COUNTY OF RENFREW integrity commissioner, GUY GIORNO

Citation: Murphy (No. 2) (Re), 2018 ONMIC 14 Date: June 13, 2018

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.

http://www.countyofrenfrew.on.ca/_documents/2018/CountyCouncil/Minutes/August29-18-Minutes.pdf (see minutes of August 29, 2018, p. 3)

TABLE OF CONTENTS

THE COMPLAINT. 3

SUMMARY OF FINDINGS.. 3

BACKGROUND TO COMPLAINT. 3

COMPLAINT DETAILS.. 5

PROCESS FOLLOWED.. 6

QUESTIONS RAISED IN THE INVESTIGATION.. 7

SUBMISSIONS.. 7

ANALYSIS AND FINDINGS.. 8

A. Was the Respondent dealing with someone who had reported a violation of the Code? 8

B. Does it matter that the complaint in Re Murphy (No. 1) never resulted in an actual finding of violation?. 8

C. Did it matter that the Respondent was not communicating directly to the Complainant? 9

D. Did the Respondent take or threaten to take action such as discharge, discipline, personal attack, harassment, intimidation, etc.?. 9

RECOMMENDATION.. 11

ADDENDUM.. 12

THE COMPLAINT

1. An individual (the Complainant) alleged that Warden Jennifer Murphy (the Respondent) breached paragraph 9.2(b) of the Council Code of Conduct (“Code”) by threatening a reprisal.

SUMMARY OF FINDINGS

2. I find that the Code was breached. Given that an apology was provided, I recommend no penalty.

BACKGROUND TO COMPLAINT

3. When this Complaint was filed, the Respondent was already named as a respondent to two other complaints, in Farr v. Murphy, 2017 ONMIC 19, and Re Murphy (No. 1), 2017 ONMIC 20. The complainant in Farr v. Murphy was Mayor Deborah Farr of North Algona Wilberforce. The complainant in Re Murphy (No. 1) is the same individual (the Complainant) who brought the present complaint.

4. I have already reported to Council on Farr v. Murphy and Re Murphy (No. 1), so it is unnecessary for me to repeat the background.¹ It is sufficient to note that there was a previous complaint, Re Murphy (No. 1), between the Respondent and this Complainant.

5. The County’s process is for complaints to be filed with the County which then provides them to the Integrity Commissioner.

6. Once a complaint has been received, I follow a fair, balanced, and transparent investigation process that includes sharing the Complainant’s submissions with the Respondent, and sharing the Respondent’s submissions with the Complainant.² Fairness requires that each party see and have an opportunity to respond to what the other says. The process of sharing is not automatic, however, as it involves assembling materials into pdf files that can be emailed from me to a party, labelling the documents so parties understand what they are, and redacting personal information. The resulting pdf file (or group of files) that gets sent to a respondent is informally referred to as the “complaint package.”

7. In this case, after the Respondent had received the complaint package in Farr v. Murphy and before she was sent the complaint package in Re Murphy (No. 1), she surmised (correctly as it happens) that a complaint from the Complainant would be coming her way. While the Complainant’s identity was never disclosed to the Respondent, she understood that she was the subject of two complaints³ and accurately assumed that the Complainant had submitted one of them.

8. The primary issue here is not how the Respondent came to speculate about the identity of the individual who was submitting a second complaint. She was about to find out in any event. The issue is how the Respondent reacted.

9. The basis for the Complaint is conveyed by the following email that I received from the Complainant:

Mr. Giorno:

I have been talking to my [specific relative], [FM]. [FM] works in Eganville.

[FM] received a message on Facebook from Jennifer Murphy asking [FM] for my email address because her lawyer wanted it. Message received Tuesday evening.

Jennifer said she was going to sue [FM’s specific relative]. That is me! And she was sorry but she would be unable to talk to [FM] any more.

10. (Note: I do not think it is necessary to name the Complainant’s relative, so in the passage above, and throughout this report, I have replaced the relative’s name and pronoun with the letters “FM,” for “family member.” I have also replaced the specific relationship (e.g., cousin, uncle) between the Complainant and FM with the words “specific relative.” The terms I have altered appear in [bold italics inside square brackets].)

11. The Complainant considered this to be intimidation.

12. The Complainant subsequently sent me a copy of a screen capture of an exchange of Facebook Messenger messages between the Respondent and the Complainant’s family member. The exchange was as follows: [I have made the same edits as described above]

Jennifer Murphy:

• “Do you have your [specific relative’s] email address?”

• “My lawyer was looking for it.”

[FM]:

• “Don’t think I want to get involved.”

Jennifer Murphy:

• “Okay”

[FM]:

• “Really don’t know what is going on and don’t want to”

Jennifer Murphy:

• “No, you really don’t.”

[FM]:

• “I need to stay neutral [illegible on the printout I received]”

Jennifer Murphy:

• “So you know what is going on?”

• “Argggg”

[FM]:

• “[Thumbs up emoticon]”

• “No I really do not.”

Jennifer Murphy:

• I’m so sorry, [FM], I’m about to sue your [specific relative]. I’m sooooooo sorry.”

[FM]:

• “I’m sure I will someday but not today.”

• “Well if that is what you think you have to do”

Jennifer Murphy:

• “I’m so sorry [FM]. I cannot talk to you anymore.”

[FM]:

• “That is fine”

Jennifer Murphy:

• “I’m truly sorry”

• “Just know I love you and I am not trying to hurt you.”

• “I feel so sad”

COMPLAINT DETAILS

13. The Complain[ant] filed an official complaint alleging that the Respondent had contravened paragraph 9.2(b) of the Code, which provides as follows:

Neither staff nor any Member of Council shall take, threaten to take, discharge, discipline, personally attack, harass, intimidate, etc. a person who has reported a violation of this Code of Conduct.

PROCESS FOLLOWED

14. In 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).

15. This fair and balanced process is governed by section 9.4 of the Code. It 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.⁴

• 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.

16. While I am obliged to discharge my responsibilities pursuant the Municipal Act and the Code, I do take economy and efficiency into account in conducting each investigation. In this case, I paused the proceeding – and the proceedings in Farr v. Murphy and Re Murphy (No. 1) – to give the parties an ample opportunity to explore the prospect of a resolution. The pause was similarly intended to allow the parties to consider the matter with the benefit of distance from the actual events. In this respect the pause was deliberate, as often the passage of time makes an intractable difference possible to resolve.

17. I note that a pause carries no additional cost to the County. My practice is always to give the parties necessary time to resolve matters without the issuance of an investigation report, if they are willing and this is feasible. Only when I was satisfied that this would not be possible did the process resume.

18. After completing a draft of this report, I shared it with the Respondent and gave her the opportunity to comment. After reviewing the draft report, the Respondent stated that, in hindsight, she saw how her comments to FM could have been taken badly. She offered (through me) to take steps to “mitigate this error.” The Respondent then apologized to FM.

19. I gave the Complainant an opportunity to consider whether the Respondent’s apology to FM (that is, an apology to the Complainant’s relative, not to the Complainant directly) was sufficient, in the Complainant’s mind, to resolve the Complaint. The Complainant acknowledged the apology to FM but wanted this proceeding to conclude with a finding and a report.

QUESTIONS RAISED IN THE INVESTIGATION

20. My investigation considered the following questions:

A. Was the Respondent dealing with someone who had reported a violation of the Code?

B. Does it matter that the complaint in Re Murphy (No. 1) never resulted in an actual finding of violation?

C. Did it matter that the Respondent was not communicating directly to the Complainant?

D. Did the Respondent take or threaten to take action such as discharge, discipline, personal attack, harassment, intimidation, etc.?

SUBMISSIONS

21. The Complainant was informed, through the Respondent’s Facebook Messenger conversation with FM, of the Respondent’s intention to sue. The Complainant states that the declaration of an intention to sue was distressing to both the Complainant and the family member. Additionally, if there was a risk of legal action then the Complainant might have second thoughts about the complaint (in Re Murphy (No. 1)). All of this amounted to “intimidation and harassment” in the opinion of the Complainant.

22. The Respondent explained that she was not threatening or intimidating the Complainant or the Complainant’s family member. According to the Respondent, she was simply stating that the Respondent should not be in contact with FM.

23. The Respondent noted that (in one of the Facebook messages) she actually apologized to FM as she did not want to affect her future relationship with FM.

24. The Respondent said that her lawyer was preparing a Statement of Claim.

ANALYSIS AND FINDINGS

A. Was the Respondent dealing with someone who had reported a violation of the Code?

25. Yes.

26. The Complainant had submitted the complaint in Re Murphy (No. 1). She was, therefore, “a person who has reported a violation of this Code of Conduct.”

27. In any event, I find that paragraph 9.2(b) protects not just someone who actually files a complaint. It also protects someone whom a Council Member believes to have submitted a complaint, and someone whom a Council Member wishes to deter from submitting a complaint.

28. The first line of paragraph 9.2(b) refers to taking or threatening to take any of a number of identified reprisals. Paragraph 9.2(b) also refers to “intimidation.” The mentions of threats and intimidation clearly indicate that the provision also covers the situation of anticipated or prospective complaints. In other words, the use of the words “threaten to take” obviously contemplates the circumstance where a Council Member attempts to discourage a Code complaint has not yet been submitted.

29. Consequently, I find that it does not matter whether the Complainant had actually submitted a prior complaint (even though she had) or whether the Respondent knew about it. It would be sufficient merely that the Respondent thought the individual might submit a complaint.

B. Does it matter that the complaint in Re Murphy (No. 1) never resulted in an actual finding of violation?

30. No.

31. The purpose of paragraph 9.2(b) is clearly to allow individuals to submit Code complaints without discharge, discipline, personal attack, harassment or intimidation, so that the Municipal Act’s integrity commissioner process can than handle the issue. At the time of submitting a complaint, an integrity commissioner’s ultimate disposition is unknown. The protection from reprisal applies regardless of what the investigation will subsequently find.

32. Further, it would make absolutely no sense that personal attack, harassment or intimidation would be prohibited if a complaint is upheld, but personal attack, harassment or intimidation would be acceptable if a complaint did not lead to a finding of violation. I find that reprisal and threatening reprisal against a complainant or perceived complainant or potential complainant are prohibited by paragraph 9.2(b) no matter how the investigation concludes.

C. Did it matter that the Respondent was not communicating directly to the Complainant?

33. No.

34. Although the Respondent was Facebook messaging with a third party (the relative, FM), I find that she knew, or ought to have known, that the Complainant would have been made aware of these communications. I find this for three reasons.

35. First, the Respondent initiated the conversation by asking for the email address of the Complainant. The conversation was about the Complainant, or it was as much about the Complainant as about the family member.

36. Second, the family relationship between the Complainant and the family member makes it reasonable to assume that the FM would inform the Complainant. In fact, this is precisely what happened.

37. Third, I find that the Respondent knew or should have known that the messages would be reported by to the Complainant. In other words, when she talked about suing the Complainant, the Respondent knew or ought to have known the Complainant would find out.

D. Did the Respondent take or threaten to take action such as discharge, discipline, personal attack, harassment, intimidation, etc.?

38. Yes.

39. I find that threatening a lawsuit against someone who submitted, is believed to have submitted, or might possibly submit, a Code complaint is prohibited by paragraph 9.2(b), the text of which I will restate:

Neither staff nor any Member of Council shall take, threaten to take, discharge, discipline, personally attack, harass, intimidate, etc. a person who has reported a violation of this Code of Conduct.

40. In this case it is not necessary for me to determine whether actually filing a lawsuit would violate paragraph 9.2(b). That question is moot because the Respondent never commenced a civil action. I cannot speculate whether a Council Member might or might not have valid grounds to sue someone, and that issue lies beyond the scope of my authority.

41. It is also unnecessary for me to determine whether having one’s lawyer send a letter would violate paragraph 9.2(b). That question is moot because the Respondent’s lawyer never wrote to the Complainant.

42. The Respondent did not sue, and the Respondent did not communicate through her lawyer. Instead, knowing⁵ that the Complainant would receive the message, she told a family member of the Complainant that she was going to sue. I find that communication to be sufficient to contravene paragraph 9.2(b).⁶ The Respondent’s threat to sue was a reprisal, and paragraph 9.2(b) was placed in the Code to prevent reprisals.

43. I have taken into account the Respondent’s explanation that she did not believe she was threatening or intimidating the Complainant or the family member, FM, and that she wanted to inform FM that she would not be in contact during that time period.

44. I find that a threat of litigation is prohibited by paragraph 9.2(b) even if a Council Member does not believe litigation to be threatening or intimidating. It is reasonable to view litigation as something that would be threatening or intimidating to a typical person.

45. Further, while I agree that the Respondent explained to FM why they would no longer be in contact, before that point the Respondent had talked about her lawyer and about suing the Complainant. The Facebook Messenger exchange was about the threatened lawsuit well before it got to the topic of the Respondent and FM no longer being in contact.

RECOMMENDATION

46. As I have found a contravention of paragraph 9.2(b) of the Code, I must also recommend to Council an appropriate consequence.

47. In my view, the following factors are relevant.

48. On the one hand:

• Reprisals and threats of reprisal against complainants and potential or prospective complainants undermine the purpose of the Code and may have a chilling effect on future complaints.

• The threat of litigation should reasonably have been seen as distressing.

49. On the other hand:

• Paragraph 9.2(b) of the Code is not well drafted. (The verbs “take” and “threaten to take” lack any object.)

• To my knowledge, Council Members have not received prior guidance on how to comply with paragraph 9.2(b).

• The Respondent, for her part, says her intention in communicating with FM was to apologize and to limit the effect that the legal issue would have on their personal relationship.

• The Respondent has not previously been found to have contravened the Code.

• This report, including the finding of contravention, is now a public document.

• The Respondent acknowledged that her communication with FM was open to being taken badly, she offered to take steps to “mitigate this error,” and she apologized to FM.

50. Under the circumstances, I find that it is not necessary to recommend a penalty. The respondent has acknowledged the error and apologized to the Complainant’s family member. I encourage the Respondent, in the same spirit, to apologize privately to the Complainant.⁷

51. The Complainant feels that the apology to FM did not resolve the matter and wants the process to conclude with a public report. This is the report. The findings in this report are clear and, I believe, are sufficient to address the matter, without the need for a recommendation of penalty under paragraphs 9.3(c) and 9.3(d) of the Code.

52. I recommend to Council as follows:

53. That this report, which finds that the Respondent contravened paragraph 9.2(b) of the Code of Conduct, be received.

54. That future training and/or orientation materials on the Code of Conduct refer readers to the importance of allowing complainants, prospective complainants and potential complainants to operate free from reprisal and the threat of reprisal.

55. That Council impose no penalty.

Respectfully submitted,

Guy Giorno

Integrity Commissioner

County of Renfrew

June 13, 2018

ADDENDUM

53. I received July 3 correspondence from Mr. Harold Rosenberg, legal counsel for the Respondent, asking that the Complainant be identified in the report.

54. I received submissions from both parties on whether the Complainant should be identified. The Respondent’s submissions were contained in the July 3 letter; the Complainant’s submissions were received July 11; the Respondent, again, acting through counsel, replied July 23 to the Complainant’s submissions.

55. I have read and considered all of the submissions. The following summary of the submissions is skeletal because the submissions contain identifying information and I want to avoid identification of the Complainant in my summary. I stress, however, that I have considered the entirety of the submissions, and not merely what is summarized below.

56. The Respondent notes that [this file] was linked to Farr v. Murphy and Re Murphy (No. 1), and in those reports I named the Complainant, Mayor Deborah Farr of North Algona Wilberforce. Further, the complaint process is not anonymous in that the Respondent is informed of the Complainant’s identity; the only issue is whether to name the Complainant in the report so the public knows. If the Complainant is not identified then “suspicion will be cast upon” a broad group of people who might be the Complainant.

57. According to the Respondent’s submissions:

It is unfair to Warden Murphy that her conduct will be found wanting when the full circumstances surrounding the complaint are not divulged. To fairly appreciate the circumstances described in your report, the complainant should be named so interested members of the public will understand all the mitigating factors …

58. The Complainant does not agree that the individual’s identity should be disclosed. The Complainant’s submissions include the following: Identifying the Complainant would also identify the family member and possibly impact the family member. “The request to identify the Complainant and the family member could be construed as a further effort at intimidation.” Further, the only connection between [this file] and Farr v. Murphy and Re Murphy (No. 1) is that they are about the same topic.

59. The Complainant also disagrees with the words “Suspicion will be cast upon” in the Respondent’s submissions, because “the word suspicion implies guilt and mistrust.”

60. According to the Complainant, the report does already disclose full circumstances surrounding the complaint. The Complainant’s identity “has nothing to do with the text sent to a member of my family … Warden Murphy violated the Code of Conduct. Naming the Complainant has no bearing on the violation of Article 9.2(b).”

61. Among the Respondent’s reply submissions is the following statement: “The complaint did not come from an unbiased observer of events at the May 2017 County Council meeting. If it had, the events that led to [this Complaint] may never have occurred.”

62. The reply submissions also state:

With respect to the Complainant’s concerns about the family member (FM), no request to identify FM is being made. As noted, the Respondent did apologize to FM and offered to mitigate any error concerning FM. FM’s relationships will not be altered in any way.

63. In determining whether to identify the Complainant, I am bound by the provisions of the Municipal Act, including subsection 223.6(2) which provides as follows:

If the Commissioner reports to the municipality or to a local board his or her opinion about whether a member of council or of the local board has contravened the applicable code of conduct, the Commissioner may disclose in the report such matters as in the Commissioner’s opinion are necessary for the purposes of the report. [emphasis added]

64. The question, then, is whether in my opinion disclosing the Complainant’s identity is necessary for purpose of the report. In my opinion, in this case, disclosure is unnecessary.

65. It must be understood that this report contains a finding that the Complainant and FM were affected by a contravention of paragraph 9.2(b) of the Code. Simply put, what happened to the Complainant and to FM ought not to have occurred.

66. Paragraph 9.2(b) reads as follows:

Neither staff nor any Member of Council shall take, threaten to take, discharge, discipline, personally attack, harass, intimidate, etc. a person who has reported a violation of this Code of Conduct.

67. This provision indicates that nobody should be subject to, or threatened with, attack, harassment, intimidation, etc., because of participation in the Code process. It seems contrary to the purpose and intent of the provision to find that only someone who gets publicly identified will be afforded the protection of paragraph 9.2(b).

68. I do not accept the use of the word “suspicion” to describe an individual who was affected by a contravention of paragraph 9.2(b). In this context, the word “suspicion” reveals a confused understanding of who is in the wrong: it is the person who contravenes the Code, not the person affected by a contravention of the Code.

69. I also do not agree that the Complainant’s identity is “a mitigating factor” and I note that this is an argument not previously advanced. The Respondent’s position was that she did not believe she was threatening or intimidating the Complainant or the family member, FM. The suggestion that the Complainant’s identity is a mitigating factor in an intimidation or threat is new. I do not agree that the Complainant’s identity mitigates a contravention of paragraph 9.2(b).

70. Finally, I note that the Complainant in [this file] is a private citizen not, as was the complainant in Farr v. Murphy and Re Murphy (No. 1), an elected official.

71. I am not amending the report to name the Complainant.

Guy Giorno

Integrity Commissioner

County of Renfrew

August 17, 2018

Footnotes

1. 1Farr v. Murphy and Re Murphy (No. 1) dealt with the same subject matter and were reported to County Council at the same time.
2. 2My usual practice is to redact personal information such as addresses, phone numbers and email addresses prior to sharing.
3. 3Among other relevant factors: The Respondent was asked to provide her preferred email contact information and was told multiple complaints would be sent to her. Also, Mayor Farr’s complaint in Farr v. Murphy relied on “letters” (plural) from “several residents” (plural) but only one letter from one resident was attached to it. The other letter was submitted separately as the complaint in Re Murphy (No. 1).
4. 4Occasionally, 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.
5. 5The Respondent either knew or reasonably should have known.
6. 6I take note of the abbreviation “etc.” at the end of paragraph 9.2(b). It follows a list of verbs all of which are potential deterrents to the reporting of a violation. The inclusion of “etc.” at the end of the list of verbs clearly signals that the list of potential deterrents remains open.
7. 7I say “privately” because in my opinion there is no need for the Complainant’s identity to be made public as a result of this report.