Alberta’s minister of Municipal Affairs Ric McIver said he’s asked outside legal counsel and “non-partisan department officials to review the Municipal Government Act to verify what legal recourse — if any — exists for a minister” in the context of allegations against Calgary Councillor-elect Sean Chu.
Chu is facing increased pressure to resign, including earlier comments from the mayor-elect and nine of his fellow councillors-elect following a CBC News story about an investigation into Chu’s conduct as a Calgary police officer involving a minor.
“I have called for him to resign. Most members of the new council have called for him to resign,” mayor-elect Jyoti Gondek said Thursday.
“Chu should absolutely resign.”
Read more: Embattled Coun. Sean Chu won’t step down from office; mayor-elect Jyoti Gondek says he ‘won’t be sworn in by me’
The mayor-elect said she won’t take part in swearing-in the embattled councillor.
Gondek is also calling on the province to use its powers under the Municipal Government Act and the Local Authorities Election Act.
“But I would recommend that Bill 52, which is the recall legislation that has been given royal assent but it’s yet to be proclaimed. If it is proclaimed, they can take action immediately,” Gondek said.
On Thursday night, the Alberta government released a statement addressing the growing calls about Chu.
“The allegations against Sean Chu are very serious,” Municipal Affairs Minister Ric McIver said in the statement. “Any time an impropriety is alleged against a minor, the situation immediately becomes even more severe.
“Contrary to what some have suggested, the minister of Municipal Affairs cannot simply arbitrarily ‘fire’ an elected municipal official.”
However, McIver said that following the recent revelations about Chu, he’s asked “non-partisan” ministry officials to take a closer look at the act and see if the province has any jurisdiction in this case.
“The expert advice I have received from officials states that the tools within the Municipal Government Act — both an ‘inspection’ and ‘inquiry’ — are focused on wrongdoing committed by a council or councillor while performing their duties with respect to the operations of a municipality,” McIver stated.
“These elements within the law were not developed to address personal conduct of an elected official dating back many years before that individual entered public office, and it is questionable whether they could be used effectively in the current situation.
“The Municipal Government Act is very clear on the issue of a Criminal Code (Canada) conviction. Councillors convicted of an offence punishable by imprisonment for five or more years or of an offence under sections 123, 124 or 125 of the Criminal Code (Canada) are disqualified from office and must resign immediately or may be removed by application to the court.
“However, that criteria does not apply in this matter as no conviction exists.
McIver said he understands the “justifiable public interest in this unprecedented situation” and, because of the case’s uniqueness, as well as the “lack of clarity for recourse in the Municipal Government Act, I have asked for outside, independent legal counsel to review the legislation and provide expert advice on what action — if any — the minister of Municipal Affairs may legally take.”
McIver said he’s asked for the review to be completed as quickly as possible.
He said he intends to make the expert advice public.
Legal process in act
Stacy MacFarlane, a senior associate with Calgary law firm Borden Ladner Gervais LLP, said there’s a clear process laid out in the Municipal Government Act.
“It’s a multi-step process and a minister can’t just come in and overturn a democratic election.”
Yet the minister has the ability to request an investigation or an inquiry.
“And the reason for doing that is because the minister has concerns that the management, administration or operation of the city isn’t going according to plan. And just by plan, it effectively means it’s not functioning.”
“Then, as a result of that, the minister has the ability to issue orders — be it to the council, to council and administration or to the chief administrative officer — to try and remedy the situation. And then, if the orders aren’t followed, then the minister does have the ability to remove a councillor from office if he or she thinks that would resolve the issue.”
“Through the Code of Conduct process, which is what you’re talking about, the council can actually recommend that or for someone to resign from council or be removed from council. So there are separate processes, although finding violations under the Code of Conduct might lead the minister to consider whether things are being managed correctly.”
Issues relating to a councillor’s behaviour and actions are usually addressed through city council’s code-of-conduct process, in which council can recommend that someone resign or be removed from council, MacFarlane said. The provincial act does prevent people convicted of certain criminal charges from serving on council, she added.
“There are sections of the act about that talk about who is eligible to be on council and criminal charges do factor in there if someone’s been convicted of certain criminal charges. Obviously, that’s not what’s happened here.
“As to individual councillors, really, what this goes to is that it’s meant to be an election issue and it’s meant to be that if people have concerns, they can elect someone else. Alberta does not have a recall legislation for councillors, so this comes into it — whether council can work together once they’re all together.”
MacFarlane said these authorities under the MGA aren’t enacted often and when it does happen, it is a thorough and lengthy investigative process.
If a councillor is forced out, the MGA states the minister can appoint someone to replace that individual or call a byelection, MacFarlane said.
Impact on council relations
Duane Bratt, a political scientist with Mount Royal University, says it would be difficult to have Chu removed.
“There aren’t a whole lot of easy tools to remove him, nor should there be, right? He has not been criminally convicted. He has not been criminally charged. There was an admission of misconduct, but the punishment was a letter in his file. Do we want a situation where the government, provincial government, can pick and choose who can serve and who cannot serve?
“The best-case scenario for everybody is for Chu to resign.”
If Chu chooses to remain as councillor, Bratt said Ward 4 constituents should have concerns about how well he’ll be able to represent them.
“He’s not going to be able to work with the other councillors … Maybe you get the other 14 basically doing stuff on their own, but you still have powers and abilities as a sitting councilman. You still have to come to the meetings. He still has to participate in debate.
“He’s going to be a pariah on council. Can you have lunch with the guy? Can you have coffee with the guy? Can you collaborate with him? Right? You don’t need to be friends with someone but you have to be able to work with someone when there’s only 15 of you.
“And the optics and the distrust and just the sinking feeling in the pit of your stomach of even talking to Sean Chu is going to damage the working relationship of city council.”
Thursday afternoon, Chu detailed a pair of incidents that have been the subject of recent reports, including allegations of impropriety with a minor that came to light via a CBC News story.
Less than a week before entering his third term as councillor, Chu said he didn’t share the incidents with his electorate because he thought they weren’t relevant.
“This happened 24 years ago and the case (was) resolved at that time, and I believe that has nothing to do with being a councillor,” he said.
Chu said at the time he took an hours-long polygraph test, which he said he passed. He said a “thorough investigation was conducted.”
“I considered the matter to have been investigated, a penalty applied and served, and the incident now resolved.”
— with files from Adam Toy