities Act, I think there’s a very compelling case to be made that the clerk isn’t permitted to phone up random petitioners — especially when she already seems to be overstepping her authority by conducting that second round of verifications.

Also, you can’t exercise your Section 7-granted legislative discretion to interpret “date” in the narrowest possible sense and then turn around and say that your hands are tied and you can’t interpret the intent of the petition signers because the Act doesn’t allow you that kind of freedom.

In other words, you can’t use the wiggle room in the Act to define something like “date” however you want and then claim that there’s no wiggle room in the Act for you to exercise any judgement about when petitioners were signing their names.

And yet that’s exactly what city clerk Joni Swidnicki was claiming when I interviewed her for the July 11 issue of Prairie Dog. I think I only paraphrased her on this in the article that went to print, but here’s a quote from that interview…

When I do my role as returning officer which is also independent of administration and council, the Act very specifically includes language that allows me to make an interpretation. So if I look at a ballot and somebody has marked it wrong but I can clearly understand the intent of the voter I have the opportunity to count that. That language does not exist in the Cities Act when it comes to doing the petition. So I’m only validating on what’s in front of me.

Again… she’s saying here that the Act doesn’t explicitly give her the freedom to interpret the intent of people who signed the petition — she can’t even deduce when these people signed the petition based on clues like the date that’s written on every petition sheet — so she can only base her decision on what’s actually written on the page.

But the Act also doesn’t explicitly give her office the authority to phone petitioners — it could be said it implicitly does not grant them that authority — but she’s using her legislative discretion to do a phone survey despite this.

And, the Act also doesn’t explicitly say that she can conduct multiple verification passes through the petition, in fact it explicitly says she can’t, and yet she conducted two verifications anyway.

I’m inclined to say at this point, “Tsk, tsk, city clerk. You can’t have it both ways,” but I suspect the clerk will not only have her cake but be happily eating it after tomorrow night’s special council meeting.

In the end though no one I’ve spoken to is impressed by how the clerk’s office is interpreting the Act loosely when it suits them and strictly when it doesn’t. Everyone I’ve spoken to is also agog at how, at every turn, the decisions the clerk’s office has made seem designed to discredit and disappear the waste water petition as completely as possible.

I have encountered only anger and frustration with how the clerk has handled this petition. And I’ve spoken to a lot of people.

I hope it’s obvious to council that the optics on this are incredibly bad.

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FOOTNOTES
¹ I keep my “I’m No Lawyer, But…” file folder in a drawer marked “Shit That Maybe Should Have Been On The Blog Ages Ago” in my “Jesus Fuck There Aren’t Enough Hours In The Day For Writing” filing cabinet.

² This sheet had a yellow sticky attached it which read “Think this came from something Jim Holmes said the night RWW was gathering petitions…” Which I mention because apparently before I can write anything I’m now expected to trace the provenance of every single germ of an idea that’s floating in the intellectual ether.

³ Section 7 of the Cities Act says, “Subject to sections 105 and 111, this Act is not to be interpreted as providing to a city the power to fetter its legislative discretion.” Sections 105 and 111 deal with how a council is bound by the results of a referendum.

Author: Paul Dechene

Paul Dechene is 5'10'' tall and he was born in a place. He's not there now. He's sitting in front of his computer writing his bio for this blog. He has a song stuck in his head. It's "Girl From Ipanema", thanks for asking. You can follow Paul on Twitter at @pauldechene and get live updates during city council meetings and other city events at @PDcityhall.

11 thoughts on “Dear City Clerk: Don’t Mean To Be Picky But While We’re On The Subject Of Stuff You’ve Maybe Done Wrong…”

  1. I think it’s high time to start slapping certain city hall folks every time they set foot outside of city hall.

  2. Surely you see the obvious issue with not allowing verification of names on a petition by someone other than the group who created the petition. If you don’t, I’ll be spending the rest of my week writing a petition to ban all free newspaper bins from our city and copying a list of 20,000 names and addresses from the phone book.

  3. Perhaps you’re right, Jason. And maybe we should be generous in our reading of the Cities Act and allow that it’s reasonable to interpret it such that the city clerk has the authority to phone citizens over a petition and that such authority is implied in the Act. Such a generous reading would be akin to assuming that, as with the clerk’s role as returning officer in an election, she has the latitude to interpret the intent of the signer of a petition and can make conclusions about the year a signature was put on the petition based things like the date that is on the petition itself.

    But the Act doesn’t specify that she has that power to phone petitioners just as it doesn’t specify that “date” includes year. That’s an interpretation. One might say, to steal some phrasing from our mayor when he was speaking this morning on the CBC about the waste water petition, that on the subject of petitions, the Cities Act has “fallen well short” of what we’d expect from a piece of legislation, that it’s a “flawed” document that was written by people “not qualified to do it.” There really should have been some “quality control”.

    Maybe the Cities Act can be fixed in time for the next petition.

  4. Jason: Thank you for the comment. if I understand your sarcasm correctly, you believe that City Hall has both a right and a responsibility to verify the petition. Am I correct in that?

    You also seem concerned with petitions generally, perhaps because you believe they can be abused to sabotage effective governance. Do I understand that correctly as well?

    No one here is debating either point (and I share your concern about democracy-by-referendum).

    What Prairie Dog and other critics are (clearly) charging is that Joni “Picky” Swidnicki’s verification process seems to have been deliberately calculated to get the outcome the City wanted–disqualifying the (probably valid) petition.

    Your pot shot at Regina Water Watch–speculating they copied 20,000 names from a phone book–is silly. RWW didn’t need to copy names out of a phone book because more than 20,000 people are deeply concerned with the privatization of Regina’s waste water treatment.

    Even the City’s (crummy) verification process acknowledges something like 16,000 valid signatures.

    It’s all right to have different opinions than the people who signed Regina Water Watch’s petition but it’s shitty to say they don’t exist. It’s also shitty to imply that Prairie Dog disputes the City’s right to verify the petition. We do not. Please don’t misrepresent our position. Of course the City should verify petitions but they need to do it properly.

    Finally, it’s super shitty to talk about starting petitions to ban free newspaper distribution, but that probably goes without saying.

  5. I didn’t speculate any such thing Stephen. I’m sure the vast majority of names on this particular petition were put there by people who very much intended for their opinion to be heard (though clearly not all of them as the verification calls showed). Paul’s argument in this article seems to be that there may not be any legal basis to test the veracity of any name on any petition, besides asking the person who organized the petition. Clearly as someone who has to do a lot of fact checking as part of your job, you understand why a single source biased confirmation isn’t good enough.

    Ideally I’d like an independent third party to deal with answering the question of sufficiency. Is there some reason the boneheads that wrote the legislation didn’t make it so that the analysis of a petition is performed by a third party accounting firm?

    Your boxes are safe for now, if only because I enjoy making fun of all the terrible things people vote for in your Best of Regina issue. :)

  6. @Jason: Fair enough. Maybe a better word than “speculate” would have been “insinuate”–it seemed to me (and probably other readers) that you threw out that “copying a list of 20,000 names and addresses from the phone book” cheap shot to smear a petition you don’t like. Your intention might have been different but that’s how I read it.

    Also, we shouldn’t need a third party accounting firm to verify petitions. We have an allegedly independent City administration who need be able to competently handle this kind of thing. They just need to do their jobs in good faith.

    What we DON’T need is to get sidetracked into a discussion of imperfect legislation right now. We can (and should) do that after this referendum. The emerging “it’s not our fault, the legislation is vague and it made us disqualify the petition” talking point is yet another conveniently self-serving horseshit argument by a City that’s nakedly using every bureaucratic trick they can think of to disqualify a legitimate petition and prevent a referendum they don’t want.

  7. My only intent was to point out how ludicrously easy it would be to forge a petition if there was zero verification process.

    No matter how diligently any official does their job, people who disagree with their decisions will cry corruption or incompetence. That’s why I think a third party should handle the task of establishing sufficiency, to take that argument out of these debates.

  8. Jason, ignore Whitworth. Deadline for the paper is tomorrow.

    Or rather, Eek! Today!

    We’re all a little picky and sensitive.

    My point is more that the clerk could verify through a phone survey. The Act just says they can’t do that AND do a line-by-line check. It’s a quirk of the Act. But it does make some sense. I’d suggest reading some of the delegation briefs from last night’s council meeting. The people who showed up to speak before council can explain it all better than I can.

    Anyway, it’s a moot point now. The referendum is happening and the question put before the public will be the one that Regina Water Watch wanted.

    Seems the petition was sufficient to get a vote on the P3 after all.

  9. I’ve experienced roadblocks from this clerk’s office. They were distinctly uncooperative, and after providing wrong (false?) info they later claimed it was an oopsie.

    Wondering how much we are paying for such service I tried looking up the clerk in the payee document but couldn’t find them listed. At the time I blamed myself for not looking in the right place, but now I’m not so sure.

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