TOWNSHIP OF GEORGIAN BAY INTEGRITY COMMISSIONER, HAROLD G. ELSTON
Citation: Cameron v. Braid, 2012 ONMIC 3
Date: 2012-02-12
REPORT OF THE INTEGRITY COMMISSIONER: CAMERON AND BRAID
Notice: Municipal Integrity Commissioners provide investigation reports to their respective municipal council and, in most cases, make recommendations for imposition of penalty or other remedial action to the municipal Council. Therefore, reference should be made to the minutes of each particular municipal council to obtain information about the particular council's consideration of each report. When possible, a link to the relevant municipal council minutes is provided.
Please find below the link to the corresponding council decision.
https://georgianbay.civicweb.net/filepro/documents/58750?preview=62192 (see page 2)
TABLE OF CONTENTS
REPORT OF THE INTEGRITY COMMISSIONER.. 3
APPENDIX.. 11
REPORT OF THE INTEGRITY COMMISSIONER
1On February 19, 2012, Mr. Lorne Cameron, of 2614 Honey Harbour Road, in the Township of Georgian Bay, wrote to me, as Integrity Commissioner for the Township of Georgian Bay, seeking a review of the actions of several members of Council (the "Letter of Complaint"). Mr. Cameron identifies himself as a representative of "Citizens for Change". Attached as Schedule "A" to this report, is the Letter of Complaint.
2The Letter of Complaint served as a cover letter for seven Affidavits made by Mr. Cameron, alleging various breaches of the Code of Conduct by Mayor Braid and Councillors Rivett and Wiancko.
3The theme of the Letter of Complaint was that these Councillors promoted the Township's Acting CAO, Ms. Carolyn Tripp, "without appropriate due process, without a substantial and legitimate evaluation and without listening to long documented issues from the public surrounding the conduct of this individual".
4In particular, Mr. Cameron alleges that: "As we applied pressure, challenges appeared in our Council's abilities to enact effective governance and the pressure caused many Councillors and the Mayor also, we believe, to breach our newly implemented Code of Conduct rules as well as rules for Open/Closed Sessions of Council".
5Mr. Cameron and the Citizens for Change have also made a combined submission to me and the Ombudsman for the Province of Ontario. Those submissions are contained in a document dated February 21, 2012, and entitled "The Township of Georgian Bay - Ratepayer's Governance Challenges" (the "RGC").
6The RGC identifies the following four governance issues:
An Acting CAO with whom we have irrefutable evidence of significant and misleading advice to Council and to Constituents on many occasions;
Concern over the promotion of the Acting CAO without due process;
THEN, on top of that, grew grave concerns about the misuse of Process and Procedure by the Mayor - many Councillors sighting (sic) bullying and intimidation:
AND NOW, we have even MORE grave concerns about the legitimacy of our Municipal Government and the lack of Openness and Transparency. Significant Code of Conduct violations and Ethics Concerns. A lack of public review and use of Closed Sessions that are effectively being used to hide bad processes; hide managerial mistakes and subvert Openness and Transparency.
Attached as Schedule "B' to this report, is a copy of the RGC.
7On February 21, 2012, Lorne Cameron swore three Affidavits in support of the following three separate complaints against Mayor Braid:
a series of e-mails from Councillor Edwards that Mayor Braid forwarded to a third party during the latter part of 2011 (the "complaint e-mail sharing");
the alleged events at a meeting of the Township's Committee of the Whole on December 19, 2012 (the "complaint about the December C.O.W. meeting"); and
allegations of disrespectful conduct by Mayor Braid (the "complaint about behaviour towards councillors").
Attached as Schedules "C", "D" and "E" are copies of the complaint regarding e-mail sharing, the complaint about the December C.O.W. meeting and the complaint about behaviour towards councillors.
8On March 8, 2012, I received a request from Mayor Braid's counsel, James E. Bowden, for a preliminary ruling on two matters: first, my jurisdiction over the complaint about e-mails and the complaint about the December C.O.W. meeting; and, second, the standing of Lorne Cameron. Attached as Schedule "F" to this report, is a copy of Mr. Bowden's March 8, 2012, letter to me.
9This part of the report will deal with the preliminary matters raised by Mr. Bowden.
10The Township's Code of Conduct for Council was established by By-law 2012-01 on January 9, 2012. The complaint about the e-mails and the complaint about the December C.O.W., relating as they do to events occurring before January 9, 2012, are not sustainable and, for the obvious reasons, I hereby dismiss those two complaints, for my want of jurisdiction.
11As for the question of Mr. Cameron's standing to bring the complaint, Mayor Braid's counsel argues that it is unclear as to whether Mr. Cameron is bringing his complaint in his own name, or on behalf of a group known as "Citizens for Change". Mr. Bowden suggests, and I agree, that as "Citizens for Change" is not an incorporated entity, it cannot maintain a complaint under the Code of Conduct.
12I met with Lorne Cameron on March 13, 2012, and he confirmed to me that his complaints were brought in his personal capacity and not on behalf of "Citizens for Change".
13The question then becomes: Can Mr. Cameron make a complaint against Mayor Braid?
14Mr. Bowden argues that any complainant must have a "substantial and direct interest in the subject matter of the inquiry". This test is taken from Section 15 of the Public Inquiries Act, 2009, S.O. 2009, c. 33, Schedule 6 (the "PIA"), which provides that, in deciding whether a person can participate in the public inquiry, the commission shall determine whether a person has a substantial and direct interest in the subject matter of the public inquiry.
15It seems to me, however, that the test for "participation" in a public inquiry may necessarily be different from the test to make a complaint, under the Township's Code of Conduct.
16Section 223.4(1) of the Municipal Act, 2001, S.O. 2001, c. 25, as amended, applies if the Integrity Commissioner is to conduct an inquiry in respect of a request made by Council, a member of Council, or a member of the public, about whether a member of council has contravened the Code of Conduct.
17Similarly, Section 8.1 of the Code of Conduct provides that any person may file a complaint regarding the conduct of a member of council. This is, of course, much broader than the test of having a substantial and direct interest for participation, once an inquiry has been established, and I believe there are good reasons for making this distinction; the legislation does not seek to control the initiation of the process, but, rather, its extent once it has begun. Had the legislation intended to restrict the class of persons capable of making a complaint, it could easily have adopted the language of the PIA.
18As a person who is a resident of the Township and who has shown a keen interest in its governance, I am of the view that Lorne Cameron has met the test for standing to make a complaint and I accept his complaint of February 21, 2012.
19In his complaint about Mayor Braid's behaviour towards his fellow councillors, Mr. Cameron states:
I had reason to call Councillors Edwards, Wiancko and Hanson on numerous occasions throughout this period to discuss their position, as our local representatives, on the issue of promoting the Acting CAO to the permanent position. While the issue was a passionate and divisive one, we, Citizens for Change we arguing just to be heard on our list of complaints and grievances BEFORE the decision was to be made. During these numerous phone calls and as the debate grew in scope and polarized the sides, the Councillors commented to me that the Mayor was "getting very worked up about it"; getting angry and heated on occasions in Closed Sessions; and was "bullying them" to support his position on this. As evidence of success of those tactics, TWO Councillors - Wiancko and Hanson were TWO, who had said all along that they would vote to look externally for an appropriate CAO candidate, changed their vote when they had PROMISED their constituents that they would support an external search. While their comments regarding their being "bullied" are not in writing, there are numerous emails noting support to go for an "external search" and many comments to other members of Citizens for Change that the Mayor was exerting substantial pressure.
Attached as Schedule "G" to this report, is a copy of Mr. Cameron's February 21, 2012, Affidavit alleging conduct breaches by Mayor Braid in his dealings with members of Council.
20Mr. Bowden asks that, should I not dismiss all Mr. Cameron's complaints for want of jurisdiction and standing, that I provide Mayor Braid with an opportunity to argue other matters, including:
the lack of particularity in some of the pleadings;
the hearsay nature of much of the proffered evidence; and
whether, even if admissible, the affidavits disclose any reasonable cause of action.
21Mr. Bowden also raises questions about how I should proceed, if I do not dismiss all three complaints. In particular, Mr. Bowden raises issues with respect to:
The potential disclosure of closed session debates;
Balancing the need for secrecy against the right of any responding party to full involvement with the process; and
The right to cross-examine any witness whose information might provide the basis for any decision or recommendation that I might make.
22By way of letter dated March 28, 2012, I responded to Mr. Bowden's submission, advising that I would be dismissing the two complaints for want of jurisdiction; pursuing an independent investigation of the remaining complaint by interviewing the complainant, witnesses, and if permitted, Mayor Braid; and that, following this process, I would decide as to whether any further inquiry was warranted and report to Council. Attached as Schedule "H" to this report, is a copy of my March 28, 2012, response to Mr. Bowden.
23Regarding, the preliminary matters, and in partial answer to Mr. Bowden, I make the following findings:
There is sufficient particularity in the pleadings;
In any event, I have the ability to test the evidence behind the pleadings and will not base any decisions on hearsay evidence; and
The Affidavits are admissible and there is sufficient basis for an investigation.
24In his complaint regarding Mayor Braid's conduct towards his fellow members of council, Lorne Cameron states that he has reason to believe that Mayor Braid has contravened Sections 2.3, 2.4, 4.2, 4.3 and 5.2 of the Code of Conduct. For ease of reference, I have set out these Sections, below.
Section 2.3 - Principles
Members of council are expected to conduct themselves at all times in such a way as to promote respect for council, all levels of government, and government administration including all municipal staff.
Section 2.4 - Principles
Members of council may passionately debate issues and promote ideas but must always do so with dignity, decorum, and respect for other opinions.
Section 4.2 - Confidential Information
Members of council shall not use information that is obtained in the exercise of his or her official duties and that is not available to the public to further his or her private interests. No member of Council shall divulge information, documents, or details of confidential matters or committee.
Section 4.3 -Influence
Members of council shall not use his or her position to seek to influence a decision of another person or council so as to further his or her private interest(s), or the interest(s) of his or her relatives or friends.
Section 5.2 - Inappropriate Conduct - Harassment
Members of council shall not bully, threaten, coerce, or otherwise harass, or intimidate employees or volunteers of the municipal organization, municipal contractors, the public, or his/her colleagues.
25As admirable as these principles and rules are, they do set the bar quite high and demand of our councillors a standard of behaviour that in many workplaces is more likely to be honoured in the breach. With, of course, the exception of the prohibitions against revealing confidential information and furthering ones' private interests, which are matters more easily recognized and judged, as I consider the allegations against Mayor Braid, I remain mindful of the almost saint-like qualities that are encouraged in the Code and the, as I understand it, tough admission standards to that position.
26On March 13, 2012, I conducted a lengthy and detailed interview with Lorne Cameron. Mr. Cameron is a full-time resident of, and runs a property management business in, the Township of Georgian Bay. Previously, Mr. Cameron held positions with the former City of Etobicoke and was an executive with I.D.A. Against this background, Mr. Cameron has become concerned about the lack of fairness, honesty and transparency in the Township of Georgian Bay. He feels that there has been much misunderstanding among the new municipal councillors.
27It is Mr. Cameron's opinion that Council only represents the year-round residents of the Township and that Township staff have shown an "orientation" for themselves, and are not acting on behalf of their constituents. He is particularly frustrated by what he sees to be the limits put on members of the public to address council on matters such as the hiring of a permanent Chief Administrative Officer.
28In addition to his general dissatisfaction with the actions of Council, Mr. Cameron has some strongly held opinions as to the conduct of Mayor Braid that led him to make these complaints. Specifically regarding the Mayor's behaviour, it was Mr. Cameron's evidence to me that the impugned behaviour arises from two alleged propensities:
Mayor Braid refuses to let any Councillors have a discussion or meet with him, his group, or others; and
Several councillors have told him that the Mayor has been bullying them, causing them to fear being marginalized, and pushed aside.
29It is clear from Lorne Cameron's Affidavits, and from my interview with him, that Mr. Cameron has no direct, first-hand experience of Mayor Braid's alleged mistreatment of members of Council; he could provide me with no evidence of any misconduct that he witnessed that would constitute a breach of the Code of Conduct.
30Rather, Mr. Cameron has concluded that any and all frustrations and disappointments that he experiences regarding the activities of members of council; the voting decisions of members of Council; and his ability to meet with and talk to members of Council, are a result of the Councillors being under the sway of Mayor Braid. It is these frustrations and disappointments that have fuelled his concerns and are the genesis for his complaints.
31The difficulty is, perhaps, obvious. Notwithstanding any powers I may have to accept hearsay, or other forms of deficient evidence, for me to conclude that the Head of Council is guilty of serious breaches of the Township's Code of Conduct in his dealings with his fellow members of council, solely on the basis of second-hand evidence, or worse, assumptions and impressions formed by an admittedly unhappy resident, would be wrong and unfair to Mayor Braid.
32Refreshingly, when I put my dilemma to Mr. Cameron, he readily agreed that, without strong corroboration from a member, or members of council, that they had felt bullied by Mayor Braid - to the extent that they were no longer able to fulfill their duties as councillors, or to vote their mind - the complaint, in all respects, must be dismissed.
33To that end, I had discussions with most members of Council about Mr. Cameron's complaint. These discussions were, without exception, full, frank, and undertaken without qualification or reservation. I am grateful to all members of council for their cooperation and insight. I can say unequivocally that this is a council that cares deeply about the Township and its residents and serves as a matter of honour.
34It would be an understatement to say that, as I have considered these complaints and in the course of my investigation of them, I have been mindful of the troubled history that this council inherited, the divisive issues that it has had to endure, and the fragility of the relationships between various members of council, senior staff and residents. It is my utmost concern that through my intervention here, I do no harm. The Legislature seems to contemplate these exigencies and this risk and asks that I exercise discretion, in fact, secrecy, in my investigations and reporting.
35Section 8.4 of the Code of Conduct very clearly requires that my investigations are to be conducted in private, and all information is to be treated as confidential. Similarly, Section 223.5 (1) of the Municipal Act, 2001, S.O. 2001, c. 25, as amended, (the "Act") requires that I preserve secrecy with respect to all matters that come to my knowledge in the course of my duties. Finally, under Section 223.6 (2) of the Act, when I report to Council my opinion about whether a member of council has contravened the Code of Conduct, I may disclose such matters as in my opinion are necessary for the purposes of my report.
36It has not gone unnoticed by me, and I believe is deserving of comment, that the complaint does not come from a member of council. I do not find this fact to be determinative; the Code is designed to be invoked by members of the public, however, given the nature of this particular complaint, it would seem to more properly come directly from a member of council, complaining as it does about relations between members.
37Recognizing that the complaint was not made by a member of council and was not based on any direct evidence of misconduct, and following my discussions with Councillors Edwards, Hanson, Kennedy, Rivett and Wiancko, I am comfortable in concluding that Mayor Braid has committed no breach of the Code of Conduct and that the remaining complaint by Lorne Cameron should also be dismissed.
38Moreover, I have concluded that it is not necessary for the purposes of my report to reveal conversations that I had in the course of my investigation, to describe the details of incidents that I was told about, or to attempt to provide reasons as to why a particular event did not constitute an act of disrespect.
39Bearing in mind how important it is that my investigation be treated as confidential, and the risk to the on-going good governance of the Township should such matters be made public, I believe it is sufficient for me to state that when I applied the Code of Conduct to the evidence I heard, I was satisfied that, however unwelcome, the incidents may be more properly regarded as conflicts of personality and leadership style, as opposed to intentional attempts to intimidate.
40Everyone I spoke to had complimentary words about Mayor Braid's commitment to the Township and for his accomplishments. There is, without doubt, an admiration for his abilities and a willingness to continue to work with him, for the remainder of this term of council.
41This is not to say, however, that relations between the Mayor and some members of council have at all times been harmonious, and without rancour. Some real concerns were expressed; concerns that ranged from a characterization of the Mayor's leadership as somewhat controlling, to a characterization of his manner as autocratic. At the end of the day, I will leave any necessary repairs to these relationships to the members of council.
42Finally, I would like to provide my opinion as to the proper use of the complaint process and where I see it as being prone to abuse.
43A complaint should be made for the sole purpose of seeing that an alleged breach of the Code of Conduct is investigated and, if a breach is found to have occurred, that a remedy is forthcoming. The Code exists as an educational tool by publishing the standards expected of municipal councillors and, when necessary, to allow for sanctions to see that conduct, which does not live up to that standard, is noted, in the hopes of preventing future transgressions. Complaints must be about matters that are detailed in the Code, with a view to strengthening those Code values. Complaints should not be made that have, as their goal, some objective outside of the matters covered by the Code, or some unrelated purpose. Such complaints are vexatious and are to be discouraged.
ALL OF WHICH IS RESPECTFULLY SUBMITTED THIS 2nd DAY OF APRIL, 2012.