After 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.
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.