TOWNSHIP OF SCUGOG integrity commissioner, GUY GIORNO

Citation: Kett (Re) (No. 2), 2017 ONMIC 14 Date: September 2, 2017

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.

http://calendar.scugog.ca/TownshipMeetings/Detail/2017-09-11-1330-General-Purpose-and-Adminstration/6234d6b6-8093-447b-8af6-a7ed00fa7131 (see Recommendation #GPA-2017-183)

http://calendar.scugog.ca/TownshipMeetings/Detail/2017-09-25-1830-Council/811b3240-be98-43d7-afb2-a7fc00989b8c (see Resolution #CR-2017-221)

INTRODUCTION.. 3

OVERVIEW... 3

THE COMPLAINT. 3

SCOPE OF COMPLAINT / JURISDICTIONAL ISSUE.. 4

THE PREVIOUS COMMISSIONER'S REPORTS.. 6

SUMMARY OF FINDINGS.. 8

PROCESS FOLLOWED.. 9

SUBMISSIONS OF THE PARTIES.. 11

The Complainant 11

The Respondent (Councillor Kett) 13

THE EVIDENCE.. 16

The News Release: Issuance. 17

The News Release: Content – General 18

The News Release: Content – Statements of Fact 20

The News Release: Content – Opinion – Statements of belief, position or value. 21

The News Release: Content – Opinion – Editorial comment about others and about what happened 22

ANALYSIS AND FURTHER FINDINGS.. 27

RECOMMENDATIONS.. 37

1I want to thank the Complainant and the Respondent for their cooperation and assistance as I reviewed this matter. They provided extensive submissions, answered my many questions and provided important information. I am grateful for the time they spent participating fully in this process.

OVERVIEW

2I find that Councillor Kett did not contravene the Code of Conduct.

3My factual findings differ from those of the previous integrity commissioner [Kett (Re), 2017 ONMIC 6]. Also, I decline to follow the previous commissioner’s interpretations of the Code. Going forward, I will not expect Council Members to govern themselves according to the previous commissioner’s interpretations.

THE COMPLAINT

4An individual (the Complainant) alleges that Councillor Don Kett contravened the Council Code of Conduct by issuing a March 3 news release concerning the Port Perry Business Improvement Area Board of Management (the BIA).

5The Complainant seeks an apology, including an acknowledgement that the news release contravenes the Code and was not based on fact.¹

6The original Complaint consists of an affidavit and a letter that makes eight principal allegations concerning Councillor Kett:

The release was untruthful.
The release defamed many businesspeople and other citizens.
The release constituted bullying and harassment.
Though it appeared on Township of Scugog letterhead, the release was not authorized.
The release continued the conduct that the previous integrity commissioner had found was contrary to the Code.²
The release contravened the Code, including section 3.
The release contravened corporate procedures.
By issuing the release, Councillor Kett was abusing his position (including the platform available to him) as a Council Member.

7In subsequent submissions, the Complainant added the additional allegation that Councillor Kett, though not a member of the BIA, is constantly “meddling” in its affairs.

8Through the course of this investigation, the Complainant returned again and again to these allegations.

9A review of the above allegations makes obvious that the issues raised by the Complainant flow from the issues considered by the last integrity commissioner. In fact, some of the issues overlap. I consider this point more thoroughly under the heading, “The Previous Commissioner’s Reports.”

10I considered all the Complainant’s allegations, except the allegation that the release contravened corporate procedures. For the reasons explained in the next section, I find that I lack jurisdiction to enforce the Township’s procedure by-law.

SCOPE OF COMPLAINT / JURISDICTIONAL ISSUE

11While the Complainant’s allegations are reasonably clear, in order to constitute a Complaint under the Code they need to be linked to specific provisions of the Code. For example, harassment is covered by section 11 of the Code.

12Because my jurisdiction is grounded in the Code, I can only consider allegations arising under the Code’s provisions. Further, as a matter of fairness, the Respondent’s right to know the case against him includes knowing the specific provisions of the Code he is said to have violated.

13Based on the Complainant’s allegations, I commenced an investigation into the following questions based on specific provisions of the Code:

A. By issuing the news release did Councillor Kett contravene section 3 of the Code?

B. By issuing the news release did Councillor Kett contravene section 4 of the Code by continuing the conduct found by the previous integrity commissioner (in his February 27 and April 27 reports) to have contravened section 4 of the Code?

C. By issuing the news release did Councillor Kett contravene the “Purpose” section of the Code by continuing the conduct found by the previous integrity commissioner to have contravened the “Purpose” section of the Code?

14Soon afterward I began to inquire into the following additional questions. In my view, the Complainant’s allegations compelled me to address these questions. In each case I gave the parties notice and an opportunity to make submissions (and both parties took every opportunity to do so).

D. Is questioning in an unreasonable manner and without supporting proof the administration and financial management of the BIA a contravention of the Code? (This was the previous integrity commissioner’s interpretation but he did not identify any particular section of the Code.)

E. Is conduct that is not of the high standard required by the Code a contravention of the Code? (This language comes from the “Purpose” section of the Code.)

F. Is not working with others in the interests of goodwill and common good a contravention of the Code? (This language comes from the “Purpose” section of the Code.)

G. Is being disrespectful of the BIA Board a violation of the Code?

H. Is seeking to interfere with and to intimidate the BIA Board a violation of the Code?

15In the case of each of questions D, E, F, G and H, if the answer is “yes” then the follow-up question is whether the news release constituted such a contravention.

I. Did issuing the news release constitute harassment contrary to section 11 of the Code and/or contrary to the Township’s “Workplace Discrimination and Harassment Policy” or “Workplace Violence and Conflict Resolution Policy”?

16I find that questions A through I encompass all of the allegations made by the Complainant. The only difference is that questions A to I are framed in relation to the Code, which establishes my jurisdiction.

17At one point the Complainant asked why I do not just focus on section 3 of the Code. The answer is that the Complainant’s various submissions make clear that she is also complaining – if not primarily complaining – about the accuracy of the news release, its alleged defamatory content, and Councillor Kett’s motive for issuing it. I find that these matters are the real substance of her Complaint.³ However, on its face, section 3 of the Code does not deal with any of these matters, and it was not immediately apparent whether other sections of the Code embraced these concerns. In fairness to both parties,⁴ out of respect for the seriousness of the issues raised by the Complainant, and taking into account the real nature of her Complaint, I decided to hear from both parties and to give them an opportunity to make submissions on these matters comprising the real substance of her Complaint, including sections 3, 4, and 11 of the Code, as well as the “Purpose” section. The Respondent was aware of and given full opportunity to address all these provisions. Both parties made extensive submissions.

18The one allegation that I have not considered is the allegation that Councillor Kett failed to follow proper procedure: specifically, the issue of whether the news release contravened the Procedure By-Law.⁵ The Complainant relies on a May 4 letter from the Mayor stating that Councillor Kett’s action, “is in contradiction to section 3 of our Procedural By-law.” The Mayor also states that Councillor Kett’s news release “was not distributed on behalf of the municipality and did not follow our corporate procedures.” I did not investigate this issue because my jurisdiction as Integrity Commissioner does not extend to alleged contraventions of the Procedure By-Law or of the Township’s corporate procedures. I am responsible only for investigating alleged contraventions of the Code.

THE PREVIOUS COMMISSIONER'S REPORTS

19Each Code of Conduct complaint must be assessed and investigated independently. The complaint made to the previous integrity commissioner lies outside my jurisdiction. On the other hand, in considering this different Complaint I am not bound by the previous commissioner’s report [Kett (Re), 2017 ONMIC 6].

20However, the present Complaint requires that I consider many of the topics that my predecessor considered. First, the Complainant’s allegations involve my predecessor’s findings. Second, the facts are interwoven and connected. Third, in order to address the current Complaint I must consider several of the same Code provisions that the previous integrity commissioner interpreted.

21The Complainant makes a number of allegations that explicitly or implicitly invoke the previous commissioner’s reports:

She alleges that based on the first report of the previous integrity commissioner, Councillor Kett knew or ought to have known that sending the news release was inappropriate. “Councillor Kett should have known better than to send the news release especially being fully aware of the Integrity Report.”
She alleges that the news release was part of a pattern of harassment that included the activities found by the previous integrity commissioner to contravene the Code.
She alleges the news release contains information “proven” by the previous integrity commissioner to be “false information.”
She alleges that Councillor Kett continues to violate the Code despite taking a “Sensitivity Course” as recommended by the previous integrity commissioner.
She states that Councillor Kett’s “‘news release’ just solidified the [previous] Integrity’s Commissioner’s Report.”

22In general, the Complainant believes that Councillor Kett’s sending of the news release is more of the same conduct already held (by the previous integrity commissioner) to violate the Code [Kett (Re), 2017 ONMIC 6]. This argument is woven through the Complainant’s submissions.⁶

23Further, the factual questions I must consider overlap with the facts reviewed by the previous commissioner. For example, the harassment allegation covers some of the conduct considered by the previous commissioner. The allegation about accuracy of the news release involves some of the evidence before the previous commissioner. The Complainant’s reliance on video footage of Councillor Kett’s conduct at Council caused me to examine two meetings, one of which was the October 2016 meeting on which the previous commissioner opined. The news release deals with the forensic audit, and the facts that led to the forensic audit were also relevant in the previous investigation.

24Finally, some of the interpretive issues are the same. While the Complainant did not expressly cite the previous commissioner’s statutory interpretation⁷ I have noted that my predecessor applied the Code in a manner – including by using the “Purpose” section to find a violation – that would have been relevant to this case, and supportive of the Complainant’s position. Further, the Complainant’s explicit and implicit references to the previous commissioner raise the issue of whether I should interpret the Code as he did. I therefore invited both parties to provide input on whether I should follow the previous commissioner’s interpretations.

25The relationship of my role to the previous commissioner must be understood. I have no jurisdiction to consider the complaint that was before the previous commissioner. I have no authority to overrule his handling of that complaint. I have no authority to hear an appeal from his recommendation. His findings, as they apply to the complaint that was before him, are not the subject of this report.

26On the other hand, I must independently consider the complaint before me on the basis of the evidence and the Code. The previous commissioner did not consider the complaint before me and I am not bound by his reports. In the case of the complaint before me I am making my own findings of fact based on the evidence. As it happens, several of these findings differ from those of the previous commissioner.

27Not only must I make my own findings of fact but also I find many of the previous commissioner’s factual findings to be unhelpful and/or irrelevant because they were bald, vague and general, or sweeping and imprecise. An example is his finding that the actions of Councillor Kett⁸ “cost this community dearly.” Other examples include the findings of a “public vendetta” and a “take-no-prisoners approach.” Even if these are truly findings of fact and not just hyperbole, they are too broad and unspecific to be of any use or relevance in the present investigation.

28I also am not bound by the previous commissioner’s interpretations of the Code. After careful consideration, I decline to follow them. While I am not required to explain why I am not following my predecessor’s interpretations, I will explain for the benefit of Council and public. Council Members deserve clear and, ideally, consistent and predictable guidance about their obligations under the Code. Where I decline to follow my predecessor’s interpretations, it is fair to Council that I explain why. The reason I explain, in this report, why I decline to follow my predecessor’s interpretations is not to criticize him or his reasoning and, I repeat, I have no authority to hear an appeal from his recommendation. The reasons I explain my disagreements with the previous commissioner are so that my rationale for interpreting the Code is transparent and certain, and so that Council Members have a clear understanding of how the Code will be applied to them going forward.

29The Respondent’s materials refer to the fact that the previous integrity commissioner was selected by the Township staff and not appointed by Council, as provided under the Code. It is not my place to review the method of his appointment and this report expressly declines to comment on it. References to Mr. Elston as “my predecessor” or “previous commissioner” do not imply that I take any position on the validity of his appointment or on whether he possessed, or did not possess, authority to make the findings that he did.

SUMMARY OF FINDINGS

30After carefully considering the evidence obtained during the course of my investigation and the detailed submissions of the parties, I find that Councillor Kett did not contravene the Code of Conduct.

31While it is not my position to comment on how the previous commissioner disposed of the complaint before him – and I expressly refrain from commenting on the outcome of that prior complaint – I do not accept his interpretations of the Code [Kett (Re), 2017 ONMIC 6]. I disagree with the previous Commissioner’s interpretations and I decline to follow or to apply them in this case. Going forward, I will neither apply the previous commissioner’s interpretations nor expect Members of Council to govern themselves according to the previous commissioner’s interpretations.

32Councillor Kett did not contravene the “Purpose” section or the “Policy Statement” section of the Code. I will not find that there has been a contravention of the Code unless the evidence discloses a definite breach of a clear and identifiable rule. The “Policy Statement” and the “Purpose” section at the beginning of the Code do not contain clear and identifiable rules and, therefore, it is not possible for a Council Member to contravene the “Policy Statement” or the “Purpose” section. (On this point I expressly reject the previous Commissioner’s interpretation and decline to follow it.)

33Councillor Kett also did not contravene section 3, section 4 or section 11. (I expressly reject the previous Commissioner’s interpretation of section 4 and I decline to follow it.)

34With particular reference to section 11, my factual findings are different than those of the previous commissioner. I must base my findings on the Code and the evidence before me, regardless of what he reported.

PROCESS FOLLOWED

35In operating under the Code, I follow a process that ensures fairness to both the individual bringing a Complaint (the Complainant) and the Council Member responding to the Complaint (the Respondent). The process is governed by section 12 of the Code.

36This fair and balanced process includes the following elements:

The Respondent receives notice of the Complaint and is given an opportunity to respond.
The Complainant receives the Respondent’s response and is given an opportunity to reply.
More generally, the process is transparent in that the Respondent and Complainant get to see each other’s communications with me.⁹
The Respondent is made aware of the Complainant’s name.¹⁰ I do, however, redact personal information such as phone numbers and email addresses.
As a further safeguard to ensure fairness, I will not help to draft a complaint and will not help to draft a response or reply.
Where appropriate I will, however, invite a Complainant to clarify a complaint. When the Complaint has been clarified the Respondent is provided with the original document and all communications between the Complainant and me related to clarification.
When the Complaint has been clarified I deem the date of final clarification to be the official date the Complaint was made.

37In this case, the Complaint was submitted on May 24. It consisted of a brief affidavit, sworn May 24, to which was appended a May 17 letter addressed to the Township, to the attention of “Mayor Rowett, Staff and Council.”

38The Complaint was further clarified on May 29 and May 31.¹¹ May 31 is therefore deemed to be the official Complaint date.

39Councillor Kett was sent notice of the Complaint on June 8. His original emailed Response never made it to me, so he resubmitted his Response on June 28. In the circumstances I exercised my discretion to waive the technical lateness. The Complainant’s Reply was submitted on July 2.

40The parties made additional submissions on June 29 (Respondent, oral), July 16 (Respondent, written), July 17 (Respondent, written), July 18 (Complainant, written), July 25 (Complainant, written), July 29 (Respondent, written), August 21 (Respondent, written), August 25 (Complainant, written) and August 31 (Respondent, written).

41Meanwhile, by letter dated July 3, I invited both parties to provide their specific input on how the Code should be interpreted and whether I should follow the previous integrity commissioner’s interpretations. The four-page request for input was clear, specific and detailed and it identified 11 legal issues that I was considering. On July 13 both parties provided input in response to my request.

42In a detailed July 18 email, I asked the Complainant to provide information in response to a series of detailed questions about the allegation of harassment. She replied in writing, July 25. The Respondent responded to her submission on August 21.

43Because the parties provided extensive submissions in writing, responded to all my questions and provided relevant information, I determined that it was not necessary to interview them. I reviewed relevant documentary evidence.¹² I also interviewed witnesses for the purpose of obtaining evidence and verifying facts.

44I did not seek people’s reactions to Councillor Kett’s news release or to ask them to interpret what it meant. Their opinions on these points would not be evidence and are not relevant to my determination under the Code. Public perception has no bearing on whether a Council Member has contravened the Code.

45The Complainant specifically invited me to watch an online video of a Council meeting to “witness how Councillor Kett behaves.” I did so.

46Despite the Complainant’s suggestion that I do so, I did not contact Mr. Elston to discuss his previous reports. To do so would have been improper. As I have already explained, I am making my own factual findings based on the evidence before me. As for his interpretations of the Code – and the question of whether I should adopt and apply those interpretations – Mr. Elston’s reports must speak for themselves. It would be inappropriate for me to invite him to supplement and to offer more explanation of his legal reasoning and interpretive analysis.

47I have taken into account all of the parties’ submissions and all of the evidence.

48One of the attachments to the Respondent’s submissions focuses on the difference between an “investigation” (the language used in the Code) and an “inquiry” (the language used in section 223.4 of the Municipal Act. At least in this instance, I believe that the terms refer to the same process. An investigation under the Township’s Code is the inquiry referred to in section 223.4 of the Act.

SUBMISSIONS OF THE PARTIES

49The parties’ submissions are detailed and I considered them in their entirety. The following summaries capture highlights of their positions and are not exhaustive.¹³

The Complainant

50The principal allegations are set out, above, under the heading, “The Complaint.” In addition, the Complainant makes these submissions:

The news release shared confidential information because at the time there was no indication there was going to be a BIA audit. Councillor Kett released information to which he was privy by attending BIA meetings or discussing with BIA members.
The news release contained Councillor Kett’s opinion, not fact. It is not within his rights as a Councillor to present personal opinions and views through a media channel.
“Can Councillor Kett prove without a reasonable doubt that his allegations are true and factual and trustworthy?”
“… Councillor Kett shared incorrect information as he went through hearsay and was found on many occasions including Council meetings on YouTube sharing the false information as proven to be true by Mr. Elston. Never once did he verify his facts when he signed his name to the press release or spoke about the BIA processes etc.) Harold G. Elston based his report on the truths shared by business owners, BIA members, Township Staff, YouTube videos and many others. [Mr. Elston] took the time to research all sides not just focusing on one group’s opinions.”
Based on the report of Mr. Elston (the previous integrity commissioner) Councillor Kett knew or ought to have known that sending the news release was inappropriate. “Councillor Kett should have known better than to send the news release especially being fully aware of the Integrity Report.”
At no point has Councillor Kett taken the time to discuss any of his opinions, concerns, or questions with the people he is “bashing” in his media release. He did not talk to the former BIA co-chair or the former BIA executive director before making his allegations.
“There are always two sides to every story and before anyone, especially a Councillor, forms an opinion they should make sure they do their due-diligence and research the facts before presenting false and slanderous information especially through an unauthorized media release.”
If Councillor Kett’s motive were to restore the integrity of the business community then he would have spoken to the people involved and not gone to all the media. The purpose of the news release was to defame many good volunteers and reputable businesses as well as the former BIA executive director. (The Complainant asks rhetorically whether a Councillor should be allowed to defame other people, employees and businesses.)
“Councillor Kett needs to explain why he felt the media release had to go out to so many media contacts. What was the purpose? What was the motive?”
At its April 11, 2017, meeting, the BIA approved a resolution “to invest up to $999.99 with Forensic Auditor Brain Tario” for the forensic audit. The claim of an audit could not have been true on March 3 if it was not decided until April 11.
The minutes do not elaborate why the audit is necessary, so where did Councillor Kett obtain his knowledge?
The news release falls under section 11 (Harassment) of the Code of Conduct. “The media release indicates: dishonesty, arrogance, bad faith, complacency, incompetence. It leads you to believe there was criminal action which is absolutely crazy! … It is definitely a form of harassment, as there is absolutely no proof to these allegations.” (The Complainant then named six individuals who were subjected to this harassment, as well as the entire 2016-17 BIA board prior to the resignations.)
The pattern of harassment began around the time A.W. Brock Department Store Ltd. discovered the parking-lot tax issue¹⁴ or when the “parklet” pilot project began to be discussed.¹⁵
The harassment meets the definitions of both “disrespectful behaviour”¹⁶ and “personal harassment”¹⁷ under the Township’s “Workplace Violence and Conflict Resolution Policy.”
The Complainant is not aware of any retraction or apology from Councillor Kett.
Councillor Kett has no regard for the Code of Conduct. He does not seem to take it seriously and is often seen making a joke of the Code and the harassment issues.
Councillor Kett is continually in violation of the Code by constantly meddling in the business of the BIA of which he is not part.
“Councillor Kett is not, nor has he ever been a representative of the Port Perry BIA. Only the Directors of the Board and its chair can speak on behalf of the organization. No Councillor representative either should speak on behalf of the organization as they are just representatives of Council.”
Councillor Kett continues to violate the Code despite taking a “Sensitivity Course” as recommended by the previous integrity commissioner.
The Mayor has already clearly stated that the news release violated the Code and corporate procedures.
“[B]oth the Mayor and the Communications Officer have both indicated to me and it is also stated in the letter from the Mayor that this was a total violation! … The fact remains the media release was totally against the Code of Conduct as stated by the Mayor.”
“Councillor Kett needs to provide proof that the press release was reviewed by Staff and approved by Council otherwise he is violating the Code of Conduct.”
“Right up until October 31, 2016 (which as the last monthly detailed trail and summary balance sheets produced in full by the Township Staff for the BIA board) the Township is in possession of the triplicate invoices and bills of the BIA since 2008!”
“Historical Budgets of the BIA show no inconsistences. The inconsistencies lay in the approved budget for 2016 which was not BIA Board approved but was in fact made up by two Councillors and three other non-Board members.”
“BDO, the Township’s independent Municipal Auditor, also (as stated in Mr. Elston’s report) found no issues!!”

The Respondent (Councillor Kett)

51Councillor Kett’s submissions included the following:

The news release was not on Township letterhead. It contained only his name and the position he holds as a Councillor. There was nothing printed at the top of the release.
The content was factual. He verified it prior to issuing.
He sat on the BIA budget committee. He says he was nominated by the BIA budget committee to represent it.
The news release did not relate to an official decision or resolution of Council
The news release did not include confidential information as he did not attend the closed BIA meeting
This was a proper media release under section 3 of the Code.
“My press release of March 3, 2017 was issued following the meeting of the BIA Board of Directors. At that meeting, they chose to approve a forensic audit of the BIA in order to understand the nature and extent of any issues which, among other things, had led to concerns with the BDO audit process. My press release was only issued after I had confirmed that the Board had agreed to the audit, and that this was no longer confidential information. The press release was intended to clearly explain that the procedural and budgetary issues that had been questioned at the BIA were to be investigated and corrected. I felt strongly that this step to restore the integrity of the business community and the Township needed to be made public. I felt that this was compliant with the Code of Conduct in that I neither wrote a regular column for a newspaper, nor wrote a letter to the editor. The press release seemed to me to be the correct approach for putting out this important information”
He wrote a retraction and apology immediately after receiving the Complaint. He did so not because he felt he had done wrong but to be accommodating in order to resolve the issue.
“In his letter of May 4, 2017, the Mayor advised that my actions were not approved by himself, and that, in effect, I had been premature. Although I do not believe I violated the Code of Conduct, I accept that my enthusiasm for seeing these problems corrected led me to ‘speak out of turn,’ and I apologized for that.”
He has not publicly released any of the information, or communicated any information, documented in the forensic investigation, or who was named in it.
“It was never my intention to defame any individual, business, board or anything else, and I have tried to speak of my concerns only in general terms. But the concerns had to be expressed, not only to show what the problems had been, but that there was a responsibility to correct them. That was a responsibility that, as a Councillor, I shared and took seriously. In the Council meeting of October 3, 2016, I thought that I provided sound reasons for my motion to improve the BIA procedures, and that I did so respectfully and positively.”
He firmly believed and still believes he was acting in a spirit of goodwill and for the common good in attempting to identify the nature and extent of any shortcomings in the finances and administration of the BIA, and in proposing corrective measures. The BIA is a body created by the municipality, and the Council provides oversight.
The BIA does not have employees. It contracted with the Chamber of Commerce for the services of a Chamber of Commerce employee. “The complainant in the Elston case was not a staff member. BIA Board members are elected representatives, not staff.”
He disagrees with the findings of the previous integrity commissioner.
The statements in the “Purpose” section of the Code are general and do not set a specific standard based on which to measure behaviour. In any event, his actions did not violate any of the bulleted points in the “Purpose” section.
The Code does not clarify what the ‘high standard’ of conduct is. He supports the principle of excellent behaviour but the Code does not provide a target to aim for.
Paragraph 14 of Mr. Elston’s February 27 report is taken directly from the Code of Conduct. Councillor Kett has no issue with it. Paragraph 15 is Mr. Elston’s own words on what the Code represents. The first sentence is fair enough, but the second sentence is a very personal interpretation, and goes beyond what the Code says.
Councillors have the duty to make sure the financial and administrative practices of the Township, as well as its boards and committees, comply with the Municipal Act. He recognizes that people may feel uncomfortable about being asked questions and may take exception to that. However, it is difficult to understand how it is “unreasonable” to ask questions on administration and financial management to people responsible for those areas.
“In my role as a Councillor, I have a duty to serve the common good of the community. This will, from time to time, require me to ask questions and understand the workings of the Township, its Boards and Committees, and the community at large, including many outside organizations. It is never my intention to behave badly or be disrespectful in the conduct of my duties. I take my role very seriously, and I want to make sure that, during my term, I do all I can to help hold Scugog to the highest standards of accountability, transparency and fiscal responsibility. The Township has to have control of its procedures and follow the rules in the legislation we work under. I want to ensure we follow established procedures and best practices. I never intend to defame or upset anyone in pursuing those goals, but I must point out our Township must run as well as possible. My hope is to correct such problems, and not to ignore them.”
“In Mr. Elston’s Supplementary Report paragraph 19, Mr. Elston speaks of criticism of the BIA in general, and then of allegations against some unnamed individual. It’s unclear how this is supposed to support the suggestions that allegations were made and rumours were allowed to spread, and that my actions caused or allowed this to continue. The Code of Conduct does not address any such case so I don’t think an appeal to the Code is needed with regard to the principle of bearing false witness. In any case, I didn’t do that. As to the alleged rumours, I do not have any power to monitor such gossip which the Code makes no reference to.”
“Mr. Elston does not say that harassment occurred and does not even acknowledge this accusation in either of his reports. Documented evidence of disrespectful behaviour over a period of time may be seen as harassment and then the Code might speak to that. If someone criticizes another person’s administrative board or practice, simply doing that is not disrespectful. The word disrespectful has no standard attached to it in the code. In any event, I do not intentionally disrespect people to their face or behind their backs as Mr. Elston suggested in paragraph 20 of the Supplementary Report.”
When the Code (section 4) says not to interfere with or intimidate staff, he understands that it means not to ask or force people to do things outside of their proper roles, or which might compromise their integrity. It does not seem that asking questions in line with an employee’s duties is in any way intimidation or interference. Also, it has already been established that BIA Board members are not staff, so this section does not apply.

THE EVIDENCE

52Boards of management of business improvement areas are not private organizations. They are local boards of municipalities. They spend taxpayer dollars raised by municipalities, typically through levies on rateable properties. I find that the BIA’s operations, financial management and accountability are all matters of public interest.

53At the Complainant’s suggestion, I considered online recordings of Council meetings “to witness how Councillor Kett behaves.” I watched and listened to the October 3, 2016, lengthy discussion of the BIA, where a five-clause motion of Councillor Kett (subsequently split into two motions) was adopted by Council. I also reviewed the recording of the September 19, 2016, meeting. In both cases, I find that Councillor Kett spoke calmly, professionally and in a neutral tone. He was respectful and did not disparage anyone. He made his points generally without personalizing the issue. He did not exaggerate and his language was restrained. He articulated his position based on objective not subjective considerations.

54Another reason I considered the September 19 and October 3, 2016, meetings is that the news release in question is just one item in a series of communications and developments related to the BIA. I find that the news release must be considered in context, and not as a random or isolated communication.

55I also note that the Complainant alleges that the March 3 news release is part of a pattern of harassment that started around the time that the A.W. Brock Department Store Ltd. parking issue first surfaced (December 2015) or when the “parklet” pilot project was first discussed (it was first proposed to Council in October 2015).¹⁸ This is additional reason to take into account the full context.

The News Release: Issuance

56On March 3 the BIA agreed on a forensic audit. That night Councillor Kett emailed a news release to 74 email addresses. The subject line of the email was “News Release” and the headline of the news release read, “Port Perry BIA Approves Forensic Audit” (underlining in original). A copy of the release appears at Appendix B.

57Following correspondence from the Complainant, the Mayor wrote a May 4 letter setting out his position on the news release. A copy of the Mayor’s letter appears at Appendix C.

58The distribution list for Councillor Kett’s March 3 news release consisted of 70 news media addresses in the “To” field and four additional addresses in the “Cc” field. The news media recipients included both organizations (e.g., theagenda@tvontario.org) and individual journalists (e.g., DNickle@insidetoronto.com). Several news media organizations were sent multiple emails. For example, nine recipients had Toronto Star email addresses. Other organizations with more than one recipient on the distribution list included: CBC, 7; Rogers, 6;¹⁹ The Globe and Mail, 5; Sun Media, 5; National Post, 4; Bell Media, 4; CTV, 3; Global, 2; InsideToronto, 2; and NOW Magazine, 2.

59Councillor Kett’s distribution list included third-language news media (e.g., Ming Pao, Patrides), websites (e.g., Torontoist), and specialty news media such as Spacing and Novæ Res Urbis.

60The four recipients in the “Cc” field of the email were: (a) Mr. Harold Elston, who at the time of the release was acting as Scugog’s integrity commissioner; (b) an individual employed as a Municipal Advisor in the Ministry of Municipal Affairs and Housing; (c) the general email address of the office of the provincial Conflict of Interest Commissioner; and (d) a Port Perry business person.

61I find as a fact that Councillor Kett was attempting to make the news release public and he did make the news release public.

62The Complainant has commented on the sheer number of email addresses to which the news release was sent. My finding that Councillor Kett made the news release public takes the distribution list into account. Had a news media organization published or reported on Councillor Kett’s release then the story likely would have been available to anyone in the world with an Internet connection. That is what my finding of “public” entails.

63Councillor Kett did not obtain authorization from any Township official before issuing the news release. Whether he needed authorization is a question that I will consider in the context of the Code: see finding A in the section “Analysis and Further Findings,” below.

64The news release was not issued on Township letterhead, but it did include the Township’s wordmark and logo as part of the Councillor’s signature block. (A comparison of Appendix B to Appendix C makes evident the difference between the use of the wordmark and logo in the signature block and their use at the top of letterhead.)

65I find that Councillor Kett was issuing the news release in his capacity as a Township councillor. The signature block makes this clear.

66As the same time, I find as a fact that nobody would reasonably think Councillor Kett had issued the news release on behalf of the Township. The news release does not purport to speak for the Township and I find that no one would reasonably mistake Councillor Kett’s own statement as a statement of Township position.

The News Release: Content – General

67I find that the news release did not relate to a decision of Township Council. It related to a decision of the BIA, which is a local board of the municipality. I find that nothing in the release anticipates the decision-making process of Council or interferes with Council’s control over the communication of Council decisions.

68I also find that the news release did not relate to a confidential decision. While the reasons for the forensic audit were discussed by the BIA in closed session, the decision was made in open session, as it should have been. The minutes of the open session of the March 3 BIA meeting record the following decision:

“Motion: ‘recommend to Council that an auditor, independent of BDO, approved by the BIA executive, based outside of Scugog, be appointed to conduct a forensic audit at Township’s cost’

“Moved by Christy Stone-Curry and seconded by Julie Brock. The motion carried unanimously.

“ABSTAINING FROM VOTE: Councillor Janna Guido and Councillor Jennifer Back”

[bolding, underlining, italics and punctuation as in original]

69Interestingly, the open session minutes of the March 3 BIA meeting do not appear on the Township website. They are supposed to be. On October 3, 2016, Council adopted a resolution that provides, in part, as follows:

“1. THAT the BIA be directed to provide its full meeting agenda package agenda page, past minutes, reports, correspondence, etc.) to the Township a minimum of 3 days before each scheduled meeting to enable its public posting on the Township website;

“2. AND THAT the BIA be directed to provide its draft meeting minutes to the Township a maximum of 7 days following each meeting to enable their public posting on the Township website …”

70At the time of finalizing this report, the BIA’s February 24 and March 3 open session board minutes as well as the February 28 AGM minutes are not posted at calendar.scugog.ca, while all its other 2017 minutes are posted.

71A significant part of this investigation focused on the content of the news release. The news release contains a mixture of fact and opinion. According to the Complainant, the factual passages are untrue and the opinion passages are defamatory, abusive of position, harassing, unfair, unprofessional and unauthorized.²⁰

72Because the content of the new release is significant to this investigation, I have reviewed it in detail and I set out my findings below.

73Including the headline and sub-headline, the news release contains 51 statements.²¹ Some are statements of alleged fact and others are statement of opinion. The opinion statements can be further divided into two categories: statements of Councillor Kett’s opinion that do not reflect on anyone or anything else; and editorial statements that characterize or comment on others or on what (allegedly) happened.

74The truth of the first category of statements (factual) can be measured objectively. For example, either the BIA recommended board-approved purchasing or it did not.

75The second category consists of opinion that states Councillor Kett’s beliefs, positions or values that reflect only on him. The statements do not suggest that anyone else’s conduct or belief is consistent or inconsistent with Councillor Kett’s stance. These statements only indicate the Councillor’s stand.

76The third category is statements of Councillor Kett’s opinion that expressly or by implication comment on others or on what allegedly took place.

77The breakdown of statements in the news release is as follows:

Fact:

Opinion: statements of belief, position or value that reflect only on Councillor Kett:

Opinion: editorial comment on others or on what is alleged to have happened:

Total:

The News Release: Content – Statements of Fact

78The following are the passages of the news release that I classify as statements of fact:

For Immediate Release

Port Perry BIA approves Forensic Audit

I, as well as others ran on a platform of bringing transparency and accountability to Scugog.

Some changes that are now being recommended by the BIA are:

Board approved purchasing decisions.
Mandatory procurement policy
Mandatory signing authorities in the township
Improve and increase the information provided to the public
Mandatory posting of all minutes on township website within seven days
Mandatory posting of all agendas three days in advance
Mandatory posting of all financials
Mandatory posting of all budgets three days in advance of AGM
Mandatory culture of routine disclosure
All RFP responses and tenders made public by posting on township website

The new BIA board has already started changing the rules and will continue to change the culture.

79The Complainant claims that the news release’s statements are untrue.

80She also says that Councillor Kett has provided no evidence to support the veracity of his statements. Fair process as understood in Canada does not work that way. The onus lies on the person alleging falsehood to establish the falsehood.²² The Complainant has not established that the factual portions of the news release were inaccurate.

81In any event, based on the evidence before me, I find that the factual statements in the news release are accurate and truthful.

82For example, the BIA did approve a forensic audit. On March 3 it passed a motion to “recommend to Council that an auditor, independent of BDO, approved by the BIA executive, based outside of Scugog, be appointed to conduct a forensic audit at Township’s cost.” I find Councillor Kett’s characterization of this decision to be accurate.

83The BIA did receive and subsequently accept recommendations to adopt best practices such as board-approved purchasing decisions and a mandatory procurement policy.

84The evidence does not support an allegation that the news release contained false content. On the contrary, the evidence confirms that the news release was factual.

85Finally, I find as a fact that Councillor Kett verified the content of his news release with the BIA before he issued it.

The News Release: Content – Opinion – Statements of belief, position or value

86I make no findings concerning the middle category of statement: statements of belief, position or value that reflect only on Councillor Kett and do not comment on others or on alleged happenings.

87I classify the following passages of the news release as falling into this category:

The ethical culture of an organization is the set of values operating within it. These values contribute to the first line of defence against unethical behaviour, and are by far the most powerful influence. I am proud to be an elected official and represent the people of Scugog,

I believe that every elected official in all levels of government must have a personal and professional commitment to honesty, transparency, accountability and responsibility.

These things offend me, and go against everything I believe about Scugog and our public service employees.

This is time, energy, and money well spent.

It is our job to restore and preserve the good name of good governance in the township. We owe this to the people of Scugog.

As Scugog Council, we need to manage our own affairs, and we to be seen managing our own affairs.

We oversee and deliver the services and facilities that are fundamental to the quality of life for all of Scugog rich or poor, young or old. This places a tremendous responsibility upon us to ensure that people are dealt with honestly, transparently, and accountably.

When you do business in Scugog, the only thing that should matter is what you know- not who you know.

No matter how thorough documents are, the reports, inquiries, and policies, will only take us so far. Policies are only as good as the people who enforce them and live by them.

But we must always be vigilant, and ensure that we live by the codes we create. That goes for everyone right through every level of civil service.

As important as this audit is, what is more important is how we implement it for the future.

We need Scugog to be a leader in accountability and ethical behaviour. That’s what the people of Scugog expect of this administration, and that’s what we intend to deliver.

88Having reviewed all the Complainant’s submissions, I do not understand her to be complaining about Councillor Kett’s statements of his own beliefs and positions. His expressed opinions in relation to others and in relation to what happened are the opinions giving rise to the Complaint.

89Further, subject to section 3 (which I will consider in another part of this report), I do not see anything in the Code that pertains to statements of belief, value or position reflecting only on the individual making them. These are, ultimately, messages about political position that every Council Member has a right to express.

The News Release: Content – Opinion – Editorial comment about others and about what happened

90The final category of statements in the release is editorial comment about others and about what happened. It consists of the following passages:

This story has legs and will unfold quickly

This audit has been a long time coming, and its recommendations will be welcome.

These values are at the heart of my goals but unfortunately such a culture is not always a reality.

This audit and the weeks of due diligence that led to it − has laid evidence of how the system can be compromised.

In addition to documenting, this audit will provide recommendations with clear direction on how we can help prevent similar situations in the Township of Scugog.

This situation is a sad chapter in the history of Scugog.

This is a story of arrogance, complacency, bad faith and incompetence.

It is a terrible thing and an outrageous thing, that this audit is even necessary, but it is necessary.

This audit, and accompanying report, will help Scugog Council better govern, and serve the people of Scugog more honestly and accountably.

Clearly, this was not the case in the past.

We all know that there will always be people who try to take advantage of the system – people who will lie and dissemble to exploit the system for their own personal profit.

Our current civil service needs to be commended for carrying out their duties ethically and accountably because clearly we have had some serious problems in the past, but the Township of Scugog is an overall example of the best in public service.

if this was done in the past, this situation may have never happened.

There needs to be consequences for misconduct and betraying the public trust. I feel this way about this particular situation, and about any future breaches of trust.

I commend our civil service staff for their integrity, responsibility and willingness to help the new board through these difficult times.

This audit will only strengthen the commitment to the principles deserved by all residents and businesses in Scugog.

91Nobody is named in these passages but that does not alter the reality that the above passages reflect on the BIA and in some cases on individuals associated with the BIA. I find as a fact that this is the case. I further find as a fact that some people in the community know who is or has been associated with the BIA and might be able to speculate on identity.

92That being said, I want to make clear that I find Councillor Kett did not directly comment about any particular individual and he not intend to comment, directly or indirectly, on anyone. His editorial comments focused on BIA accountability and governance, not people.

93As I have stated, my role is not to review how the previous integrity commissioner handled the complaint before him. Some of the factual and legal issues are common to both cases but I must make my own findings of fact and my own interpretations of law, just as he made his. Councillor Kett’s comments about accountability are one area where I depart from the approach taken by my predecessor. The previous integrity commissioner seemed to conflate advocacy of BIA accountability with personal criticism of individuals involved in the BIA. I decline to do likewise. In my view, personalization is antithetical to the objective basis of accountability.

94One reason for objective transparency standards, objective conflict of interest rules, objective governance policies, objective financial controls, objective procurement practices, and other objective rules of public administration, is to depersonalize how public institutions operate and make decisions.

95Accountability measures are not about anyone. They are not aimed at anyone. Accountability is about institutions and the public interest. Calling for greater accountability is not necessarily an attack on anyone.

96Not only is it a mistake to personalize the accountability dialogue with reference to individual persons but also this line of argument entirely misses the point of accountability measures: they exist, in part, so that decisions will be based on objective criteria and not based on personalities.

97Experience shows that the discussion around accountability can sometimes get personalized in a couple of ways. Personalization can occur when the proponent of an accountability measure grounds the case in a personal attack on individuals associated with the institution. I find as a fact that Councillor Kett did not personalize his statements about accountability. Personalization can also occur when the individuals associated with an institution react as if the calls for accountability were a personal attack.²³ An observer of their reaction might mistake who personalized the issue. It is not my place to suggest that the previous integrity commissioner made this error.²⁴ I simply note there is a difference between calling for accountability (which Councillor Kett did) and making personal attacks (which, on the evidence before me, he most clearly did not).

98I have carefully considered evidence related to the BIA and its operations, including evidence related to the decision to undertake the forensic audit, and including financial records. In accordance with the Municipal Act, in this report I only disclose such matters as in my opinion are necessary for the purposes of the report. In my opinion it is unnecessary for me to describe the financial evidence in any greater detail than I do in this subsection of the report.

99Examples of the facts that were available to Councillor Kett at the time he issued his news release (facts that were among the reasons the BIA requested the forensic audit) include the following:

An individual’s signing for the spending of BIA funds on purchases from a company with which the individual was associated.
A pattern of procuring printing services from only one of two printing companies in downtown Port Perry, and never using the other. Both printing companies are located within the business improvement area and both pay the levy. (Spending on the one printing company grew from $5362.75 in 2013 to $13,110.42 in 2015. The latter figure is equivalent to nearly 9% of the total levy collected from Port Perry businesses in 2015.)

100These are just two examples. They are not a complete summary of the evidence.

101The opinion passages of the news release are not fact. They are Councillor Kett’s personal opinion about the situation. Even though they allow the drawing of inferences about fact, I find that these passages are recognizable as comment (opinion).

102Having reviewed the evidence related to the BIA, I find that Councillor Kett’s opinions are based on fact. So there is no misunderstanding, I will explain what this finding means. It is not about support for, or agreement with, his opinions. The finding does not mean that, having reviewed the facts, I hold the same opinions. The finding simply means that Councillor Kett had facts available to him and his opinions were based on those facts.

103I also find that it is possible for a person, based on the facts, honestly to express the same opinions as Councillor Kett. This does not mean that every person would hold the same opinions based on those facts. This does not mean that I hold the same opinion based on the facts. It simply means that based on the facts it could be possible for somebody honestly to hold the same opinions as Councillor Kett. Again, this is not a finding about the merits of Councillor Kett’s position and I make no finding of agreement or disagreement with Councillor Kett’s position.

104I further find that Councillor Kett had an honest belief in what he wrote.

105I find that Councillor Kett was not motivated by malice toward the BIA or anyone associated with it.

106I also find that the subject of his comments is a matter of public interest. Not only are BIA operations, generally, a matter of public interest but also an audit is a matter of public interest and, in these particular circumstances, the underlying facts are matters of public interest.

107I find that any reasonable person, considering the facts of which Councillor Kett was aware, would understand that the subject of the audit was a matter of public interest. As a matter of public interest, it was also, by definition, a matter of Council interest and of Councillor interest. I therefore find that the facts made it reasonable for Councillor Kett to comment on the public audit. He was not required to comment but it was reasonable for him to do so.

108The Complainant points out that Councillor Kett does not sit on the BIA. I find that one’s interest in the accountability of a local board of a municipality is not restricted by ward geography or committee membership. This is a legitimate matter of interest to all Council Members, including Councillor Kett.

109The Complainant argues that Councillor Kett should have raised the issues with former BIA officials before going public, and that the failure to do so reflects adversely on his motive. While Councillor Kett certainly could have done this, he chose instead to present the issues publicly not privately. I see nothing in the Code that permits me to second-guess his judgement of the appropriate way to raise accountability issues. I certainly do not subscribe to the proposition that a Council Member with accountability concerns about a local board may only raise them (or must first raise them) internally in private. The very nature of accountability makes suppression of public communication untenable.

110The Complainant says that Councillor Kett failed to verify the content and that the failure to do so reflects adversely on his motive. I find as a fact that Councillor Kett did verify the content, with the BIA, before issuing the news release.

111The findings in this section must be qualified in respect of two passages of the news release.

112First, in the legal context, “breach of trust” has particular meanings. One of the legal meanings applies to a criminal offence. Another legal meaning applies to a tort (a civil wrong). I find that Councillor Kett did not use “breach of trust” as a legal term, but simply as a political statement about accountability within a public body (synonymous with the non-legal phrase “betray[al] of trust” which he used earlier in the same sentence). I want to be clear that in reviewing the evidence I found nothing to suggest a criminal breach of trust or a civil breach of trust.

113Second, the evidence that I reviewed discloses only the fact that transactions occurred and not the reasons for or thinking behind those transactions. Consequently, I stress that none of the evidence I reviewed suggests an intentional effort to exploit a situation or to lie for personal profit. Further, I find that the news release’s sentence relating to advantage, lying and personal profit²⁵ can only be understood as a comment by Councillor Kett about human nature generally and not about any individual associated with the BIA. Given that the forensic audit had at this point not occurred, Councillor Kett had no factual basis to comment on identifiable individuals’ personal motives and I find that he was not attempting to do so.

ANALYSIS AND FURTHER FINDINGS

A. By issuing the news release did Councillor Kett contravene section 3 of the Code?

114No.

115Section 3 section says, “Members of Council will accurately communicate the decisions of Council …”

116Councillor Kett was not dealing with a decision of Council. In any event, the news release was accurate.

117Section 3 says, “Members shall show respect for the decision making process of Council.”

118The news release was unrelated to Council’s decision-making process and therefore Councillor Kett was not disrespectful of Council’s decision making.

119Section 3 continues:

“Official information related to decisions and resolutions made by Council will normally be communicated to the community and the media in an official capacity by the Mayor or designated staff member or through a press release issued by the Corporation.”

120The above passage does not apply. The news release did not relate to a decision or resolution of Council.

121Section 3 then says, “Confidential information will be communicated only when and after determined by Council.”

122The news release did not contain confidential information. It related to a decision made by the BIA in open session. Further, the above sentence applies to decisions of Council and the news release did not relate to a Council decision.

123The Complainant was not aware of the BIA’s decision or the fact the decision was made in open session because the BIA minutes from March 3 are not posted on the Internet. Council’s October 3, 2016, resolution provides for posting the BIA minutes. (Most of the other BIA minutes from 2017 are posted.) The minutes should be posted, and at the end of this report I make a recommendation to that effect.

124Section 3 concludes:

“Communications with the media by Members of Council shall be conducted through proper interviews or media releases. Members shall refrain from writing letters to the editor or writing a regular column in the newspaper.”

125Councillor Kett did communicate through a media release. He refrained from writing a letter to the editor or a regular newspaper column.

126The Complainant claims that the Mayor has already held the news release to contravene section 3 of the Code. In fact, the Mayor was commenting about the Procedure By-law.

127The Complainant claims that the Township’s communications officer told her that the news release contravened the Code. I do not know whether this discussion occurred and I did not inquire into it because it would be irrelevant to my jurisdiction as Integrity Commissioner which is to interpret and to apply the Code.

128The Complainant notes that while Councillor Kett did not use the Township’s communication officer (to issue the release) he has agreed to use the communication officer in future. She views his agreement for future as an implicit admission that he should have done so before. I disagree. Section 3 did not require Councillor Kett to use the Township communication officer for the March 3 release.

129The Complainant notes that the news release contains Councillor Kett’s opinion. The release is partly opinion, but nothing in section 3 purports to prohibit the expression of opinion.

130The Complainant says that Councillor Kett has not apologized. Even if that is true (he states that he has apologized) it is not relevant to section 3. Councillor Kett did not contravene section 3 of the Code (or any other section).

The Complainant argues that the news release was defamatory. Based on my extensive review of the evidence, and my findings in the previous section (“The Evidence”), I disagree. In any event, section 3 does not deal with (allegedly) defamatory statements.

131No.

132Section 4 (Relations with Staff) only applies to dealings with staff of the municipality.

133The BIA is a local board of the municipality, but is a separate corporation. I doubt that an employee of the BIA, if any employee existed, would be covered by section 4.

134In any event, during the time period covered by the previous commissioner’s report, the BIA had no employees.

135In the context of the present complaint, even if Councillor Kett’s news release did refer to individuals formerly associated with the BIA,²⁶ none of these individuals was an employee of the BIA because the BIA had no employees.

136Since the BIA had no employees, nobody formerly associated with the BIA is covered by section 4 of the Code.

137The BIA previously had an agreement that an employee of the Chamber of Commerce would provide services to the BIA. The BIA paid the Chamber for those services. The previous commissioner, without giving reasons in his reports, deemed this Chamber of Commerce employee to be a staff member of the municipality within the meaning of section 4 of the Code.

138I reject his interpretation of section 4 and I decline to follow it.

139I find, as a matter of both fact and law, that a Chamber of Commerce employee who provides services to the BIA is not part of the municipal “staff” under section 4 of the Code.

140The previous commissioner’s reports also imply that members of the BIA board were “staff” of the municipality under section 4, though his finding on this point is fuzzy.²⁷

141If that is his interpretation then I reject it.

142I find, as a matter of both fact and law, that board members of the BIA are not part of the municipal “staff” under section 4 of the Code.

143No.

144I find that the “Purpose” section of the Code cannot be contravened and cannot be the subject of a complaint. The same applies to the “Policy Statement” section of the Code.

145I expressly reject the previous commissioner’s contrary interpretation and approach.

146The “Policy Statement” section and the “Purpose” section of the Code read as follows:

POLICY STATEMENT

This Code of Conduct is a public declaration of the principles of good conduct and ethics that Members of the Council of the Township of Scugog have decided its stakeholders could reasonably expect from the Members of Council to demonstrate in the performance and responsibilities as elected representatives.

Attaining an elected position within the community is a privilege which carries significant responsibilities and obligations. Members of Council are held to a high standard as leaders of the community and they are expected to become well informed on all aspects of municipal governance, administration, planning and operations.

PURPOSE

The Code of Conduct for Members of Council identifies the Township’s expectations of Council Members and establishes guidelines for appropriate conduct to ensure that:

The decision making process of Council is transparent and accessible;
Decisions are made through appropriate channels of government structure;
Public office is not to be used for personal gain;
The conduct of Members of Council is of the highest standard; and
There is a fairness and respect for the differences and a duty to work together for goodwill and common good.

[underlining added]

147The previous commissioner considered allegations that included the following:

“b) The conduct of Councillor Back and Councillor Kett was not of the high standard required by the Code; [and]

“c) Councillors Back and Kett did not work with others in the interests of goodwill and common good …”

[underlining added]

148The underlining in both passages shows that these allegations were of contraventions of the “Purpose” section of the Code.

149The previous commissioner considered alleged contraventions of only two sections of the Code: the “Purpose” section and section 4.²⁸ In his first report he proceeded to made findings that the Councillors had contravened the Code, specifically principles in the “Policy Statement” section and the “Purpose” section.²⁹

150I do not agree that either the “Policy Statement” section or the “Purpose” section of the Code can give rise to a contravention.

151The Code is part of a by-law. Principles of statutory interpretation apply.

152As a general matter, a statement of principle in legislation does not create an obligation. It merely states the principle(s) that may be used to interpret obligations created elsewhere in the law: see Greater Vancouver Regional District v. British Columbia (Attorney General) (2011).³⁰

153As explained in Sullivan on the Construction of Statutes, 6th ed.:

“Purpose statements may reveal the purpose of legislation either by describing the goals to be achieved or by setting out the governing principles, norms or policies. … However, like definitions and application provisions, purpose statements do not apply directly to facts but rather give direction on how the substantive provisions of the legislation – that do apply to facts – are to be interpreted.”³¹

154I find that the “Policy Statement” section and the “Purpose” section of the Code provide interpretive direction only, and they do not create rules or obligations on Council Members that can be the subject of a complaint. They contain statements of principle only. These principles are not enforceable rules.

155Another reason that I am not prepared to treat the “Policy Statement” and “Purpose” as binding rules is that they are too general and unspecific to be treated as clear, enforceable obligations. Council Members are subject to penalties if they contravene the rules in the Code; it necessarily follows that the rules must be clear, certain and unambiguous. Council Members must be able to understand clearly the conduct that is required. In this respect I refer to the observations of Integrity Commissioner Swayze in [Haley v. Miles], City of Brampton Report L05 IN (May 12, 2015):

“In my experience members of councils in Ontario are busy people serving their community and want certainty in the interpretation of the many rules that apply to them. A code, by definition, is a set of rules of behaviour and should not be interpreted by each councillor according to subjective values. The rules need to be clear and where possible, capable of only one meaning.” [emphasis added]

156While I do not agree that being busy is relevant to interpretation of the Code, I accept and adopt Integrity Commissioner Swayze’s comments about the need for clarity, certainty and lack of ambiguity in the rules.

157In the Complaint before me, I find that neither the “Policy Statement” nor the “Purpose” section is capable of being contravened.

158Going forward, I will not consider the “Policy Statement” section or “Purpose” section as capable of giving rise to a contravention or forming the basis for a complaint. These sections may, however, be considered in the course interpreting other sections of the Code.

159For the same reason, I decline to follow the interpretations of the previous commissioner at paragraphs 15 and 16 of his first report [Kett (Re), 2017 ONMIC 6], where he wrote:

“15. The purpose of the Code is to reassure the community that their elected representatives will be held to a high standard as they govern, and to remind the members of Council of this obligation. Practically speaking, this means that members of Council must rise above the frustrations they face, the inadequacies they find, and the failings they encounter. They must not lower the quality of the public discourse, but raise it.

“16. This is, no doubt, a tall order. When I hold the actions of Councillors Back and Kett up to the light of the principles of good conduct and ethics espoused in the Code, it is, I regret, an order which I am unable to say that they have met.”

[underlining added]

160In the underlined sentences, the previous commissioner wrote a new rule, not found in the language of the Code. He then proceeded, in the next paragraph, to find a contravention of his new rule.

161This issue is not whether the previous commissioner’s rule had merit. The issue is whether an integrity commissioner has jurisdiction to supplement the language in a code of conduct.

162It is one thing for a commissioner to interpret a rule that is already contained in the Code. It is another thing to introduce a new requirement. The underlined sentences do not interpret any specific section of the Code (except, perhaps, the “Policy Statement” and/or the “Purpose” section, which cannot give rise to a contravention.)

163I find that I lack jurisdiction to add new requirements to the Code. Any complaint of a breach must be based on a specific, existing section of the Code (other than the “Purpose” section and “Policy Statement” section). Even if I had jurisdiction, I would decline to add new requirements. Council Members deserve the certainty of knowing their obligations under the Code. It is neither fair nor appropriate, in an investigation report, to tell a Council Member that he or she is in breach of some new obligation that the Council Member has not previously seen.

164Consequently, in this specific case, I decline to consider or to apply the second and third sentences of paragraph 15 of the previous commissioner’s first report.

165Going forward, I will not entertain a complaint alleging contravention of the second and third sentences of paragraph 15 of the previous commissioner’s first report [Kett (Re), 2017 ONMIC 6]. Council Members may disregard those sentences.

D. Is questioning in an unreasonable manner and without supporting proof the administration and financial management of the BIA a contravention of the Code?

(This was the previous integrity commissioner’s interpretation but he did not identify any particular section of the Code.)

166No.

167For the reasons outlined in finding C, I decline to consider a complaint unless it is based on a specific, existing section of the Code.

168In any event, I do not find that Councillor Kett questioned in an unreasonable manner and without supporting proof the administration and financial management of the BIA.

E. Is conduct that is not of the high standard required by the Code a contravention of the Code? (This language comes from the “Purpose” section of the Code.)

169No.

170See finding C, above.

171The “Purpose” section of the Code cannot give rise to a contravention.

172In any event I do not find that Councillor Kett failed to exhibit conduct of the high standard required by the Code.

F. Is not working with others in the interests of goodwill and common good a contravention of the Code? (This language comes from the “Purpose” section of the Code.)

173No.

174See finding C, above. The “Purpose” section of the Code cannot give rise to a contravention.

175In any event I do not find that Councillor Kett failed to work with others in the interests of goodwill and common good.

G. Is being disrespectful of the BIA Board a violation of the Code?

176No.

177See finding B, above. The BIA Board is not part of the municipal “staff” under section 4.

178In any event, I do not find that Councillor Kett was disrespectful of the Board of the BIA. In the case of his news release, I find that he was cooperating with the BIA and acting on its wishes.

H. Is seeking to interfere with and to intimidate the BIA Board a violation of the Code?

179No.

180See finding B, above. The BIA Board is not part of the municipal “staff” under section 4.

181In any event, I do not find that Councillor Kett sought to interfere with or to intimidate the Board of the BIA. In the case of his news release, I find that he was cooperating with the BIA and acting on its wishes.

182No.

183Two Township policies deal with harassment. The “Workplace Discrimination and Harassment Policy” covers harassment on a prohibited ground of discrimination under the Human Rights Code. The Complainant confirms that she is not alleging harassment on a prohibited ground of discrimination. The “Workplace Violence and Conflict Resolution Policy” would apply to harassment not based on Human Rights Code discrimination.

184Section 11 of the Code mentions the “Workplace Discrimination and Harassment Policy” but does not mention the “Workplace Violence and Conflict Resolution Policy.”

185Nonetheless, I find that I do have jurisdiction to consider an allegation of harassment (made against a Council Member) that is not based on Human Rights Code discrimination.

186Section 11 says harassment “includes” harassment based on discrimination. The word “includes” indicates other forms of harassment may also be covered,

187Further, the first paragraph of section 11 refers to freedom from three things: discrimination, personal harassment and sexual harassment. It is settled law in Canada that “discrimination” includes harassment on the basis of discrimination.³² Therefore, I find “personal harassment” in section 11 must mean something different – namely, harassment not based on a prohibited ground of discrimination under the Human Rights Code.

188I therefore have considered whether Councillor Kett’s conduct constituted personal harassment contrary to section 11. Because the Complainant alleges a pattern of harassment I have considered not only his news release but also conduct prior.

189I adopt the definition of “personal harassment” found in the Township’s “Workplace Violence and Conflict Resolution Policy”:

“Personal Harassment is any course of vexatious behaviour that is outside of the prohibited grounds identified in the Ontario Human Rights Code and in the Township's Workplace Discrimination and Harassment Policy. It is a form of persistent hostile or unwanted conduct, verbal comments, actions or gestures that affect an employee' s dignity, psychological or physical integrity that is known or th[at] ought reasonably to be known, to be unwelcome and results in a harmful work environment. This includes behaviour that is intimidating, offensive, degrading, humiliating or demeaning.”

[underlining added]

190The Complainant identifies the underlined words as the type of personal harassment alleged to have been conducted by Councillor Kett. She alleges that the harassment was directed to six individuals whom she named. She then adds that any member of the former BIA Board should be considered someone who was harassed by Councillor Kett.

191Having considered the evidence and the submissions, I find no breach of section 11.

192I find no evidence that Councillor Kett has acted in an intimidating, offensive, degrading, humiliating or demeaning manner toward any individual. On the contrary, I find that Councillor Kett’s comments were focused on institutional accountability and were not personal.

193For example, during the September 19 and October 3, 2016, Council meetings, Councillor Kett spoke calmly, professionally and in a neutral tone. He was respectful and did not disparage anyone. He made his points generally without personalizing the issue. He did not exaggerate and his language was restrained. He articulated his position based on objective not subjective considerations. His opening comment, October 6, was, “I’m proud of the accomplishments they [the BIA] are making.”

194Among other observations, I find that on October 3, 2016, Councillor Kett did not make damaging statements about, or even mention, the financial management of the BIA, and he did not suggest serious improprieties in the handling and managing of funds. Instead, his remarks were related to the public availability of BIA agendas and minutes – clearly to the satisfaction of the rest of Council because his motion on transparency was carried unanimously.³³

195My findings are markedly different from the comments of the previous commissioner at paragraphs 12, 13 and 14 of his second report. I cannot account for the discrepancy. Regardless of his report, however, my responsibility is to make my own findings based on the evidence before me.

196I find that, at this meeting, Councillor Kett did not claim the former executive director had exhibited disrespectful behaviour.³⁴ He spoke about the posting of minutes on the BIA website only after the Township Clerk told Council that problems with the BIA website were preventing the BIA from posting them itself.³⁵ His comments about potential jeopardy to Council were nuanced and restrained:³⁶

“The reason that I want this done is because this could jeopardize this Council if it’s not followed properly because that’s where it comes back to without the transparency. There’s a number of things that have happened in the past that weren’t transparent.”

197The previous commissioner took exception to the word “jeopardize.” I find that the word’s use, in the above context, falls well within the boundaries of responsible discourse.

198Councillor Kett’s harshest comment on October 6 was the claim that he once received a BIA meeting agenda only on arrival at the meeting and prior minutes were not available. His harshest comment on September 19 was, “we need to be a little more transparent.” Such comments do not constitute harassment according to the established test, namely conduct, affecting someone’s dignity or integrity, that is known or that ought reasonably to be known to be unwelcome. I find there is no reasonable basis on which to construe these comments, or any comments by Councillor Kett at those meetings, as harassment.

199At these two meetings, Councillor Kett did nothing but make moderate, general, respectful arguments in support of his motion, which eventually was adopted. I find no evidence of objectionable conduct, let alone harassment, there.

200Likewise, the March 3 news release does not constitute harassment and is not part of a pattern of conduct that constitutes harassment.

201The Complainant claims harassment, but has not provided any evidence of it.

202I find that Councillor Kett did not contravene section 11 of the Code.

RECOMMENDATIONS

203Councillor Kett did not contravene the Code of Conduct. In respect of one issue that I considered, lack of access to minutes of an open meeting of the BIA led to confusion about whether Councillor Kett’s news release was accurate.

204I therefore recommend as follows:

That Council adopt the finding in Code of Conduct File 2017-01 that Councillor Kett did not contravene the Code of Conduct; and
That, consistent with Council’s October 3, 2016, resolution, minutes of open sessions of the Port Perry Business Improvement Area Board of Management that have not yet been posted on the Township website now be posted.

Respectfully submitted,

Guy W. Giorno

Integrity Commissioner

Township of Scugog

September 2, 2017

Footnotes

Specifically, the Complainant wants, “a formal, recorded apology of his actions and how it was against Code and solely driven by his own thoughts and no information immediately!”
The Complainant kept returning to this theme during the course of the investigation. For example, the May 17 letter said, “the ‘news release’ just solidified the Integrity’s Commissioner’s Report.”
As Integrity Commissioner, I must take into consideration the real substance of a complaint under the Code.
Fairness to the Complainant and, the allegations now having been made, fairness to the Respondent require that I examine all the real, outstanding, substantive issues under the Code.
At the time the Respondent’s news release was issued, the governing Procedure By-Law was By-Law Number 77-15. Three days later, that By-Law was repealed and replaced by By-Law Number 18-17.
In the letter containing details of the Complaint, the Complainant builds upon the previous commissioner’s reports: “Based on this behavior and the Integrity Commissioner’s report and now subsequent Supplementary Report, along with the understanding that there are more issues on the table regarding Councillor Kett and his breach of the Codes of Conduct, my personal recommendation is for Councillor Kett to resign from his position.”
I would not expect a party to a proceeding under the Code explicitly to cite legal precedents nor would I penalize a party for failing to do so.
The previous commissioner was in fact referring to both Councillor Kett and Councillor Back.
Occasionally, in my discretion, I may decline to share a communication where the communication is irrelevant to the investigation, I will not consider the communication, and/or the other party is not prejudiced by the lack of sharing.
In appropriate cases my authority includes withholding the identity of a complainant or a source, provided the Respondent is aware of, and has a fair opportunity to address, the allegations and the case against him or her: Di Biase v. Vaughan (City), 2016 ONSC 5620 (Div. Ct.) at paras. 148‑149. This is not such a case. There was no reason to withhold from Councillor Kett the identity of his accuser.
I was slightly delayed in seeking clarification because the May 24 material did not include contact information for the Complainant.
In quoting from documents, this report corrects obvious spelling errors without drawing attention to the correction unless the correction is material. It also edits punctuation and capitalization for consistency.
Submissions are not quoted directly except where indicated by quotation marks.
December 2015.
It was first proposed to Council in October 2015.
The Complainant relies on these parts of the disrespectful behaviour definition: “Rude comments … Spreading unfounded or misinformed rumours that damage people’s reputations. Making false allegations about someone in memos or other work related documents. … Display or distribution of printed or electronic material that is considered offensive or inappropriate.”
The Complainant relies on this part of the personal harassment definition: “This includes behaviour that is intimidating, offensive, degrading, humiliating or demeaning.”
I have reviewed the documentation concerning both issues, but do not believe it is necessary to address them in this report.
The count for Rogers includes only email addresses containing “Rogers” or “CityNews.” It does not include email addresses of other Rogers news media where the addresses use neither term.
The adjectives in this sentence are a rough, and necessarily incomplete, summary of the Complainant’s position on the news release. In arriving at my findings I have taken into account all of the Complainant’s submissions, not just those summarized here.
For purposes of my findings, I have classified each sentence of the news release as a distinct statement. Each bullet of the list on the second page of the release is likewise considered a separate statement. Each of the three lines at the top is treated as a separate statement. In addition, each of the following parts of sentences is considered a separate statement: (a) the words, “Some changes that are now being recommended by the BIA are,” immediately preceding the bullets; and (b) the words, “if this was done in the past, this situation may have never happened,” at the end of the bullets.
I am not referring to circumstances where the onus of proof is reversed. For example, a defendant who relies on truth as the defence to a defamation claim bears the onus of proving the truth of what was said. That is not the case here. The Complaint alleges that Councillor Kett made false statements. It is unfair to place on Councillor Kett the burden of proving accuracy.
It is by now commonly accepted that public bodies ought to adopt accountability measures and in many cases they are required to do so by law. Nonetheless, experience with accountability rules also shows that sometimes people associated with institutions resist new measures or take offence at being told what to do. This reaction has no bearing on the need for accountability measures. One reason that I did not ask people for their reaction to Councillor Kett’s comments is that reaction and perception are irrelevant to the case for accountability measures, irrelevant to an objective assessment of whether accountability measures are present or absent, and irrelevant to whether the Code was contravened.
See paragraph 12 of the previous commissioner’s April 27, 2017, supplementary report, where he accepts the premise that accountability measures are aimed at people not institutions. Councillor Kett confined his October 3, 2016, comments to structure and governance, but the previous commissioner relied on perception, stating that the Councillor’s words “were almost universally accepted as” personal. Subsequent references to damage, disparagement and serious allegations, and prior (February 27, 2017) claims of “public ridicule and rebuke” – all as a way to characterize Councillor Kett’s constructive criticism that proper process was lacking – unhelpfully personalize the accountability discussion and employ subjective considerations to evaluate an objective principle.
“We all know that there will always be people who try to take advantage of the system – people who will lie and dissemble to exploit the system for their own personal profit.”
Note my findings, in the section “The Evidence,” above, that Councillor Kett’s news release did not refer to individuals.
In his first report [Kett (Re), 2017 ONMIC 6], in particular at paragraphs 10, 17 and 18, the previous commissioner finds that Councillor Kett’s and Councillor Back’s conduct was directed toward both the former executive director (i.e., the Chamber employee) and the former BIA board. In his second report, however, the previous commissioner characterizes the issues as related only to the former executive director. See paragraphs 7(d), 7(e), 8(g), 8(h), 12, 13, 14, 15, 16, 20 and 21 of the second report, which only refer to the allegations in connection with the former executive director and not the board. Section 18 refers to board members and implies they were the objects of intimidation, though this is not obvious. It is unclear whether the previous commissioner still considers BIA board members to be included among the “staff” of the municipality.
In paragraph 4 of the first report, the “Purpose section is referenced as giving rise to the first alleged violation(s). In paragraph 5, use of the word “also” indicates that the alleged violation of section 4 is additional to the alleged violation(s) of the “Purpose” section.
See the previous commissioner’s first report, at paragraphs 14, 15, 16 and 18. At paragraphs 15-16, he refers to the “purpose of the Code” (though he then quotes from the “Policy Statement”) as a “tall order” and then expressly finds that the Councillors failed to meet this order. He also implies that they failed to comply with “the principles of good conduct and ethics espoused in the Code” (another reference to the “Policy Statement”).
309 BCAC 124, 2011 BCCA 345, at para. 45: “Section 3(c) purports only to state a principle … It is plain and obvious that s. 3(c) creates no legally enforceable obligation …”
Sullivan, R., Sullivan on the Construction of Statutes, 6th ed. (2014), at 454, §14.39.
Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252 at 1288-89.
Councillor Kett’s five-clause motion was split in two. The three clauses on transparency of the BIA minutes, agendas and meeting calendar were adopted unanimously, and the two clauses to add a Council Member to the BIA board were adopted.
See paragraph 13 of the previous commissioner’s second report. What Councillor Kett said was that it was disrespectful for BIA directors to miss a meeting without sending regrets.
Ibid. The previous commissioner states Councillor Kett “pushed” for posting the Township but omitted the fact that the BIA was having problems posting on its own website.
Ibid. According to the previous commissioner, Councillor Kett “raised the spectre of the BIA’s actions ‘jeopardizing this Council.’” Here is the full quotation in context.

Kett (Re) (No. 2), 2017 CanLII 148377

Case Summary

OVERVIEW

THE COMPLAINT

SCOPE OF COMPLAINT / JURISDICTIONAL ISSUE

THE PREVIOUS COMMISSIONER'S REPORTS

SUMMARY OF FINDINGS

PROCESS FOLLOWED

SUBMISSIONS OF THE PARTIES

The Complainant

The Respondent (Councillor Kett)

THE EVIDENCE

The News Release: Issuance

The News Release: Content – General

The News Release: Content – Statements of Fact

The News Release: Content – Opinion – Statements of belief, position or value

The News Release: Content – Opinion – Editorial comment about others and about what happened

ANALYSIS AND FURTHER FINDINGS

RECOMMENDATIONS

Footnotes