Did Vancouver abide by its own bylaws after firing the Director of Planning?

The Vancouver Charter requires city council to hire a Director of Planning. None was present for several weeks.

The public learned that Brent Toderian had been fired by the City of Vancouver after Frances Bula's story broke in the wee hours of January 31st. It triggered what seemed like weeks of discussion about planning in our city, about the politics involved in the Director's job, and about Toderian's personal style as well. While it's widely understood that Brent became the whipping boy of both the local development industry and sometimes cranky neighbourhood activists, it also became clear that he garnered the respect of many colleagues. If his reputation was in trouble at the end of January, it didn't last long after several supportive letters to the editor and numerous positive comments on blogs came forth.

As to who brought down the axe on the Planning Department's boss, it's all but been confirmed it was a political decision made by the Mayor and his chief of staff. There are a handful of jobs with the City of Vancouver, however, where hiring and firing have certain legal implications. Hiring decisions are made by city council for a number of top management roles such as the City Manager, the Chief Electrician and, as well, the Director of Planning. The Director of Planning is a managerial role outlined in the Vancouver Charter to which Vancouver city council makes an appointment. As such, the appointed Director of Planning is directly accountable to, and reports to, council. The zoning bylaw requires that it is the Director of Planning's duty to administrate.

This connection of the Director of Planning's job to the Vancouver Charter is lost on most people, and even some folks working in City Hall. But within the Charter's legalese exists the bible for governing our city, and on its pages are rules set out to prevent the abuse of power by either the elected officials or the management they appoint.

This important fact did not escape the notice of one of our readers, who contacted us after being frustrated in their effort to find out if the Charter was being considered in the Planning Department's leadership transition. While they have provided copies of their correspondence with city officials, they asked that we do not reveal their identity. The first email provided is dated February 7th, one week after Toderian's dismissal:

Sent: February 7, 2012 5:34 PM
To: Ballem, Penny
Cc: McLellan, David
Subject: DOP authority

Dear Dr. Ballem,

Please advise me of who is the Director of Planning as nominated in the Zoning and Development Bylaw – I wish to know right away. I was at City Hall today, trying to identify who is the Director of Planning, because I wish to know whom I should address as the person acting in the authority of Director of Planning.  I spoke to Janice MacKenzie, Deputy City Clerk, but she could only tell me the position is ‘vacant’.

Sincerely,

The writer's insistence suggests that they feel like they're already getting the runaround. Perhaps sensing the sensitivity of the issue, Ballem responds just a few hours later with a seven word response:

From: Ballem, Penny
Sent: Tuesday, February 07, 2012 9:51 PM
Cc: McLellan, David
Subject: RE: DOP authority

Dear ** – David will respond to you pb

At the end of the following workday there was a message from the Deputy City Manager:

From: David.McLellan@vancouver.ca
To: Penny.Ballem@vancouver.ca; 
CC: Kent.Munro@vancouver.ca
Subject: RE: DOP authority
Date: Wed, 8 Feb 2012 16:16:54 +0000

Dear **

Please be advised that Kent Munro, Assistant Director of Planning is exercising the authority of the "Director of Planning" insofar as the issuance of Development Permits is concerned on an interim basis. I should advise you that we do not expect to rescind any of the decisions made by Mr. Toderian, during the time he exercised that authority.

David McLellan
Deputy City Manager
City of Vancouver

However, McLellan's response doesn't answer the original question. "Who is the Director of Planning"? Indeed, it seems at the time of the writing of this carefully worded email from David McLellan there was in fact no "Director of Planning" (DoP) in place. We know this because according to meeting minutes released this week, an interim DoP was only approved by city council during an in-camera meeting on February 29th, or three weeks later:

ITEMS ARISING FROM THE "IN CAMERA" MEETING OF FEBRUARY 29, 2012

Council appointed Kent Munro, Assistant Director of Planning, to the position of Director of Planning, on an interim basis pending the appointment of a new Director of Planning.

Kent Munro is the same person that the Deputy City Manager stated was "exercising authority" of the DoP beforehand. To my understanding the City of Vancouver issues quite a number of development permits each month. These include large scale developments involving hundreds of housing units, right down to someone putting up a new house. Is it possible that for up to four weeks development permits issued by the City of Vancouver were technically in breach of the Vancouver Charter?

It's a fair question, and one that our reader is determined to get an answer for. They have written to City officials asking some very straightforward questions. After receiving a development permit for a project in February, they sent the following correspondence:

Dear Director of Planning:

I have received a letter that my application for development permit has been approved on your behalf, and that a permit may be issued upon revisions and conditions noted in the letter.  So that I may know the authority upon which the approval has been granted and its legality, please tell me:

1. The name of the person who has exercised legal authority in this decision;
2. By what means has this person gained authority to act;
3. Whether this person has been appointed to a statutory position under the Vancouver Charter and what that position is;
4. The legal authority for this decision referring back to the Vancouver Charter;
5. The name of the official of the City of Vancouver who takes ultimate responsibility for this decision.

City manager Penny Ballem and Mayor Gregor Robertson were continuously copied on all email correspondence throughout these inquiries. Ballem finally responded back to our reader with the following statement:

Dear *** – i appreciate your concerns but i assure you that we have the appropriate delegated authority in our planning department and our development services area. I have been tracking this carefully and our auhorities (sic) are intact. Thank you for writing to me. pb

The date of this last correspondence by Ballem was February 29th, the same day city council approved the interim DoP in-camera. A coincidence?

The question that our reader– and perhaps the public at large – should get an answer to, is whether the city manager received a legal opinion that the Director of Planning's responsibilities could be assigned to other staff without the consent of council. If that legal ruling exists then it should be a simple matter to share it, either as a web release or as an addendum to the February 29th in-camera meeting minutes. It should be noted that according to the zoning bylaw the Development Permit Board does have authority to issue permits, but according to their website, they only met once during February, and issuing permits was not on their agenda.

What if that legal opinion does not exist — does it put any of the city's business conducted during February in jeopardy? Perhaps not, but a simple answer to this question likely exists.

Now, for the vast majority of the public I can hear a collective shrug. Who cares as long as the City's business keeps ticking along and permits get issued, right? Well, I know we'd all love to cut corners, especially when it comes to dealing with governments. But governments have been known to be ruthlessly strict when it comes to applying their rules on citizens. And so it should be with the people running City Hall as well.

Is it possible that Vancouver's City Manager and her subordinates thought they could in fact take the place of the Director of Planning after letting Toderian go? Surely the decision to fire Brent was in the works for weeks if not months. Was any "Plan B" ever put in place to handle the legal implications of not having a DoP?

It's our hope that by discussing it here on City Caucus that the public can also get clarification on this matter. When we hear back from city officials we'll be sure to update our readers.

- post by Mike

Follow @MikeKlassen

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