TOWNSHIP OF NORTH ALGONA WILBERFORCE integrity commissioner, GUY GIORNO

Citation: Farr v. Plumb et al., 2017 ONMIC 18 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))

TABLE OF CONTENTS

THE COMPLAINT. 3

DIFFERENT CODES OF CONDUCT. 3

SUMMARY OF FINDINGS.. 3

PROCESS FOLLOWED.. 5

QUESTION RAISED IN THE INVESTIGATION.. 6

ANALYSIS AND FINDINGS.. 7

RECOMMENDATION.. 8

POSTSCRIPT: POTENTIAL AMENDMENTS TO THE CODE.. 8

APPENDIX: RELEVANT PROVISIONS OF CODE OF CONDUCT. 10

THE COMPLAINT

[1]. On January 17, 2017, Mayor Deborah Farr submitted a Code of Conduct complaint against Councillor James Brose and Councillor Dave Plumb. The Code of Conduct Complaint alleged that the Respondents had engaged in harassment by repeatedly calling on the Mayor to resign and tabling a motion calling for her resignation.

[2]. The specific allegation that I investigated was as follows:

Allegation that Councillors Brose and Plumb engaged in harassment of the Mayor by calling for her resignation as Mayor on numerous occasions (and moving a motion that the Mayor resign), contrary to Section 3 of Schedule A to By-Law 2016-15, in particular Section 3, Paragraphs 1(a), 3(a) and 3(c).

[3]. The relevant provisions of the Code appear in the Appendix.

DIFFERENT CODES OF CONDUCT

[4]. While I have referred to the “Code of Conduct” and the “Code,” two different Codes of Conduct were in effect at the relevant times and, in fact, remain in effect. These two separate by-laws contain codes of conduct that were in effect at some point during the relevant period:

By-Law Dates in Effect Portion Containing Code

By-Law 2015-40 Oct. 20, 2015 - present section 17

By-Law 2016-15 Feb. 16, 2016 - present Schedule A

[5]. In this instance, however, only By-Law 2016-15 contains provisions that are relevant to the Complaint. The relevant texts of the provisions appear in the Appendix.

[6]. For convenience and ease of reading, in this report “Code” refers to Schedule A to By‑Law 2016-15.

SUMMARY OF FINDINGS

[7]. The residents of North Algona Wilberforce will be aware that, since the last election, Mayor Farr and Councillors Brose and Plumb have been on opposite sides of many issues. It is fair to describe them as political opponents: that is, the two Councillors being opposed to the Mayor and the Mayor opposed to the two Councillors.

[8]. While the relationship between the parties forms the context to the events that give rise to this Complaint, I did not take that relationship into account in making my findings. To apply the Code, it is unnecessary for me to take a position on any of the political disagreements between the Complainant and the Respondents. The findings below should not be interpreted as a commentary on the merits of their political differences.

[9]. At the May 2, 2016, meeting of the Township Council, Councillor Brose moved and Councillor Plumb seconded the following motion:

“THAT Debra [sic] Farr resigns the position as Mayor of North Algona Wilberforce Township as of May 2, 2016.”

[10]. The Mayor did not rule the motion out of order but she did not let it come to a vote.

[11]. The motion was withdrawn at the next regular Council meeting, May 16.¹

[12]. On July 21, 2016, Council held a special meeting attended by invited guests Mr. Stephen Seller, Municipal Advisor, Ministry of Municipal Affairs, and Mr. Tony Fleming, Partner, Cunningham Swan (the Township’s law firm). The Mayor asked Mr. Seller whether a motion to remove a Council Member was proper. Mr. Seller confirmed that it was not. No Council has the authority to remove its Mayor. Mr. Fleming told Council that such a motion would be out of order.

[13]. There is presently no disagreement among the parties over whether such a motion is in order and whether it is permitted under the Municipal Act. The Mayor, Councillor Brose and Councillor Plumb agree that such motion is out of order and not permitted under the Act.

[14]. Councillors Brose and Plumb state that when they moved the motion they did not know that it was improper. They say they were motivated by concerns about the Mayor’s conduct in office. I find that it is not necessary for me to evaluate the merits of their concerns about the Mayor. Mayor Farr just as strenuously defends her conduct and criticizes certain conduct of Councillors Brose and Plumb. I find that it is not necessary for me to evaluate the merits of her criticism of the Councillors. The substance of the political disagreements between the parties is not relevant to the question of whether moving (or requesting) that the Mayor resign constituted harassment under the Code.

[15]. Apart from the motion (moved at one meeting and then withdrawn at the next regular meeting), I find there were not “numerous” occasions when Councillors Brose and Plumb called on the Mayor to resign. Councillor Brose did speak to the news media, around the time the motion was introduced, to defend the call for resignation, but I do not find that these comments continued afterward.

[16]. The former mayor of North Algona Wilberforce, who was defeated in 2014, has separately called for Mayor Farr’s resignation, but I do not find that Councillors Brose and Plumb are responsible for the former mayor’s comments.

[17]. I reviewed digital media postings calling for the Mayor’s removal or resignation, but the content was posted by individuals other than Councillor Brose and Councillor Plumb. I find the postings of other people to be irrelevant to whether the two Councillors contravened the Code.

[18]. In her Complaint, the Mayor stated that during the summer of 2016 she received a threatening phone call. The caller told her to resign so that Councillor Brose could become Mayor, and gave her two weeks, after which the caller would come to the Mayor’s house to ensure that she did resign. According to the Complaint, the Mayor “had to get the police involved.” This claim is roughly consistent with a comment the Mayor made during the July 21, 2016, Council meeting, except that during the meeting Mayor Farr mentioned phone calls (plural) and she did not mention that the caller wanted Councillor Brose to succeed her as Mayor.

[19]. I did not ask Councillors Brose and Plumb to address the threatening phone call(s) because there was no suggestion that either one of them was responsible for the call(s). Whether the two Councillors breached the Code is not affected by such call(s). Further, the Code provides that I may not consider a matter that is properly referred to the police.

[20]. While the resignation motion was improper, and hurtful to Mayor Farr, I find that the Respondents did not engage in harassment contrary to the Code.

PROCESS FOLLOWED

[21]. 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.

[22]. In this case, the Complaint was submitted prior to my appointment as Integrity Commissioner. I was officially appointed March 29. March 29 is therefore deemed to be the official Complaint date.

[23]. I received written submissions from the Complainant and the Respondents. I separately interviewed the Complainant and each Respondent. Everyone had full opportunity to provide information and to make representations.

[24]. I have taken all of the parties' submissions and communications with me into account.

QUESTION RAISED IN THE INVESTIGATION

[25]. My investigation considered one question:

Did Councillors Brose and Plumb engage in harassment of the Mayor by calling for her resignation as Mayor on numerous occasions (and moving a motion that the Mayor resign), contrary to Section 3 of Schedule A to By-Law 2016-15, in particular Paragraphs 1(a), 3(a) and 3(c)?

ANALYSIS AND FINDINGS

[26]. The motion of May 2, 2016, has sometimes been described as a request that the Mayor resign. I find that this was not what the motion purported to do. It was actually a motion deeming that the Mayor had resigned, or requiring the Mayor to resign, as of its date. It is clearly beyond the powers of any municipal council to adopt such a resolution.

[27]. While a few residents of North Algona Wilberforce criticized the Mayor for not letting the motion come to a vote, I find that the Mayor was too forbearing. The motion should have been ruled out of order and not debated at all, let alone tabled and held over to the next regular meeting of Council.

[28]. The Mayor says that the motion was embarrassing and publicly humiliating and I find as a fact that this was the case and that the motion was hurtful to her.

[29]. Even Councillor Brose and Councillor Plumb agree that the motion should not have been moved and seconded.

[30]. The issue raised by the Complaint is whether the two Councillors engaged in harassment. In Canadian law, the accepted meaning of “harassment” is a course of conduct that is known, or should be known, to be unwelcome. The Code employs this common definition.³ While a single incident – especially one that is particularly serious – can constitute harassment, typically harassment entails a pattern of conduct, that is, several incidents or events.

[31]. I find that the Councillors’ isolated motion (introduced at one meeting and withdrawn at the next regular meeting) and the public comments made around the same time were not a course of conduct and therefore did constitute harassment under the Code. Further, I find that their conduct was not sufficient to constitute a breach of Paragraph 1 or Paragraph 3 of Section 3 of the Code.

[32]. Comments and calls for resignation made by other individuals are not relevant to whether the two Councillors breached the Code.

[33]. As for the two Councillors themselves, I find no evidence that they continued to demand the Mayor’s resignation, certainly not after the July 21, 2016, meeting attended by Mr. Seller and Mr. Fleming.

[34]. I do not find that either Respondent contravened the harassment provisions of the Code or any other provision of Section 3.

[35]. This finding does not negate the fact that the May 2, 2016, motion was improper and hurtful. The motion was improper, and Councillors Brose and Plumb agree that it should never have been moved. The motion was hurtful to the Mayor. This public finding in my report should go some way to address they Mayor’s legitimate concern.

[36]. Finally, I reiterate that the merits of the political disagreements between the parties did not factor into my assessment of whether the Code was contravened. The disagreements that led Councillors Brose and Plumb to introduce their motion do not make the motion any less improper. The disagreements cited by the Mayor do not change the fact that the Code was not breached.

RECOMMENDATION

[37]. While the May 2, 2016, motion was improper and hurtful, I do not find a contravention of the Code.

[38]. I recommend that the findings of this report be received for information, and that Council consider the Code amendments proposed below.

POSTSCRIPT: POTENTIAL AMENDMENTS TO THE CODE

[39]. This is one of three Complaints under the Code, all brought by a Council Member against other Council Members.

[40]. As I explained in Farr v. Berndt, 2017 ONMIC 17, under the Municipal Act and the Code 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.

[41]. 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.

[42]. At the end of my investigation report in Farr v. Berdnt, I suggest an amendment to the Code that 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. I repeat that suggestion here.

[43]. I also note that this Complaint was submitted January 17, 2017, even though it concerns events that occurred primarily in May 2016. The current wording of the Code obliged me to ignore this timing. Nothing in the present Code permits me to dismiss a Complaint, or to decline to investigate it, on account of delay.

[44]. Some municipalities set a deadline for the submission of Code of Conduct Complaints. The Township may wish to do likewise. In particular, Council may wish to consider amending Appendix A of By-Law 2016-15 by adding this paragraph to Section 6:

“1.2.2a The Complaint Review Request form must be received no later than three months from the date on which the alleged violation occurred and no action will be taken on a form received after this deadline.”

[45]. This amendment would require a Complaint to be received within three months of the incident giving rise to the Complaint.

Respectfully submitted,

Guy Giorno

Integrity Commissioner

Township of North Algona Wilberforce

August 15, 2017

APPENDIX: RELEVANT PROVISIONS OF CODE OF CONDUCT

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

Section 3, Paragraph 1

a) The professional and personal conduct of members of Council must be above reproach and avoid even the appearance of impropriety. Councillors shall refrain from abusive conduct, personal charges, verbal attacks or gossip upon the character or motives of municipal employees, Councillors, committee appointees or the public. All dealings between Council, committee appointees, municipal employees and the public are to exhibit a high degree of professionalism and are to be based on honesty, respect, impartiality and fairness. Service to the public is of paramount importance.

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.

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

1. 1Resolution #05-016-10, adopted by Council, removed the motion from the floor.
2. 2Occasionally, 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.
3. 3By-Law 2016-15, Schedule A, Section 3, Paragraph 3(c).