THE FOLLOWING ARTICLE HAS APPEARED IN THE RECORD ON April 16, 2003

Controversy over mayor's legal
fees, not about to subside


The recent decision by TBL council to cover Mayor Stanley Neil's legal fees raises as many political questions as legal, not the least being what impact will it have on the November municipal elections. Up until the council voted on the resolution, many TBL taxpayers were inclined to view the mayor's plight as having little or nothing to do with his public duties. I'm referring, of course to his status as sole defendant in Foster businessman Lloyd Sturtevant's $150,000 defamation lawsuit.

The mayor's faxed letter let me begin with a brief recapitulation of the relevant facts. On April 27, 2002, two of his car tires were slashed while attending a fundraising event in Foster. The very same evening a complaint was made to the municipal police who transferred it for investigation to the Sūreté du Quebec. Two days later, Stanley Neil faxed a letter to The Record entitled, "Did someone actually slash Stanley Neil's tires? "It began with the question, "Do I know who did it? I will let you, the readers try to figure it out ..." He then went on to enumerate a series of detailed "hints" and concluded by asking, " How many of you, think you know who it was?"

Many of his "hints" were quoted in a front-page article in The Record on April 30. On the following day a similar article appeared in Le Voix de l'Est. Lloyd Sturtevant, immediately claimed that due to the "hints" Stanley Neil was accusing him of being the person who slashed his tires, hence the defamation lawsuit. Insofar as the police investigation is concerned, it has yet to produce any tangible evidence regarding the identity of the vandal (s).

The council's decision may not be unreasonable.  At first glance the decision by TBL council to authorize the payment of $5,737 to cover Stanley Neil's current legal fees may appear unreasonable even though it was based upon the advice of its attorneys. After all, the Town of Brome Lake was never a party to the defamation action. Furthermore, Neil's letter was neither written on official TBL stationary nor did his signature bear any reference to his position as mayor. On the other hand one could argue that were it not for the fact that the Town had already been embroiled in various legal disputes with the plaintiff, perhaps he would never have been sued. However, this is of little consolation to those who believe that had he never written his letter there would never have been a lawsuit.

The law protects public officials

There can be no doubt that if public officials were obliged to pay out of their own pockets the costs of defending themselves against lawsuits brought by disgruntled and aggrieved citizens they would have little choice but to cease performing their duties. Having been a career public servant, myself, I naturally understand the pitfalls. Not only does article 604 of the Cities and Towns Act recognize this reality with regards to council members, officers and employees of a municipality, the act spells out the conditions that must exist in order to allow them to be reimbursed of all "reasonable" legal costs.

Key condition for reimbursement

The key condition requires that the person who is being sued must be brought before a court "... by reason of his alleged act or omission in the performance of his duties as a member of the council or as an officer or employee of the municipality... "

Rather than force the defendant/public official to support the costs of a lawsuit and then require him to seek reimbursement before the courts, article 604 shifts the burden to the public body. The general rule is that the public body must initially pay all reasonable legal costs and when in doubt as to whether the official is covered by the Act, seek a reimbursement ruling.

Furthermore, the article provides that only the judge who is assigned to the original lawsuit can grant the reimbursement order. As he is expected to become fully acquainted with all of the relevant facts it would serve no constructive purpose to begin all over before a different judge However, before the judge can order the public official to reimburse the expenses incurred by the municipality, he must be satisfied that the official committed a "gross or intentional fault or a fault separable from the performance of his duties". Failing such a finding, the municipality can be obliged to cover all of the defendant's "financial losses" resulting from the lawsuit, which necessarily includes any award in favor of the plaintiff.

Factors to be considered by judge

Because of the specific wording of article 604 which contains no less than 13 sub -paragraphs, the judge must take into account,"the good or bad faith" of the public official as well as his "diligence or negligence in learning the rules and practices relevant to the to the performance of his duties." There is more. By law the judge must also consider "the existence or absence of any previous fault related to the performance of his duties, the simplicity or complexity of the circumstances in which he committed a fault, the good or poor quality of the advice given to him and any other relevant factor." Who is best suited to present case When the issue of reimbursement involves a sitting mayor, such as in the present case, the question may be asked as to which party or parties are best suited to present such evidence, if indeed such evidence exists. Seeing that the Town of Brome Lake council mandated its own attorneys to seek a reimbursement ruling, one must assume it also decided that an "outside" firm would not be in a better or in a more "comfortable" position to pursue such a delicate mandate with all of the necessary rigor and objectivity.

What happened to TBL insurers?

Finally, for those taxpayers who have yet to digest the 1998 $450, 000 "brutality" tax that was imposed on their properties to cover the David Allan Gauthier award, they will naturally be interested in knowing why the TBL insurers have yet to intervene in the Mayor's case. Perhaps the insurers consider the issue as having nothing to do with the" performance of the mayor's duties". If such is the case let's hope they will agree to cover all of the costs incurred by TBL, if and when a judge reaches a contrary conclusion. By doing so, we could at least avoid another "commission of inquiry" as was the case in the Gauthier affair. Next week: Part II, Political implications