Farr v. Brose, 2017 ONMIC 16

Citation: Farr v. Brose, 2017 ONMIC 16
Date: August 15, 2017

REPORT ON COMPLAINT

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://www.nalgonawil.com/wordpress/wp-content/uploads/SKM_C364e18101115210.pdf (see minutes of September 5, 2017, Resolution 13(b))

THE COMPLAINT. 3
DIFFERENT CODES OF CONDUCT. 3
SCOPE OF COMPLAINT / JURISDICTIONAL ISSUES.. 4
SUMMARY OF FINDINGS.. 6
PROCESS FOLLOWED.. 6
QUESTIONS RAISED IN THE INVESTIGATION.. 7
ANALYSIS AND FINDINGS.. 8
(A) Disclosure of Personal Letter from a Temporary Employee. 8
(B) Announcing that a Closed Session Related to the Mayor 9
(C) Giving Direction to the Public Works Director 10
RECOMMENDATION.. 11
APPENDIX: RELEVANT PROVISIONS OF CODE OF CONDUCT. 12

THE COMPLAINT

1On December 15, 2015, Mayor Deborah Farr submitted a Code of Conduct Complaint against Councillor James Brose. The Complaint alleged that Councillor Brose was engaged in a "constant and relentless personal attack" on the Mayor that amounted to harassment and contravened the Code.

DIFFERENT CODES OF CONDUCT

2While I have referred to the "Code of Conduct" and the "Code," no single Code of Conduct was in effect at all relevant times. One by-law containing a code of conduct was in effect at the time of the incidents about which the Mayor complains. A second by-law was in effect when her Complaint was submitted. A third by-law came into effect later and remained in effect during my investigation in 2017. The three by-laws and their effective dates are as follows:

By-Law Dates in Effect Portion Containing Code
By-Law 2015-21 May 19, 2015 – Oct. 19, 2015 section 21
By-Law 2015-40 Oct. 20, 2015 - present section 17
By-Law 2016-15 Feb. 16, 2016 - present Schedule A

3By-Law 2015-21 was in effect when the relevant incidents took place. It applies to the substance of the Mayor's complaint. My investigation considered whether Councillor Brose contravened By-Law 2015-21. The relevant provisions of By-Law 2015-21 appear in the Appendix.

4By-Law 2016-15 does not apply to the substance of the Mayor's complaint because it was not in effect at the relevant time. Councillor Brose cannot be found in breach of a by-law that was not in effect when the events occurred. However, By-Law 2016-15 establishes the procedure for Integrity Commissioner investigations. Its procedure (Section 6 of Schedule A) does apply to my investigation and I followed that process.

5For convenience and ease of reading, at several points in this report I will simply refer to the "Code" (singular). I will cite specific by-laws by number only where the context requires.

SCOPE OF COMPLAINT / JURISDICTIONAL ISSUES

6In support of her general Complaint, the Mayor made eight specific allegations, namely:

In February 2015 Councillor Brose wrongly accused the Mayor of failing to sign important paperwork.
On August 17, 2015, Councillor Brose and Councillor Plumb improperly placed personal correspondence from a temporary employee on the public agenda.
Councillor Brose improperly involved the Township's law firm (Cunningham Swan) in a workplace harassment investigation into the Mayor's conduct.
In the context of the workplace harassment investigation, Councillor Brose attempted to have the Mayor, "pick the investigator, agree to a meeting where no information is provided to me as to what is going to be discussed or how many people may be in attendance."
In September 2015, Councillor Brose announced to the public that the closed portion of a meeting was related to the Mayor.
Councillor Brose routinely placed items on the Council agenda without proper notice, explanation or background.
Councillor Brose often requested votes on those same items without providing sufficient information or answering the Mayor's questions.
In September 2015, Councillors Brose, Plumb and Schultz improperly gave direction to the Public Works Director without proper Council authority.

7Not all of these allegations became the subjects of my investigation.

8In processing a Complaint under the Code, one of my first obligations is to "determine if the matter is, in fact, a complaint with respect to non-compliance with the Code and not covered by other relevant legislation or other Council policies."¹

9Upon initial classification, I screened out several of the Mayor's allegations as outside my jurisdiction.

10Prior to May 19, 2015, no Code of Conduct was in effect and, therefore, I may only investigate allegations that relate to acts and omissions occurring on or after May 19, 2015. Allegations related to occurrences prior to May 19, 2015, do not fall under any Code and cannot be subject to an investigation. Consequently, I did not consider the allegation concerning Councillor Brose's February 2015 accusation that the Mayor had not signed important paperwork.

11I declined to investigate the portion of the Mayor's complaint that relates to contact between Councillor Brose and the Township's law firm. Even if the facts she alleges are true they do not disclose a violation of the Code.

12I also declined to investigate the allegations about Councillor Brose's communication with the Mayor concerning the harassment investigation (fourth bullet above) and about his placing items on the agenda without proper notice or explanation (sixth and seventh bullets above). Even if the facts the Mayor alleges are true they do not disclose a violation of the Code.²

13As a result of the initial classification, the following are the specific allegations that I investigated:

A. Allegation that in August 2015 Councillor Brose made public a letter from a temporary employee, contrary to bullet 5 of subsection 21(1) of By‑Law 2015-21.

B. Allegation that in September 2015 Councillor Brose announced to the public that the closed portion of a meeting was related to the Mayor, contrary to bullet 5 of subsection 21(1), and subsection 21(3), of By‑Law 2015-21.

C. Allegation that in September 2015, outside the Council decision-making process, Councillor Brose (with two other Councillors) gave direction to the Public Works Director concerning additional construction or additional construction costs, contrary to the first sentence of subsection 21(6) of By‑Law 2015-21.

14While By-Law 2015-21 is no longer in effect, it was in effect when these incidents took place in August and September 2015.

SUMMARY OF FINDINGS

15After carefully considering the evidence obtained during the investigation and the parties' detailed submissions, I find no contravention of the Code.

A. I find that Councillor Brose was not responsible for making public a personal letter from a temporary employee in August 2015.

B. Consistent with my finding in Report 2017-01, I find no contravention of the Code arising from public disclosure of the fact that the closed portion of a September 2015 meeting was related to the Mayor.

C. I find that Councillor Brose did not give direction to the Public Works Director in September 2015 concerning additional construction or additional construction costs in a manner that contravened the Code.

PROCESS FOLLOWED

16In operating under the Code, I follow a process that ensures fairness to both the individual bringing a Complaint (Complainant) and the Council Member responding to the Complaint (Respondent). The process is governed by Section 6 of Schedule A to By-Law 2016-15.

17This 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.³
The Respondent is made aware of the Complainant's name. 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 a Complaint has been clarified the Respondent is provided with the original document and all communications between the Complainant and me related to clarification.
When a Complaint has been clarified I deem the date of final clarification to be the official date the Complaint was made.

18In this case, the Complaint was submitted prior to my appointment as Integrity Commissioner. After my appointment, I sought clarification of it. The Complaint was clarified on May 16. May 16 is therefore deemed to be the official Complaint date.

19I received written submissions from the Complainant and the Respondent. I separately interviewed each of them. I received several emails from each one. Both Mayor Farr and Councillor Brose had full opportunity to provide information and to make representations.

20I have taken all of the parties' submissions and communications⁴ with me into account.

QUESTIONS RAISED IN THE INVESTIGATION

21My investigation considered three questions:

A. Did Councillor Brose make public a personal letter from a temporary employee, contrary to bullet 5 of subsection 21(1) of By-Law 2015-21?

B. Did Councillor Brose announce to the public that the closed portion of a meeting was related to the Mayor, contrary to bullet 5 of subsection 21(1), and subsection 21(3), of By-Law 2015-21?

C. Did Councillor Brose (with two other Councillors), outside the Council decision-making process, give direction to the Public Works Director concerning additional construction or additional construction costs, contrary to the first sentence of subsection 21(6) of By-Law 2015-21?

ANALYSIS AND FINDINGS

(A) Disclosure of Personal Letter from a Temporary Employee

22On August 10, 2015, a temporary employee of the Township submitted a letter addressed to the Council. It is not necessary for me to describe the content of the letter other than to state that the letter contained the individual's personal information.

23Given its nature, the letter was appropriately considered in closed session. This personal information should have been treated in confidence.

24Instead, the personal letter was made part of the public agenda package for the August 17, 2015, Council meeting, and it was distributed to members of the public.

25At the start of the August 17 meeting, Councillor Plumb, seconded by Councillor Brose, moved to approve the agenda subject to the addition of six items. The fifth additional item listed on the motion read as follows:

"Correspondence: Letter to Council – [name of individual]"

26The motion carried⁵ and the agenda was approved as amended.

27The Mayor's specific allegation reads as follows:

"Councillor Brose and Councillor Plumb placed a letter from an employee under correspondence in [the] August 2015 public council meeting agenda, which made that document public and it was printed in the local paper and report[ed] on the local radio MyFM."

28I find that the events did not occur in the manner alleged by the Mayor.

29First, the circumstances surrounding the distribution of this personal letter were thoroughly explored by the workplace harassment investigator. He found that the letter was placed in the public agenda package by the Township staff. I adopt his finding.

30It was not the conduct of Councillor Brose that made the personal letter a public document. It was a staff member who first made the letter public.

31Councillor Brose explains that the motion to add the letter to the public agenda was motivated by a desire to ensure that the official agenda was consistent with the agenda package that had already been distributed. I find his explanation reasonable and note that it is similar to the Mayor's explanation (provided to the workplace harassment investigator) of why she had discussed the letter in open session. Both took the position that since the letter had already been distributed as part of the public package it had to be acknowledged in open session.

32Second, I do not find Councillor Brose responsible for placing the letter on the August 17 meeting agenda. He merely seconded a motion. A motion is not a decision; it is a proposal. Movers and seconders do not commit the Township to a course of action; they make a proposal and Council as a whole decides to accept or to reject the proposal. A resolution (not a motion) reflects the collective decision of Council and is the vehicle by which action is determined.

33In this case, Council (not Councillor Brose individually), by resolution, placed the personal letter on the meeting agenda. I will not entertain an allegation against an individual Council Member that in fact relates to a resolution adopted by the Council.

34Third, I find it curious that Councillor Brose, as seconder of the motion, was singled out for particular attention. Even if there were a contravention of the Code (and I find that there was not), in this circumstance I would be reluctant to isolate an individual Council Member and make a finding just about him.

35I find that Councillor Brose did not make the letter public and that he did not contravene the Code.

36I considered a similar issue in Farr v. Berndt, 2017 ONMIC 17, and my finding is the same.

37The fact that a harassment complaint had been made against the Mayor should have remained confidential. In ordinary circumstances, a Council Member who disclosed the name of a harassment complainant or harassment respondent would contravene the confidentiality provisions of the Code (subsections 21(1) and 21(3) of By-Law 2015-21).

38Appropriately, the four Councillors considered matters related to the harassment investigation during closed session. While they did so consistently, the fact of the harassment investigation was eventually mentioned during open meetings and became a matter of public knowledge.

39On the first occasion, in September 2015, the Mayor was questioning why she was not aware of particular items on a closed session agenda, and Councillor Brose responded that the Mayor would not be aware of closed session agenda items that related to "inappropriate behavior of the Mayor." From that moment, it was clear to observers of Council that the remaining four Council Members were engaged in closed session consideration of one or more issues related to allegedly inappropriate conduct by the Mayor. Nonetheless, I do not find that Councillor Brose contravened the confidentiality provisions of the Code when Councillor Brose responded in this manner to the Mayor in open session.

40Subsequently, the Mayor herself mentioned in open session that she was the subject of a harassment investigation. Councillor Brose is not responsible for that.

41I decline to find that Councillor Brose contravened the confidentiality provisions of the Code.

(C) Giving Direction to the Public Works Director

42According to the Mayor, while she and Councillor Berndt were in Kingston for a week in September 2015, the remaining three Council Members "gave direction to the Public Works Director to add [an] additional cost of [construction]" even though Council would be meeting the following Monday.

43Councillor Brose responds to this allegation as follows:

"The incident which I believe Mayor Farr is referring to was the installation of a fence that had been the topic of numerous Council discussions. Council had directed our Public Works Director to complete this project as per the estimate he had presented to Council, however, when he arranged to install the fence, he had to make arrangements for a police officer presence, as there had been a previous altercation with one of the land owners whose property was adjacent to the fence. This was an unforeseen cost that could not have been predicted when the estimate was prepared and I did not see it as an additional construction cost but a contingency expense which often occurs during construction projects. It was my understanding that normally the Public Works Director would have made this decision without consulting Council however in this instance the Public Works Director wanted confirmation that he had Council's support to proceed. In addition, another delay in the installation of the fence would have inflated the costs even further."

44The Mayor's reply is that she had been called by a Council Member (Councillor Schultz) and asked to give direction to staff to complete the fence. She then spoke to the staff, received additional information about what had happened on the work site and about the additional cost, and stated that the decision needed to go back to Council, which would be meeting within a few days. She was in Kingston at the time of the phone call from Councillor Schultz and had no idea that the work was even being done.

45The surrounding circumstances were reviewed by the workplace harassment investigator and I adopt his findings that the Mayor was asked for permission to install the fence and (because the scope of the project had been enlarged beyond Council's original approval) quite properly decided that this was a matter that needed to be decided by the entire Council.

46Therefore, I cannot find that three Councillors, including Councillor Brose, effectively gave direction that frustrated the authority of Council as a whole. On the contrary, the matter did end up before Council for decision.

47The first sentence of subsection 21(6) of By-Law 2015-21 reads as follows:

"Members of Council acknowledge that only council of the whole [sic] has the capacity to direct staff and will refrain from using their position on Council to influence members of staff in their duties."

48On the facts I cannot find a contravention of this provision. There was a difference of opinion among Council Members on whether a matter needed to go back to the entire Council. Ultimately the Mayor's view prevailed. However, just because Councillor Brose took the opposite position does not mean that Councillor Brose breached subsection 21(6). I see no evidence that Councillor Brose failed to acknowledge that only Council as a whole has the capacity to direct staff or that he used his position on Council to influence members of staff in their duties.

49Finally, I again find it curious that Councillor Brose, as one of three Councillors involved, was singled out for particular attention. Even if there were a contravention of the Code (and I find that there was not), in this circumstance I would be reluctant to isolate an individual Council Member and make a finding just about him.

RECOMMENDATION

50I recommend that the findings of this report be received for information.

Respectfully submitted,

Guy Giorno

Integrity Commissioner

Township of North Algona Wilberforce

August 15, 2017

APPENDIX: RELEVANT PROVISIONS OF CODE OF CONDUCT

By-Law 2015-21 (in effect May 19 to Oct. 19, 2015)

Subsection 21(1)

Council members recognize that their mandate incorporates tasks to include:

Fairly representing the diversity of community views in developing an overall strategy for the future of the Municipality
Setting objective and policy for the Municipality
Achieving sound financial management, planning and accountability
Being aware of statutory obligations imposed on Council of the whole, as well as individual Members of Council
Respect the status of confidential (personnel, legal and property acquisition) information until the matter ceases to be so defined by Council
Only release information according to the provisions of the Municipal Freedom of Information and Protection of Individual Privacy Act.

Subsection 21(3)

Official information to be communicated to the public related to decisions and resolution [sic] of Council will be communicated to the media in an official capacity by the Mayor or designate. Confidential information will be communicated only when and after determined by Council.

Subsection 21(6)

Members of Council acknowledge that only council of the whole has the capacity to direct staff and will refrain from using their position on Council to influence members of staff in their duties. Members of Council will refrain from publicly criticizing individual members of staff in a way that casts aspersions on their professional competence and credibility.

Subsection 21(8)

Members of Council will endeavor to conduct and convey Council business in an open and public manner (other than decisions of personnel, legal or property acquisition).

Subsection 21(9)

Harassment of another member, staff or any member of the public is misconduct. It is policy of the Municipality that all persons be treated fairly.

Footnotes

By-Law 2016-15, Schedule A, Section 6, Paragraph 2.1.
The Mayor referred to subsections 21(8) and 21(9) of By-Law 2015-21. I find that these provisions do not apply to the allegations.
Occasionally, in my discretion, I may decline to share a communication where all of these factors apply: The communication is irrelevant to the investigation, I will not consider the communication, and the other party is not prejudiced by the lack of sharing.
Except documents that I declined to consider, as explained under the heading, "Scope of Complaint / Jurisdictional Issues."
Resolution # 15-08-01.