COUNTY OF BRANT integrity commissioner, melinda munro
Citation: Pomponi v. Eddy et al., 2017 ONMIC 11 Date: 2017-05-08
REPORT AND RECOMMENDATIONS
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://events.brant.ca/council/Detail/2017-05-31-1800-Special-Brant-County-Council-Meeting/bcc170531_cmm.pdf (see page 2)
TABLE OF CONTENTS
COMPLAINTS WITH RESPECT TO THE MEETING OF COUNCIL OF THE COUNTY OF BRANT ON JUNE 28, 2016. 4
ROLE AND RIGHTS OF THE INTEGRITY COMMISSIONER UNDER MUNICIPAL ACT, 2001 6
FACTS.. 7
PARTY WITNESSES.. 7
Evidence of Mark Pomponi 8
Evidence of Mayor Eddy. 9
Evidence of Willem Bouma. 10
Evidence of Robert Chambers. 10
Evidence of Brian Coleman. 11
Evidence of Joan Gatward. 11
Evidence of David Miller 12
Evidence of John Peirce. 12
Evidence of Councillor Shirley Simons. 13
Evidence of Councillor John Wheat 14
OTHER WITNESSES.. 14
Evidence of Don Cunningham.. 14
Evidence of Heather Boyd. 15
Evidence of Paul Emerson. 15
Evidence of Michael Bradley. 16
Evidence of Councillor Don Cardy. 16
Evidence of Charlie Luke. 16
CODE OF CONDUCT, PROCEDURAL BYLAW AND PARLIAMENTARY PROCEDURE.. 17
FINDINGS AND RECOMMENDATIONS.. 18
Complaint against Mayor Eddy - Upheld. 19
Complaint against Councillor Murray Powell - Dismissed. 21
Complaints against Councillors Bouma, Chambers, Gatward, Miller, Peirce and Wheat - Dismissed 21
Complaints against Councillors Coleman and Simons - Upheld. 22
Councillor Don Cardy - Reminder 22
RETRIBUTION.. 22
COMPLAINTS WITH RESPECT TO THE MEETING OF COUNCIL OF THE COUNTY OF BRANT ON JUNE 28, 2016.
On August 2, 2016, Mr. Mark Pomponi, employee of the County of Brant [Complainant] filed two complaints under the County of Brant Code of Conduct [Code] for an incident which occurred in a meeting of the Council of the County of Brant [Council] on June 28, 2016; one complaint against Mayor Ron Eddy, and one complaint against Councillors Willem Bouma, Robert Chambers, Brian Coleman, Joan Gatward, David Miller, John Peirce, Murray Powell, Shirley Simons, and John Wheat. For the purpose of this report, I have divided the second Complaint into 9 individual complaints as the issues of fact and law are different for each one.
In the course of the review of this matter it became apparent that Councillor Murray Powell was not present at the meeting of June 28, 2016 and therefore I am dismissing the complaint against Councillor Powell.
It also became apparent that Councillor Don Cardy was present on June 28, 2016 but not named in any complaint. Therefore, I will not be issuing any recommendations in respect of Councillor Cardy, notwithstanding that he had the same responsibilities for any alleged breach of the Code at the meeting as the named Councillors.
The Complaints as originally filed contained a number of issues that resulted in some delay in being perfected and served on November 25, 2016. The delay was contributed to by the transition between the previous Integrity Commissioner and the current one which took place between August and October 2016. There is no blame to be placed on any party for the delays.
The Complaints as originally filed were an inappropriate attempt to make a complaint against all members of Council who were present at an In-Camera meeting of October 5, 2015 during which a personnel matter was discussed. It was argued that the events of June 28, 2016 were a form of ‘continuing breach’. Section 24.2 of the Code is quite clear on the issue of timing of complaints as follows:
24.2 Complaints must be submitted within six weeks of the matter becoming known to the organization or individual and no more than six months after the alleged violation occurring. No action will be taken on a complaint received beyond these deadlines.
As of August 2, 2016, the matters of October 5, 2015 were well out of time and therefore could not be accepted as a complaint. I do not accept that the Code contemplates the notion of a ‘continuing breach’, particularly in light of the absence of a complaint, or notice of such, having been filed in a timely way with respect to the October 5 meeting. To allow such a construction would remove the limitation period set out in section 24.2 of meaning. Through an exchange of correspondence between the Complainant’s lawyer and the former and current Integrity Commissioners, it was established that jurisdiction would only be accepted for the portion of the Complaints which focused on the events of June 28, 2016.
Therefore, the Complaints for which I have accepted jurisdiction and to which this report is addressed are particularized as follows:
Eddy Complaint: That Mayor Ron Eddy, during the course of a meeting of Council on June 28, 2016 made derogatory comments about a former employee of the County of Brant in violation of the Code.
Bouma Complaint: That Councillor Willem Bouma, during the course of a meeting of Council on June 28, 2016 overheard Mayor Ron Eddy making derogatory comments about a former employee of the County of Brant and failed to take any action to censure the Mayor for making the comments, in violation of the Code.
Chambers Complaint: That Councillor Robert Chambers, during the course of a meeting of Council on June 28, 2016 overheard Mayor Ron Eddy making derogatory comments about a former employee of the County of Brant and failed to take any action to censure the Mayor for making the comments, in violation of the Code.
Coleman Complaint: That Councillor Brian Coleman, during the course of a meeting of Council on June 28, 2016 overheard Mayor Ron Eddy making derogatory comments about a former employee of the County of Brant and failed to take any action to censure the Mayor for making the comments, in violation of the Code.
Gatward Complaint: That Councillor Joan Gatward, during the course of a meeting of Council on June 28, 2016 overheard Mayor Ron Eddy making derogatory comments about a former employee of the County of Brant and failed to take any action to censure the Mayor for making the comments, in violation of the Code.
Miller Complaint: That Councillor David Miller, during the course of a meeting of Council on June 28, 2016 overheard Mayor Ron Eddy making derogatory comments about a former employee of the County of Brant and failed to take any action to censure the Mayor for making the comments, in violation of the Code.
Peirce Complaint: That Councillor John Peirce, during the course of a meeting of Council on June 28, 2016 overheard Mayor Ron Eddy making derogatory comments about a former employee of the County of Brant and failed to take any action to censure the Mayor for making the comments, in violation of the Code.
Simons Complaint: That Councillor Shirley Simons, during the course of a meeting of Council on June 28, 2016 overheard Mayor Ron Eddy making derogatory comments about a former employee of the County of Brant and failed to take any action to censure the Mayor for making the comments, in violation of the Code.
Wheat Complaint: That Councillor John Wheat, during the course of a meeting of Council on June 28, 2016 overheard Mayor Ron Eddy making derogatory comments about a former employee of the County of Brant and failed to take any action to censure the Mayor for making the comments, in violation of the Code.
ROLE AND RIGHTS OF THE INTEGRITY COMMISSIONER UNDER MUNICIPAL ACT, 2001
The role of Integrity Commissioner is set out in sections 223.3 et seq of the Municipal Act, 2001. It is not mandatory for any municipal council to appoint an Integrity Commissioner but Council has chosen to exercise this option as well adopt a Code of Conduct as provided for in section 223.2 of the same Act.
The powers and duties of the Integrity Commissioner are only those as expressly assigned by the municipality subject to any rights specifically permitted under the Municipal Act. Those rights include the following:
223.4(2) - the right to exercise the powers of subpoena provided in the Public Inquiries Act, 2009,
223.4(3) – the right to request access to any information which the Integrity Commissioner believes to be relevant to an inquiry
223.4(4) – the right to free access to all books, accounts and other records which the Integrity Commissioner believes to be relevant to an inquiry
223.6(2) – the right to disclose in a report on an inquiry any information as in the Integrity Commissioner’s opinion is necessary for the purposes of the report.
FACTS
- Council held a regularly scheduled meeting on the evening of June 28, 2016 in Council Chambers. The meeting was broadcast live to You Tube. A recording of the broadcast is still available at the following internet address:
https://www.youtube.com/watch?v=bNnQq4Q4tB4&feature=youtu.be&list=PLim3NcWEyubtl miZveK95G-9476Z0nM50&t=7087
- At 1 hour and 58 minutes into the meeting, Mayor Eddy acknowledged Councillor Gatward who proceeded to ask a question about human resources. The relevant exchange is transcribed below:
Eddy: Any other questions by members of Council? Councillor Gatward, yes, you had your hand up. Shouldn’t have overlooked you.
Gatward: Thank you Mister Mayor, I just have a question regarding our, um, new manager of infrastructure. How close are we to hiring one?
Eddy: New manager for
Gatward: Infrastructure.
Eddy: Infrastructure?
Emerson: old position. (name redacted to protect an uninvolved individual)
Eddy: Oh, don’t bring her back.
Michael Bradley approached the lecture to discuss the hiring process.
PARTY WITNESSES
The Complaints submitted by the Complainant included a great deal of material related to a previous internal complaint of harassment which had been discussed and responded to by Council on October 5. As noted above, the manner in which Council responded to that complaint is not the subject of this inquiry. However, all of the materials submitted with the Complaint were served on all of the Respondents on November 25, 2016. Each Respondent had the right to submit a written reply though not all of them did so.
On January 25 and 26, I interviewed the Complaint in the presence of his lawyer as well as all Respondents and the following additional witnesses.
Paul Emerson, Chief Administrative Officer
Michael Bradley – Assistant Chief Administrative Officer
Heather Boyd – County Clerk
Donald Cunningham – Manager of Development Engineering
Charlie Luke – mayor of Norfolk County
Councillor Don Cardy
Evidence of Mark Pomponi
Mr. Pomponi is the Chief Planning Official for the County of Brant. He was also the named complainant in the harassment inquiry previously referred to. On the night of June 28, Mr. Pomponi states that he was in his office watching the broadcast of the Council meeting on You Tube. He does not attend all Council meetings presently as part of the response to his harassment complaint and he also did not regularly attend meetings that did not have a significant planning component. However, he regularly watches the broadcast from his office in order to stay aware of issues arising from meetings.
Mr. Pomponi heard the comments made by the Mayor about his former colleague and states that his response was “holy shit”. He immediately contacted Mr. Emerson. He swore the affidavits supporting these Complaints under the Code on June 29, 2016.
When I inquired as to why he was concerned about the comments in the meeting he stated that this was part of a continuing pattern of Mayor Eddy belittling staff in public. This behaviour by the Mayor causes him considerable stress and anxiety. The fact that the Mayor made the comments on a public broadcast seemed to make it worse. He decided to file a Complaint under the Code to try and make it stop.
His Complaint against the other Councillors is based in his position, as stated in his Complaints that “the elected Councilors of Brant County did not take ‘reasonable steps in the circumstances’ to insure that the harassment stopped.
I found Mr. Pomponi to be a credible witness and that his evidence of emotional distress arising from the meeting of June 28, 2016 was truthful.
Evidence of Mayor Eddy
- Mayor Ron Eddy was served with the Complaint on November 25, 2016. He provided a response in writing explaining his position. In this response, Mayor Eddy asserted that the comments “don’t bring her back” were meant in a complimentary sense. He stated as follows:
“…I was aware of her capabilities as a professional engineer. Because of a good working relationship with , in no way was the remark made by me ‘in obvious contempt and antipathy for this employee who left under good terms after ten years of loyal service’. This complaint results from an attempt to misinterpret the intent of my statement.”
- Mayor Eddy also stated in his written response that the real reason for saying “don’t bring her back” was that he has a friendly working relationship with the Mayor of Norfolk County, Charlie Luke and knew from conversations with Mayor Luke that the employee in question was working well in Norfolk County. He stated:
“If Brant was to seek reemployment I felt it could seriously harm and interfere with an excellent working relationship between Brants’ neighbouring municipality – Norfolk County.”
I interviewed Mayor Eddy on January 25, during which time we reviewed the video recording together. Mayor Eddy stated that he had not seen it before. He acknowledged that it was not appropriate to speak about employees under his breath during Council meetings.
When asked whether it was reasonable for someone hearing the comments to take them in a negative way he said he could understand why they might. He candidly admitted that the incident “shouldn’t have happened”.
I asked him if he could recall when he spoke to Mayor Luke about the employee in question and any other details about that conversation and he advised that couldn’t recall specifically when it had happened.
I found Mayor Eddy not to be a credible witness. While he admitted that the events of June 28, 2016 did take place as described, his attempt to cast the comments as “complimentary” to the employee was a naked attempt to deflect his responsibility for what he later admitted being something that “should not have happened”. Mayor Eddy also attempted to involve a third party elected official from Norfolk County as a witness that his intentions in making the remarks were complimentary, not derogatory. That witness, as will be noted below, does not support this alleged defense of his behaviour.
It is especially troubling that Mayor Eddy also suggested on more than one occasion that the Complainant was always “looking for things” to complain about and minimizing that his own behaviour could be the cause of any distress to employees of the County.
Evidence of Willem Bouma
I interviewed Councillor Bouma on January 25, 2017. Councillor Bouma was present at Council on the evening of June 28, 2016. He was sitting between Councillors Wheat and Simons. He was first elected in 2014 and is in his first term as a Councillor.
Councillor Bouma did not recall hearing the comments made by Mayor Eddy. After viewing the recording, he confirmed that he did not hear the comments, however, he would not characterize them as complimentary and could understand how they could have an impact on staff. He stated that he believes that Mayor Eddy seems to try and ‘score points’ off staff in Council meetings.
I asked Councillor Bouma if the Councillors had a history of calling for points of order if inappropriate comments were made in Council. He couldn’t recall whether that had happened or not and that he is still on a learning curve about the procedure in Council.
I found Councillor Bouma to be a credible witness and believe that had he heard the comments he would have admitted that to me.
Evidence of Robert Chambers
I interviewed Councillor Chambers on January 25, 2017. Councillor Chambers is a long serving member of Council. He was present at the Council meeting on June 28, 2016.
Councillor Chambers did not recall hearing the comments made by Mayor Eddy. After viewing the recording, he confirmed that he did not hear the comments at the meeting. He understands from the training provided to Council about the recording process that sometimes things will be heard on video that are not audible in the room because the “mics are hot”.
When asked whether the comments could be construed as complimentary to the employee in question he stated that this was “not a reasonable interpretation”.
I asked Councillor Chambers if Council members had a practice of using points of order if inappropriate comments were made in Council and he agreed that they did do so on occasion.
I found Councillor Chambers to be a credible witness and believe that if he had heard the comments made, he would have admitted that he had done so.
Evidence of Brian Coleman
I interviewed Councillor Coleman on January 26, 2017. He has been a Councillor for 13 years and was present at the meeting on June 28.
Councillor Coleman did hear the remarks and it is evident in the recording that he was taken aback. He can be seen seated beside Councillor Gatward. After Mayor Eddy made his remarks, Councillor Coleman can be seen grabbing his forehead and laughing. He recalled looking over at Clerk Heather Boyd and jointly acknowledging that the remarks were made. He also recalled thinking that he hoped that the employee was not “watching this on TV”.
Councillor Coleman stated to me that he does not believe that the situation was serious enough to warrant a Complaint as the remarks were not about the Complainant. He would have taken it more seriously if it had been about a current employee. He also believes that Mayor Eddy has been trying to improve his behaviour in Council towards employees.
I asked Councillor Coleman about the practice of using points of order to manage inappropriate remarks in the chamber and he agreed that Councillors do so on occasion.
I found Councillor Coleman to be a credible witness. He was quite candid in admitting that he had overheard the remarks as well as in his opinion as to the level of seriousness of the situation.
Evidence of Joan Gatward
Councillor Gatward provided a written response to the Complaint in which she stated that she had not heard the comments in question but admitted that she has a slight hearing problem. She stated that she recalled seeing a conversation between the Mayor and Mr. Emerson.
I interviewed Councillor Gatward on January 25, 2017. She has been on Council for more than one term and was present at the meeting on June 28. Councillor Gatward asked the question about the Manager of Infrastructure that precipitated the comments by Mayor Eddy.
In the interview Councillor Gatward reiterated that she did not hear the comments. She was told about them later by Councillor Simons. She recalls thinking “if hears about it he’s going to be in big trouble.” When I asked her if the comments could be taken in a complimentary way, she suggested that it was possible that the Mayor “wasn’t trying to be nasty” but that he makes this kind of off the cuff remark frequently. However, she also stated that it was “not unusual to be shocked” at things that Mayor Eddy says in meetings.
I asked Councillor Gatward if she believed staff would find the comments upsetting and she agreed that they could be taken that way.
In response to my question about whether Councillors use the procedural rules to take action on inappropriate comments, she agreed that they do and that they have asked that other Councillors retract things they have said about each other. However, she acknowledged that she feels some fear about taking on the Mayor in a public meeting.
I found Councillor Gatward to be a credible witness and I believe that she would have admitted to having heard the comments if she had done so.
Evidence of David Miller
Councillor David Miller provided a written response to the Complaint in which he stated that he did not hear the comments in question.
I interviewed Councillor Miller on January 25, 2017. Councillor Miller was present at the meeting on June 28, 2016. He reiterated that he had not heard the comments and had to watch the broadcast to familiarize himself with the issue.
When I asked Councillor Miller if the comments could have been intended to be complimentary, he stated that it was clear that they were “not favourable to the employee”. He also agreed that it was reasonable that a current employee might find the comments to be upsetting. However, he feels that this is a very small incident to be the subject of a complaint under the Code.
I asked Councillor Miller if Councillors take action when derogatory comments are made in Council chambers and he stated that he, himself, had done so when a presenter was treated badly.
I found Councillor Miller to be a credible witness and was candid in his remarks. I believe that he would admit to having heard the comments if he had heard them.
Evidence of John Peirce
I interviewed Councillor John Peirce on January 25, 2017. He was present at the meeting on June 28, 2016.
Councillor Peirce did not recall hearing the comments made by Mayor Eddy. After watching the You Tube video his reaction was that the comments were “unacceptable” and wondered if they meant that the employee in question had been fired. He stated that he didn’t know why she had left. However, he stated that he also didn’t think that it was a common practice for the Mayor to say “blatant” things about employees.
Councillor Peirce admitted that if he were an employee of the County of Brant he would have found the comments to be “awkward” and they would have “raised hairs”.
Councillor Peirce has seen other Councillors use the procedural rules to call for retractions of inappropriate comments made in the chamber and he doesn’t believe that Councillors are afraid to do so when the comments are made by the Mayor, though he admits it could be awkward.
Councillor Peirce is an expert in information technology in his day job. He advised that there is a direct connection between the microphones and the video for the You Tube broadcast. Therefore, it is possible that something heard clearly on the broadcast might not be heard clearly in the chamber. While this evidence is somewhat exculpatory for Councillor Peirce personally, I find it to be credible.
I found Councillor Peirce to be a credible witness who would have admitted that he had heard the comments made had he done so.
Evidence of Councillor Shirley Simons
Councillor Simons provided a written response to the Complaint in which she admitted that she did hear the comments made by the Mayor and found them to be uncalled for. She further wrote, “Again, we do not call the Mayor on anything he says, as I believe all councilors [sic] respect him for his age and title.”
I interviewed Councillor Simons on January 26. She has sat on Council for three terms. She was present at the meeting on June 28 and admits to having heard the comments in question and not taking any action with respect to them. She told me that she “just ignores them”. When she heard the comments on June 28, she thought “here we go again”.
When I asked her whether the comments could be seen as a compliment she stated, “absolutely not.” She also stated that it would not be “out of line” for staff to take the comments personally.
When I asked whether Councillors would use the procedural rules to take action on inappropriate comments, she said that they do, but not usually with respect to the Mayor.
I found Councillor Simons to be a credible witness and she admitted that she heard the remarks and took no action.
Evidence of Councillor John Wheat
I interviewed Councillor Wheat on January 26, 2017. He has served on Council since 2003 and was present on the night of June 28, 2016.
Councillor Wheat does not recall hearing the comments but he is not willing to be definitive that he did not hear them. He was not surprised at the comments saying that the Mayor “runs his mouth.” After reviewing the recording, he believes that the comments were intended to be negative. He has seen Mayor Eddy be derogatory to staff at other meetings.
When I asked if he believed current employees might find the comments upsetting, he agreed that he could see how it would bother people and that in “today’s work environment you have to be careful what you say.”
I asked Councillor Wheat if he had ever used the procedural rules to take action on derogatory comments. He admitted that he had the right to do so but had not found it necessary in the past.
I found Councillor Wheat to be a credible witness and that he would have admitted hearing the comments had he done so.
OTHER WITNESSES
Evidence of Don Cunningham
Mr. Cunningham is the Manager of Development Engineering. He has worked for the County of Brant for 26 years. He occupies an office near Mr. Pomponi.
I interviewed Mr. Cunningham on January 26, 2017.
Mr. Cunningham was also watching the You Tube broadcast from his office on the evening of June 28. He heard the comments made by Mayor Eddy about his former colleague and expressed immediate shock. He sent an email to Paul Emerson at 8:08 pm the same day as follows:
“That verbal jab by the Mayor at in “don’t bring her back” as the Manager of Infrastructure Services was recorded quite clearly in Council tonight!!!! Not good!!!!”
Mr. Cunningham also stated that the comments caused him emotional distress as they are part of an ongoing pattern of behaviour. It particularly difficult, in his view, because staff are not in a position to react to an elected official in a public meeting. He stated to me that he feels if the Mayor is prepared to say those things about another staff person, he would be prepared to say it about him too.
I found Mr. Cunningham to be a credible witness as to the seriousness of the comments of June 28, 2016, particularly in light of his immediate expression of concern to Mr. Emerson.
Evidence of Heather Boyd
Ms. Boyd has been the Clerk for the County of Brant since 2013. She was present at the meeting of June 28, 2016 and was seated to the left of the Mayor.
I interviewed Ms. Boyd on January 26, 2017. She stated that she did hear the comments and did not believe them to be meant as a compliment.
I asked her whether the Councillors were aware that they had the right to call out other members of Council for inappropriate behaviour and she stated that they would do so fairly regularly.
I asked her about the setup of the technology and in particular whether it is possible that someone would hear remarks more clearly on the video than in person. She stated that she thought that that was likely.
I also asked her whether she thought it was reasonable for employees to find the comments upsetting. She stated that she, personally, did not find them upsetting but didn’t want to speculate how others would feel.
I found Ms. Boyd to be a credible witness.
Evidence of Paul Emerson
Mr. Emerson is the Chief Administrative Officer for the County of Brant. He was present at the meeting on June 28, 2016 and seated to the right of the Mayor. I interviewed Mr. Emerson on January 26, 2017.
Mr. Emerson heard the remarks and when asked if they could be construed as complimentary, he said they could not. He was not surprised that staff reacted to the comments but was surprised at how quickly they reacted.
I found Mr. Emerson to be a credible witness.
Evidence of Michael Bradley
Mr. Bradley is the Assistant Chief Administrative Officer for the County of Brant. I interviewed him on January 26, 2017.
Mr. Bradley was present at the meeting of June 28, 2016 and when Mayor Eddy made the remarks in question, Mr. Bradley was proceeding to the lectern to respond to Councillor Gatward’s question. Mr. Bradley did hear the remarks.
When asked if the remarks could be taken as a compliment Mr. Bradley said that the remarks were not complimentary. He personally didn’t take them very seriously at the time but received email about them very quickly.
I found Mr. Bradley to be a credible witness.
Evidence of Councillor Don Cardy
I interviewed Councillor Cardy on January 25, 2017. Councillor Cardy was present at the meeting on June 28, 2016 and heard the remarks made by the Mayor. He was seated beside Councillor Simons.
His recollection of the comments is that they were “I wouldn’t hire her back”. At the time, he says he didn’t know who the Mayor was talking about and didn’t think anything of it.
When asked if the remarks could be considered complimentary, Councillor Cardy stated that they were clearly negative. He believes that if they were directed at an individual they would clearly be a violation of the Code. He said it was fair to say that current employees would find the comments upsetting.
When asked if Councillors know that they can use points of order with respect to inappropriate comments, Councillor Cardy said that they do.
I found Councillor Cardy to be a credible witness.
Evidence of Charlie Luke
Charlie Luke is the Mayor of Norfolk County. I interviewed him by phone on January 26, 2017
Mayor Eddy suggested that he had spoken with Mayor Luke about the employee in question and that this conversation would corroborate that he had high regard for the employee and that his remarks on June 28 were intended to be complimentary. Therefore, I believed it necessary to confirm this with Mayor Luke in an interview.
Mayor Luke advised that he has not spoken to any person other than me about this Complaint and until I had contacted him he was unaware that there was a complaint. He has not seen the You Tube video. He advised that he cannot recall ever speaking to Mayor Eddy about the performance of the employee in question and doubts that he would have done so given his ordinary practice of not commenting publicly about employee performance. He recalls that Mayor Eddy may have said something at a SCORA meeting along the lines of “you have stolen one of our employees”.
I found Mayor Luke to be a credible witness.
CODE OF CONDUCT, PROCEDURAL BYLAW AND PARLIAMENTARY PROCEDURE
- Council elected to create a Code of Conduct for members pursuant to section 223.2 of the Municipal Act, 2001. The Code “establishes standards of conduct for members of Council.” It opens with this statement of principle:
A written Code of Conduct helps to ensure that the members of Council, Local Boards and Advisory Committees share a common basis of acceptable conduct. These standards are designed to supplement the legislative parameters within which the members must operate. These standards are intended to enhance the public’s confidence that the County of Brant’s elected and appointed officials operate from a basis of integrity, justice and courtesy.
- Other relevant sections of the Code, for the purposes of this inquiry are set out below:
5.5 Members shall perform official duties and arrange their public affairs in a temperate manner that promotes public confidence and respect and will bear close public scrutiny.
5.13 Members of Council:
e) Must seek to advance the public interest with honesty, and treat members of the public and staff with dignity, understanding and respect;
19.1 Every member has the duty to treat members of the public, one another and staff appropriately and without abuse, bullying or intimidation. All members of Council shall ensure that their work environment is free from discrimination and harassment.
21.1 Members of Council shall respect the integrity of the Code of Conduct, and inquiries and investigations conducted under it and shall co-operate in every way possible in securing compliance with its application and enforcement. Any reprisal or threat of reprisal against a complainant or anyone for providing relevant information to the Integrity Commissioner is therefore prohibited. It is also a violation of the Code of Conduct to obstruct the Integrity Commissioner in applying or furthering the objectives or requirements of this Code or in the carrying out of his or her responsibilities (as, for example, providing inaccurate or misleading information to the Integrity Commissioner, refusing to answer inquiries or by the destruction of (records) documents or the erasing of electronic communications).
23.2 In addition to any other consequence imposed by law, members found to have breached this Code may be subject to discipline, including a verbal or written reprimand or, where applicable, suspension of remuneration paid for his or her services as a member, for a period of up to ninety (90) days.
26.3 If upon completion of the investigation the Integrity Commissioner finds that a breach of the Code has occurred, the Commissioner shall report his or her findings to Council including a recommendation as to the imposition of a penalty as set out in the Municipal Act of:
a) a reprimand;
b) suspension of remuneration paid to the member for a period of up to ninety days.
FINDINGS AND RECOMMENDATIONS
I find that at the meeting of June 28, 2016, Mayor Eddy did, in fact, make comments about a former employee which a reasonable person would interpret as derogatory or disparaging and that he did so intentionally.
I find that all of the Councillors were credible and that only some of them were able to hear the remarks which the Mayor made. The comments were intended to be sotto voce and while they were clearly audible on the You Tube video, they may not have been as easily heard in the chamber.
I find that all Councillors were aware that they had both the right and responsibility to take action in the Council chamber using their authority under Bylaw 138-13 [Procedural Bylaw] and Roberts Rules of Order to call for a point of order and request that Council take disciplinary action against the Mayor as a matter of parliamentary procedure and as a violation of the Code of Conduct. While the Code does provide for an Integrity Commissioner to investigate complaints, there is no barrier to Council, on its own motion, exercising its right to impose discipline under section 23.2 of the Code for obvious breaches.
Complaint against Mayor Eddy - Upheld
I did not find Mayor Eddy to be a credible witness nor did I find him to have any remorse with respect to his actions save that they had resulted in a complaint.
I am particularly concerned with his attempt to deflect responsibility by suggesting that his comments were meant to be complimentary and to impute that another elected official, Mayor Luke, would support this position.
Rather than take responsibility for making an inappropriate remark, Mayor Eddy took steps to complicate the investigation and involve a third party elected official.
No other witness believed that the remarks were meant in anything but a disparaging way. Any reasonable person viewing the You Tube video would also find them to be disparaging.
The matter is further complicated by the fact that this is not the first time Mayor Eddy has been criticized by Council for his behaviour with respect to employees. Although this Complaint is limited to the events of June 28, 2016, the degree of seriousness of those remarks cannot be fully evaluated without reference to the meeting of October 5, 2015. To be absolutely clear, I am not making any finding on the appropriateness of any of the events leading up to October 5, or the actions taken at that meeting. However, I do believe it to be appropriate in this Complaint to make reference to one portion of the In-Camera minutes as well as the public minutes of Council for October 5, 2015. I do so as per my jurisdiction in sections 223.4 and 223.6 of the Municipal Act, 2001, to make reference to any information which I deem to be relevant to the Complaint.
The Special Meeting of October 5, 2015 was called to respond to a Workplace Health and Safety Complaint about the conduct of Mayor Eddy, identified in the minutes as the “Respondent”. It is unnecessary to refer in detail to the report of the investigator or the deliberations in Council save for the following excerpts.
Minutes of the Special In Camera Meeting of October 5, 2015, page 2
“Catherine Burr, Workplace Investigator, presented the “Summary of the Findings of the Investigation Report”, highlighting the process that was followed, including a clarification of allegations, interviews of Council members and senior staff, follow up on responses from each party and further follow up on additional complaints. She presented that she found credible and convincing evidence that each of the following allegations occurred:
That the Respondent [Mayor] has created a toxic and poisoned work environment for staff at the County of Brant;
That County staff in Planning and the Paris office have experienced abusive and harassing behavior;
That the Respondent [Mayor] has harassed and abused the Complainant; and
That Actions have been taken to deal with the harassment, without success.
Credible and convincing evidence was also obtained regarding allegations of further harassment, reprisal and gender-based harassment. Ms. Burr expressed the opinion that the evidence suggests a high likelihood of recurrence. She noted that under the Ontario Health and Safety Act, workplace harassment is a hazard to health and safety in the workplace and must be eliminated or contained.”
Minutes of the Special Meeting of October 5, 2015, page 2
Moved by – Councillor Coleman Seconded by – Councillor Peirce
Whereas Council acknowledges that there has been a contravention of the County of Brant’s Workplace Harassment Policy;
And Whereas Council is committed to providing a work environment in which all individuals are treated with respect and dignity. Workplace harassment is unacceptable and will not be tolerated from any person in the workplace;
Be it therefore resolved that the Council of the County of Brant supports management to remedy this breach of the County of Brant’s Workplace Harassment Policy.
Carried
The events of June 28, 2016 did not happen in a vacuum. Mayor Eddy has a documented history of creating a toxic work environment for staff of the County of Brant. That history was well known to Council and on October 5, 2015, they accepted the report of Catherine Burr without amendment. The comments of June 28 are simply more of the same. Had they been a one-off comment and out of character, my recommendation as to penalty under section 23 of the Code of conduct might be quite mild. However, given the history of this kind of behaviour, the fact that the Council, including the Mayor had recommitted to a workplace free of harassment, and the Mayor’s attempt to obfuscate and deflect in the course of this Complaint, I feel that a stern response is required.
I find that Mayor Eddy, in the remarks he made at the meeting of June 28, 2016, violated the following sections of the Code:
5.5 failing to conduct his official duties in a manner that promotes public confidence and respect.
5.13(e) failing to treat members of staff with dignity, understanding and respect.
19.1 treating staff in a bullying or intimidating manner and failing to ensure that the work environment is free from discrimination and harassment.
21.1 failing to respect the integrity of the Code of Conduct and providing inaccurate or misleading information to the Integrity Commissioner.
- Therefore, it is my recommendation that Council discipline Mayor Ron Eddy for his conduct at the meeting of June 28, 2016 with a 5 day suspension of remuneration.
Complaint against Councillor Murray Powell - Dismissed
- As Councillor Powell was not present at the meeting of Council on June 28, 2016, the complaint against him is dismissed.
Complaints against Councillors Bouma, Chambers, Gatward, Miller, Peirce and Wheat - Dismissed
- I accept that Councillors Bouma, Chambers, Gatward, Miller, Peirce and Wheat did not hear the remarks in question and that it was reasonable that they did not hear them. Therefore, they cannot be found to have had any responsibility for being in breach of the Code of Conduct. The Complaints against them are dismissed.
Complaints against Councillors Coleman and Simons - Upheld
I find that Councillors Coleman and Simons did hear the remarks made by Mayor Eddy and did not take any action to call for discipline in the form of censure or retraction, nor did they call out the behaviour as a violation of the Code of Conduct. I appreciate their candour in admitting to me that they heard the remarks and believed that they were inappropriate. In the context of the prior behaviour of the Mayor, however, I do not believe it was acceptable to stand by and not use their ability to control the behaviour of their colleague in the Council chamber. Notwithstanding that, the remarks were sotto voce at the end of a long meeting and I have some empathy for their hesitation to take action.
I find that Councillors Coleman and Simons violated section 19.1 of the Code by failing to ensure that the work environment was free from discrimination and harassment.
I do recommend that some form of discipline is appropriate and that each of Councillors Coleman and Simons be verbally reprimanded by Council that they have a duty to take action and uphold the Code at all times.
Councillor Don Cardy - Reminder
- There is no complaint about Councillor Don Cardy. I appreciate his willingness to participate in the investigation and his candour in admitting that he had heard the remarks and did not take any action. I cannot recommend any discipline with respect to Councillor Cardy, but I do not wish for this process to have the appearance of unfairness due to a procedural technicality wherein two Councillors who engaged in the same conduct are disciplined and one is not. Therefore, I would like to note that Councillor Cardy had the same duties as Councillors Coleman and Simons and should therefore stand reminded that he should have taken the same action for which I have recommended a reprimand of the other two Councillors.
RETRIBUTION
This process has been long and has raised emotions among all participants. It is important and appropriate that I remind Council that the Code specifically speaks to matters of retribution against people for making complaints or providing the Integrity Commissioner with information.
Section 21.1. specifically, states:
Members of Council shall respect the integrity of the Code of Conduct, and inquiries and investigations conducted under it and shall co-operate in every way possible in securing compliance with its application and enforcement. Any reprisal or threat of reprisal against a complainant or anyone for providing relevant information to the Integrity Commissioner is therefore prohibited.
All of which is respectfully submitted:
Melinda Munro Integrity Commissioner