Farr v. Berndt et al., 2017 ONMIC 17

Citation: Farr v. Berndt et al., 2017 ONMIC 17 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. 4 SUMMARY OF FINDINGS.. 4 PROCESS FOLLOWED.. 7 QUESTIONS RAISED IN THE INVESTIGATION.. 9 ANALYSIS AND FINDINGS.. 9 (A) Disclosure of the Fact of a Harassment Complaint against the Mayor 9 (B) Harassment Related to Mental Health. 10 (C) Dignity, Understanding, Respect / No Discrimination. 12 (D) Involvement in Scheduling Interviews. 12 RECOMMENDATION.. 12 POSTSCRIPT: POTENTIAL AMENDMENT TO THE CODE.. 13 APPENDIX: RELEVANT PROVISIONS OF CODES OF CONDUCT. 14 By-Law 2015-21 (in effect May 19 To Oct. 19, 2015) 14 By-Law 2015-40 (in effect Oct. 20, 2015, to Present) 15 By-Law 2016-15, Schedule A (in effect Feb. 6, 2016, to present) 16

THE COMPLAINT

On January 17, 2017, Mayor Deborah Farr submitted a Code of Conduct Complaint against all four other Members of Council. The Code of Conduct Complaint related to an earlier investigation into allegations that the Mayor had engaged in workplace harassment; the Code Complaint alleged that in commissioning the workplace harassment investigation, and during the course of the harassment investigation, the other Council Members had breached several provisions of the Code of Conduct.
The gist of the Complaint under the Code was that the manner in which the harassment investigation was conducted, including widening the investigation, keeping the Mayor in the dark, and selectively making some information public, constituted harassment of the Mayor and other breaches of the Code.
It is fair to state that the Mayor felt in general that the entire harassment investigation – from inception to conclusion – was actually harassment of her. In order for me to investigate, however, a Complaint must contain specific allegations that relate to specific provisions of the Code. The following specific allegations were the basis of my investigation:

A. Allegation that the fact of a harassment complaint against the Mayor was disclosed in an open meeting, contrary to the confidentiality provision of the Code.

B. Allegation that the four Council Members turned the investigation of a staff member’s complaint into an investigation into the Mayor’s mental health and/or instructed the investigator to ask questions about the Mayor’s mental health, thereby engaging in harassment of the Mayor on the basis of perceived disability.

C. Allegation that in doing so the four Council Members breached the Code requirement to treat everyone with dignity, understanding and respect and/or breached the Code prohibition against discrimination on the basis of perceived disability.

D. Allegation that investigative meetings (witness interviews) were arranged by Councillor Brose, instead of arranged by the workplace harassment investigator, potentially contrary to the Code’s harassment provisions and confidentiality provisions.

There is no suggestion that the four Councillors acted improperly in engaging an independent individual (two individuals, actually, because the first one withdrew) to investigate workplace harassment complaints that had been received. Faced with written complaints about the conduct of the Mayor, the other four Council Members acted appropriately and responsibly by commissioning an impartial, independent harassment investigation. (In this regard I considered By-Law 2011-26, the Workplace Harassment Policy and Program Package.) It would have been irresponsible for them not to commission an investigation. I did not, therefore, investigate their decision to launch the workplace harassment investigation.
Further, I did not investigate the allegation that the Complainant was denied a copy of the investigation report pertaining to her. This issue arises under the Municipal Freedom of Information and Protection of Privacy Act and is outside my jurisdiction. The Information and Privacy Commissioner has jurisdiction over that legislation.

DIFFERENT CODES OF CONDUCT

While I have referred to the “Code of Conduct” and the “Code,” no single Code of Conduct was in effect at all relevant times. The harassment investigation into the Mayor was triggered in August 2015 and concluded in May 2016. Three separate by-laws containing codes of conduct were in effect at some point during the relevant period:

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

The relevant texts of the different Codes appear in the Appendix.
For 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.

SUMMARY OF FINDINGS

After carefully considering the evidence obtained during the investigation and the parties’ detailed submissions, I find that Mayor Farr has legitimate cause for concern.
The Mayor was the subject of a 2015-2016 workplace harassment investigation that became public knowledge. An independent investigation rejected the allegations against her. The Mayor was completely exonerated. At the end of the harassment investigation, however, Council never announced that the Mayor had been cleared. On the contrary, a brief public statement left the misleading impression that the Mayor had done wrong. Until now, the Mayor’s vindication by the independent report was not publicly announced, except (subsequently) by the Mayor herself; until now, she has remained unjustly stigmatized.
Lest there be any uncertainty on this point, the workplace harassment investigation found no wrongdoing by the Mayor. Contrary to the impression of some witnesses to whom I spoke, the Mayor was not let off on a technicality. She was completely and thoroughly vindicated.
The workplace harassment investigator considered harassment complaints from two individuals, and separated their complaints into 51 discrete allegations, 40 from one individual and 11 from the other individual. The investigator found that the facts surrounding 37 of the first 40 allegations did not involve harassment; in the 38th instance the allegation of harassment was not established and the Mayor’s evidence was preferred; in the 39th and 40th instances the investigator found that the Mayor’s conduct was reasonable and/or justified and he did not mention harassment. The investigator found that the facts surrounding eight of the next 11 allegations did not involve harassment and that the remaining three allegations were outside the investigator’s mandate.
The investigator then considered a dozen more allegations raised by two additional witnesses (bringing to 63 the total number of allegations investigated). He found that the facts surrounding eight of the additional dozen allegations did not involve harassment; in the 9th and 10th instances the evidence did not establish or support the allegations of harassment; in the 11th and 12th instances the investigator found that the Mayor’s conduct was reasonable and he did not mention harassment.
The workplace harassment investigation report did not just dismiss the allegations against the Mayor. Repeatedly, the investigation report commented that the Mayor’s conduct had been reasonable, justifiable, prudent, understandable, patient and compliant with the Municipal Act. According to the harassment investigator, the Mayor was highly credible.
At one point the investigator wrote:

“If any evidence of harassment has been uncovered in my investigation it is harassment of Mayor Farr. I am not making a finding in this regard. I only wish to stress the fact that there is no evidence supporting a finding of harassment of anyone by Mayor Farr.”

As I have mentioned, the investigation report contains no adverse findings about Mayor Farr. While the report contains observations that were appropriate for follow up by Township Council, those observations did not pertain to the Mayor.
On May 16, 2016, after reviewing the investigation report that completely exonerated the Mayor, the remaining Council Members publicly announced the results by having Councillor Brose make this statement during the regularly scheduled Council meeting:

“We have a statement in regards to the investigation which has been ongoing. The investigation which Council commissioned to address certain allegations of harassment was recently concluded and appropriate action will be taken in light of the results of the investigation. The parties to the investigation will be notified of the result tomorrow. As the investigation involves personal matters which have been considered by Council in camera, Council is not at liberty to provide any further information.”

The failure to mention that the Mayor had been exonerated is striking, given that it was public knowledge that the Mayor was the one under investigation. In that context, the reference to “appropriate action” would have been understood by most observers to imply that that Mayor had committed some wrong that was deserving of action. In fact, the harassment investigation report found no wrongdoing by the Mayor. (The reference to “appropriate action” was misleading in one other respect. The only appropriate follow-up action arising from the report did not involve Mayor Farr and I found no evidence that any such action was ever taken.)
I find that this Complaint under the Code probably would have been avoided if in May 2016, or at any point afterward, the Council Members had briefly announced to the public that the harassment investigation report found no wrongdoing by the Mayor.
While I have found that the Council Members acted reasonably and responsibly in launching the investigation, I find that their failure to clear the Mayor’s name – once the harassment investigation (which was public knowledge) ended – was unreasonable.
According to them, they did not announce that the Mayor had been cleared because they were following legal advice and their public statement was scripted by legal counsel.¹ I find they are nonetheless accountable. Both by omitting the fact of exoneration and by confusingly referring to “appropriate action,” the May 16, 2016, public statement unfairly made the Mayor look bad. While the four Councillors did not independently conceive of this statement, they agreed to make it and are therefore responsible for it.
Eleven months later (on April 4, 2017), Mayor Farr took matters into her own hands, announcing at a Township Council meeting that the workplace harassment investigation had exonerated her. She should not have been required to do so, because her exoneration should have been announced by the other Council Members on May 16, 2016. (The Mayor based her announcement on a two-page summary of the harassment investigation report that she received in May 2016. To my knowledge, to this date she has not received the complete harassment investigation report.)
While Mayor Farr has legitimate cause to be concerned about the manner in which the harassment investigation results were communicated to the public, my investigation of the specific allegations did not find a contravention of the Code.

A. Subject to my comments about failure to clear the Mayor’s name at the end of the process, I did not find that the confidentiality provision of the Code was breached when the fact of a harassment complaint against the Mayor was disclosed in an open meeting.

B. I find that the four Council Members did not turn the investigation of a staff member’s complaint into an investigation into the Mayor’s mental health or instruct the investigator to ask questions about the Mayor’s mental health.

C. Consequently, I find that the four Council Members did not breach the Code requirement to treat everyone with dignity, understanding and respect and did not breach the Code prohibition against discrimination on the basis of perceived disability.

D. I find that the involvement of Councillor Brose in the scheduling of the harassment investigator’s interviews was not contrary to the Code’s harassment provisions or confidentiality provisions.

PROCESS FOLLOWED

In operating under the Code, I follow a process that ensures fairness to both the individual bringing a Complaint (Complainant) and the Council Members responding to the Complaint (Respondents). The process is governed by Section 6 of Schedule A to By-Law 2016-15.
This fair and balanced process includes the following elements:

The Respondents receive notice of the Complaint and are given an opportunity to respond.
The Complainant receives the Respondents’ responses and is given an opportunity to reply.
More generally, the process is transparent in that the Respondents and Complainant get to see one other’s communications with me.²
The Respondents are 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 Respondents are 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.

In 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 18, May 20 and May 26. May 26 is therefore deemed to be the official Complaint date.
I received written submissions from the Complainant and three of the four Respondents. I separately interviewed the Complainant and each of the four Respondents. Everyone had full opportunity to provide information and to make representations.
I have taken all of the parties' submissions and communications with me into account.

QUESTIONS RAISED IN THE INVESTIGATION

My investigation considered four questions:

A. Was the fact of a harassment complaint against the Mayor disclosed in an open meeting, contrary to the confidentiality provision of the Code?

B. Did the four Council Members turn the investigation of a staff member’s complaint into an investigation into the Mayor’s mental health and/or instruct the investigator to ask questions about the Mayor’s mental health, thereby engaging in harassment of the Mayor on the basis of perceived disability?

C. Did the four Council Members breach the Code requirement to treat everyone with dignity, understanding and respect and/or breach the Code prohibition against discrimination on the basis of perceived disability?

D. Were investigative meetings (witness interviews) arranged by Councillor Brose, instead of arranged by the investigator, contrary to the Code’s harassment provisions or confidentiality provisions?

ANALYSIS AND FINDINGS

(A) Disclosure of the Fact of a Harassment Complaint against the Mayor

The 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 and subsections 17(1) and 17(3) of By-Law 2015-40).
Appropriately, 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.
On 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 or any other Councillor contravened the confidentiality provisions of the Code when Councillor Brose responded in this manner to the Mayor in open session.
Subsequently, the Mayor herself mentioned in open session that she was the subject of a harassment investigation. The four Councillors are not responsible for that.
At the end of the investigation, the four Councillors disclosed further confidential information, namely that the harassment investigation was complete. As I have already discussed, their disclosure was selective, in that it failed to disclose that the Mayor was exonerated. The fact that the workplace harassment investigation had become public knowledge imposed on the four Councillors an obligation to clear the Mayor’s name after she was exonerated. In my view, selective disclosure of confidential information (releasing some confidential information while withholding other confidential information, with the result that somebody is made to look bad) can constitute a contravention of subsections 17(1) and 17(3) of By‑Law 2015-40.
However, because my report today confirms to the public that the Mayor was completely exonerated, no useful purpose would be served by a finding that any of the four Councillors violated the Code on this point.
I therefore decline to find that any of the Respondents contravened the confidentiality provisions of the Code.

In the course of the harassment investigation, the investigator asked highly sensitive questions about the Mayor’s mental health.
If any Council Member had instructed the investigator to do so then I would not hesitate to find that that Council Member had engaged in harassment on the basis of mental health issues.
Harassment on the ground of mental health issues or perceived mental health issues would contravene or would have contravened each of By-Law 2015-21,³ By‑Law 2015‑40⁴ and By-Law 2016-15.⁵ An employer’s obligation to investigate a workplace harassment complaint does not give licence to start asking questions about someone’s mental health.
The four Councillors are adamant that they never asked the investigator to inquire into the Mayor’s mental health and the investigator confirms that the mental-health line of inquiry was not initiated by the Council Members.
Since the Council Members were not responsible for this intrusive line of questioning, I conclude that they did not contravene the harassment provisions of the Code.
After the present Complaint was submitted, this particular matter continued to progress. As I have already observed, the Mayor made her own announcement at the April 4, 2017, meeting of Council. As part of the same announcement, the Mayor said that during the investigation she had been asked questions about her mental health. The Eganville Leader⁶ subsequently reported as follows:

“Mental Health Questioned

“Mayor Farr said in the last day of the investigation, after Mr. Curtis [the harassment complaint investigator] told her council had expanded the investigation, she was asked about her mental health, because council felt she was incompetent, unfit to hold office, that she took medication that caused her to hallucinate, had severe mood swings, and was going into the office and being rude to staff.”

Afterward, the four Councillors told the Mayor that they had not instructed the workplace harassment investigator to inquire into her mental health. Council sought confirmation from the harassment investigator and, several weeks later, the investigator confirmed that the mental-health questions had not been initiated by the four Councillors. In early June the Mayor privately conceded that the Councillors were not responsible for what happened during the course of the investigation.
Some Councillors, however, feel that since the accusation about their involvement in the mental-health inquiry was made it public it should be withdrawn in public. I trust that the findings in this section of my report are sufficient to address the Councillors’ concerns: I repeat that the four other Council Members were not responsible for the questioning of the Mayor’s mental health by the harassment investigator.
Finally, to ensure that this section of my report is not misinterpreted, I stress that there is absolutely no evidence to support any sort of allegation concerning the Mayor’s mental health.

(C) Dignity, Understanding, Respect / No Discrimination

Section 3, Paragraph 3, of Schedule A to By-Law 2016-15 also provides that Council Members must treat every person with dignity, understanding and respect and must not discriminate on any ground, including on the basis of (perceived) mental health disability.
Any Council Member who commissioned questioning into somebody’s mental health would breach this provision. Here, however, because the Council Members were not responsible for the inquiry into the Mayor’s mental health, I conclude that they did not contravene Section 3, Paragraph 3.

(D) Involvement in Scheduling Interviews

To schedule interviews with complainants and witnesses, the first harassment investigator relied on the Clerk Treasurer. For the same purpose, the second harassment investigator relied on Councillor Brose.
It was reasonable and appropriate for the Councillors to appoint independent investigators from outside the Township. In part because they were from outside the Township, it was reasonable for both investigators to ask someone inside the Township to help with scheduling. The first investigator relied on the Clerk Treasurer and the second investigator asked Councillor Brose. The second investigator confirmed that he asked for Councillor Brose’s assistance to schedule interviews⁷ and that Councillor Brose did not interfere in the independence of the investigation.
I find that Councillor Brose did not contravene the Code by scheduling interviews on behalf of the second harassment investigator.

RECOMMENDATION

While I find that the Mayor had a legitimate concern about potential harm to her reputation arising from selective communication of the harassment investigation results, I make no finding of any contravention of the Code.
I recommend that the findings of this report be received for information, and that Council consider the Code amendment proposed below.

POSTSCRIPT: POTENTIAL AMENDMENT TO THE CODE

This is one of three Complaints under the Code, all brought by a Council Member against other Council Members.
Nothing in the Municipal Act or the Code prevents a politician from bringing a Complaint against another politician. Indeed, in the larger legislative scheme, politician complaints are not unusual. The parallel federal and provincial regimes – the Conflict of Interest Code for Members of the House of Commons and the Members’ Integrity Act (Ontario) – do not even permit complaints by members of the public; they provide solely for complaints by politicians against other politicians.
Under the Municipal Act and the Code, therefore, a politician has the same right to lodge a Complaint as any member of the public. Nonetheless, Members of Council should ask themselves whether the Code is the appropriate vehicle for resolving political disputes among politicians.
North Algona Wilberforce is a small municipality with a small tax base. Code proceedings come at a cost. I conducted all three investigations efficiently and responsibly, while being thorough and fair and giving all parties full opportunity to participate and make submissions. What the Code did not permit me to do in these particular circumstances, however, was to suspend an investigation.
By-Law 2016-15 permits the Integrity Commissioner to decline to conduct an inquiry if a Complaint is frivolous, vexatious or not made in good faith or there are no grounds or insufficient grounds for an inquiry (see Schedule A, Section 6, Paragraph 5.1). That provision did not apply here. It is not broad enough to cover the situation where the cost of processing a Complaint between two Council Members is out of proportion to the benefit gained by investigating the Complaint.
Council may wish to consider amending Schedule A of By-Law 2016-15 by adding the following paragraph to Section 6:

“5.1a If prior to, or at any point during, an inquiry into a complaint filed by a Member the Integrity Commissioner is of the opinion that the cost to the Township of completing the inquiry would be disproportionate to the importance of the issue(s) raised by the Member’s complaint then the Integrity Commissioner shall suspend the inquiry, submit through the Clerk a written interim report outlining the reasons for the Commissioner’s opinion, and proceed further with the inquiry only if the Council directs the Commissioner to do so. Such interim report shall identify the parties to the complaint and the nature of the complaint and shall be considered in open session. The 90-day period established by paragraph 4.5(a) shall be suspended until Council directs the Integrity Commissioner to proceed further.”

This amendment would allow the Integrity Commissioner to suspend an investigation and seek direction from Council where, in the Commissioner’s opinion, the cost of processing a Code of Conduct Complaint between two Council Members is out of proportion to the benefit gained by investigating the Complaint.

Respectfully submitted,

Guy Giorno

Integrity Commissioner

Township of North Algona Wilberforce

August 15, 2017

APPENDIX: RELEVANT PROVISIONS OF CODES 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(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.

By-Law 2015-40 (in effect Oct. 20, 2015, to Present)

Subsection 17(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 17(3)

Subsection 17(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.

By-Law 2016-15, Schedule A (in effect Feb. 6, 2016, to present)

Section 3, Paragraph 3

Every member of Council shall act all times in conformity with the principles listed below, and shall ensure that the work environment is a place where these principles are respected.

a) Treat Every Person with Dignity, Understanding and Respect

Members of Council shall abide by the provisions of the Human Rights Code and, in doing so, shall treat every person, including other Members of Council, corporate employees, individuals providing services on a contract for service, students or placements, volunteers and the public, with dignity, understanding and respect for the right to equality.

b) DO Not Discriminate

In accordance with the Human Rights Code, Members of Council shall not discriminate against anyone on the basis of their race, ancestry, place of origin, colour, ethnic origin, citizenship, religious affiliation or faith, sex, sexual orientation, age, record of offences, marital status, same-sex partnership status, family status, or disability. “Age,” “disability,” “family status,” “record of offences,” “same sex partnership status” shall be as defined in the Human Rights Code.

c) Not to Engage in Harassment or Bullying (Psychological Harassment)

In accordance with North Algona Wilberforce Township's Human Resources Policy, as amended, and the Human Rights Code, harassment shall mean engaging in a course of vexatious comment or conduct that is known, or ought to be known, to be unwelcome. Bullying is the ongoing health-or career-endangering mistreatment of an employee or colleague, by one or more of their peers or higher-ups. Unlikely to involve physical violence, it usually takes the form of psychological abuse. Often verbal and strategic insults are intended to prevent targets from being successful in their job. Pressuring an employee to deviate from a policy or to provide a favour is a form of bullying.

Footnotes

The lawyer advising the Councillors on their handling of the report was different than the investigator, who also happens to be a lawyer.
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.
Subsection 21(9).
Subsection 17(9).
Schedule A, Section 3, Paragraph 3.
April 12, 2017, issue, page 1.
This was in keeping with the Councillor’s role. While the entire Council (minus the Mayor) made any decisions related to the harassment investigation, Council had selected Councillor Brose to act as its point of contact.