JOHN ROBBINS and PETER CONRADI/Bullet News
A lawyer for Canadian Civil Liberties Association says Niagara Falls city council’s use of the Trespass to Property Act to ban a former city employee from attending council meetings is “problematic” and likely exceeds the municipality’s authority.
“The advice that this is a lawful use of the Trespass to Property Act in this circumstance is questionable,” said Cara Zwibel, director of the association’s fundamental freedoms program.
“I think it’s problematic. To use (the Act) in this way… is overreaching.”
Bullet News contacted the CCLA for comment on a story first published in The Bullet on Tuesday.
Carlo Butera, a 68-year-old former parks department employee, received notice from the city’s legal department last week informing him he is no longer welcome to visit city hall between 4 p.m. and midnight on nights when council is meeting.
City staff say the ban is the result of complaints by unnamed city councillors, who felt intimidated by what they are terming an incident at a council meeting in December.
Butera, who claims he was fired in 2005 because he had repeatedly complained of problems in the parks department, says he did nothing wrong and the ban is simply a way of trying to shut him up.
In fact, Butera is demanding to know why council has placed the ban on him, what authority they have to impose a limit on his ability to attend council meetings, and why he was not given the opportunity to defend himself against the unspecified accusations.
City staff was instructed to send Butera a notice under the Tresspass to Property Act informing him of the decision of council following a closed-session meeting on Jan. 24.
Chief administrative officer Ken Todd said the matter relates to an incident at council’s Dec. 12 meeting.
Following that meeting, Todd said Butera left his seat in the public gallery and attempted to approach the area where councillors sit.
When he was told members of the public are not allowed in that area of the council chamber, Butera exchanged words with Todd and was “fairly loud.” Todd said Butera complied with the request, but some councillors felt uneasy and complained to staff.
Todd said the municipality has a legal obligation under provincial and federal legislation to treat safety or harassment complaints seriously and to take reasonable steps to ensure the well being of employees and council members.
As a result, a decision was made to contact the Niagara Regional Police and ask to have extra-duty officers attend council’s Jan. 24 meeting. That night, four officers sat inside and outside the council chamber for the duration of the meeting.
Butera, accompanied by his wife, attended the meeting without incident. As a result of a closed-door meeting that same evening, council decided to issue the notice to Butera banning him from future council meetings.
Butera received the notice from the city on Jan. 30, and, as a result, he did not attend council’s Jan. 31 meeting. Still, the city had two extra-duty police officers attend the meeting to provide security at a cost to city taxpayers of $1,500 for the evening. Staff says that will continue indefinitely.
Although the staff says the latest action is a result of the Dec. 12 meeting, the problems between Butera and the city seem to go back further than that.
For a period of time after Butera’s employment with the city was terminated, the city had placed certain restrictions on him, which included not being allowed to attend city-owned properties, including parks and arenas without permission from the city.
Todd did not explain the reason for the original restrictions placed on Butera, and Butera said he had done nothing wrong.
Todd said to the best of his knowledge Butera abided by those restrictions, but after a new mayor, Jim Diodati, was elected in the fall of 2010, Butera asked to have them lifted. After discussions between Butera, Diodati and senior staff, the restrictions were removed last April.
City solictor Ken Beaman said last week councillors are within their rights to use the Trespass to Property Act to ban a person from visiting property owned by the municipality. He cited the example of the City of Toronto using that legislation to force Occupy Toronto protesters to leave a city park where they were encamped last fall. The protesters eventually left peacefully following a negotiated settlement with Toronto police.
But Zwibel said there’s a “big difference” between forcing protesters to leave a public park and using the Trespass to Property Act to ban a citizen from attending council meetings.
“I think it’s disturbing,” Zwibel said.
The Municipal Act allows the head of council to expel any member of the public from a meeting if that person’s conduct is deemed improper. Butera was not ejected from any meeting he has attended.
Mayor Jim Diodati was unavailble for comment Tuesday evening.
Earlier in the day, Diodati, who refuses to say whether he agrees with the ban or not since it was a matter discussed in camera, argued the city was simply trying to find a way to deal with the complaints about Butera lodged by the unnamed councillors.
“Some of the councillors felt threatened and didn’t feel comfortable coming to meetings any longer. Staff was looking for alternatives that would make them feel comfortable, whether that was police or a potential ban. It was a perceived threat, I guess we’d say. I’m not personally aware of the specific threats. But I guess council feels if anyone feels threatened, we have to make sure that they feel secure in the council enviornment so they can make clear decisions.”
Diodati continued: “It’s a democracy and whether I support a decision or oppose a decision, once a decision is made we all try to respect the fact that the council made a decision. I respect the decisions whether I like them or not. I’d say because this was an in-camera vote I am not comfortable talking about my individual decision.”
Security has been a sensitive issue around city hall ever since former mayor Wayne Thomson was attacked in his office in September, 1998 by Joe Pietrangelo, a former city employee.
Pietrangelo ran against Thomson for mayor in 1997. Pietrangelo struck Thomson several times with a lead filled cane. Iorfida, then Thomson’s assistant, came to the mayor’s aid. That incident happened during a private meeting in Thomson’s office, not in the council chamber during a public meeting.
Some councillors have complained the layout of the council chamber is awkward and puts them at a disadvantage because some members sit with their backs to the audience.
City staff are expected to bring a report to council about general security issues at city hall in the near future. It’s possible the council could lift the ban on Butera if and when it adopts changes that alleviate the concerns of the councillors who say they feel uncomfortable having him there, city staff say.
Diodati said he’s not sure how any of this plays out.
“I think we’re in some uncharted territory,” Diodati said of the ban.
“We have a security audit taking place at city hall overall, something that hasn’t happened since mayor Thomson (now a city councillor) was attacked.
“It’s an unfortunate situation that something like this has to happen, but we need to make sure everyone feels safe and secure under (provincial health and safety legislation). It’s a fine line between the security and the freedom. I’m not 100 per cent certain where we go from here. It seems to be a work in progress.”