TOWNSHIP OF ADJALA-TOSORONTIO integrity commissioner, GUY GIORNO
Citation: Adjala-Tosorontio (Council Member) (Re), 2019 ONMIC 16 Date: October 3, 2019
INTERIM 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. https://adjala-tosorontio.civicweb.net/document/11120/Regular%20Council%20-%2013%20Nov%202019.pdf?handle=8AB70B20031947C892A8D9A53E2D6C4E
TABLE OF CONTENTS
PURPOSE OF INTERIM REPORT 3
COMPLAINT 3
BACKGROUND 4
POSITIONS OF THE PARTIES 4
PROCESS 4
ISSUE 7
PURPOSE OF INTERIM REPORT
[1]. This is an interim report on whether a Member has breached the Council Code of Conduct. I have been blocked from proceeding further with my inquiry and am reporting the situation to Council.
COMPLAINT
[2]. The Complainant alleges that a Council Member (the Respondent) contravened sections 6.2.1 c), 6.2.1 f), 6.4.1 a), 6.4.1 d), 6.15.4 and 6.15.5 of the Council Code of Conduct by disclosing to the news media the content of a closed session meeting.
[3]. The closed meeting occurred May 6. The Complainant alleges that in two news stories, May 17 and May 23, the Respondent breached the confidentiality of the closed session.
[4]. I have told the parties that I am not inquiring into the allegations under sections 6.2.1 c) and 6.2.1 f) of the Code. First, the other four sections of the Code already fully cover the real substance of the allegations. Second, even though it is labelled “General Standards of Conduct,” section 6.2 of the Code is more properly understood as setting out the context or the principles on which the substantive rules of the Code (that is, the other sections) are based. Statements of context and principle are important aids to interpreting the other sections of the Code, but they cannot, on their own, give rise to allegations of breach (in any event, not allegations that would lead to an inquiry).
[5]. The remaining relevant provisions of the Code provide as follows:
Section 6.4.1 a) provides that a Member shall not disclose or release by any means to any person in oral or written form, any confidential information, acquired by virtue of their office, except when required by law or authorized by Council to do so.
Section 6.4.1 d) states that a Member shall not disclose the content of a matter considered in a closed session, including the agenda and the substance of deliberations, until Council or the committee discusses the information at an open meeting or publicly releases the information.
The second part of section 6.15.4 provides that confidential information will be communicated only when authorized by Council and in accordance with applicable legislation.
Under section 6.15.5, Members shall respond to enquiries about any matter dealt with in closed session with “this matter is still under investigation,” “no comment,” or words to that effect.
BACKGROUND
[6]. On May 6, Council met in closed session. The public agenda describes the closed meeting as “Meeting with Representatives from Nelson Aggregates – Development Agreement.”
[7]. The motion to go into closed session described the reason for going in camera as, “to consider a position, plan, procedure, criteria or instruction to be applied to any negotiations carried on or to be carried on by or on behalf of the municipality …”
[8]. Later that month, news stories purported to describe content of the Township’s agreement with Nelson Aggregate. The news stories quoted the Respondent.
POSITIONS OF THE PARTIES
[9]. The Complainant submits that the Respondent’s news media comments breached the confidentiality of what happened in closed session.
[10]. The Respondent states that the content of the news media comments was a source other than the closed session.
PROCESS
[11]. By-Law No. 19-15 appointed me as Integrity Commissioner for the Township pf Adjala-Tosorontio.
[12]. My statutory responsibilities include inquiring into whether a Council Member has contravened the Council Code of Conduct.
[13]. In considering complaints under the Code I follow a process that ensures fairness to both the Complainant and the Respondent. This fair and balanced process includes the following elements:
The Respondent receives notice of the Complaint and is given an opportunity to respond.
The Respondent is made aware of the Complainant’s name. I do, however, redact personal information such as phone numbers and email addresses.
The Complainant receives the Response and an opportunity to reply.
I may accept supplementary communications and submissions from the parties, but generally on the condition that parties get to see each other’s communications with me. I do this in the interest of transparency and fairness.
[14]. The Complaint was submitted May 29.
[15]. I sought clarification of the Complaint, and it was promptly provided, June 13.
[16]. On June 18, the Respondent received notice of the Complaint. The same day, I informed the Clerk of the existence of the Complaint, numbered 2019-CC-01, but did not provide any detail of its content.
[17]. The Respondent responded, June 19.
[18]. I redacted the Response to remove content that referred to the substance of deliberations in closed session. The redacted Response was provided to the Complainant, June 25.
[19]. The Complainant replied on July 2.
[20]. I determined that, in order to determine whether the Respondent contravened the Code, I need to find out what occurred during the May 6 closed session and compare it to the content of the Respondent’s news media comments.
[21]. I started by interviewing the Clerk, who is, logically, a witness to what happens at Council meetings. The interview was conducted July 12. The Clerk was present at the closed meeting but she does not recall sufficient, specific detail to enable me to assess whether the news media comments breached the confidentiality of closed session.
[22]. The Clerk did not take notes of the May 6 closed session. Given the nature of what was happening in closed session, she told me, notes were taken by the Township’s lawyer, Mr. Isaac Tang of the law firm Borden Ladner Gervais.
[23]. On July 17, I wrote to Mr. Tang and asked to interview him. Mr. Tang is an experienced municipal lawyer. He knows what an Integrity Commissioner is and what the Municipal Act states. I therefore did not repeat those things in my letter.
[24]. My letter to Mr. Tang explained the following:
In the context of an inquiry (investigation) under section 223.4 of the Act, I would like to interview you to obtain certain information of the municipality that I understand you are in the best position to provide. In this context, subsections 223.4 (3) and (4) are particularly relevant.
The confidentiality obligation in section 223.5 of the Act prohibits me from disclosing the specific complaint that I am investigating, though in the course of arranging and conducting interviews some information will necessarily be shared with witnesses. To that end, I can tell you that it is necessary to my inquiry for me to obtain information about what was discussed at a May 6 closed-session Council meeting that was attended by you and by representatives of Nelson Aggregate Co. The information I received is that the municipal staff did not take notes of the substance of the discussions/negotiations. I was informed that, because you did take notes, you would be in the best position to answer certain questions about what occurred.
… I have no interest in communications between you and the Township related to the giving and seeking of legal advice. I am only interested in (a) what was discussed while Nelson Aggregate was present in the room and (b) decisions that Council made and instructions that it gave during the closed session. It is my view that the information I seek is not subject to solicitor-client privilege but I will leave that to discussions between you and your client.
[25]. The two Municipal Act subsections that I mentioned in my letter read as follows:
223.4 (3) The municipality and its local boards shall give the Commissioner such information as the Commissioner believes to be necessary for an inquiry.
(4) The Commissioner is entitled to have free access to all books, accounts, financial records, electronic data processing records, reports, files and all other papers, things or property belonging to or used by the municipality or a local board that the Commissioner believes to be necessary for an inquiry.
[26]. I did not reproduce these provisions in my letter (only the subsection numbers) because Mr. Tang knows what they say.
[27]. In addition to emailing Mr. Tang this letter, I also left a detailed voice message.
[28]. More than a month later, August 20, I emailed him a second copy of my letter.
[29]. Mr. Tang’s reply came September 17. Its principal paragraphs read as follows:
I confirm that I had attended at closed meeting before Township Council on May 6, 2019. However, any notes that I did take at this meeting was in respect of settlement discussions between the Township and Nelson Aggregate arising from the Ontario Municipal Board's (now continued as the Local Planning Appeal Tribunal) decision and interim order issued January 26, 2018 in Case No. PL151150.
I was not privy to any other discussions that may have occurred in respect of that closed meeting. Accordingly, in my view my notes are at the very least subject to settlement privilege, if not litigation privilege (as the litigation has not Yet ended if a settlement is not reached between the Township and Nelson Aggregate, in accordance with the Board's decision and interim order).
While the Integrity Commissioner is afforded broad powers under the Municipal Act, 2001 and the Public Inquiries Act, 2009, evidence that would be inadmissible in court by reason of any privilege would likewise be inadmissible at an inquiry.
[30]. I did not share Mr. Tang’s letter with the Complainant and Respondent. I did write them both, September 27, to explain that I am pausing the inquiry because of an obstacle to obtaining confirmation of what occurred during the closed meeting, and that I am reporting to Council on the situation.
[31]. Also, though I disagree with his letter, I have not replied to Mr. Tang. My practice is to avoid protracted legal argument with external counsel to a municipality.
[32]. Mr. Tang is paid by the Township. I am paid by the Township. It does not serve the public interest for two lawyers, with both their meters running, to debate differing Municipal Act interpretations at the expense of the same municipality.
[33]. I report to Council. Mr. Tang takes instructions from Council. My practice, in situations like these, is to report to Council and let Council decide.
ISSUE
[34]. I cannot inquire into whether closed session confidentiality was breached unless I know what happened in closed session.
[35]. In particular, I cannot assess whether news media comments breached confidentiality without comparing the comments to what actually occurred in closed session.
[36]. The Township is required to have a code of conduct for Council Members: Municipal Act, s. 223.2.
[37]. The Township is required, in the Code, to cover confidential information: O. Reg. 55/18.
[38]. The Act requires that there be an Integrity Commissioner to apply the Code, including to handle requests (complaints) about whether a Council Member has contravened the Code: Municipal Act, ss. 223.3, 223.4.
[39]. Obviously, an Integrity Commissioner cannot discharge the statutory obligation to apply the Code, including the mandatory Code content on confidential information, if the Township blocks the Commissioner’s access to confidential information that is directly related to a section 223.4 inquiry.
[40]. If the Commissioner were unable to find out what happened in closed session, then the Code provisions on closed session confidentiality would unenforceable. Surely this not what Council intended when it adopted the Code. Definitely this is not what is contemplated by Ontario Regulation 55/18 and Part V.1 of the Municipal Act.
[41]. The Municipal Act makes clear that the Integrity Commissioner will have access to everything necessary, and that the Township will facilitate, not block, access:
223.4 (3) The municipality and its local boards shall give the Commissioner such information as the Commissioner believes to be necessary for an inquiry.
(4) The Commissioner is entitled to have free access to all books, accounts, financial records, electronic data processing records, reports, files and all other papers, things or property belonging to or used by the municipality or a local board that the Commissioner believes to be necessary for an inquiry.
[42]. To be clear, Mr. Tang’s letter refers to privileged information. Not all confidential information is privileged. I will, therefore, address the specific question of privilege.
[43]. First, many of the statutory justifications for going into closed session (Municipal Act, s. 239) contemplate privileged discussions, such as litigation privilege, solicitor-client privilege and settlement privilege. If correct, the position that an Integrity Commissioner cannot access privileged information means that, in future, many different alleged breaches of closed meeting confidentiality will be impossible to review.
[44]. Second, any privilege that does exist belongs to the Township, not to its lawyers. It is for Council to decide whether to assert privilege or to waive it.
[45]. Third, the Integrity Commissioner is not some stranger to the municipality. The Integrity Commissioner is an accountability officer of the Township.1
[46]. As a general matter, privilege is not lost by sharing a corporation’s privileged information inside a corporation, such as sharing with a corporate officer. Even if the information in question is privileged then surely the Township and its solicitors can determine how to share the information, with a Township officer, in a manner that doesn’t waive privilege.
[47]. Fourth, since settlement privilege is the particular type of privilege mentioned, it is important to note that the agreement with Nelson was finalized and ratified in open session, July 10, as By-Law No. 2019-42, A By-law to authorize the execution of an Agreement with Nelson Aggregates Co. and to repeal By-Law 18-24. It is for Council to determine whether the assertion of a May 6 privilege is now moot. What is not moot, however, is the reality that I must inquire into a complaint alleging breach of confidentiality of the May 6 closed session.
[48]. Fifth, Mr. Tang’s letter mischaracterises the issue as one of admissibility of evidence. This is an inquiry, not an adjudicative proceeding. The issue is access, not admissibility. Specifically, what information is the Integrity Commissioner entitled to access? According to the Municipal Act, the answer is: that which the Integrity Commissioner believes to be necessary for an inquiry.
[49]. What is at stake in this case must not be lost on anyone. I am inquiring whether closed session confidentiality was breached. If I cannot ascertain what happened on May 6 then I cannot report to Council on whether confidentiality was breached and whether the Code was contravened. If that is the case then the confidentiality provisions of the Code are unenforceable.
Respectfully submitted,
Guy Giorno
Integrity Commissioner
Township of Adjala-Tosorontio
October 3, 2019