Township of Adjala-Tosorontio Integrity COMMISSIONER, Guy Giorno
Citation: Employee v. Bays et al., 2022 ONMIC 13 Date: June 20, 2022
Inquiry Report
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/34370/
(see minutes of July 13, 2022, RES-329-2022, item 10.1, pages 4-5)
TABLE OF CONTENTS
The Complaint 3
Summary. 3
Background. 4
Process Followed. 6
Positions of the Parties. 8
Findings of Fact 10
Issues and Analysis. 10
A. Was the Complainant’s email to Council protected under the Fraud and Wrongdoing Policy? 10
B. Was the Complainant’s email protected under the Workplace Harassment Policy?. 11
C. Did the Complainant’s email contain confidential information?. 12
D. Was confidential information accessed, used or disclosed contrary to section 6.4?. 12
E. Was section 6.4.1 contravened?. 13
Recommendations. 13
Content 15
Appendix: Excerpts from Council Code of Conduct 16
The Complaint
The Complainant, an employee of the Township at the time of the relevant events, alleges that certain Council Members (Respondents) contravened the Council Code of Conduct by disclosing to the then-CAO an email from the Complainant to Council.
The Complainant’s position is that the email should have been treated as confidential because it was a whistleblowing communication that identified wrongdoing and harassment.
I identified sections 6.4 and 6.4.1 of the Code of Conduct as applicable to the Complaint.
When the complaint was filed, the identities of the Council Members who shared the Complainant’s email with the CAO were unknown. I subsequently determined that three Members, Councillor Annette Bays, Councillor Deborah Hall-Chancey, and Councillor Jonathan Pita, had separately and independently disclosed the email to the CAO. They are the Respondents in this inquiry.
Summary
Within the exception of certain employment related information that the CAO already possessed, I find that the Complainant’s email did not contain confidential information as defined by the Code of Conduct.
I also find that the email was not protected under either the Fraud and Wrongdoing Policy or the Workplace Harassment Policy.
The Respondents did not contravene section 6.4 or section 6.4.1 of the Code.
To avoid a repetition of the circumstances that might have caused confusion in this case, I recommend that (a) the Fraud and Wrongdoing Policy and the Workplace Harassment Policy be amended to identify clearly a single point of contact for reports and complaints against the CAO, (b) that employee training discourage the sending of “quorum emails” that might inadvertently trigger Council “meetings” and (c) that training for the 2022-2026 Council include practical advice on handling incoming emails that might contain confidential or personal information.1
Background
In February, the Complainant and the CAO had exchanged six emails (three each) about the presentation of budget information to Council. The emails concerned the aggregation and separation of certain figures presented to Council and over who was responsible for the aggregation and separation.
The first three emails were very brief: 13 words from the CAO, an 11-word reply by the Complainant, and then 22 words from the CAO.
The first three emails were all sent within a two-minute period on February 15.
About 30 hours later, the evening of February 16, the Complainant emailed the CAO a 524-word, 11-paragraph reply. The email challenged the CAO’s previous statements and requested “clarification” and a “response.”
The next morning, the CAO responded with a 76-word clarification.
Thirty hours later, late in the day on Friday, February 18, the Complainant sent back a nine-paragraph email that alleged the CAO was not being accurate or truthful. The email ended, “How would you want me to proceed on this matter?”
The CAO did not respond. Six days later, that is, February 24, the Complainant forwarded the entire email exchange to all seven Council Members, under the subject line: “False information was provided to Council.”
A review of the exchange indicates that the so-called “false” information was not the figures provided to Council, but statements to Council about how the staff had decided to aggregate certain figures and separate others. The particular issues were (a) whether the figures should separate Council compensation from staff salaries, (b) whether salaries associated with particular municipal functions such as water and wastewater should remain aggregated with other costs of those functions, and (c) which employees took which positions on (a) and (b).
The third paragraph of the Complainant’s email to Council included the following words: “I would like to claim whistleblower protection for sharing this …”
The third and fourth paragraphs of the Complainant’s email to Council alleged that the Complainant had been subject to “reprisal” that had “reached the point of harassment.” According to the email, the specifics of reprisal/harassment were performance appraisals (which the Complainant called “false and negative”) and a performance improvement plan (which the Complainant said was “ill constructed”).
The last line of the Complainant’s email to Council read, “I hope Council will find time to review the evidence and provide justice.”
Nobody on Council responded to the Complainant, but three Council Members, acting independently and without the knowledge of one another, shared the Complainant’s email with the CAO.
Councillor Hall-Chancey forwarded the email to the CAO roughly 11 hours after it was received. Her February 25 email to the CAO read as follows:
I am providing you this email in order to respond to it as you were not copied on this and it was not labelled confidential so I am providing this to you for response when either asked or directed by Council.
Roughly 25 minutes later, Councillor Pita, too, forwarded the Complainant’s email to the CAO. His message simply read: “Are you seeing this? What’s going on here?”
Less than ten minutes after Councillor Pita’s message, Councillor Bays also forwarded the email to the CAO. As well, she copied two members of management. Councillor Bays wrote, in part, as follows: “Have you seen this email below? … As far as I’m concerned this is he said/she said. How do you respond?”
Having been received the Complainant’s email from three Council Members in the space of 35 minutes, the CAO composed a reply to all of Council, and emailed it at 9:09 a.m. Her email began: “I have become aware of this email, and would like to address the concerns raised about false information provided to Council.” The CAO included an excerpt from the minutes of a Senior Management Team meeting in which the aggregation and separation of data had been discussed.
The CAO did not copy the Complainant on the email to Council, just as the Complainant had not copied the CAO.
For more than five weeks, the Complainant was unaware of the CAO’s February 25 email to Council (responding to the Complainant’s February 24 email to Council). As the result of an unrelated internal process, the Complainant first saw a copy of the CAO’s email on April 5.
The Complainant concluded that a Council Member had provided to the CAO the Complainant’s February 24 email. On April 6, the Complainant filed a Code of Conduct complaint naming all seven Members of Council.
As explained in the “Process Followed” section of this report, I subsequently narrowed the inquiry to three Respondents: Councillor Bays, Councillor Hall-Chancey, and Councillor Pita.
Process Followed
In my view, the Complainant had reasonable grounds to believe that a Council Member had disclosed the Complainant’s February 24 email (which had been sent only to seven recipients, namely, all of Council). Because there were reasonable grounds for this belief, I felt that the Complainant should not be deprived of the right to request an inquiry.
In these unique circumstances, in which the Complainant had reason to believe that a Council Member had shared the Complainant’s email, but was unsure which one, I followed a modified process.
The Complaint was submitted April 6.
I sought clarification from the Complainant, who promptly provided it, April 11.
The Complaint cites 24 different provisions of the Code of Conduct: 6.2.1 b), 6.2.1 c), 6.2.1 d), 6.2.1 e), 6.2.1 f), 6.2.1 h), 6.2.1 i), 6.2.1 j), 6.2.1 n), 6.2.1 o), 6.3.1, 6.3.2, 6.4, 6.4.1 a), 6.4.1 c), 6.4.1 d), 6.4.1 e), 6.4.1 g), 6.8.1, 6.9.2, 6.14.2, 6.16.1, 6.16.3, and 6.18.2 d). Some of these provisions are not applicable to the Complainant’s allegations and others are not provisions that are capable of being contravened.
Sections 6.4 and 6.4.1 of the Code deal with confidentiality, and are the provisions that capture the Complainant’s allegations. Exercising my discretion under subsection 223.4 (1) of the Municipal Act, I determined that I would conduct an inquiry under Code sections 6.4 and 6.4.1.
On April 14, I issued a Notice of Inquiry to the original seven Respondents (all Council Members) and to the Complainant. The Notice included the Complaint and indicated that I was conducting an inquiry into whether sections 6.4 and 6.4.1 had been contravened.
Typically, I commence an inquiry by inviting the Respondent(s) to respond to the Complaint. In this case, I felt it would be unreasonable to start the process by asking all Council Members – some of whom, presumably, were not involved in the disclosure – to address the allegations.
Instead, I decided to begin the inquiry by gathering information from the Township, by conducting interviews of Township employees, and employing other inquiry tools.
Section 223.4 of the Municipal Act provides, in part, as follows:
(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.
Under these provisions, I obtained access to emails by which Councillors Bays, Hall-Chancey and Pita had shared the Complainant’s email with the CAO.
Based on this evidence, I determined that I would discontinue the inquiry in relation to the remaining four Council Members. The unique nature of the case required that I communicate this determination in a manner consistent with the confidentiality requirements of Part V.1 of the Municipal Act.
Ordinarily, I communicate a change to the scope of an inquiry by revising or supplementing the Notice of Inquiry. Ordinarily, I send the same Revised Notice of Inquiry or Supplementary Notice of Inquiry to all parties. In this case, however, I was constrained by section 223.5 of the Municipal Act, the first two subsections of which read as follows:
(1) The Commissioner and every person acting under the instructions of the Commissioner shall preserve secrecy with respect to all matters that come to his or her knowledge in the course of his or her duties under this Part.
(2) Despite subsection (1), information may be disclosed in a criminal proceeding as required by law or otherwise in accordance with this Part.
[emphasis added]
Integrity Commissioners conduct Code of Conduct inquiries under Part V.1 of the Municipal Act, so such disclosure of information as is necessary to conduct a procedurally fair inquiry is permitted by subsection 223.5 (2).
In this instance, I determined that it was not necessary to the inquiry to let Council Members know which other Council Members had or had not shared the Complainant’s email with the CAO. Consequently, I concluded that such disclosure to Council Members would not be permitted.
I also determined that it was not necessary to the inquiry to inform the Complainant which Council Member(s) had shared the Complainant’s email. The Complainant’s position was well articulated and carefully considered, and nothing turned on identification of the Council Member(s) actually responsible. Consequently, I concluded that identifying such Council Member(s) to the Complainant was not permitted.
I issued to each Council Member a separate document titled Addendum to Notice of Inquiry. I informed each Member who was not involved in disclosure to the CAO that I was discontinuing the inquiry in relation to that Member. Meanwhile, I asked each of the three Members who had disclosed the email to the CAO (that is, each of Councillors Bay, Hall-Chancey and Pita) to respond to the Complaint. Each Addendum contained information about a single Council Member and did not reveal anything about the status, in the inquiry, of the other six Members.
After considering the Responses of each of Councillors Bay, Hall-Chancey and Pita, I determined that it was unnecessary to the inquiry to share the Responses with the Complainant or other Council Members. I also determined that the Complaint should be dismissed.
Subsection 223.6 (2) of the Municipal Act states that I may disclose in this report such matters as in my opinion are necessary for the purposes of the report. In my opinion, it is necessary to disclose in this report the identities of the three Council Members who disclosed the Complainant’s email. Upon receipt of this report, the Complainant and each Respondent will learn for the first time the identities of all three Respondents.
Positions of the Parties
Complainant’s Position
The Complainant takes the position that the sharing or “leak” of the email was contrary to the Code of Conduct.
According to the Complainant, the email was sent to Council in good faith and related to personal matters of an individual (the Complainant).
The Complainant submits that the Council Member(s) who disclosed the email ought to have known that it was sent in confidence because the Complainant had mentioned harassment and because the Complainant had sought whistleblower protection.
The Complainant also submits that the disclosure of the email to the CAO provided a “huge, unfair advantage” to the CAO and caused harm to the Complainant.
The Complainant relies on the Fraud and Wrongdoing Policy, which states that “reports of fraud, or wrongdoing, are accepted on an anonymous or confidential basis.”
The Complainant also cites the Workplace Harassment Policy, the Occupational Health and Safety Act, and the Municipal Freedom of Information and Protection of Privacy Act.
Position of the Respondent Councillor Bays
Councillor Bays notes that the subject line of the email did not state that it was confidential.
She also submits that whistleblower protection is not applicable to the concerns mentioned by the Complainant, such as the objection to a performance improvement plan.
Councillor Bays argues that Council was the wrong audience for the Complainant’s email. She notes that neither the Fraud and Wrongdoing Policy nor the Workplace Harassment Policy provide for a report or complaint to be submitted directly to Council.
Nonetheless, since the Complainant had brought the matter to Council and stated, “I hope Council will find time to review the evidence and provide justice,” Councillor Bays felt it was appropriate to find out more about what happened by emailing the CAO and two managers.
Based on facts subsequently shared with Council, Councillor Bays states that (a) the issue was a trivial misunderstanding and (b) no false information was provided to Council. Consequently, she maintains that the subject matter did not fall under the Fraud and Wrongdoing Policy or the Workplace Harassment Policy.
Position of the Respondent Councillor Hall-Chancey
Councillor Hall-Chancey observes that nowhere did the Complainant’s email expressly state that it was confidential.
She also observes that the budget figures to which the email related had already been presented and discussed at open meetings of Council. Consequently, she sees no basis for the claims of whistleblower protection or confidentiality.
Councillor Hall-Chancey also submits that the Complainant was not following proper process by communicating the concerns directly to Council.
Councillor Hall-Chancey states that, under the Fraud and Wrongdoing Policy, the Complainant’s email should have been directed to the CAO or to Human Resources. Consequently, she submits she was justified in forwarding it to the CAO.
Position of the Respondent Councillor Pita
Councillor Pita takes the position that the email involved employment-related concerns that should have been directed to the CAO, not to Council.
According to him, an employee’s objection to a performance improvement plan and concerns about negative performance appraisals do not enjoy whistleblower protection and are not a harassment complaint.
Findings of Fact
Findings of fact appear in the Background section of this report, and below. Findings are based on the standard of the balance of probabilities.
The Complainant’s email to Council did not relate to, or allege, an intentional violation of Township policies. The Complainant’s email to Council did not relate to, or allege, the misappropriation or misuse of Township assets.
The Complainant did not suffer harm as a result of the disclosure to the CAO of the Complainant’s email.
The CAO did not receive any advantage from being forwarded the Complainant’s email.
Issues and Analysis
- I have considered the following issues:
A. Was the Complainant’s email to Council protected under the Fraud and Wrongdoing Policy?
B. Was the Complainant’s email protected under the Workplace Harassment Policy?
C. Did the Complainant’s email contain confidential information?
D. Was confidential information accessed, used or disclosed contrary to section 6.4?
E. Was section 6.4.1 contravened?
A. Was the Complainant’s email to Council protected under the Fraud and Wrongdoing Policy?
No.
The Township’s Fraud and Wrongdoing Policy, Policy # CAO 2021-01, defines “fraud and wrongdoing” as follows:
the intentional violation of Township policies; including, but not limited to, the misappropriation or misuse of Township assets
By using the words, “intentional violation of Township policies; including, but not limited to, the misappropriation or misuse of Township assets,” the Policy indicates the gravity or seriousness of the misconduct that falls within its scope. I agree with Councillor Bays that the Fraud and Wrongdoing Policy was not meant to cover an issue as trivial as someone (allegedly) misstating the identity of the employee who advocated aggregating or separating certain budget figures.
The Complainant’s email to Council was not a report of fraud or wrongdoing as defined in the Policy.
Consequently, the Complainant’s email to Council was not covered by the Policy statement that: “Reports of fraud, or wrongdoing, are accepted on an anonymous or confidential basis.”
Similarly, the Policy statement that, “The Corporation will protect employees from retaliation who report in good faith allegations of fraud and wrongdoing,” did not apply to the Complainant’s email.
In any event, the Fraud and Wrongdoing Policy does not provide for a report of fraud or wrongdoing to be made to Council. According to the Policy, such a report is to be made to Human Resources or the CAO.
B. Was the Complainant’s email protected under the Workplace Harassment Policy?
No.
A performance improvement plan is not workplace harassment. Legitimate performance evaluations are not workplace harassment. Included in the Workplace Harassment Policy, Policy # TRE .2018-02, are the following exceptions:
Examples of what isn't workplace harassment:
A reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace;
Reasonable management actions would be part of a manager's or supervisor's normal work function, and could include changes in work assignments, scheduling, job assessment and evaluation, workplace inspections, implementation of health and safety measures, and disciplinary action;
Differences of opinion or minor disagreements between co-workers.
- In any event, the Workplace Harassment Policy does not provide for a complaint of workplace harassment to be made to Council. Under the Policy, a complaint about the CAO is to be made to the Township’s solicitor:
If your immediate supervisor is the person responsible for the harassing behavior, take the complaint to that person’s supervisor. If there is no further supervisor to which the complaint can be filed, the complaint can be taken to the municipal solicitor. Contact information for the solicitor can be provided by the CAO and/or Human Resources.
C. Did the Complainant’s email contain confidential information?
Yes, in part.
The Complaint’s email referred to a performance improvement plan and to the content of performance appraisals. This content was unquestionably “confidential information” as defined in section 4.1 of the Code of Conduct.
Other content of the email was not confidential information as defined in the Code. The budget figures, including the choices to aggregate some figures and to separate other figures, were already public information. Further, information about which staff members took which position on issues of aggregation and separation was not confidential information.
As I have already explained, the email was not protected under the Fraud and Wrongdoing Policy or the Workplace Harassment Policy. Consequently, it was not a confidential report of fraud or wrongdoing, and it was not a confidential workplace harassment complaint.
D. Was confidential information accessed, used or disclosed contrary to section 6.4?
No.
The relevant sentence of section 6.4 reads as follows: “Members shall not access, use or disclose information in contravention of applicable privacy laws.”
The only confidential information in the email related to the Complainant’s performance improvement plan and performance appraisals. The CAO was already aware of this information. In any event, sharing such information with the CAO was either (a) use or disclosure for the purpose for which the information was obtained or compiled or for a consistent purpose, or (b) disclosure to an officer of the Township who needed the record in the performance of her duties and necessary and proper in the discharge of the Township’s functions.
Consequently, sharing with the CAO was not contrary to the Municipal Freedom of Information and Protection of Privacy Act, and there was no contravention of section 6.4 of the Code.
E. Was section 6.4.1 contravened?
No.
Sharing with the CAO did not contravene any paragraph of section 6.4.1.
Further, Council was not the appropriate audience for the Complainant’s email in the first place. Sharing with the CAO meant directing the email to someone who was more properly the recipient.
Recommendations
While I have found no contravention of the Code, during the course of the inquiry I have identified aspects of Township policies that could be improved to provide clarity in future situations.
First, while I have found that Council was not an appropriate recipient of a report of fraud or wrongdoing under the Fraud and Wrongdoing Policy or of a workplace harassment complaint under the Workplace Harassment Policy, I find that neither policy clearly states what to do when a report or a complaint concerns the CAO.
For example, the Fraud and Wrongdoing Policy mentions “reporting … to Human Resources and/or the Chief Administrative Officer.” This implies, but does not state explicitly, that a report about the CAO should be made to Human Resources.
The Workplace Harassment Policy says that a complaint can be taken to the municipal solicitor, “If there is no further supervisor to which the complaint can be filed.” Again, this implies, but does not state explicitly, how to route a complaint about the CAO.
I recommend that the Fraud and Wrongdoing Policy and the Workplace Harassment Policy be amended to identify clearly a single point of contact for reports and complaints about the CAO.
Second, there are sound reasons to discourage employees from sending to the entire Council, as the Complainant did, a substantive email seeking a decision or action.
Under section 238 of the Municipal Act, a “meeting” includes:
any regular, special or other meeting of a council, of a local board or of a committee of either of them, where,
(a) a quorum of members is present, and
(b) members discuss or otherwise deal with any matter in a way that materially advances the business or decision-making of the council, local board or committee.
[emphasis added]
On many occasions, the Ombudsman has considered whether the open meeting provisions of the Act were violated by conduct that materially advanced the business or decision-making of a Council with a quorum of Members present. It is generally understood that that “discussions” among Council Members that materially advance the business of Council are unlawful closed meetings.2
It is also generally accepted that such discussions may include emails to a quorum of Council. The Ombudsman, who applies the open/closed meeting provisions in many municipalities, has confirmed that “quorum emails” (emails that relate to Council business and are sent to a quorum of Members) may violate the closed meeting provisions of the Act if the content of those emails “materially advances” the business or decision-making of Council, effectively making them a meeting under the Act.3
Whether conduct (including a quorum email) constitutes an unlawful meeting would depend on “what does and does not in fact significantly move the business or decision-making of council forward.”4 Action (including an email) is more likely to advance materially the business or decision-making when it “discusses or debates a proposal, course of action, or strategy.” 5
I recommend that employee training discourage the sending of “quorum emails” that might inadvertently trigger Council “meetings.”
Despite my finding that most of the email in question was not confidential as defined by the Code of Conduct, I believe that Council would benefit from renewed training in how to handling incoming emails that contain personal or confidential information.
I recommend that training for the 2022-2026 Council include practical advice on handling, including whether, when and how to forward, incoming emails that might contain confidential or personal information.
Content
- Subsection 223.6 (2) of the Municipal Act states that I may disclose in this report such matters as in my opinion are necessary for the purposes of the report. All the content of this report is, in my opinion, necessary.
Respectfully submitted,
Guy Giorno
Integrity Commissioner
Township of Adjala-Tosorontio
June 20, 2022
Appendix: Excerpts from Council Code of Conduct
4 DEFINITIONS
4.1 For the purposes of this Code of Conduct:
- “Confidential information” includes information in the possession of the Township that falls within the discretionary or mandatory exemptions from disclosure, under the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA), the Personal Health Information Protection Act (PHIPA) or other privacy legislation. Generally, information received in confidence from third parties of a corporate, commercial, scientific or technical nature, information that is subject to solicitor-client privilege and information that is deemed to be “personal information” is subject to exemption from disclosure pursuant to MFIPPA.
Confidential information also refers to other information which is not available to the public and that, if disclosed, could result in loss or damage to the Corporation or could give the person to whom it is disclosed an unfair advantage. Such confidential information includes, but is not limited to the following:
i) information circulated to Members of Council and marked “Confidential”; and
ii) information disclosed for the purposes of, or discussed at a Closed Meeting of Council or its Boards and includes, but is not limited to, the following types of information:
personal matters about an identifiable individual(s);
information about suppliers provided for evaluation purposes which might, if made public, be used by others to gain advantage;
matters relating to the legal affairs of the Township;
sources of complaints where the identity of the complainant is given in confidence;
matters under negotiation; and
matters identified as solicitor-client privileged.
6 PROCESS
6.4 Confidentiality
The Township is bound by the provisions of both provincial and federal legislation as it relates to protection of privacy and disclosure of information. Members shall not access, use or disclose information in contravention of applicable privacy laws.
6.4.1 Members shall not:
a) 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;
b) use confidential information including information that they have knowledge of by virtue of their position that is not in the public domain, including e-mails and correspondence from other Members, staff, or third parties, for personal or private gain, or for the gain of relatives or any person or corporation or to cause detriment to the Township;
c) directly or indirectly benefit, or aid others to benefit, from knowledge respecting bidding on the sale of Township property or assets;
d) disclose the content of any such matter, including agendas, or the substance of deliberations, of an in-camera (closed) meeting until the Council or committee discusses the information at a meeting that is open to the public or releases the information to the public;
e) permit any person, other than those who are entitled thereto, to have access to information that is confidential;
f) access or attempt to gain access to confidential information in the custody of the Township unless it is necessary for the performance of their duties and not prohibited by policy, legislation, or licensing;
g) release confidential information and this obligation continues after the Member ceases to be a Member of Council.
Footnotes
- Despite my finding that most of the email in question was not confidential as defined by the Code of Conduct, I believe that Council would benefit from such training.
- Re Lanark Highlands (Township of), 2018 ONOMBUD 1.
- Re Leeds and the Thousand Islands (Township of), 2016 ONOMBUD 15.
- Re Casselman (Village of), 2018 ONOMBUD 11, at para 35.
- Ibid., at para 41.