The Berry Affair Redux
Ron Bolin — October 23, 2010
It is rumoured but thus far unverified, that in 2004 a deal was signed between then Mayor Korpan and then City Manager Jerry Berry that provided Mr. Berry a golden parachute either to entice him to stay with the city despite an offer to go elsewhere or to protect him against problems that might arise in the conference centre affair. To date, all remains cloaked under the mantle of protected personnel privilege despite a previous Freedom of Information (FOI) request. If, in fact, this rumour is true, its effect remained buried for several years.
At its “In Camera” meeting of May 14, 2007, Council passed the following resolution:
“That Council direct Staff to update “MANAGEMENT TERMS AND CONDITIONS OF EMPLOYMENT BYLAW 2005 NO. 7000” with respect to employee retention and attraction, including updating the notice provisions therein.”
It is difficult to understand what has to be hidden in an In Camera meeting about a matter which does not touch on individual personnel, but with management staff as a whole. Why is so much of Nanaimo’s business done behind an iron curtain?
On July 9, 2007, a staff report recommended: “That Council give first three readings to “MANAGEMENT TERMS AND CONDITIONS OF EMPLOYMENT BYLAW AMENDMENT BYLAW 2007 NO. 7000.01″ which appears under the Bylaw section of this evening’s agenda.” The gist of this amendment was to:
a) Increase the notice required to be given on termination, i.e. the months of payout required on termination, i.e. the total payout associated with a termination. At the high end this provided a 33% increase in the notice required from 18 to 24 months and thus a 33% increase in the minimum pay associated with a termination, and,
b) In my opinion, to open the door to litigation in the case of termination much wider by making the case for exceptions even before going to court by adding section 7.5 which states”
“In making exceptions, Council is to consider the judicial jurisprudence that includes length of service and other factors such as character of employment (e.g. junior or senior manager), age of the employee and availability of comparable employment.”
These changes to Bylaw 7000 seem to be excessive and one would certainly want to hear discussion of why they were necessary. An increase of 33% in termination pay at one time plus pointing terminated employees to possible causes of action against the taxpayers of Nanaimo should be explained rather than being hidden behind an In Camera meeting.
It should be noted that at the July 9 meeting of Council at which the first three readings of the amendment, Councillors Bestwick and Sherry both opposed the motion and its three readings while Mayor Korpan and the bulk of Council voted for it.
In short, it is my belief that Council, on the recommendation of Staff who were at the time under the management of Mr. Berry, made amendments to bylaw 7000 which materially enhanced Mr. Berry’s position in dealing with his dismissal. Nothing more nefarious than that was needed to bring about the conditions of Mr. Berry’s very generous deal in which he received both a much higher payout and much better terms than most likely would have occurred under bylaw 7000 prior to its amendment. I suppose we will never know the extent to which Mr. Berry, as head of staff, was the author of his own aggrandizement but, were the rumour of a 2004 arrangement in this regard true, there certainly would have been time to work toward it and method in the addition of clause 7.5 to the bylaw.
If correct, this interpretation of events does not present Council as staunch defendants of Nanaimo’s taxpayers and perhaps casts some doubts on their roles as fiduciary agents for our citizens. Remember that the amendment discussed here affect ALL management staff, not just Mr. Berry. Should any of our readers have information which contradicts this interpretation, please come forward. To date Council remains as an impenetrable block on this subject.
By the way: Bylaw 7000 as consolidated shows another amendment, 7000.02 which improved the extended health benefits of the “Officer or Management/Excluded Employee. I believe that these benefits were subsequently extended to Council, a not inconsiderable perk.
Posts and Comments on Nanaimo Governance 
Ron: Bylaw 2005 No. 7000 indicates that BOTH of the amendments — 7000.01 and 7000.02 — were ADOPTED on April 14, 2008 (previous Council).
The Minutes of the Regular Meeting of Council held April 14, 2008 indicate that Councillor Holdom chaired the meeting and that the Mayor,(Korpan),and Coun. Unger were absent.
Under Reconsideration of Bylaws – Item 10(b) – (to amend the extended healthcare provisions in the bylaw)- 7000.02 was ADOPTED. OPPOSED: Coun. Sherry only.
(Yes … I recall that Council did vote at some point to grant health benefits to members of Council and I believe that the premiums are covered by the employer taxpayers!)
If amendment 7000.01 was ADOPTED on April 14, 2008, as indicated, then Council must have done so at an “In Camera” meeting of the same date, as I do NOT see it recorded in the Minutes of the open meeting. As you say, this Bylaw relates to all Officer and Management/Excluded Employees.
“Reasonable Notice” under Section 7.3(ii) of Bylaw 2005 No. 7000 states, “in accordance with common law”. Section 7.5 refers to “the judicial jurisprudence”. Section 7.4 is rather interesting!
Ron – I do have a question. You reported as follows: “On July 9, 2007, a staff report recommended: “That Council give first three readings to “MANAGEMENT TERMS AND CONDITIONS OF EMPLOYMENT BYLAW AMENDMENT BYLAW 2007 NO. 7000.01″ which appears under the Bylaw section of this evening’s agenda.”
So, what was the outcome regarding the said Amendment Bylaw 2007?? Amendments that were ADOPTED by Council on APRIL 14, 2008 related to Bylaw 2005 No. 7000.
Oh, the tangled webs that are weaved behind closed doors. Ron, thanx for digging into this and I am looking forward to seeing how it all plays out. I would like to think that if the taxpayers of Nanaimo were aware of some of the goings on there would be an uproar but as it stands most will never know and it seems some of those that likely do could’t give a rats ass.
Janet: 7000.01 was adopted on Aug 13, 2007 under Reconsideration of bylaws,
“(e) “MANAGEMENT TERMS AND CONDITIONS OF EMPLOYMENT BYLAW AMENDMENT BYLAW 2007 NO. 7000.01” (to establish “Reasonable Notice” of termination of any Officer or Management/Excluded Employee).
It was moved and seconded that “MANAGEMENT TERMS AND CONDITIONS OF EMPLOYMENT BYLAW AMENDMENT BYLAW 2007 NO. 7000.01″ be adopted. The motion carried.
Opposed: Councillors Bestwick and Sherry”
7000.02 was adopted on April 14, 2008, with Sherry opposed. While this change propped up benefits, I don’t see it as a big part of any game that might have been played.
The bylaw as it is currently shown on line is a consolidation which includes both amendments and is also dated on April 14, 2008.
Sections 7.3 and 7.5 in the consolidated document are both derived from amendment 7000.01. Section 7.4 existed in the original bylaw 7000. There have been a number of iterations of the bylaw which deals with what translates roughly to Management Terms and Conditions under a variety of bylaw numbers. This seems to be an area which has received constant attention.
I suggest it is pretty clear that Jerry Berry had planned to leave his position with the City,sooner rather than later,and studiously engineered the terms and conditions of his future departure by manipulating a pliant Council of the day,led by Gary Korpan.Why would Berry want to remain on the job,most likely exposing himself to serious and ongoing criticism over the Conference Centre fiasco,when he could walk away with over $600,000 under the terms of his employment contract,a contract he essentially wrote himself with every clause to his gain and benefit.
That’s the first point.The second point is that the existing Council,led by Mayor Ruttan,has orchestrated an obvious cover-up of the details and reasons for Berry’s departure.The severance agreement that Berry was able to negotiate with Mayor Ruttan is a disgrace,but not of Berry but rather of Ruttan who signed away the taxpayer’s rights to know what,and how,Berry’s golden windfall came about.
There is a lot of shame to go around but it mainly falls on John Ruttan and his Council members who voted for,and are responsible for,this sorry mess and the contemptuous manner in which they treat the citizens of Nanaimo.Why are the elected members so afraid to speak out? Well the answer to that is known-Jerry Berry has a clause in his severance agreement that threatens legal action against anyone who does speak out.Why John Ruttan would agree and sign off on this is beyond belief.Could I suggest it is time for you to leave Mr Ruttan as you have done quite enough damage in your long two years as Mayor.The City needs leadership not capitulation.
Thanks Ron. I had not reviewed Minutes of August 13, 2007, the Meeting at which “MANAGEMENT TERMS AND CONDITIONS OF EMPLOYMENT BYLAW AMENDMENT BYLAW 2007 NO. 7000.01” (to establish “Reasonable Notice” of termination of any Officer or Management/Excluded Employee) was adopted.
Councillors Sherry and Bestwick were opposed. Don’t know the reasoning for their decisions, but it would appear to me that, in doing so, they did not agree with the established common law and judicial jurisprudence with respect to “reasonable notice”.
Wayne said at 23 October 2010 3pm: “I suggest it is pretty clear that Jerry Berry had planned to leave his position with the City, sooner rather than later, and studiously engineered the terms and conditions of his future departure by manipulating a pliant Council of the day, led by Gary Korpan.”
If that were so, Wayne, then why wouldn’t Mr. Berry’s employment relationship have terminated just BEFORE the 2008 election, instead of after the election?
And didn’t the same thing happen at the City of Vancouver, soon after the 2008 election regarding the position of City Manager? Something about “party politics”?
The Staff Report, (from Nanaimo’s Director, Human Resources), that formed part of Council’s Agenda of July 9, 2007, advised in part that:
“The current Management Terms and Conditions of Employment Bylaw is now inaccurate as the notice provisions are out-of-date and inconsistent with recent employment law and industry practice. The notice provisions are based only on length of service with the City, which ignores two other factors considered by the courts in establishing what it has evolved in today’s jurisprudence; age and availability of comparable employment.
Staff have discussed updating the Bylaw with the City’s Labour Law solicitor and she has confirmed that an amendment is required to be consistent with industry standards and therefore competitive.
In addition to the published information on termination notice settlements that staff are reviewing, unpublished settlements tend to be higher and usually include confidentiality clauses. Staff believe that negotiating and providing notice to terminate employees that is consistent with these principles reduces the potential for costly wrongful dismissal cases … This amendment will be consistent with legal advice …
The language proposed is flexible enough to follow industry settlements up or down as establish by market conditions.”
This brings to mind the employment severance of the former City Clerk, Mr. Bowden, as the Management Terms and Conditions of Employment Bylaw would have applied to his position, as well. Employees can choose to sue for wrongful dismissal and as the Staff Report mentions, wrongful dismissal cases are costly.
It would be of interest to know what “triggered” the severance of Mr. Berry’s employment … Wondering about the possibility of a “constructive dismissal”. It appears that a lot of the flack for the “reasonable notice” awarded to Mr. Berry has been directed at the current Mayor. In order to put an end to the endless speculation about the termination of Mr. Berry’s employment relationship, I think that the City owes it to its citizenry to “tell it as it is”.
Janet: The case of Jim Bowden is an interesting one. Certainly here was a case of “constructive dismissal” as he was given a small corner on the top of the annex and left to his devices. Why he did not sue is a puzzle to me. It is not clear that as the referendum question dealt with finance, that he should have been the fall guy.
The case of the trigger for Mr. Berry’s bail out is also interesting. I am sure that you are aware of the rumours of discord between himself and a couple of Councillors who were supposed to have run ins with him in previous years. But your question about the choice of the timing and mine of how two Councillors could drive the entire new Council remain unanswered, as does the question of the review of Mr. Berry’s performance for which the City apparently contracted and presumably paid. It would indeed be useful to all of us to have a clear picture of what happened.
It is also useful to relate what happened here with what happened with Ms. Rogers, the City Manager for Vancouver who was put out to pasture. One can read her agreement here:
Click to access rogers-severance-agreement.pdf
and compare it to Mr. Berry’s.