Court reinstates councillor

Josh
Josh Pennell
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Decision means Doug Neary can return to seat in Portugal Cove-St. Philip’s

Doug Neary stands outside the Portugal Cove-St. Philip’s Town Hall Friday, the day the Supreme Court of Newfoundland and Labrador overturned a 2011 decision by his
fellow council members to remove him from office. — Photo by Joe Gibbons/The Telegram

A Portugal Cove-St. Philip’s town councillor who was kicked off council by his colleagues due to an alleged conflict of interest has been reinstated by the Supreme Court of Newfoundland and Labrador.

Doug Neary says he warned council in the fall of 2011 that they were making a big and costly mistake when they voted him off.

“I said if this goes to appeal any judge, even on their worst day, will mop the floor with all you,” says Neary.

The issue began prior to Neary’s joining council. In 2006 and 2007, he made several written requests to have land he owned on Beachy Cove Road rezoned so it could be developed.

The proposed rezoning of the land was eventually included in an early draft of the town’s municipal plan that was sent to the Department of Municipal Affairs for approval in January 2009, as required by law.

Neary says he thought at that point his work was done. He figured the land would eventually be rezoned when the town’s plan was approved.

 

In September 2009, Neary was elected to council. Council began doing further work on the plan it had submitted to Municipal Affairs, says Neary.

Then in the fall of 2011, council hired consultant Andrew Matheson to provide further recommendations to the plan in progress. Of the 52 recommendations Matheson made, one had to do with spot rezoning of certain lands in the community, and was meant to facilitate development. They were lands close to Neary’s.

According to court documents, a map was included to show which parts of the community would be covered in this spot rezoning plan. Neary says he made the request to Matheson for the land to be rezoned and knew it didn’t include his own.

“That was outside my boundaries on the adjoining properties,” he says.

Furthermore, Neary’s land was already included in the draft of the town’s municipal plan to be rezoned, when it was decided prior to Neary’s joining council.

In fall 2011, all councillors, including Neary, voted to accept the consultant’s early plans — and that’s where the alleged conflict of interest arose.

According to court documents, it was brought to Mayor Bill Fagan’s attention that Neary, in voting on Matheson’s plan, had voted on rezoning his own land.

At an informal meeting of council called to discuss the issue, Neary requested council sit down with Matheson and get unambiguous confirmation that the land in question to be rezoned did not include his own.

But Matheson was out of town until Dec. 5.

Court documents further state that Neary requested several times during subsequent council meetings that council wait until Matheson returned so the matter could be cleared up.

“I said you gotta give me some time to get ready for this,” Neary told The Telegram Sunday. “I couldn’t believe what was being done to me.”

Those requests were denied. On Nov. 22, 2011, council voted on two matters — one that Neary was in a conflict of interest, and the other that his seat should be vacated on council.

Council was divided on the issues. Four members voted that he was in a conflict of interest and should be removed, and two members voted that he wasn’t in a conflict of interest and shouldn’t be removed.

Court documents state that the two councillors who voted in Neary’s favour — Moses Tucker and Joseph Duggan — both swore under oath that they had not been aware that Neary’s land was included in the spot rezoning plan and that the recommendation was “ambiguous,” “unclear” and “confusing.”

Regardless, the majority ruled and Neary was removed from council.

“I said, ‘You’re making a big mistake. You’re gonna pay for this down the road,’” Neary says.

The move would eventually cost council. Neary took the matter before a trial division judge, who ruled in favour of council that Neary was in a known conflict of interest.

The defeat didn’t stop Neary. He took the matter to the province’s Supreme Court.

Last Friday, Neary was reinstated as a councillor with the Town of Portugal Cove-St. Philip’s. Court documents from the Supreme Court appeal state that “the trial division judge made a fundamental error in law.”

It says Neary was not given procedural fairness by council and that alone was enough for his removal from council to be overturned. He was denied a fair hearing before council in the first place, the document contends, by not being allowed to have Matheson at the meeting.

Neary says council is now on the hook for about $30,000 in legal fees he racked up fighting the case. Today will be his first day back in his council office, but he says his mind is back on the task at hand and not on any grudge.

“I’m not gonna go back with a chip on my shoulder,” he says.

He wants to complete the work he set out to do for the town and serve another term. His whole time off council, he says, he stayed devoted to the town and went to every meeting.

Still, it’s been a long road and one that has left its scars.

“I’ve had 19 months of a miserable, lousy life because of this. Totally unfair,” says Neary.

 

josh.pennell@thetelegram.com

 

Organizations: Supreme Court, Department of Municipal Affairs

Geographic location: Portugal Cove, Beachy Cove Road

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Recent comments

  • PCSP RESIDENT
    July 09, 2013 - 22:08

    Procedual fairness and so on but the question still remains was Mr. Neary in conflict when he voted on a motion that included land that he owned and is trying to develop!?It would be interesting to see who helped pay Mr. Neary's legal costs thus far- some of those devlopers he 'helped' maybe???? Maybe it time for Muncipal Affairs to visit Conflict of Interest and clear up what they call 'grey' areas

    • Harvey J
      July 11, 2013 - 06:07

      PCSP Resident.................The supreme court ruled and the gang bang organized by the mayor and his 3 stooges was ruled to be illegal. Part of your property tax will now go to pay for that wrongful act! In this case Mr. Neary is not the culprit; the mayor and his 3 stooges are. They are the "grey" areas that need to be "cleared up" during the next election.

    • MaggieMay
      July 13, 2013 - 13:34

      My darling PCSP Resident: I can guarantee you that it came out of Mr. Neary's own pocket. Perhaps you're unfamiliar with genuine and honest people and more so with the people he had to fight.

  • Concerned Resident
    July 08, 2013 - 14:42

    I hope people take a lesson from this, Bill Fagan has to go, in eight years since he has been on Council, he has tarnished the image of the beautiful town....he has to go. He does not like Doug Neary because Mr. Neary refuses to be just another lackey. Its interesting to note that when Daryl Butler was reinstated to PCSP Council about 5 or 6 years ago, the judge said the same thing.....he was not given due process....Fagan was there then advocating for Mr. Butler, I guess he did not learn anything, or it did not suit him this time.

  • Jack
    July 08, 2013 - 12:01

    Harvey J, because many members of town councils in Newfoundland and Labrador don't get paid for serving on it, I'm afraid that you can't sue them. Secondly, suing them for how they voted is also against the concept of democracy and its dictatorial as you're telling then what to vote, which makes you do different than how political parties in Canada act. However, what Andrew Neary can do is sue the Town of Portugal Cove - St. Philip's for Wrongful Dismissal and Abuse of Process, and get Special Damages of $30,000 and Punitive Damages of at least $200,000 against the town as his removal of malicious and without due process. In addition, the offending Council Members should receive a four year suspension from Municipal Politics, an equivalent to sitting out one civic election.

    • Jack
      July 08, 2013 - 12:16

      I meant Doug Neary, not Andrew Neary. Sorry about the mistake.

    • Harvey J
      July 08, 2013 - 12:19

      I wasn't suggesting that the mayor and his 3 stooges be sued. All I suggested was that they voluntarily pay retribution to taxpayers for their wrongful, ill-advised, unprofessional conduct.

    • Harvey J
      July 08, 2013 - 12:50

      For the record Jack, I wasn't suggesting that the mayor and his 3 stooges be sued. What I did say was they should voluntarily pay retribution to taxpayers for their wrongful, ill-advised, unprofessional conduct.

  • Concerned Portugal Cove resident
    July 08, 2013 - 11:36

    I am in agreement with most of the comments previously stated here. Portugal Cove-St. Philips council is nothing but a neighbourhood bully! Most of them or their families have been in the Cove for generations and feel that it's "their" community and what they say, goes. Time to get rid of that small town mentality and get with the times.

  • Harvey J
    July 08, 2013 - 11:12

    Congratulations Mr. Neary. The 4 who voted to remove you (we all know who they are) should now volunteer to do what they wrongfully did to you. They should do the right thing and pay the town $7,500 each ($30K total) before they resign in shame from council. It's a pity that a town with such potential has have one of the highest mil rates on the Avalon Peninsula and still be so poorly and unprofessionally managed by its a mayor and his 3 stooges!

  • k
    July 08, 2013 - 10:37

    When alections arrive. I sussest the whole ( all be non-elected ) strongly . Have a new council . Come on new and existing townies get out and run. The people (Not all) want and need new members. I would be happy to see new citizens with the common sense and purpose to run and be elected. Tired of the old and in house fighting. It seems like I I I ,not the citizens who want the benefits. Portugal Cove/ St. Phillips is in a desperateneed for new blood.

  • Don II
    July 08, 2013 - 10:34

    It appears that the tax payers are now on the hook to pay $30,000 in legal bills that should never have been incurred! This case is just one of many cases that arise because small town councils are comprised of some people with an axe to grind or a project to push and who have no concept of how a town council should be properly administered. As for Municipal Affairs planning, these people are totally out of control. Between Councils and Planners, these people decide what will be done with other peoples land without the land owners knowledge, input or consent. In many cases the planning process, either by intent or error, renders other peoples land devalued or unable to be developed. No compensation is paid to people who are adversely affected. The Urban and Rural Planning Act prohibits appeals of zoning and planning decisions that are arbitrary and unfair. I recently read files in which a town in Conception Bay North refused to allow a land owners to build a house on his land because it was supposedly on land within a public water supply area. It turned out that was not the case but the land owner was delayed in building a house for over 6 months while the council figured out that the land was improperly zoned for public water supply protection. In another file, land was zoned a "rural" which allowed only farming and mining. It turned out that the land was not suitable for either farming or mining. It appears that some councilors disliked the land owner and wanted to keep him from developing his land while the council continued to demand that the land owner pay property tax on land that could not be developed for residential or commercial purposes. It appears that the Department of Municipal Affairs is asleep at the wheel or is unwilling to intervene while rogue councils run roughshod over citizens on a regular basis. I was recently in a town in Conception Bay North that has so many by laws and regulations that it has hired a full time municipal enforcement officer or "town cop" who is constantly driving around in his "cop car" handing out stop work orders, tickets and warnings to people! Municipal government in Newfoundland and Labrador is a real mess that should be cleaned up. It appears that there are over 200 small towns with their own council, town hall, town clerk and as many different by laws, regulations and tax structures as there are towns. The wastage of tax payer money to maintain such a disjointed system must be substantial. The creation of regional government is long overdue to replace all of the individual towns which are run by councils as they see fit despite the unfair zoning practices, intentional mistakes, high tax rates and regardless of the financial cost to the people of the Province. In many cases, local service districts are sufficient where town councils are just a waste of money, cause of a lot of disputes and are a drag on development. It appears that the Government is unwilling to act to create regional government because the politicians fear losing votes and the local "bosses" fear losing the power they now have to push other people around!

    • Jack
      July 08, 2013 - 12:12

      Don II, as someone originally from Nova Scotia where regional, county, district, town, and other municipal governments are used, I have to agree that this province desperately needs radical municipal reforms. On such reform is implementing a county, district, town, city, and/or regional municipality system similar to Nova Scotia, Quebec, New Brunswick, Ontario (except Northern Ontario), and other provincial jurisdictions. In the case of regional governments, affiliated communities would still retain their name, but municipal services would be handled through a regional or county municipality. For example, Corner Brook, Hughes Brook, Irishtown-Summerside, Meadows, Gillams, McIvers, Cox's Cove, Curling, Mount Moriah, Humber Arm South, and Lark Harbour would become part of the Bay of Islands Regional Municipality. Having county/regional governments are not only a great way to reduce bureaucratic and government service costs and save taxpayer's money, but also provide more reliable services.

  • Derrick W
    July 08, 2013 - 09:23

    Well Done Mr Neary. Great time for a Municipal Election isn't it ??!!!! Lets hope the citizens of Portugal Cove-St Phillips turf the mayor and the other councillors out of office in September for being so vendictive. They should be the ones to have to pay the legal bills right out of their own pockets. Mr Neary, the Mayors cap would suit you just fine. I'm sure you and the other supporting councillors would do a much better job. Congrats for going the distance.

  • mary & Joe Corcoran
    July 08, 2013 - 08:37

    doesn't matter who pays - he was wronged - way to go doug - proud of you

    • It matters
      July 08, 2013 - 08:57

      It sure does matter who pays. I do not want anymore increases to my taxes. We pay enough now for services. Should clarify, a service not services; a once weekly garbage pickup.

  • Whaddaya At
    July 08, 2013 - 08:32

    The councillors who voted to have Mr. Neary removed from council obviously knew at the time that they were not treating him fairly but they were determined , for whatever reason(s), to have him removed. Mr. Neary can now resume his job as councillor but, unfortunately, he'd be wise to also watch his back.

  • concerned taxpayer
    July 08, 2013 - 08:25

    This was the result of a personal vendetta by certain other councillors/mayor. They are supposed to be professional and unbiased in their job. Now we all have to pay for this and other lawsuits pending. Come on election time!!

  • Citizen
    July 08, 2013 - 07:54

    It's not the town council on the hook for $30,000.00, it's the paying citizens of Portugal Cove who will be paying!