Formal Name of Municipality
The Town of Fort Frances
Style of Cause
Council Complaint re: Councillor David Kircher 2024 ONMIC 8
Date of Report
May 3, 2024
Name of Integrity Commissioner
David G. Boghosian
Pinpoint link on municipality’s website where report is reference in online Minutes of Council, committee, or board
https://fortfrances.civicweb.net/Portal/MeetingInformation.aspx?Org=Cal&Id=2064
TOWN OF FORT FRANCES INTEGRITY COMMISSIONER, DAVID G. BOGHOSIAN
REPORT ON COMPLAINT
Introduction
1By Council Resolution 442 passed on February 13, 2024, I was directed to undertake an investigation of Councillor David Kircher for possible Code of Conduct violations. On March 8, 2024, Town Clerk Gabrielle Lecuyer sent me an extensive package of documents related to the investigation, mostly email exchanges initiated, or at least participated in, by Councillor Kircher.
The Complaint
2The concerns expressed by Mayor Hallikas for asking Council to ask the Integrity Commissioner to investigate were set out in written submissions he read at the closed session of Council where the matter was considered were as follows:1
This matter relates to Council Kircher's use of municipal email, his circumventing of the CAO, council's sole employee, and his implication of bad faith actions by members of administration and council.
It will be up to council to decide on how they wish to proceed.
Councillor Kircher has on several occasions improperly used the Fort Frances Municipal email system. He has on several occasions sent emails to all of council that requested a decision or action that should have taken place in a council meeting.
Councillor Kircher has been advised of this improper use by the Clerk and Interim CAO on several occasions. I have also spoken to Councillor Kircher about this in the presence of the Deputy Mayor. In spite of this coaching, Councillor Kircher continues to improperly use the email system exposing council and administration to liability for holding closed meetings without proper notice and in contravention of the closed meeting bylaw.
Councillor Kircher has shared closed meeting information by email, he has individually attempted to direct administration outside of a duly called meeting, he has circumvented the CAO chain of command and had direct conversations with staff or statutory officers (in violation of the Council and Staff relations policy), he has insinuated that staff is acting in bad faith (forgetting meeting minutes or the pool closure) and has asked for information outside of a council meeting implying some sort of wrongdoing or failure to carry out due diligence by staff. As well he has implied that there has been a leak of information by councillors and has repeatedly accused one councillor of acting in bad faith.
The result of this is that Councillor Kircher's actions are causing an erosion of trust between administration and Council, this erosion of trust can and will affect the efficiency of council in working with administration to get things done for the community and may cause staff to consider whether they wish to continue working for the municipality.
Councillor Kircher's actions have negatively affected council morale and interpersonal relationships. Additionally, Councillor Kircher has exposed all of council to the possibility of accusation of holding improper meetings and an investigation by the Integrity Commissioner/Closed meeting investigator.
I believe that an investigation should be launched by the Integrity Commissioner into the actions of Councillor Kircher to determine whether there have been any code of conduct violations.
Investigation
3My investigation entailed a review of dozens of email exchanges and attachments thereto sent or received by Councillor Kircher and interviews with Councillor John McTaggart, ACAO Travis Rob and Town Clerk, Gabrielle Lecuyer, as well as Councillor Kircher’s Responding Submissions and Supplementary Response to further questions that I posed to him.
Emails
4In order to organize my Report, I have broken down the relevant communications involving Councillor Kircher which arguably violate the Code of Conduct by subject-matter, being Relations with Agency One First Nations; Forestry Mill Logging Licence/Demolition; Facilities Maintenance and Repair; Rainy Lake Market; RRFDC Contract Renewal; Committee of Adjustments Matter; and Prior Warnings.
5I note that I was provided with a number of other documents and emails which I deemed irrelevant to my investigation and which are therefore not summarized or commented on below.
6The challenge in preparing this report has been to balance the need to fairly convey the content of Councillor Kircher’s communications with the requirement of keeping confidential those aspects that concern confidential discussions at closed meetings of Council and the content of documents provided to members of Council connected with those confidential items. For that reason, some descriptions of the subject-matter of some of the documents below may come across as vague or cryptic.
Dealings with Agency One First Nations
7Email from Cllr. David Kircher (“DK”) to Clerk, cc’d to all Members of Council and some staff dated November 10, 2023 – The email references a declaration of a conflict of interest by another councilor at a closed meeting session and asks if that member should still be copied on communications related to the matter.
8Email to the Acting CAO (“ACAO”) dated November 11, 2023, cc’d to all members of Council – The email states that the Agency One First Nations contractor was still “clear cutting” near Idyllwild Dr. and asks if the Town had brought an injunction to stop it. In subsequent emails sent the same day, he recounts observing the creation of road accesses onto the former golf course property in the areas of School Road south and Lake Road north, including the creation of culverts at those locations, and asks whether Agency One has obtained the necessary permits to do such work on the Town road allowances.
9Email to ACAO dated November 16, 2023, cc’d to all members of Council attaching Couchiching First Nation Land Claim Information Session February 11 2020 – Cllr. Kircher attaches a document outlining the settlement position of Agency One regarding a land claim against the federal and provincial governments, and the Town, and requests that the document be forwarded to the Town’s external legal counsel handling the land claim litigation. In subsequent email exchanges, Cllr. Kircher states that he received the document from a third party who allegedly obtained it from a Facebook site and there was no indication that the document was confidential (he stated that when either he or the third party (it is not clear from the email which) went back to find the document on Facebook, it had “disappeared”). The attached document clearly contains highly sensitive information about the settlement position of Agency One in the land claim litigation, albeit at the time, it was more than 3 years out of date.
10Email to ACAO dated November 21, 2023, cc’d to all members of Council – Cllr. Kircher asks if the ACAO had a response to the letter sent by the Town’s external legal counsel to Agency One.
11Email to ACAO dated December 7, 2023, cc’d to all members of Council – Cllr. Kircher asks who instructed the Town’s external legal counsel not to take certain action and against Agency One First Nations to stop the “clear cutting.” It further asked for identification of who authorized Agency One’s contractor to clear cut on the Town’s property (legal counsel for Agency One had advised in a letter that someone within the Town had authorized this action).
12Email to Clerk, cc’d to all Members of Council dated December 7, 2023 – Cllr. Kircher purports to direct the Clerk to release all correspondence and directions of Council with respect to the “clear cutting” around the former golf course property for public review.
13Email from DK to all members of Council dated November 29, 2023 – the email asks councillors to get an opinion from a law firm whether a letter from the Mayor to Agency One dated November 27, 2023 would impact existing litigation.
14Email from Mayor to all Members of Council dated December 1, 2023 – the Mayor attached a letter from the Agency One First Nations Chiefs and his reply letter in connection with an in camera discussion at the next Council meeting. He expressly states that these letters are both confidential and are not meant for public disclosure. Cllr. Kircher forwarded this email with attachments to his personal email address from his Town email address the same day.
15Email to Mayor, cc’d to all members of Council and various Town staff dated December 3, 2023 – the email chastises the Mayor for sending a letter dated December 1st in response to a letter from Agency One dated November 27th, references discussions at an in camera session regarding the issue and accuses staff of failing to include certain documents in a report to Council from the ACAO.
16Email to ACAO, cc’d to all members of Council and other Town staff dated December 5, 2023 – the email again erroneously asserts that staff had not provided members of Council with a copy of a letter sent by the Town’s external legal counsel to counsel for Agency One and requests a copy (the letter with the correct date (November 13th) had in fact been provided).
Forestry License/Mill Demolition
17Email dated December 9, 2022 to Cllr. McTaggart, cc’d to all members of Council – The email suggests that Cllr. McTaggart and the former Mayor withheld information from Council and the Town’s external legal counsel regarding the term of the Boundary Waters Sustainable Forest License and that the police were investigating the former Mayor for breach of trust in respect of the issue.2 The email was copied to the OPP officer apparently investigating the matter involving the former Mayor. It contains a detailed discussion of the background of the closure of the Mill and the forestry licenses. It suggests that if the truth had been known, the Mill could have remained open. The email is written entirely in block caps (unlike any of the other emails of his that I have reviewed) and strikes an angry and threatening tone. I note that it was sent just 15 days after Councillor Kircher was sworn in and attended his inaugural meeting of Council.
18Email to John McDougall (OPP), cc’d to all members of Council and some staff dated December 13, 2023 – The letter enclosed, among other things, an opinion from the law firm Gowlings and a memo to Council of former Cllr. Judson dated November 8, 2021.3
19Email to all members of Council dated January 24, 2023 – the email attaches a detailed Motion for Reconsideration, the preamble of which contained numerous insinuations of concealment of information on the part of Cllr. McTaggart, and requests a seconder for a motion directing that Council retain a law firm that has experience and expertise in the administration of the Crown Forest Sustainability Act and its Regulations to review the information available to and actions taken by Councillor McTaggart et al, related to the history of Licence # 542245 and the impact of these actions or inaction to the “financial integrity of our Town and the well-being of our Constituents.”
20Email to Town Clerk dated March 3, 2023 – Requests that the status of the demolition on the former Mill site be included for information and discussion at the next EDEC meeting and that certain ideas for improving the Town’s economy and tax base also be added to the agenda of the same meeting.
21Email to Acting Chief Administrative Officer (“ACAO”), cc’d to all members of Council dated June 30, 2023 – The email effectively purports to direct the ACAO to prepare a report on whether the demolition and remediation of the Old Mill Site was monitored for compliance with provincial and municipal standards.
22Email to Town Clerk dated July 6, 2023 – The email disputed that a Notice of Motion was needed to place the issue of the Mill site demolition and remediation on the agenda for the next Council meeting and that he would like the ACAO to provide Council with a complete report on the demolition and remediation of these properties as directed by the Town’s CBO. He then states that he will move to have Council direct the ACAO to prepare such a report at the next Council meeting to be delivered at the next meeting after that.
23Email to ACAO, cc’d to all members of Council dated July 12, 2023 - Asks for reconsideration of a prior motion of Council and that the ACAO to report on the status of the demolition and remediation of the former Mill site.
24Email to all members of Council dated November 24, 2023 – The email asks Council to initiate an investigation into the Mill demolition approval given alleged misinformation informing Council’s previous decision.
Facilities Maintenance and Repair
25Email from Cllr. Kircher to ACAO, cc’d to all Members of Council dated October 11. 2023 – Cllr. Kircher advocates developing a plan to deal with the critical level of deferred maintenance, including the Splash Park and Sunny Cove.
26Email from Cllr. Kircher to ACAO, cc’d to all Members of Council dated October 12, 2023 – The email can only fairly be described as accusatory, asking whether any councillors knew about the issues with the deteriorating problems with the Pool columns prior to the issue being placed on the agenda for the October 10, 2023 Council meeting agenda.
27Email from Cllr. Kircher to all Members of Council, cc’d to ACAO dated November 11. 2023 – Cllr. Kircher reiterates his request in his October 12th email about whether any of his fellow councillors knew about the problem with deteriorating columns in the Pool prior to its placement on the October 10, 2023 Council meeting agenda, which he notes was after the tender for the work to repair that problem with the columns was related and that this was a concern to him.4
28Email from Cllr. Kircher to ACAO, cc’d to all Members of Council dated October 17. 2023 – Cllr. Kircher demands to know why Council was not advised that the column repairs would necessitate the closure of the Pool for several months.
Rainy Lake Market
29Email from Cllr. Kircher to ACAO, cc’d to all Members of Council dated June 2, 2023 – Cllr. Kircher asserts there are too many advisory committees of Council and a lack of coordination of them with Council by staff such as to ensure that the committees’ recommendations were brought forward to Council.
30Email from Cllr. Kircher to ACAO, cc’d to all Members of Council dated June 3, 2023 – Cllr. Kircher demands answers from the ACAO re: the Report for changes to the past practice regarding the need for business licenses and insurance for vendors utilizing the market.
RRFDC Contract Renewal
31Email from Cllr. Kircher to all Members of Council and some Town staff dated May 31, 2023 – Cllr. Kircher asks staff to have M. Willick5 (Registered Professional Forester) attend a Committee of the Whole meeting to answer questions.
Committee of Adjustment Matter
32Email from Cllr. Kircher to Cllr. Brunetta, Town Clerk and then CBO/Planner dated January 17, 2023 – Cllr. Kircher advocates that the Committee of Adjustment “may wish to reconsider the recommendation presented” in respect of a particular property in the Town and goes on to provide his Report why he thinks the Committee should change its decision.
Prior Warnings
33The following emails reflect the multiple occasions on which Cllr. Kircher was warned about his conduct which now forms the subject-matter of this Report.
34Email from Cllr. Kircher to Mayor and ACAO dated December 15, 2022 – This email followed a meeting the Mayor had with Cllr. Kircher concerning the impropriety of conducting Town business via email in the wake of Cllr. Kircher’s email to his fellow councilors concerning his allegations about misconduct on the part of Cllr. McTaggart, which Cllr. Kircher had copied to an OPP officer. Cllr. Kircher acknowledges that emailing other councilors about Council business can be construed as constituting an improper closed meeting. He noted that he had received the same advice from the Clerk on December 9, 2022. He indicated that he would be “mindful of that in the future.”
35Email from the Former Integrity Commissioner (“IC”) to Cllr. Kircher dated December 21, 2022 – Cllr. Kircher is warned by the previous IC that debating or discussing Town business via email violates the open meeting principle. The next day, Cllr. Kircher forwarded this email to all of the other members of Council, thereby waiving confidentiality over it.
36Email from ACAO to Cllr. Kircher dated June 2, 2023 – Cllr. Kircher is warned about debating Council business by emails to all Councillors.
37Email from Clerk to All Councillors dated June 28, 2023 – In response to a series of emails from Cllr. Kircher to all members of Council and some staff setting out his views about the Mill demolition, the Clerk reminded all councillors not to conduct Town business by email, noting that “email discussions that could lead to building the decisions of Council is subject to the open meeting principle.
38Email from Clerk to Cllr. Kircher and Email from Current IC to Cllr. Kircher dated July 13, 2023 – The Clerk advised Cllr. Kircher that discussing Town business with other councillors via email violates the open meeting principle. Having been copied on this email, I sent a subsequent email to Cllr. Kircher and the Clerk agreeing with the latter and warning Cllr. Kircher about not engaging in Council discussions over email and not publicly disclosing confidential information from closed sessions, including documents provided confidentially in relation to closed session business.
39Email from ACAO to Cllr. Kircher dated July 20, 2023 – The ACAO warns Cllr. Kircher that it was inappropriate to conduct Council business via email and also that he should not purport to direct staff unilaterally as staff can only take directions from Council as a whole, not individual councillors.
40Email from Clerk to all Members of Council dated November 17, 2023 – The Clerk warns the councilors about not conducting business via email in violation of the open meeting principle, especially with respect to confidential agenda items.
Interview with Councillor McTaggart
41I spoke with Cllr. McTaggart on March 25, 2024. The purpose of my call was to obtain his position with respect to the emails Cllr. Kircher sent accusing him of misleading Council regarding the state of the Forestry Licenses and the status of Resolute as licensee.
42He advised that he missed the fact that the consolidated forestry license had been extended an additional 10 years until 2032. He noted he is not a lawyer and doubts he would have understood the significance of that extension even if he had noticed it. Regarding the statement that Resolute had surrendered the license, he did not see that this was not the case from his review of the licensing agreement and had been advised by the Town’s representative on the Rainy River Boundary Water Forest Management Board that Resolute was surrendering the license. He once again reiterated that he is not a lawyer.
43He indicated that Cllr. Kircher never asked him for his position regarding these statements nor did it otherwise come up in conversations to which Cllr. Kircher was privy.
44Cllr. McTaggart has never been contacted by the OPP in relation to this issue despite Cllr. Kircher apparently inviting the OPP to investigate him.
45Cllr. Kircher’s Motion for Consideration to have a law firm investigate Cllr. McTaggart’s role in the closure of the Fort Frances Mill was never seconded and therefore was not considered by Council.
46Cllr. Kircher and Cllr. McTaggart do not speak as a result of the issues surrounding the forestry license, dating back to almost the beginning of this Council term in 2022. This is in spite of the fact that he and Cllr. Kircher used to have business dealings with one another, including renting offices to each other in their respective premises.
47Cllr. McTaggart has experienced anger, frustration and disappointment over Cllr. Kircher’s allegations against him. He has no doubt that Cllr. Kircher is hellbent on ruining his reputation in the community. He considered complaining to the IC about Cllr. Kircher’s emails about him at the time they were sent, however, he was convinced by others that it would be detrimental to the conduct of Council business of Council to do so.
Interview with Mayor Andrew Hallikas
48Having already received notes setting out the Mayor’s concerns,6 my discussion with him was limited to one issue, being his observation of the relationship between Cllrs. Kircher and McTaggart. Mayor Hallikas advised that there is no communication between the two of them beyond a passing, terse nod or “hello”. They do not engage in meaningful dialogue with each other.
Interview with Travis Rob (ACAO)
49Mr. Rob became ACAO approximately one year ago.
50He advised that the previous Council was fractious which caused a great deal of stress for Town staff and resulted in a loss of all but 3 members of the senior management team. The current Council is relatively more cooperative with the exception of Cllr. Kircher. He feels the continued low morale among staff as a result of this is attributable to Cllr. Kircher.
51He finds Cllr. Kircher’s frequent demands of his time to be frustrating as it means having to respond to him in evenings and over weekends so as not to interfere with carrying out his day-to-day responsibilities with the Town. It is an additional time burden that he should not have to bear in a role that already sees him having to put in a lot of hours beyond 9 to 5.
52He personally has not experienced any mental anguish over anything Cllr. Kircher has said to him as he has a thick skin, even though there have been insinuations of wrong-doing on his part by Cllr. Kircher, but he knows that there are other Town staff (who he was reluctant to specifically name and which I did not press him for) who are more affected by Cllr. Kircher’s accusations than him.
Interview with Gabrielle Lecuyer (Clerk)
53Ms. Lecuyer stated that Cllr. Kircher’s frequent email inquiries are a “distraction” and divert her efforts from her duties to addressing Cllr. Kircher’s demands and correcting his actions which at odds with the Procedural Bylaw and the COC.
54She finds his conduct to be wilful and disrespectful in that despite being repeatedly corrected on a course of action and acknowledging the error and vowing not to repeat it going forward, Cllr. Kircher continues to engage in the same conduct, as if not caring about the rules. This is particularly stressful for her as, in her capacity of Town Clerk, she is responsible for ensuring that the Town’s policies and procedures are followed.
55She has felt embarrassed when Cllr. Kircher has called her out for omitting enclosures with Council Agendas in emails copied to all councillors and even other Town staff. These emails have sometimes been inaccurate as the enclosure was in fact attached and where they are correct, she feels they insinuate that she has purposely omitted the enclosure for some nefarious purpose, rather than treating it as an innocent oversight. She finds his emails in this regard to be chipping away at her professional credibility.
Response of Councillor Kircher
Initial Response
56I sent Cllr. Kircher the contents of paragraphs [4] – [40] of this Report by email dated March 24, 2024, advising him that I wanted him to address the following issues arising from the provided emails: conducting Council business by email; purporting to direct Town staff; disrespectful communications with Town staff; dealings with your fellow councilors; and misuse of confidential documents provided to you in connection with closed meeting agenda items. I also asked that he respond to a number of specific questions I posed. I requested that he reply by April 8, 2024. Not having heard back from him, I again emailed him on April 3, 2024 requesting confirmation of receipt of my March 24th email. He replied the next day requesting all documents sent to me by the Clerk in respect of the investigation and any documents I had received that were filed or referred to at the February 12th in camera meeting where Council voted to direct me to conduct this investigation.7 These were sent to Councillor Kircher the same day, April 4th. He then advised that the April 8th deadline I had set was not enough time for him to respond so we agreed that he would have until April 15th to file his Response. Cllr. Kircher provided his response to me on the new, agreed upon deadline.
57In general, Cllr. Kircher’s main points in his defence were as follows:
all of my communications that are the subject of this investigation were motivated by a desire to protect and advance the best interests of the Town and of my constituents;
there is a well-established pattern of councillors communicating with one another and with Town staff by email that is very much standard operating procedure on Council.
It is ironic that I am being investigated for purported violations of the open meeting principle when all my actions and communications have been targeted at bringing into the open what has taken place behind closed doors.
58After setting out these general defences, Cllr. Kircher embarked on a review of each of the email strings I review at paragraphs [7] - [40] of this report. I will provide examples of his responses but in general, Cllr. Kircher disagreed with my summary of some of the emails, provided other, related emails to put some emails I reviewed in context and continued to assert that other councillors engaged in the same debate of Council issues by email as he was doing, without providing any email evidence of this. I emailed him on April 20th requesting that he provide me with examples of such email debating by other councillors and to address Cllr. McTaggart’s claim that the two had not spoken since December 2022 as a result of Cllr. Kircher’s emails impugning Cllr. McTaggart’s honesty and integrity.
59Some notable specific responses provided by Cllr. Kircher, together with my commentary with respect to them, are as follows:
a. In relation to the emails summarized at paragraphs [8], [10] and [11] above, Cllr. Kircher pointed out that the Town’s lawyer wrote in his November 13, 2023 letter that if a suitable response was not received from Agency One by a certain date, certain action would be taken, thereby justifying his demands of the ACAO that he instruct the lawyer to take such action. As the ACAO correctly pointed out, Council had not authorized the lawyer to take any action beyond writing the letter. Cllr. Kircher nevertheless continued to berate the ACAO for not so instructing the lawyer and even went so far as to suggest that some Town employee or Council member must have falsely told the Town’s lawyer that the trespassing had ceased as the reason why the lawyer was not taking any action. There was no rational basis for this assumption. Cllr. Kircher should have been aware that the Town’s legal counsel could not take extraordinary action without direction from Council, not staff.
b. In relation to the email referenced in paragraph [12] above, Cllr. Kircher stated that this is another example of his attempts to ensure that matters of public importance were being considered openly at Council rather than being dealt with through behind the scenes communications. I am surprised that Cllr. Kircher would think that, in the context of the highly sensitive and fragile relationship between the Town and Agency One, there would be any benefit to publicly airing negotiations related to this matter, and that it was his place to unilaterally direct the Clerk to publicly release communications related to the issue that had clearly been distributed to councillors at in camera sessions.
c. With respect to paragraph [14] above, Cllr. Kircher responded “this isn’t the first time that I emailed information to myself at another address. I began doing this when I suspected the information was being manipulated. I did not, and have not, shared the emails or the information more broadly or otherwise compromised confidentiality.” I do not understand what Cllr. Kircher means by “information being manipulated” nor did he elaborate on what he meant. In any event, I fail to see how that would justify forwarding confidential documents to a personal business address.
d. In relation to paragraph [15] above, Cllr. Kircher notes that in an earlier email in the string, the Mayor invited councillors to reach out to him on his cellphone to discuss this matter, and cites this as an example of Council’s standard operating procedure of communicating and “discussing Town business” by email. What Cllr. Kircher apparently fails to appreciate is that there is a vast difference between the Mayor inviting one-on-one communications with him, versus sending emails discussing Council business to all members of Council or at least a quorum thereof. The latter constitutes an improper closed meeting; the former does not because there is no quorum of Council involved.
e. Paragraph [16] above – Cllr. Kircher explains that the letter from Agency One’s lawyer had referenced a November 15th letter in error, that is why he demanded to be provided with a letter of that date notwithstanding that no such letter actually existed.
f. Paragraph [17] above – in view of the importance of this document to my investigation, I will set out Cllr. Kircher’s response in full, followed by my commentary following each issue he addressed:
What was I hoping to achieve in sending this email?
To have Council for the Town of Fort Frances review the history of the Crossroute SFL to challenge the veracity of the Boundary Waters Sustainable Forest License. This process would have revealed the full amount of wood available for harvest identified in the Crossroute Forest Management Plan and allocated under the Crossroute SFL.
On February 27 2018, the Minister extended Resolute FP Canada Inc.’s right “to harvest and utilize the full available harvest described in the Forest Management Plan for the Crossroute Forest...to supply forest resources to Resolute’s existing forest resource processing facility located at Fort Frances On.” from March 31st 2022, for an additional 10 years to March 31st 2032. The quote and term extension are from the 2018-02-27 Minister signed Crossroute SFL Willick delivered to Councilor McTaggart et al on May 13 2019. Resolute FP Canada Inc. had completely shut down its Fort Frances facility in December 2013 and publicly announced its permanent closure in May 2014. The Fort Frances mill processed about 1500 cords of wood in a 24 hour period at capacity - a lot of wood allocated not being harvested and processed. Why didn’t members of Council use this information for the benefit of their constituents? [all highlighting original]
Comment: In my view, this explanation is not credible. As Cllr. Kircher was aware, by the time he sent this email, the Mill was substantially demolished. There was no longer a Mill in Fort Frances to process any wood covered by the Boundary Waters Sustainable Forest License. I remain of the view that Cllr. Kircher simply wanted to have Council initiate a witch hunt to punish those he felt had let the Town down with respect to the Mill closure and the Forest License.
Why is it entirely in block capital letters?
I don’t really recall, other than it was easier to type and see.
Comment: I reject this explanation. On this rationale, every one of his emails would have been written in block caps. In my view, the block caps reflected Cllr. Kircher’s anger and outrage and, taken together with the strident content of the email, was intended to reinforce its menacing and threatening tone.
Why was an OPP officer copied on the email?
The detective had contacted me for his investigation of an allegation of a breach of trust against Mayor Caul. The allegation was based on Mayor Caul sending the Gowling draft opinion to me. The Gowling document Mayor Caul sent to me was the February 2 2019 email Ms. Drysdale had originally delivered to some members of Council, which was recirculated by the CAO on February 18 2021.
I copied the detective with the email to Councilor McTaggart for his information to demonstrate how Council business was conducted: by email without quorum.
Comment: Regarding the last statement, Cllr. Kircher knows full well that the OPP is not the police of the “open meeting principle” so that explanation does not make sense. As I had noted in the footnote to my original summary sent to Cllr. Kircher, and as he acknowledges in his Response, the OPP investigation concerned former Mayor Caul’s improper disclosure of a confidential legal opinion, which had nothing to do with Cllr. McTaggart. I regard this as another attempt to intimidate and provoke fear in Cllr. McTaggart.
Had there been any prior discussion with Cllr. McTaggart before you sent it regarding his position on the subject matter of your email?
Yes, quite extensively, beginning in January 2021:
Emails to Councilor McTaggart: January 20 2021, January 21st, January 22, January 24, January 24, January 28, January, February 7, February 8, August 21.
Attachment One: Town of Fort Frances December 13 2018 and February 13, 2019 press releases, Council resolution 070 February 25 2019, Title page, Sections 2.3 and 3.1 Appendix “G” Summary of Sustainable Forest Licence Amendments of the Crossroute Forest Licence included in the Agenda for resolution 070.
Attachment Two: Copy of email thread originated from M. Willick February 7 2021 to Councilor McTaggart with the 2020-09-10 Boundary Waters Forest SFL Minister signed attached. Councilor McTaggart forwarded same to me. Note: Councilor McTaggart refers to the Licence as an eSFL not M. Willick. Copy of the Title page of the Boundary Waters SFL, Section 2.3 and 3.1, page 17 signature of Minister, Appendix “G”, February 8 email from Councilor McTaggart, August 20 – 21 email thread between Councilor McTaggart and me.
Attachment Three: copy of May 13 2019 email from M. Willick with a copy of the 2018-02-27 Crossroute SFL Minister signed attached.
Attachment Four: a copy of page 6 from the Gowling draft identifies the term of the Crossroute SFL reviewed by the lawyers from Gowling. Copy of the Title page, Section 2.3 and 3.1, Appendix “G” for the Licence reviewed.
Attachment Five: copies of the emails listed yellow highlights.
Comment: I reviewed all of the Attachments to the Response that Cllr. Kircher sent me and none of them addressed the issue I thought I had communicated that I wanted addressed in my March 24th email to him, being production of any communication where he asked Cllr. McTaggart about whether he had appreciated the consolidated forestry license had been extended an additional 10 years until 2032 (not to mention the significance of that) and why he believed Resolute had surrendered the license before accusing Cllr. McTaggart of misleading Council regarding these issues. I followed up with him about this request on April 20th. His response is summarized in the next section below.
g. Paragraph [19] above – Cllr. Kircher states in response to why he sent this email/Motion for Reconsideration that “My efforts then and now are intended to restore and improve the financial integrity of the Town and the wellbeing of constituents.” I fail to see how a witch hunt against Cllr. McTaggart at considerable expense to the Town in terms of the legal fees of a lawyer highly specialized in forestry agreements would “restore and improve the financial integrity of the Town and the wellbeing of constituents.” I find that this email was another step in a vindictive campaign to exact retribution against Cllr. McTaggart for his perceived misdeeds, in Cllr. Kircher’s mind.
h. In respect of paragraph [21] above, Cllr. Kircher responded that “This was a reasonable request, made respectfully and cordially, with an aim of ensuring that matters of public importance would be dealt with openly at Council meetings to ensure that our constituents were fully informed on such matters.” This explanation demonstrates a lack of appreciation that it is up to Council, not individual councillors, to request reports from staff, a fact Cllr. Kircher had been reminded of on several prior occasions.
i. Regarding paragraph [24] above, Cllr. Kircher responded “I also stated the existing practice of a few members of Council receiving information and deciding a course of action must end. This practice lacks transparency and accountability, as such I welcomed an investigation of my actions with this document.” I fail to see how the first clause of this response explains his demand for an investigation (he also provided no evidence to support his allegation that some members of Council received information that others did not) and the second clause is disingenuous to say the least given that Cllr. Kircher was not on Council when the demolition permit was issued such that there was nothing to be investigated regarding his role.
j. Paragraph [30] above – Cllr. Kircher responded: “The characterization of my comments or requests as being demands and assertions are self-serving and not accurate.” Firstly, I have no personal interest in how I characterize Cllr. Kircher’s comments so the term “self-serving” is inapposite. Secondly, I stand by my characterization of his comment as constituting a “demand.”
k. Paragraph [32] above – Cllr. Kircher’s response – that “This email was a continuation of a discussion from the Planning and Development Comm. I concluded the email with I will leave this for your consideration being the named people not the Comm. Of Adjustment. The option was a matter of process and not a material change of the Comm.’s decision.” – cannot be reconciled with the plain wording of his email that “The Committee of Adjustments may wish to reconsider…”
Response to my April 20, 2024 Email Inquiries
60By email sent on April 20th, I posed four additional questions to Cllr. Kircher and requested his response. Not having heard back from him, I emailed Cllr. Kircher again on April 23rd requesting his response by 4 pm on Friday, April 26th. He eventually wrote back stating that this was insufficient time, without providing an alternative response date. After further haggling with him, I finally gave him at the close of business on May 1, 2024 to address my additional, discrete questions. He delivered responses to my additional questions through his lawyer at a downtown Toronto litigation law firm on May 1st.
61Below I set out my supplementary questions, followed by Cllr. Kircher’s response followed thereafter by my commentary on his response to each question.
- Is it true that you and Cllr. McTaggart have not spoken since your series of emails addressing his involvement in the forestry license matter in late 2022? If so, why is that the case and do you think it is in the best interests of the citizens of Fort Frances for 2 members of a 7 member Council to not be speaking to each other?
Response:
No, that is not true.
Regardless, Council business is done at a Council meeting, not over a cup of coffee. All members are cordial and respectful during these meetings.
My Comments: I reject Cllr. Kircher’s assertion that he and Cllr. McTaggart have cordial relations, or have spoken to each other. I accept the evidence of Cllr. McTaggart and Mayor Hallikas that they have not spoken since almost the beginning of this Council term. I reject Cllr. Kircher’s contrary assertion because he has demonstrated in all of his responses to the Complaint that he is prepared to say almost anything to avoid accountability for his actions.
- I reviewed your attachments 1-6. While there are emails between you and Cllr. McTaggart, in case I was not clear in my previous email requesting information from you, I was looking for anything where you asked Cllr. McTaggart about whether he had appreciated the consolidated forestry license had been extended an additional 10 years until 2032 and why he believed Resolute had surrendered the license before accusing him of misleading Council regarding these issues. I would be grateful if you would provide any such communications with him.
Response:
I did not accuse Councillor McTaggart of misleading Council.
In the December 9 email referenced above I wrote: “The next day, February 8 2021, Councillor McTaggart indicated Resolute had surrendered the Crossroute SFL and at the same time the Boundary Waters eSFL was put in place.”
Councillor McTaggart was responding to my emails and the documents I had sent to him. Copies of Councillor McTaggart’s emails, my emails and the documents delivered to Councillor McTaggart are included in the 5 attachments to my April 15 submission to you.
My presentation to Councillor McTaggart included:
A copy of the Crossroute SFL extended to 2032, together with the Order-in-Council that approved the extension of the term of said License from 2022 to 2032.
I pointed out that the License extended to 2032 still had Resolute’s Fort Frances mill being the main forest processing facility for all species of wood from the Crossroute Forest.
I asked why the Ministry extended Resolute’s access to the Crossroute fiber when the company had permanently closed the mill.
I pointed out that M. Willick in his report stated the Boundary Waters Forest Management Corp. was not empowered to change or alter the Minister’s wood supply commitments.
Councillor McTaggart acknowledged all of my comments and questions and committed to finding the answers.
Councillor McTaggart had as a resource direct access to M. Willick, who
retired from the MNRF as an Assistant Deputy Minister, and who was representing the economic interests of the Town of Fort Frances.
Councillor McTaggart’s reply to my presentation begins: “I think I understand your argument but the Crossroute forest license and the Sapawe forest license were both surrendered by Resolute and a tribal group, respectively, and at the exact same time the BWFM eSFL was put in place.”
Councillor McTaggart maintained this position in an email to me on August
20, 2021 and I maintained my position that the eSFL was the amended Crossroute SFL in reply.
What I didn’t know at the time was that my presentation to Councillor McTaggart in January 2021 of the extension of the Crossroute SFL to 2032 was redundant; he had already received a copy of the extended SFL from M. Willick two years prior (on May 13, 2019).
In any event, the entire exchange with Councillor McTaggart was carried out respectfully and in good faith.
My Comments: I find that Cllr. Kircher most certainly did accuse Councillor McTaggart of misleading Council, and on multiple occasions at that. His email to Members of Council and the OPP Officer reviewed at paragraph [17] above specifically stated that Cllr. McTaggart mislead Council. Furthermore, it is clearly implicit in his draft Motion for Consideration reviewed at paragraph [19] above where he asks that Council to “retain a law firm that has experience and expertise in the administration of the Crown Forest Sustainability Act and its Regulations to review the information available to and actions taken by Councillor McTaggart et al, related to the history of Licence # 542245 and the impact of these actions or inaction to the financial integrity of our Town and the well-being of our Constituents.” This coupled with the 10 preamble paragraphs of the draft Motion leave no doubt that members of Council were being asked to agree that Cllr. McTaggart had willfully mislead Council.
With respect to the response regarding communications with Cllr. McTaggart, Cllr. Kircher simply repeated reference to the emails he had previously sent me which were not responsive to my question, being to produce communications in which he “asked Cllr. McTaggart about whether he had appreciated the consolidated forestry license had been extended an additional 10 years until 2032 and why he believed Resolute had surrendered the license before accusing him of misleading Council regarding these issues.” Given that he was unable to produce any such communications, I find that he never made these inquiries of Cllr. McTaggart.
- Please provide me with evidence for the statement on pdf pp. 13-14 of your Response of “the practice of decisions being made with a select group of councilors and admin outside of a duly called and structured meeting.”
Response:
Cllr. Kircher provided four examples that he believed supported his claim. One was from 2021, prior to the current Council term of office. The second was the tendering of a contract for repairs to a community pool. The third example was the ACAO scheduling an informational meeting with Agency One representatives without Council directing him to do so. The fourth was that the Mayor and CAO in consultation sent a letter to the Agency One First Nations objecting to the posting of a sign by Agency One suggesting it own lands belonging to the Town.
My Comments: In my opinion, what happened during previous terms of Council, when Cllr. Kircher was not even on Council, is irrelevant to the conduct of Council business during the current term of Council. As for the second example, repairs to a pool is an administrative matter, not a policy matter that required the involvement of Council. Regarding the third example, the ACAO setting up an information session with Agency One representatives is hardly a “decision” of a “select group of councilors and admin outside the duly structured meeting.” With respect to the letter protesting a sign posted by Agency One on Town property, this was an action requiring an immediate response that was required to safeguard the Town’s legal position with respect to the subject lands, and which was within the authority of the Mayor and CAO. I reject Cllr. Kircher’s claim in this regard. In any event, I fail to see how, even if there were decisions taken that ought to have been passed by Council first, they aid Cllr. Kircher’s position with respect to the allegations of misconduct he is facing.
- Please provide me with examples of emails from other councilors that support your general claim that all councilors routinely conduct Council business by email and, in particular, that Mandi Olson has done so as you assert on pdf p. 15 of your Response.
Response:
Cllr Kircher provided 3 sets of email exchanges to attempt to establish his assertion. The first was an email chain initiated by another councillor regarding requirements for participation in the Rainy Lake Market. The email asked questions of administration regarding why certain requirements not previously being enforced were now being enforced, which Cllr. Kircher turned into an extended policy debate. The second example related to the Mayor’s circulation of a letter from Agency One and his response. His response had already been sent so, as he said, the provision of his letter to the councilors was for “informational purposes” only. The third example concerned matters dating back to 2019, prior to the current term of Council and Cllr. Kircher’s service on Council.
My Comments: With respect to the first example, the other councillor was asking senior staff why certain requirements for vendors in the market were now being required and the administration’s response was that these were always requirements, they were just not being enforced and now they were. Enforcement is a matter of administration, not a matter for Council. The email exchange was purely informational, not advancing Council’s agenda as the requirements for vendors in the Market already existed. In subsequent emails, it was Cllr. Kircher who attempted to turn the matter into a policy issue for Council, not the other councillor. Concerning the second example, the Mayor made it clear that he was circulating the letter for informational purposes. The letter had already been sent so there was no Council business to be discussed. Regarding the third example, in my opinion, what happened during previous terms of Council, when Cllr. Kircher was not even on Council, is irrelevant to the conduct of Council business during the current term of Council. I reject Cllr. Kircher’s assertion that there is a culture of conducting Council business by email. Even if his characterization of the emails he cited was correct, 2 such occurrences over the 2.5 years of this term of Council hardly establishes a culture.
The Code of Conduct and Other Relevant By-laws and Policies
62The following provisions of the Code of Conduct for Councillors and other By-laws and Policies of the Town are in my view potentially relevant to the present investigation.
1.2 Key statements of principle that underline this Code of Conduct are as follows:
c) Members must be committed to performing their functions with integrity, avoiding the improper use of the influence of their office, and conflicts of interest, both real and perceived;
(d) Members are expected to conduct themselves and perform their duties in office and arrange their private affairs in a manner that promotes public confidence and will bear close public scrutiny;
f) Members shall seek to serve the public interest by upholding both the letter and spirit of the laws of Parliament and the Ontario Legislature, as well as the laws and policies adopted by the Municipal Council;
g) Members must not use the status of their position to inappropriately influence the decision of another individual or body…
- Adherence to Council Policies and Procedures
5.1 Every Member shall observe and comply with every provision of this Code of Conduct, as well as all other policies and procedures adopted or established by Council.
- Conduct Respecting Others
7.1 Every Member has the duty and responsibility to treat members of the public, one another and staff appropriately and without abuse, bullying or intimidation, and to ensure that the municipal work environment is free from discrimination and harassment. The Member shall be familiar with, and comply with, the Municipality’s Workplace Anti-Violence, Harassment and Sexual Harassment Policy.
- Conduct Respecting Staff and Officers
8.2 Members shall acknowledge and respect the fact that staff carry out directions of Council, through senior staff, including but not limited to the treasurer, clerk, director of public works, and administer the policies of the Municipality. No Member shall perform, direct or attempt to undermine the duties of any staff person or Officer except in accordance with the Municipality’s procedural by-law.
8.3 Every Member shall show respect for staff and Officers, and for their professional capacities and responsibilities.
- Confidential Information
10.1 No Member shall disclose, release, sell or publish by any means directly or indirectly, to any person or to the public, any Confidential Information acquired by virtue of his or her office, in any form including, but not limited to, written notes, reports, oral and video recording, pictures, electronic correspondence, and any form of social media except when required or authorized by Council or otherwise by law to do so.
10.2 No Member shall use Confidential Information for personal or private gain or benefit, or to disadvantage any other person or body.
10.3 Unless required by law, no Member shall disclose the substance of deliberations of meetings held in-camera and that are authorized to be held in-camera under the Municipal Act, 2001 or any other legislation unless or until Council discloses such information at a meeting that is open to the public or otherwise releases such information to the public.
10.4 Without limiting the generality of the foregoing, no Member shall, without lawful authority, disclose or make personal use of any of the following types of Confidential Information: a) Information concerning litigation, negotiation or personnel or labour matters; b) Information the publication of which may infringe on the rights of any person (e.g. source of a complaint where the identity of a complainant is given in confidence); c) Price schedules in any contract, tender or proposal document while such remains Confidential Information; d) Information deemed to be “personal information” under the Municipal Freedom of Information and Protection of Privacy Act; and e) Any other information or statistical data required by law not to be released.
10.5 No Member shall obtain access, or attempt to gain access, to Confidential Information in the custody of the Municipality, Local Board or Committee except to the extent that such access is necessary for the performance of his or her duties and such access is not prohibited by Council or otherwise by law.
- Statutes and Policies Regulating the Conduct of Members
16.2 The following policies govern the conduct of Members:
Procedural By-Law 34/95
Council/Staff Relations Policy
I am of the opinion that the effect of ss. 5.1 and 16.2 of the Code of Conduct is to incorporate by reference the following provisions of the Town’s policies and procedures as terms of the Code of Conduct as if they were set out in the Code itself.
4.10.3 Confidential Matters
Members are to ensure that confidential matters disclosed to them during meetings closed to the public are kept confidential. No member, officer or employee of the Corporation shall disclose the content of the matter or substance of the deliberations of a Closed Meeting, unless expressly authorized to do so by Council as required by law or to respond or make disclosures to the extent necessary in respect of any legal proceeding or requirement.
Any Member, who contravenes the confidentiality clause, may be subject to penalties in accordance with the previously adopted “Code of Conduct for Councillors.”
5.1.2 Established Policies – Members – respect
Members of Council shall respect and adhere to the Policies set by the Council and under no circumstances take it upon themselves individually to circumvent established policies.
5.1.3 Council – liaison with CAO
Council Members will liaise with the Chief Administrative Officer on any given matter concerning the municipality and further, it is encouraged that the Mayor be copied on said correspondence as part of the leadership role outlined in the Municipal Act, 2001.
6.1.2 Interference – directed to administration
No Members(s) shall have the authority to direct or interfere with the performance of any work by Administration of the municipality. All inquiries shall be directed through the office of the Chief Administrative Officer as outlined in the Council/Staff Relations policy.
7.8.2 Council Response – In-Camera enquiries
The response of Council Members to enquiries about any matter dealt with during an “In-Camera” closed meeting, prior to it being reported publicly, shall be “This matter is still under advisement”, “No comment”, or words to that effect.
a) Release of Information
The release of any information about matters dealt with by Council at a closed meeting shall be by the Mayor or her/his delegate only upon direction of the majority of Council.
b) Members – expressing personal position
Notwithstanding Section 7.7.2 (b), unless council by vote determines otherwise, upon the public disclosure of any report discussed at an “In-Camera” meeting, (closed to the public), any individual Member may express their own personal position on the item, but shall not refer to or discuss the specific positions or opinions (written or verbal) of other Members or of municipal administration or staff.
c) No public release – documents
Agendas or any items thereon for consideration by Council at a meeting closed to the public shall not be released to the public.
Council/Staff Relations Policy
- Chain of Command
- Members of Council do not have authority to direct Staff to perform, or not perform functions or duties, the CAO is responsible for providing direction to Officers and Staff.
- Use of Officers & Staff Time
- Members of Council should use Officers and Staff time thoughtfully. Requests from Council take Officers and Staff time away from other issues or problems that may need attention. Members of Council should be discouraged from asking for Staff reports in an effort to delay a potentially unpopular decision.
- Respect Above all Else
- Members of Council, Officers and Staff shall work together to foster working relationships that are respectful of each other’s intelligence and professional duties. We all face diverse and often unique challenges and we must be cognizant that our collective goal is to serve the best interests of the Municipality.
Are any of the Grounds of Complaint Barred by a Limitation Period?
63As is apparent from the review of emails giving rise to the Complaint, most of the alleged breaches of the Code of Conduct occurred more than 6 weeks before Council directed me to investigate, on February 13, 2024.
64Consistent with the provisions establishing Codes of Conduct and Integrity Commissioners under the Municipal Act, 2001, while the Town’s Code of Conduct has a 6 week limitation period for complaints alleging breach of the Municipal Conflict of Interest Act, there is no limitation period for bringing a complaint about a Code of Conduct breach.
65I therefore find that there is no bar to my investigation of any aspect of the subject Complaint against Cllr. Kircher.
The “Open Meeting” Principle
66The purpose of the “open meeting” principle is to allow the public to observe local government in process. The public has the right to be present for such decision-making.8 Not only is this principle mandated by s. 239(1) of the Municipal Act, 2001 (the “MA”) but the right of the public to attend and participate in open public Council meetings has been found to be of such importance to our democratic system that it is a protected right under s. 2(b) of the Charter of Rights and Freedoms.9
67Where a councillor uses e-mail to discuss issues before Council with other councillors, such discussion will constitute a “meeting” pursuant to the MA if the e-mail(s) seek to exercise authority or make pre-determinations about matters that will be subject to discussion at a future Council meeting. These types of discussions do not constitute an “open meeting” because they are conducted in the absence of the public and are in breach of the MA. Where e-mails involve a quorum of councillors and further Council’s discussion of a proposed decision or issue, or lay further groundwork for Council’s position or a change in that position, they will constitute a meeting.10
68In my opinion, even if the subject-matter of emails between councillors concerns a matter that could properly be heard in a closed session of Council, that does not render such discussions acceptable; in fact, it is even more problematic. In moving into a true closed session of a Council meeting, various formalities are required to be followed to ensure the public is informed of the nature of the matter to be considered and the confidentiality of the subject-matter discussed.11 The same is far from true when deliberations are undertaken by email. Moreover, entire emails or excerpts therefrom containing confidential discussions can be cut and pasted and sent to third parties not bound by any duty of confidentiality. The content of emails can easily be shared with others without even forwarding the email itself or portions thereof, simply by allowing a third party to view, even photograph, the message on the councillor’s smartphone, laptop or desktop computer. Lacking the formality of a closed session at a Council meeting at which a formal vote is held to go in camera, councillors engaged in such email debates may not even realize the subject-matter is confidential and not to be disclosed to others. I find that discussion via emails of business that could properly be heard in closed session equally violate the “open meeting” principle enshrined in s. 239(1) of the MA.
Findings
Conducting Council Business Through Emails in Violation of the Open Meeting Principle
69I find that the emails summarized in the following paragraphs above from Councillor Kircher to, inter alia, all members of Council, addressing non-confidential matters further Council’s discussion of a proposed decision or issue, or lay further groundwork for Council’s position or a change in that position and as such violate the open meeting principle enshrined in s. 239(1) of the MA: paras. [17], [19] and [23] to [30].
70Some of the emails in which Councillor Kircher improperly discussed Council business with the other members of Council concerned what could arguably be considered confidential information that would properly be the subject of a closed meeting. Those emails are summarized at paras. [8], [11], [13], [15] and [21] above. On the basis of the discussion set out in paragraph [68] above, I find that these discussions also violate the open meeting principle as they further Council’s discussion of a proposed decision or issue, or lay further groundwork for Council’s position or a change in that position, notwithstanding that they may have qualified for in camera discussion.
71Cllr. Kircher advanced a “defence” that essentially amounted to “everyone is doing it” ie. discussing Council business by email, or at least other than in an open, public meeting, so why am I being singled out? I do not agree that the examples Cllr. Kircher provided of communications outside of open, public meetings violated the “open meeting” principle. For example, while the Mayor invited councilors to contact him on his cellphone to discuss a proposed letter he wanted to send out, these were one-on-one calls not involving a quorum of Council so that did not violate the open meeting principle.
72Finally, even if other councillors have occasionally engaged in this impermissible behavior, the behavior remains impermissible and was engaged in by Cllr. Kircher on a regular basis, despite repeated warnings. I have no qualms in finding that there has been a serious breach of the Code of Conduct and of the Municipal Act, 2001 and that a penalty must be assessed that sends a message of deterrence to both him and members of Council generally.
Conduct Respecting Fellow Councillors
73As frequent as Cllr. Kircher’s breaches of the open meeting principle have been despite numerous warnings to cease this activity and his acknowledgement as early of his guilt in this regard as December 9, 2022, the most disturbing aspect of his behavior that I have encountered during this investigation is the email sent by him to Cllr. McTaggart, cc’d to all members of Council and an OPP officer, on December 7, 2022. On that date, just 15 days after being sworn into office,12 Cllr. Kircher sent Cllr. McTaggart an email written entirely in bold cap letters that evinced an angry and aggressive and, in my view, implicitly threatening tone. It accused him of serious misconduct. Furthermore, in claiming that the former Mayor was being investigated criminally by the OPP and falsely implying that it was for the very same conduct that he was accusing Councillor McTaggart of and cc’ing the email to the OPP officer involved in the investigation of the former Mayor, this without a doubt represented an attempt to intimidate and frighten Cllr. McTaggart. He engaged in this conduct without having the courtesy of first speaking with Cllr. McTaggart to ascertain the state of his knowledge about the extension of the consolidated forestry license and why he believed Resolute had surrendered the license when he informed Council. This email constitutes abuse, bullying and pressure of a fellow councilor in breach of s. 7.1 of the Code of Conduct.
74Councillor Kircher did not stop there in his attempt to humiliate Cllr. McTaggart. On January 24, 2023, he sent an email to all Council members setting out a draft motion that contained multiple superfluous and unnecessary preamble paragraphs insinuating concealment of information on the part of Cllr. McTaggart and asking that Council pass a motion to retain a specialized law firm to determine the impact of Councillor McTaggart’s alleged actions on the “financial integrity of our Town and the well-being of our Constituents.” I find that this email also constitutes abuse, bullying and intimidation of a fellow councilor in breach of s. 7.1 of the Code of Conduct.
75Cllr. Kircher’s inappropriate allegations against fellow members of Council was not limited to Cllr. McTaggart. By emails dated November 29 and December 3, 2023, Cllr. Kircher indirectly and then directly insinuated that the Mayor had sent inappropriate letters to the Agency One First Nation which prejudiced the Town’s position in ongoing litigation with Agency One First Nations and asked Council to have the Town’s external legal counsel investigate the matter. The Town’s legal counsel later praised the Mayor’s letters as being entirely appropriate. While these emails fall well short of the level of abuse Cllr. Kircher directed at Cllr. McTaggart, I find that they amount to abuse and attempts to intimidate the Mayor, in violation of s. 7.1 of the Code.
Improper Dealings with Town Staff
Directing Staff
76It is trite law that staff carry out directions of Council, not individual members of Council. This is enshrined in s. 8.3 of the COC which states that “No Member shall perform, direct or attempt to undermine the duties of any staff person or Officer except in accordance with the Municipality’s procedural by-law.” It is also set out in s. 6.1.2 Interference – directed to Administration of the Town’s Procedural By-law (“No Members(s) shall have the authority to direct or interfere with the performance of any work by Administration of the municipality”) and s. 2 - Chain of Command of the Town’s Council/Staff Relations Policy (“Members of Council do not have authority to direct Staff to perform, or not perform functions or duties”), both of which are incorporated by reference into the Town’s COC.
77I find that Cllr. Kircher’s emails summarized at paragraphs [9], [12], [20], [22], [23] and [28] to [31] of this Report clearly, on their face, purport to unilaterally direct staff to do such things as initiate investigations, prepare reports, provide information and forward information to outside parties; as such, they violate s. 8.3 of the COC, s, 6.1.2 of the Town’s Procedural By-law and s. 2 of the Town’s Council/Staff Relations Policy.
Requesting Information from Staff
78Sections 5.1.3 – Liaison with CAO (“Council Members will liaise with the Chief Administrative Officer on any given matter concerning the municipality”) and 6.1.2 - Interference – directed to Administration (“All inquiries shall be directed through the office of the Chief Administrative Officer”) of the Town’s Procedural By-law, both of which are incorporated by reference into the Town’s Code of Conduct, expressly prohibit councillors from contacting staff directly for information, other than the CAO. I find that Councillor Kircher’s emails summarized in paragraph [7] above constitutes improper soliciting of information from Town staff other through the proper channel of the CAO in breach of the COC.
Other Inappropriate Communications with Staff
79S. 7.1 of the COC states that “Every Member has the duty and responsibility to treat … staff appropriately and without abuse, bullying or intimidation.” S. 8.3 of the COC states that “Every Member shall show respect for staff and Officers, and for their professional capacities and responsibilities.” S. 7. Respect Above all Else - Members of Council, Officers and Staff of the Council/Staff Relations Policy stipulates that “councilors and staff shall work together to foster working relationships that are respectful of each other’s intelligence and professional duties.”
80I find that Cllr. Kircher breached these provisions of the COC and the Council/Staff Relations Policy in his emails summarized at paragraphs [11], [15], and [16] above wherein he needlessly accused the CAO and Clerk of omitting certain documents in a package related to consideration of the Agency One alleged trespass issue, which he copied to all other members of Council as well as other Town staff.
81I further find that the emails summarized at paragraphs [22] and [28] to [30] above constituted a breach of the foregoing provisions of the COC and Council/Staff Relations Policy in that he essentially accused Town staff of incompetence, once again copying all members of Council.
Interference with Decision-making of Independent Adjudicative Bodies
82The Committee of Adjustment (COA”) is a quasi-judicial decision-making body operating under the authority and statutory requirements of the Planning Act.13 The COA operates completely independently from Council. Just as with a court, it is impermissible for anyone to attempt to influence the decision of such an adjudicative body outside of a properly constituted hearing.
83I find that the email summarized at paragraph [32] of this Report amounts to violations of both s. 1.2(f) and (g) of the COC. Subsection (g) was breached as I find that Cllr. Kircher attempted to use his status as a councillor to inappropriately influence the decision of another body, or at least counsel others to do so. I further find that subsection (f) was breached in that attempting to interfere, directly or indirectly, with the decision-making process of the COA amounts to a failure to uphold at least the spirit of the laws of the Ontario Legislature in attempting to improperly influence the decision of a quasi-judicial body behind closed doors.
Confidential Information
84Maintaining confidentiality over documents related to closed session matters is of utmost importance. For that reason, it is enshrined not only in the COC (Article 10, especially s. 10.1 and 10.4) but also in the Procedural By-law (s. 7.8.2(c)).
85I stress that I make no finding that Cllr. Kircher has improperly disclosed any confidential information obtained in his capacity as a councillor to any unauthorized third party and I have not been provided with any reasonable grounds to further investigate that issue.
86Notwithstanding this, councillors must adhere to the highest standards of integrity and avoid situations where their conduct can be questioned, whether there is actual breach of the COC or the perception that there may be one. That is enshrined in s. 1.2(c) of the COC. Furthermore, section 1.2(d) of the Code states that ”Members are expected to conduct themselves and perform their duties in office and arrange their private affairs in a manner that promotes public confidence and will bear close public scrutiny.”
87I note that the email with confidential attachments summarized at paragraph [14] of this Report was forwarded by Cllr. Kircher from his Town/Council email address to his business email address. Furthermore, he has admitted to other instances where he has done so. I see no reason why any councillor would forward confidential documents to non-Council email addresses. Doing so, in my view, creates the appearance that the councillor is seeking to create a situation in which she/he can later surreptitiously deal with these confidential documents in a manner inconsistent with his/her obligations of confidentiality.
88I find that forwarding confidential Town emails to personal or business accounts of councillors violates the principles set out in ss. 1.2(c) and (d) of the COC.
Appropriate Penalties
89Emails constituting violations of the open meeting principle – repeated violations over a prolonged period of time despite repeated warnings and his own acknowledgement that the use of emails to all members of Council to conduct Council business was wrong. Mitigated by fact that there have been no reported breaches in the last 4-5 months - 10 days suspension of pay for this.
90Emails Disrespecting fellow councillors – the most serious violation – severe impact on Council operations and especially on Cllr. McTaggart reputationally and personally, carried out, I find, with malice - 30 days suspension of pay for this.
91Harassment of staff – negative impact on individual staff members in terms of their reputations and personal mental distress -10 days suspension of pay for this.
92Attempting to influence or alter a COA decision – the notion of attempting to influence an independent quasi-judicial body is egregious, even though the particular manner of going about it in this case was limited - 5 days suspension of pay for this.
93Confidential information – this warrants only a reprimand given the lack of evidence of actual disclosure of confidential information to third parties notwithstanding the appearance of impropriety that forwarding confidential emails to personal accounts gives rise to.
Conclusions Regarding the Complaint and Penalty
94I have found that Councillor Kircher breached numerous provisions of the Code of Conduct as detailed above. He did so despite repeated warnings that his conduct was breaching the Code. He steadfastly continued to act in defiance of those warnings. Furthermore, in none of his communications with me has Cllr. Kircher acknowledged any wrongdoing or show any sign of contrition or remorse, particularly with respect to his conduct toward Cllr. McTaggart.
95Given the nature and extent of the Code violations and the repeated warnings he was given which he ignored, and the negative impact his actions have had on the operation of Council and the morale of staff, I am of the opinion that a cumulative 55 day suspension of Councillor Kircher’s pay is in order, and I so recommend. I also recommend that Councillor Kircher be formally reprimanded for his inappropriate dealings with confidential information as I have detailed above.
96Finally, I am concerned about the dysfunctionality of Council stemming from the lack of real communication and obvious animosity between two of the Town’s seven members of Council, and its spillover effect on the remaining councilors and staff, which I lay squarely at the feet of Cllr. Kircher. I therefore make the following additional recommendations:
Cllr. Kircher be requested to publicly apologize to Cllr. McTaggart for his conduct toward Cllr. McTaggart as set out herein, as provided for in s. 14.1 c) v. of the Code of Conduct;
The Town hire a workplace facilitator to work with Cllrs. Kircher and McTaggart, and perhaps also Council as a whole, with the goal of restoring mutual trust and respect amongst Council members. I can provide referrals to an appropriate facilitator if Council is interested in pursuing this option.
97This concludes my investigation.
Respectfully Submitted,
David G. Boghosian,
Integrity Commissioner,
Town of Fort Frances
Footnotes
- By Resolution passed on March 25, 2024, Council authorized the release of this statement, which would otherwise be confidential as it relates to an in camera matter.
- My understanding is that the referenced investigation related to the former Mayor’s wrongful disclosure of a confidential legal opinion to Cllr. Kircher prior to his becoming a Member of Council, not to any misrepresentation of the content of the License.
- The Gowlings Opinion was a solicitor-client privileged, confidential document which former Mayor Caul eventually admitted to providing to Cllr. Kircher before he became a councillor. She was found guilty of Code of Conduct violations as a result of its release by the former IC. Mr. Kircher was aware of the circumstances of the release of the Opinion to him at the time he provided it to the OPP officer.
- The ACAO points out in subsequent emails that the problem with the deteriorating columns was a known problem discussed at Council back to 2019 and repeatedly thereafter, and that the problems and need for a solution were known to Council throughout.
- Mr. Willick was at the time the President and Chair of Boundary Waters Forest Management Corporation. He was at the time a Registered Professional Forester. Mr. Willick retired from the Ministry of Natural Resources and Forestry (MNRF) as an Assistant Deputy Minister.
- See paragraph [2] above.
- Regarding the latter category, the only document I received from the February 12 in camera meeting was the speaking notes of Mayor Hallikas, the contents of which are reproduced in full in paragraph [2] of this Report.
- Leeds and the Thousand Islands (Township of) (Re), 2016 ONOMBUD 15 at para. 39.
- Leeds at para. 41.
- Leeds at paras. 32-33.
- S. 239(4) of the MA requires that before holding all or part of a meeting that is closed to the public, a municipality shall pass a resolution in the public, open session stating (1) the fact that it is holding a closed meeting; and (2) the general nature of the matters to be considered at the meeting or (3) the meeting is held for training purposes. In essence, before moving into an in camera portion of a meeting, a meeting must still be “public” for the time required to pass a resolution. The resolution has two purposes: (1) to disclose to the public that a closed meeting is being held, and (2) to disclose the general nature of the matter to be considered during the closed meeting. The information in the resolution must be public and properly describe the issue to be discussed in a way that maximizes the information available to the public while not undermining the purpose of the meeting being held in camera. The object of this obligation is to enhance transparency and ensure that decision makers are accountable when discussing issues without the public: see Casselman (Municipality of) (Re), 2022 ONOMBUD 14 at para 17.
- Councillors serving during the current term were sworn in at the inaugural Council meeting on November 21, 2022.
- Rogers, The Law of Canadian Municipal Corporations, 2nd Edition. Paras. 34:11-34:12.