Court reinstates councillor

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

Josh Pennell Josh.pennell@thetelegram.com
Published on July 8, 2013
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