The March 30, 2015 release of BC’s Privacy Commissioner’s investigative report into the Spyware debacle in Saanich produced a stunning rebuke of IT policy and practices at Saanich Municipal Hall. 

The results of this investigation vindicate Mayor Richard Atwell on this issue and raise serious concerns about what appears to be a major knowledge and policy gap at Saanich staff and Council levels about current provincial privacy legislation.

The results also raise another concern for me, a deeper issue that touches on the integrity of local governance; that is, the need to carefully recognize and maintain the fine balance between two fundamentally different functions, one of operations’ responsibility (staff) and one of executive responsibility (Mayor and Council).  Failing to acknowledge and fully understand these functional differences, either inadvertently or deliberately, is not only ill-advised but may also violate provincial legislation or seriously compromise key principles of public accountability and political independence, not to mention the democratic process itself.

The situation in Saanich illustrates what can happen when this fine balance is tipped in one direction, when boundaries become unclear and when roles and responsibilities of staff and politicians are blurred.  It is completely acceptable and, in fact, demonstrates best management practices, for municipalities to implement operational and human resources’ policies designed to support and protect the municipality, its staff and the community.  But in this case, for municipal staff to install intrusive anomalous software on the computer system of an elected Council member, allegedly without the member’s prior knowledge or permission, raises some unsettling questions for me.

The role of Mayor and Council is defined in provincial legislation, namely, the Local Government Act and the Community Charter.  We must remember that the Mayor and Council members are not employees and, therefore, are not subject to the same employee management processes that are normally implemented by the Chief Administrative Officer (CAO) and senior management.  Mayor and Council are independently elected representatives and accountable to residents of a municipality or district,  “a corporation of the residents of the area,” (Community Charter, [SBC 2003] CHAPTER 26, Part 2 — Municipal Purposes and Powers, Division 1 — Purposes and Fundamental Powers, Municipalities and their councils, 6 (1).  A Council’s authority, powers and responsibilities are separate and distinct, in legislation and in governance, from those of staff.

While it is acceptable that Council members will respect and support staff, municipal operations and related working environments, it is not acceptable that elected officials will be considered or treated as part of any employee group, employee organization or employee affiliation.  This is a key point because the Mayor and Council, as policy and decision makers, are asked to approve staffing plans and budgets, address personnel issues and deal with exempt employee compensation, union contracts and labour relations, always in consultation with the CAO.  The reporting relationship of the greatest significance should be the one between the CAO and the Mayor, a relationship that establishes a clear boundary between municipal operations and Council.

I believe that the separation between staff and the Mayor and Council is necessary to fulfill two important governing principles — the importance of maintaining the independence of elected representatives and the importance of protecting staff from political interference.  The recent Saanich case serves as a strong reminder of how essential it is to respect this separation and to ensure that these two guiding principles inform municipal operations and Council decision-making, while also recognizing that the role and responsibilities of CAO form the “fire wall” that safeguards both.

As I suggested earlier, all of this occurs in the context of maintaining a fine balance between delivery of operational priorities, programs and services and broader Council policy/decision making.  From the Saanich example there are important lessons to be learned, as noted by the Privacy Commissioner when she referred to this case as “a teachable moment.”  I hope that as local and regional governments continue to evolve and change, the knowledge and understanding learned from Saanich will be applied elsewhere in the Capital Region where necessary.