Ontario Civilian Police Commission v. Oliver, 2014 ONCPC 2503

OCPC INQ -#14-03

2014 ONCPC 2503

ONTARIO CIVILIAN POLICE COMMISSION

IN THE MATTER OF AN INQUIRY UNDER S. 25 (1) OF THE POLICE SERVICES ACT, R.S.O. 1990, C. P.15, AS AMENDED, INTO THE CONDUCT AND PEFORMANCE OF DUTIES OF GREG OLIVER, A MEMBER OF THE STIRLING- RAWDON POLICE SERVICES BOARD

DECISION ON PENALTY

Panel: Noëlle Caloren, Presiding Member Roy Conacher, Q.C., Vice-Chair

Hearing Dates: June 27, July 19, November 6, December 3, 2012, March 4, April 9-12, April 15-18, June 17-21, June 24, August 28-29, September 25, 2013

Hearing Locations: Toronto and Belleville, Ontario

Written Penalty Submissions: October 24, 2014

Ontario Civilian Police Commission 250 Dundas Street West, Suite 605 Toronto, ON M7A 2T3 Tel: 416-314-3004 Fax: 416-314-0198 Website: www.ocpc.ca

APPEARANCES

Brian G. Whitehead, Counsel for the Ontario Civilian Police Commission

Patrick E. Hurley, Counsel for Greg Oliver

INTRODUCTION

1. This is a decision with respect to penalty issued pursuant to section 25 (5) of the Police Services Act, R.S.O. 1990, c. P. 15, as amended (the “Act”), following an inquiry, pursuant to section 25 (1) of the Act, into the conduct and performance of duties of Mr. Greg Oliver, as a member of the Stirling-Rawdon Police Services Board (the “Board”).

DECISION ON PENALTY

2. For the reasons set out herein, pursuant to section 25 (5) of the Act, Mr. Greg Oliver is hereby removed as a member of the Stirling- Rawdon Police Services Board effective on the issue date of this Decision.

BACKGROUND

3. As a result of receiving two separate formal letters of complaint from Chief Brian Foley of the Stirling-Rawdon Police Service (“Chief Foley” or the “Chief”) and Shawn LaPalm, former Chair of the Police Services Board for that police service (the ”Service”) dated June 15 and 16 respectively, the Commission, on its own motion, authorized an investigation into the conduct of Mr. Oliver and the two other Board members pursuant to section 25 (1)(a) of the Act. The allegations in issue referred to the conduct of these members of the Board at public and “in camera” meetings as well as Board related conduct outside the context of Board meetings.

4. On August 26, 2011, Mr. Oliver and the two other Board members were advised of the commencement of the investigation by the Commission. Pursuant to Section 14 (1) of Ontario Regulation 421/97, the Members of Police Services Boards – Code of Conduct (the “Code”), Mr. Oliver and the other members were required to decline to exercise their respective duties as Chair and as members of the Board for the duration of the investigation and inquiry.

5. In its investigation report, the Commission concluded that there was sufficient evidence of purported misconduct or failure to perform duties by Mr. Oliver to warrant convening a public inquiry under section 25(1)(a) of the Act into the allegations against him. The Commission directed that such an inquiry be held.

6. The specific allegations against Mr. Oliver related to his conduct in the execution of his duties during his tenure on the Board as a member, and subsequently as Chair, for the period from December 14, 2010, when he was sworn into office, to August 26, 2011, when he was required to decline to perform his duties as a Board member.

7. The allegations against Mr. Oliver were set out in the Notice of Hearing issued on February 22, 2012, which provided that:

(a) Acting alone, he improperly made public Chief Brian Foley’s employment contract in a manner which was contrary to an earlier Board decision;

(b) He repeatedly made inaccurate, inflammatory, insulting, unfair, demeaning and disrespectful statements, in public and during Board meetings, about and to Chief Foley and former members of the Board;

(c) He conducted himself with Chief Foley in an antagonistic, unprofessional, harassing, undignified and disrespectful manner;

(d) On numerous occasions he independently took steps and made statements purportedly on behalf of the Board when he lacked the required authorization from the Board; and

(e) By these and related statements and acts, Mr. Oliver has engaged in conduct that discredits and compromises the integrity of the Board or the Service.

8. The inquiry was to determine whether Mr. Oliver’s conduct, as alleged in the Notice of Hearing, constituted a breach of Sections 4, 5, 7, 8, 9 or 13 of the Code.

9. The inquiry dealt with a number of significant issues regarding the role of police service board members and the manner and extent to which they may perform their mandated oversight duties and conduct themselves, express their views and make decisions in the course of carrying out their duties.

10. Misconduct or a failure to perform the duties required by the Code and the Act can result in serious repercussions for the member, the board, the chief of police, the police service and finally, and most importantly, the community.

11. Subsection 25(5) of the Act provides that if, after a hearing, the Commission concludes that a member of a board is guilty of misconduct or is not performing or is incapable of performing the duties of his or her position in a satisfactory manner, it may remove or suspend the member.

12. After a lengthy hearing, for the reasons set out in its Decision dated October 7, 2014 (OCPC INQ #14-02), (the “findings decision”), the Panel found that Mr. Greg Oliver had committed misconduct by breaching the provisions of sections 4, 5, 7, 8, 9 and 13 of the Code.

THE INQUIRY

13. The inquiry was conducted over twenty-two days on various dates during a period of eighteen months from June 27, 2012 to September 25, 2013. The Panel heard from nineteen witnesses. A total of ninety-six exhibits were filed, including a number of bound books containing multiple documents and several CD recordings of meetings.

14. The witnesses for the prosecution were former Board members Rosanna Clark, Michael Regan, and Shawn LaPalm; former Secretary to the Board, Linda Philp, and her successor, Cassandra Bremner; Ministry appointed police service advisors, Brian Haggith, and Paul Thompson; Chief of Police Brian Foley; Sergeant Mark Harry, Const. Robert Travers, and Chief Cory McMullan, all of the Belleville Police Service; and, Senior Advisor to the Commission, Cathy Boxer-Byrd.

15. Those who testified for the Defence were former Board member, Robert Anderson; members of the public, Wayne Martin, Kenneth Leavens, Rick Wright, and Ronald Denyes; and current members of the Board, Mayor Rodney Cooney and Greg Oliver.

16. Most of the evidence of relevance to the issue of Mr. Oliver’s conduct as a Board member and as Chair of the Board occurred in the context of nine regular monthly meetings consisting of public and “in camera” sessions and a special Board held on July 4 2011. The Board meetings in issue took place from December 14, 2010 to August 8,

17. Some evidence related to Mr. Oliver’s conduct outside the context of Board meetings.

18. Much of the evidence adduced by the prosecution in this inquiry related to the conduct of Board members other than Mr. Oliver, and was intended to contextualize Mr. Oliver’s conduct at Board meetings and the actions he took in respect of Board business generally.

19. Following the witnesses’ testimony and receipt of the documentary evidence, the Panel heard submissions from the parties with respect to the nature of Mr. Oliver’s conduct and adjourned to consider the evidence. Submissions on penalty were reserved to a later date to allow for appropriate tailoring to the findings on conduct. The Panel issued its findings decision on October 7, 2014, concluding that Mr. Oliver was guilty of misconduct.

20. Pursuant to an order of the Panel, written submissions on penalty were received by October 24, 2014.

21. For the purposes of this decision, it is not necessary to review in detail all of the evidence presented at the inquiry. It is sufficient to highlight the findings of fact and law made by the Panel which are relevant to the factors and principles relating to penalty assessment.

The Statutory Framework

21. In its assessment of Mr. Oliver’s conduct, the Panel reviewed the allegations and the evidence in light of the role and responsibilities of police service boards and the duties of individual board members that flow from the comprehensive statutory policing oversight scheme set out in the Act.

22. As was previously pointed out in Inquiry into the Conduct and Performance of Duties of Norman Gardner of the Toronto Police Services Board, (April 16, 2004, OCCPS), the members of a police services board act as “stewards in ensuring that police forces are accountable to the communities they serve”. As such, they are indispensable to the effectiveness of the Province’s system of civilian oversight of police services.

23. Members of police services boards are appointed, not elected to their role, although in their composition, police services boards include elected municipal officials.

24. The Township of Stirling-Rawdon had, at the relevant time from December 2010 to August 2011, a five member board comprised of three municipal appointees, being the Mayor, one other member of council and one council appointed community member; and two provincially appointed members.

25. The Act establishes that a police services board is a separate legal entity independent of municipal council except to the extent that its budget must be municipally approved.

26. Prior to assuming office, board appointees are required to take an oath of office in which they promise to perform their duties “faithfully, impartially and according to the Police Services Act”. (s. 32)[Ont. Reg. 268/10, section 1]. The Act also provides that they shall undergo the mandated training made available by the Solicitor General. These requirements serve to underscore the importance of a board member thoroughly understanding the role and duties of a police service board and of each member within the policing governance system.

27. In addition to the training, police services board members have access to advisors who are employees of the Ministry of Community Safety and Correctional Services. In this case, the Board members interacted with and obtained advice from two experienced advisors, Brian Haggith and Paul Thompson, both of whom were consulted by Mr. Oliver and other Board members and provided advice and recommendations to them on a number of issues, including those which drove Mr. Oliver’s impugned conduct.

28. The duties and responsibilities of a police services board are established by the Act and its regulations which make it clear that police services boards are responsible for the provision of adequate and effective police services in the municipality. (s. 31(1)) More specifically, police services boards are required to set the objectives and priorities for the police services in the municipality, in consultation with the chief of police. This entails a need for collaboration between the board and the chief as they focus on the realisation of their statutory mandate of effective and adequate policing.

29. Under the Act, a police services board is also responsible for recruiting and appointing the chief of police and annually reviewing and determining his or her remuneration and working conditions.

30. Police services boards are required by the Act to hold meetings which are open to the public, except when matters of an intimate financial or personal nature are being addressed and “the desirability of avoiding their disclosure in the public interest outweighs the desirability of adhering to the principle that proceedings be open to the public”. (s.35 (3)).

31. The Act further requires that police services boards establish their own rules and procedures to guide them in the performance of their statutory duties. (S.31(1)(c) and (6))

32. When Mr. Oliver became a member of the Board, a procedural by-law entitled the Stirling-Rawdon Police Services Board Procedural Bylaw [By-law No.01-10] was in place. It incorporated the Code by specific reference through section 5.3 which established that all members must read and adhere to the Code. A revision to that By-law was passed in 2011 [By-law No. 01-11], but the Board’s Code of Conduct and the duties of the Chair of the Board therein remained unaltered. Of relevance in these proceedings, under the By-law the Chair is required to:

• act as spokesperson for the Board and all press releases and correspondence were to be signed by the Chair before being released to the public. The Chair could request another member of the Board to act on his/her behalf but this request had to be documented on file.
• enforce at all times the rules of order and this procedure.
• maintain order and ensure that all Members, and other persons attending meetings, conduct themselves appropriately and with regard and respect for all persons in attendance at the meeting.
• immediately suspend the meeting when it is impossible to maintain order.
• permit any questions to be asked through the Chair of the Chief of Police or Secretary, in order to provide information to the Board.
• in the absence of the Chair, the Vice-Chair shall have the same authority while presiding at the meetings as the Chair would if present.

33. The Board’s Code of Conduct also contained a purpose statement which reads as follows:

The public must be confident that members of the Police Services Board fulfil their responsibilities with integrity and within the framework of the Police Services Act. This policy defines the ethical guidelines applicable to all Members of the Stirling-Rawdon Police Services Board. Every Member shall adhere to this policy in the performance of their duty. Strict adherence to the principles in this policy will allow Members to pursue their mandate, foster harmonious relations among Members and facilitate mutual respect and public confidence. [emphasis added]

The Allegations and Findings

34. The Notice of Hearing set out four specific allegations and one overall allegation with respect to Mr. Oliver’s conduct, all of which referred to behaviour and activities connected to the exercise of his duties as a member of the Board as opposed to conduct of a private or personal nature.

35. The allegations about Mr. Oliver’s conduct related to the release of the Chief’s employment contracts contrary to the Board’s instructions; statements made about or to the Chief and former Board members during Board meetings, both in public and ‘in camera’ sessions, and statements made to the media; the nature of his conduct towards the Chief; and actions he took without Board authorization.

36. The Panel had to determine whether the conduct of Mr. Oliver, which related to the four allegations, could support findings that Mr. Oliver:

• failed to maintain the confidentiality of information that was discussed or ought to have been discussed in camera at board meetings;
• effectively spoke or acted on behalf of the Board when he was not authorized to do so;
• failed to discharge his duties in a loyal, faithful and impartial manner contrary to his oath of office;
• did not uphold the letter and spirit of the Code of Conduct or acted in a manner that could compromise the public’s confidence in the abilities and integrity of the Board;
• failed to respect the dignity of individuals in the exercise of his role as a Board member and Chair; or
• discredited or compromised the integrity of the Board or the Stirling-Rawdon police force.

37. While the focus of the Commission’s inquiry in this matter was the conduct of Mr. Oliver, as a member and Chair of the Board, as previously noted, much of the evidence related to the conduct of other board members who were the municipal council representatives appointed to the Board following the 2010 elections. Accordingly, one of the issues the Panel had to consider was whether and to what extent a board chair can be held responsible, through inaction, for the actions of other board members whose conduct appears to be in breach of the Code.

38. To a great extent, the material facts in this inquiry were not in dispute. Most of the evidence related to what transpired at Board meetings.

39. The evidence relating to Mr. Oliver’s conduct fell into two broad categories: (1) his conduct at board meetings, as it was directed toward former Board members and the Chief; and (2) his conduct outside board meetings, which pertained to inquiries or “investigations” which he was alleged to have undertaken, relating to the validity of employment contracts of the Chief, and additionally, the Chief’s alleged interference with a Belleville Police Service investigation into an accident involving a family member of the former Board Chair.

40. The first allegation against Mr. Oliver involved the disclosure of the Chief’s employment contracts, in a manner contrary to an earlier Board decision, but pursuant to an access to information request made by a resident of the Township.

41. We determined that in disclosing Chief Foley’s contracts, Mr. Oliver did not breach the confidentiality requirement set out in the Code. However, we concluded that Mr. Oliver’s failure to notify Chief Foley of the release of his employment contracts in advance of the June 13 Board meeting was disrespectful to the Chief as it left the Chief unprepared to answer the public’s questions at the meeting. When considered with other actions Mr. Oliver took while he was an active Board member and Chair, it reinforced the contention that Mr. Oliver lacked respect for Chief Foley.

42. Under the second allegation, Mr. Oliver was alleged to have “repeatedly made inaccurate, inflammatory, insulting, unfair, demeaning and disrespectful statements, in public and during Board meetings about and to Chief Foley and former members of the Board”.

43. The issue at the core of this alleged conduct and, indeed, the focus of Mr. Oliver’s various statements and actions, along with those of other Board members, was the Chief’s competency to manage the Service, the Chief’s status as a Board employee, and, more specifically, the validity of the extension of his employment contract by the old Board. The former Board members to whom this allegation also related were former Board Chair, Shawn LaPalm, and former Board members Rosanna Clark and Michael Regan.

44. The conduct which the Panel found to fall within this second allegation, was both direct and indirect in nature, meaning that it encompassed not only what Mr. Oliver did specifically as a Board member and as Chair, but also his alleged failure to control the actions of other Board members and the public in his capacity as Board Chair, in accordance with the Board’s statement of purpose and the Procedural By-law and Code of Conduct.

45. From our review and assessment of the evidence, we found that Mr. Oliver made statements which clearly fell within the scope of allegation #2 at a number, if not most, of the Board meetings he attended as board member, or presided over as Chair.

46. For example, at the Board’s January 11, 2011 meeting, which as Mr. Oliver’s second, he took issue with Board member Rosanna Clark being both an owner of a company conducting business with the Board and a Board member. The evidence was that Ms. Clark had declared a conflict of interest. Ms. Clark testified that Mr. Oliver was aggressive, confrontational and interrupted her explanations on the issue. He alleged that she had breached section 11 of the Code which prevents police services board members from using their office to obtain employment with the board or the police service.

47. The Panel found Mr. Oliver’s intervention to be ill-informed and excessive and that the forcefulness of his challenge of Ms. Clark’s status was unfair and disrespectful.

48. This incident could have been excused if it had remained a single occurrence given Mr. Oliver’s lack of experience as a board member at the time, and the fact that he had not yet received training. However, we found that when considered in the context of Mr. Oliver’s conduct over the entire period of his active membership on the Board, this incident had to be viewed as an initial indicator of Mr. Oliver’s general negative disposition toward the former Board members and the Chief.

49. By the March 8, 2011 meeting, Mr. Oliver and the other new members had received copies of the Chief’s contract and the contract extension (together the “contracts”). All of the witnesses in attendance at that meeting agreed that the discussions about the contracts were heated and that the three newly appointed Board members, including Mr. Oliver, challenged Shawn LaPalm and Rosanna Clark about their decision and the process which was followed by the old Board to approve the contract extension. Mr. Oliver and the other new Board members questioned the validity of the extension and the legality of the process followed by the old Board, and suggested that they were going to take legal action to deal with what they perceived to be a significant problem.

50. The Panel found that Mr. Oliver’s interventions on the issue were confrontational. Other witnesses testified that the three new Board members were emotional, antagonistic and aggressive in their questions and comments. Mr. Oliver’s tone was described by one witness as being sarcastic, mocking and dismissive of the explanations given by the former Board members to the effect that the contract extension was designed to achieve stability.

51. Mr. Oliver stated that he was not happy with the decision to extend the Chief’s contract and was particularly upset that the extension had not been revealed to the new Board in a timely fashion. He was upset about being accused of approving the extension by ratifying the previous Board minutes. His position was that it was a two-sided debate. He denied using any profanity towards Board Chair, Shawn LaPalm, maintaining that the latter was the only one who swore during the meeting.

52. From the Panel’s review of the evidence, this was one of the few factual issues in dispute in this inquiry, although ultimately it proved to be of limited significance given that the focus of the inquiry was on Mr. Oliver’s conduct, not Shawn LaPalm’s, and that Mr. Oliver’s conduct at the March 8, 2011 Board meeting was not limited to that particular exchange.

53. After assessing the testimony of the witnesses we concluded that, from an objective observer’s standpoint, the evidence related to the March 8 meeting confirmed the overall aggressive and antagonistic tone of Mr. Oliver’s statements, both in respect of the Chief’s contract extension and the Chief himself, and that they were neither necessary nor solution-oriented. We found his conduct to be antagonistic and inflammatory.

54. We also found that three specific occurrences at the subsequent June 13, 2011 Board meeting fell within the scope of allegation #2. Mr. Oliver was then Chair of the Board and was responsible, in accordance with the Board’s own procedural By-law, for enforcing the meeting rules of order and the By-law procedures.

55. In the public portion of that meeting, Mr. Oliver allowed Board member Shier to question the Chief about his sick leave and holidays. Chief Foley had to identify this matter as being of an operational nature before the Board eventually agreed to hold its discussion of the issue in camera.

56. When asked to explain this occurrence, Mr. Oliver invoked the Board’s “right to know” where the Chief was and who would be replacing him while he was on leave. We found this explanation to be dismissive of the issue and unsatisfactory in terms of explaining an obvious departure from proper process under the procedural by- law. Mr. Oliver had by then received training and should have directed that this matter to be dealt with in camera.

57. A further issue concerned Mr. Oliver’s response to the Chief’s request for approval to hire an additional police officer. The evidence was that Mr. Oliver responded by categorically stating that as long as he was the Chair, he would oppose the hiring of any additional officers.

58. While such a position was possibly defensible and Mr. Oliver may well have had the community’s interest at heart, the issue as highlighted by the evidence of police service advisor, Brian Haggith, was Mr. Oliver’s categorical rejection of the Chief’s request. Mr. Haggith testified that such a comment was not appropriate in the context of a public meeting and that Mr. Oliver was shutting down any dialogue concerning the future needs of the Service.

59. The Panel found that Mr. Oliver’s statement went well beyond what was necessary to refuse the request on the basis of financial concerns. For this reason, when considered in the total context of his behaviour, we concluded that the statement was a reflection of the feelings of animosity which Mr. Oliver had for the Chief. To that extent, it was definitely seen to be unfair, inflammatory and demeaning.

60. The third aspect of Mr. Oliver’s conduct related to the public question period which was first introduced at the June 13, 2011 Board meeting following a decision of the Board.

61. Brian Haggith attended the June 13 meeting and commented in his notes of the meeting, that the Board announced in the public session that Chief Foley’s contract had been released to a citizen as a result of an FOI request. Chief Foley became upset with this announcement and voiced his displeasure. The Chair, Mr. Oliver, advised that they did so under the direction of a lawyer.

62. Cassandra Bremner, the Secretary, testified that the revelation clearly shocked Chief Foley.

63. Mr. Oliver suggested that the revelation resulted from a public question which could not have been anticipated. He conceded that no procedural protocol had been developed in respect of the newly introduced public question period. Mr. Oliver also dismissed the significance of this occurrence, suggesting that the taxpayer was “entitled to know” and that a discussion about the contracts was not problematic since they were already in the public domain. He further suggested that the discussion was not inappropriate given that the contracts’ details were not revealed during the public session of the meeting.

64. The Panel found that the most obvious problem was Mr. Oliver’s decision to allow the Chief’s contracts to be discussed and their disclosure to be revealed in the public question session, when these matters should have been dealt with in caucus, and discussed with the Chief, at least initially. Even if we had accepted Mr. Oliver’s explanations, once the question was posed, proper procedure under the Act and the Procedural By-law required Mr. Oliver to interrupt the questioner, identify the subject matter as being of a personal nature regarding the Chief’s terms of employment and stop all discussion until the issue raised by the question could be properly assessed by the Board in caucus and a proper answer developed.

65. The Panel found that Chief Foley’s shock at the revelation of the contracts was confirmation of the second aspect of Mr. Oliver’s behaviour, namely, his failure to advise the Chief of the prior release of the contracts. Given the fact that Chief Foley had previously expressed reservations about the request for access to his contracts, Mr. Oliver’s failure to inform Chief Foley was an unfair and disrespectful form of treatment of the Chief. It resulted in a form of ambush of the Chief in a public meeting.

66. Mr. Oliver’s admission that no protocol had been developed for the newly introduced public question period was, in our view, irresponsible behaviour by him with respect to enforcing meeting protocol and denoted a failure to adequately perform his duties as Chair of the Board in compliance with the Board’s own Procedural By- law and Code of Conduct.

67. After considering the evidence of his behaviour at this meeting, we concluded that this type of conduct pointed to Mr. Oliver’s desire to draw the public’s attention to what the new Board had perceived to be the illegality of the Chief’s contract extension, and to the frustrations which Mr. Oliver and the other new Board members were clearly experiencing.

68. A special in camera meeting of the Board was held on July 4, 2011 specifically at the request of the Chief to discuss the issue of his contracts. At the end of the discussion, Mr. Oliver announced that the Board would hold a vote on the validity of the contract extension at its next regular meeting.

69. We found Mr. Oliver’s statement about holding such vote, made in the context of the discussions, constituted a threat and a form of intimidation directed towards the Chief and was obviously problematic conduct falling within the scope of allegation #2. It officially pitted the new Board against Chief Foley.

70. By the date of the special meeting, the Board had obtained a legal opinion regarding the validity of the contract extension and had been provided with a potential solution to deal with the problem of the dual contracts. This opinion had been provided in writing to Mr. Oliver on June 27, 2011. However, at no time during the July special meeting or subsequently, did Mr. Oliver reveal this fact to Chief Foley. The only justification Mr. Oliver was able to provide at the hearing on this point was that he did not believe that the Chief would agree with the solution proposed by legal counsel, and that it would have been too costly to obtain a more fulsome legal opinion.

71. Counsel for the Commission argued at the hearing that Mr. Oliver withheld the information regarding the opinion because it was not clearly supportive of what the new Board was intent on establishing, namely that the Chief’s contract extension (or second contract) was not valid. We agreed with that assessment. Mr. Oliver’s failure as Chair to advise the Chief of the Board’s receipt of a legal opinion and the proposed solution to try and resolve the issue, was all the more problematic in light of Chief Foley’s expressed concerns about his status as a Board employee, his future with the Service and his obvious distress about the uncertainty that the contract extension issue was creating for him in the workplace.

72. The Panel found that Mr. Oliver was less than forthright with Chief Foley at the July 4 special meeting and that his conduct denoted a serious lack of respect for Chief Foley. We concluded, on the basis of the evidence, that Mr. Oliver deliberately withheld information that was relevant to the discussion and possible resolution of the validity of the Chief’s employment contracts and his future status with the Service. We concluded that this conduct was further evidence of the feelings of animosity which Mr. Oliver and the new Board had toward Chief Foley.

73. On the basis of our assessment of the evidence of the Chief, we concluded that, rather than dealing in a straightforward manner with the Chief’s concerns regarding his employment with the Service, the July 4 meeting led to heightened concerns for Chief Foley about his future employment with the Service and further undermined his position of authority with his officers.

74. As a further example, at the July 11, 2011 Board meeting, the Chief’s contracts were listed on the agenda as an item for discussion in the public portion of the meeting. That issue was flagged by police service advisor, Paul Thompson, who, having seen the agenda prior to the meeting, sent an email to Mr. Oliver reminding him of the point covered in the Board training sessions, that matters of an intimate, financial or personal matter are to be discussed in camera. He cautioned Mr. Oliver that if, at some future date, the Board and Chief were in negotiations or litigation, the inclusion of a discussion about the Chief’s contract in the open public meeting might come back to haunt the Board because the Chief could allege that having such discussions in the open meeting was less than supportive and perhaps, in the circumstances, even held him up to public ridicule.

75. Notwithstanding Mr. Thompson’s caution, and although the item of Chief’s contracts was later moved to the in camera session, Mr. Oliver allowed a member of the public to pose questions about the Chief’s contracts and inquire about the Chief’s rank and qualifications in the public session of the meeting. We concluded that although on its face, the question was appropriate, the subtext of the question, in its tone and in the circumstances, was that the Chief lacked the appropriate qualifications to be the Chief.

76. From the audio recording of this meeting, it was also apparent that Mr. Oliver not only failed to stop the public member, but allowed the questions to be put directly to the Chief rather than himself as the Chair. Paul Thompson’s impression of the public portion of the Board meetings, and specifically the public question period, was that the Chief was put in the “bear pit” and as a result, typically reverted to defensive responses which were not always helpful.

77. In the caucus portion of that meeting, the issue of hiring an additional police officer was raised again. The minutes revealed that Paul Thompson advised the Board members once again that it was inappropriate for the Board, in a public session, to prevent the Chief from speaking about the need for hiring additional police officers, or bringing such a request to the Board.

78. At the conclusion of the July 11 caucus session, the Board members had a further discussion with Mr. Thompson. He recommended to the Board that they seek legal advice to determine what their contractual obligations were if they felt the previous Board had acted improperly. He then advised the members to seek a further legal opinion and make a cost benefit assessment regarding the advisability of commencing a legal action. If the Board decided there was little justification for legal proceedings or if it turned out there was little likelihood of success, then the Board needed to put the actions of the previous Board behind them and move forward.

79. We noted from the audio recording of this meeting that a lot of time was spent on the topic of the Chief’s contracts, revealing the obsession that Mr. Oliver and the other Board members had with the issue of their legality and their unwillingness to relent in their questioning of the contract extension.

80. The Board members, including Mr. Oliver, also asked Paul Thompson about the possibility of passing a motion in a public meeting to deal with the Chief’s contract extension. They were clearly advised that in doing so, the Board could not revisit the previous Board’s decision to extend the contract.

81. With the benefit of the audio recording of the July 11 meeting, and having considered the testimony of the witnesses in attendance, including Mr. Thompson, we were able to find that in the overall context of Mr. Oliver’s involvement with the Board, his conduct at this meeting with respect to Chief Foley was unfair, demeaning and disrespectful. The fact that Mr. Oliver had received training and specific advice from both Brian Haggith and Paul Thompson on a number of occasions on the very issue of conduct at meetings, made his behaviour all the more serious.

82. The August 8, 2011 meeting was the last Board meeting before the Commission began its investigation into Mr. Oliver’s conduct. We listened to the complete audio recording of that meeting and were left with no doubt that Mr. Oliver made public comments, yet again, about the issue of the Chief’s contracts. The comments were clearly inflammatory and were found to fall within the scope of allegation

#2. Further, in his handling of the public question period, Mr. Oliver allowed statements to be made by members of the public and by Mayor Cooney that were critical of and aimed at Chief Foley and former members of the Board.

83. The Panel heard two members of the public making statements rather than posing questions about Chief Foley’s contract. One public member stated he had received copies of the Board’s minutes and was unable to find reference to the Chief’s contract extension. He indicated that as a result, he would be contacting the Commission. Another member of the public read a written statement making observations about the previous Board and its handling of Chief Foley’s contract extension. That statement concluded with the comment that: “it would appear that both Mr. Regan and Mr. LaPalm should be accountable to all ratepayers in Stirling-Rawdon for questionable contract dealings”. The written document was then filed with the Board as part of the public minutes.

84. Mr. Oliver not only failed to intervene and request that both members of the public formulate questions, he allowed the one public member to read his written statement in its entirety. Mr. Oliver, himself, then intervened, concurring with the concerns and opinions expressed by these members of the public, thereby confirming, in public, his support for their positions. We concluded that there was no doubt in those circumstances that Mr. Oliver was speaking in the public session in his capacity as Chair on behalf of the Board.

85. Then, still within the public question period, without interruption, Mr. Oliver gave the floor to Board member Cooney, who launched into a speech, the purpose of which, as stated, was to “bring everyone up on what the Board has been doing and focusing on since December”.

86. In his speech, Mayor Cooney made a number of allegations and derogatory and critical comments about former members of the Board. The Panel concluded that some of the comments were misrepresentations and some were erroneous altogether. Statements were made about the Chief’s contract extension with the allegation that there was no record of the former Board’s decision or any details about the procedure followed by that Board to approve the extension. Of particular concern was the implication by Mayor Cooney in his statement that the former Board Chair resigned in order to avoid an investigation of his conduct in connection with the Chief’s contract extension.

87. After reading his speech, the Mayor was heard on the audio recording saying that the Board had no issues with the Service, only the old Board and its alleged illegal conduct in extending Chief Foley’s contract.

88. Following Mayor Cooney’s public intervention, a member of the public was heard on the audio recording thanking the Mayor and saying “that was good”. That public member followed up with what appeared to be a form of admonishment of Chief Foley, urging the Chief to read subsection 41(2) of the Act which provides “the chief of police reports to the Board and shall obey its lawful orders and directions”. The Panel determined that comment to be a public attempt to humiliate the Chief. Throughout this public question period, no actual questions were asked by members of the public nor was any attempt made by Mr. Oliver, as Chair, to interrupt and stop the line of statements and speeches. He made no effort to direct or take control of the meeting as required by the Board’s Procedural By- law.

89. Mayor Cooney testified that he had not been asked by any other Board member to make the speech, nor had he received formal authorization from the Board. He insisted that his statement represented his personal views although he conceded that he made no statement to that effect at the meeting or at any subsequent time.

90. We found Mayor Cooney’s speech to be clearly self-serving and made without any prior formal approval of the Board as required by the Procedural By-law. Even if the Mayor had been duly designated as the Board’s spokesperson on this occasion, which he was not, the content of his speech was of such a nature that its presentation verbally at the meeting and later, through newspaper articles, clearly offended a number of sections of the Code.

91. Mr. Oliver agreed that a police services board chair has an obligation to control board meetings. In respect of the August 8 meeting, he conceded that Mayor Cooney’s speech had not been put on the agenda but that he was aware of it in advance of the meeting and was also aware of the speech’s political bent. He believed that it was a method for the Mayor to address the voters as the Township Mayor. He also believed that Mayor Cooney was allowed to make such a speech at a Board meeting and that he, Mr. Oliver, was not in a position to prevent Mayor Cooney from doing so. In his opinion, if the contents of the Mayor’s speech were true, no issue could be taken with it. He cited his belief that the Mayor was entitled, as the elected representative of the community, to do so. He also referred to his belief in freedom of speech as a justification for his position. In the Panel’s opinion, whether through honest belief, deliberately, or through wilful blindness, Mr. Oliver failed to apply the training he received regarding his obligations under the Act, the Code and the Board’s own Procedural By-law.

92. We found that what transpired during the August 8, 2011 Board meeting left little doubt that Mr. Oliver himself, made comments relating to the Chief’s contract extension which could definitely be perceived by an objective reasonably informed community observer as inflammatory. Mr. Oliver also allowed another Board member and members of the public to make inaccurate, inflammatory, insulting and disrespectful statements about and to Chief Foley and former Board members, Rosanna Clark, Michael Regan and Shawn LaPalm. In addition, the sequence of events during the public question period supported the conclusion that Mr. Oliver’s conduct was deliberate, in that he knew the general political content of the Mayor’s statement in advance and became aware, at the outset of the public question period, of the detrimental comments by members of the public, yet at no time did he attempt to take charge of the meeting and enforce the rules of order as set out in the Board’s Procedural By-law.

93. The Board’s own By-law makes it clear that Mr. Oliver, as the Chair, could be found responsible for the conduct of his fellow Board members. He had the responsibility of maintaining order and ensuring that “all persons attending the meeting conducted themselves appropriately with mutual respect for the persons in attendance at the meeting to foster harmonious relationships and public confidence”.

94. We found that, by his conduct at the August 8, 2011 meeting, Mr. Oliver failed to discharge his duties impartially, failed to uphold the letter and the spirit of the Code, and failed to discharge his duty in a manner that would inspire public confidence in the abilities or the integrity of the Board. When viewed in the context of a reasonable impartial person in the community, fully informed of all of the facts, such conduct discredited and compromised the integrity of the Board.

95. One of Mr. Oliver’s contentions was that Board business got done, notwithstanding the focus that he and the other new Board members placed on the issue of Chief Foley’s contracts. The Panel saw the issue differently. In choosing to focus on the legality of Chief Foley’s contracts from at least the month of March 2011 onward, the three new Board members, including Mr. Oliver, made the contract extension issue the Board’s business. Therefore, it was incumbent on them, and on Mr. Oliver as Board Chair, to see the issue through to a form of resolution, all in accordance with the Board’s established statement of purpose, procedural rules and the Code of Conduct.

96. We concluded that despite the attention and energy the new Board spent on the issue of Chief Foley’s contracts, no resolution was ever achieved. In fact, the evidence pointed to an apparent reluctance of the new Board members to swiftly and definitely arrive at a resolution that would allow the issue to be “put to bed”. Rather than getting a legal opinion about the legality of the Chief’s contracts and possible legal action or, alternatively moving on, the new Board members, with Mr. Oliver acting as Chair, engaged in a persistent venting of their frustrations with the situation. This venting was aggressive and confrontational and continued from the March, 2011 Board meeting to the point in time when Mr. Oliver was required to decline to exercise his duties on account of the inquiry into his conduct. This course of conduct was neither professional nor collaborative, fair or impartial.

97. The evidence confirmed that the Board’s activities generated a lot of media interest. Journalists from the local press attended the Board meetings and reported on what was discussed in the public sessions. Some conducted interviews with Mr. Oliver and published his comments.

98. Three articles refer to information which was obtained directly from Mr. Oliver. In one article, Mr. Oliver provided information and was quoted extensively in respect of the extension of Chief Foley’s contract, saying: “there were several things wrong with the contract extension. There was no by-law number assigned to it and a past member signed a letter stating there was no vote taken. There was also nothing in the Board meeting minutes about the deal. How can there be two contracts? One person can’t work under two contracts”. In another article, Mr. Oliver said that the Chief’s contract was put in place in November of 2010 and signed two days after the last meeting of the old Board.

99. Mr. Oliver’s comments and the comments of the other Board members to the media clearly appeared to have had a negative impact on the reputation of the Chief and other police officers of the Service within the community as was revealed by an editorial/opinion piece in the Belleville Intelligencer of June 27, 2011, which contained the following remarks:

Apparently for Foley, working together means don’t ask potentially embarrassing questions, like what your officers did to deserve $38,000.00 and why do you have a contract that apparently nobody knows about.

Someone needs to remind Chief Foley that he and his officers get paid by our tax dollars and as such we are not only entitled to ask the tough questions, he is obligated to answer them. Insisting the answers are none of our business is not only wrong but will only get us asking more questions.

100. This article confirms the negative impact the conduct of the new Board members, including Mr. Oliver, had on the reputation of the Chief and his officers in the community. Their display of disrespect and lack of dignity toward the Chief in the public Board meetings undermined the position of the Chief with his officers and also the Service within the community and thereby compromised the integrity of the Board and the Service.

101. In a further article based on his e-mail to the media of August 30, 2011, which he requested be published, Mr. Oliver commented on the decision of the Commission to investigate him regarding his conduct. In it, he identified who complained about his conduct and explained that as a result he would not be able to address any police issues. He signed the article as a “Fellow taxpayer”.

102. We found that Mr. Oliver’s direct comments to the media compounded and broadened the negative impact of his statements and conduct at the Board meetings. Mr. Oliver’s email of August 30, 2011 was illustrative of his lack of understanding as a Board member and as Chair that he could not divorce his comments from his role, even by identifying himself as a “fellow taxpayer”. As a Board member and as Chair, Mr. Oliver had a higher duty and responsibility to conduct himself in accordance with the Act, the Code and the relevant Procedural By-laws at all times, whether at Board meetings or in the community, during his tenure on the Board.

103. The third allegation in the Notice of Hearing referred to antagonistic, unprofessional, harassing, undignified and disrespectful conduct by Mr. Oliver directed at Chief Foley specifically. As such, it related directly to section 9 of the Code of Conduct which provides that Board members must discharge their duties in a manner that respects the dignity of individuals.

104. From a factual standpoint, this allegation covered not only Mr. Oliver’s demeanor toward Chief Foley but the persistence and intensity of that behaviour over time. The allegation was general enough to relate to all forms of conduct including behaviour at Board meetings discussions and comments to the media and members of the public at large.

105. In addition to the conduct reviewed under allegation #2, we found that eight comments or occurrences also fell within the scope of allegation #3.

106. Mr. Oliver’s categorical refusal to contemplate the hiring of additional police officers for the Township Police Service was found to be a clear instance of antagonistic and disrespectful treatment of Chief Foley.

107. Mr. Oliver’s failure to notify the Chief, in advance, regarding the disclosure of his employment contracts to a member of the public affected the dignity of the Chief and was disrespectful conduct towards him. This conduct also constituted a good example of behaviour which was found to offend section 9 of the Code of Conduct

108. In the “in camera” session at the July 11, 2011 meeting, Mr. Oliver responded to the Chief’s concerns about the status of his contract and his future with the Service by stating “You made your bed, you are lying in it”, inferring that the Chief had been instrumental in the old Board’s decision to extend his contract. The statement also implied that the Chief would suffer the consequences of the old Board’s decision, making it clearly antagonistic. The Panel found that this comment was inappropriate and unprofessional. Further, its lack of appropriateness was exacerbated by the fact that when it was made, Mr. Oliver was already in possession of a legal opinion that was not conclusive with respect to the illegality of the contract extension.

109. Mr. Oliver’s handling of a presentation made by a member of the public concerning overtime expenses connected with the G8/20 summit, by allowing the matter to proceed notwithstanding the 14 day prior notice requirement, was disrespectful and humiliating to the Chief.

110. Mr. Oliver justified his decision to allow the delegation to proceed by invoking the public’s “right to know” about the expenditures of the police service. The Panel found that Mr. Oliver was not required to allow the delegation to proceed on that date, and his failure to acknowledge the Chief’s legitimate concerns regarding the 14 day advance notice rule put the Chief in a potentially embarrassing or humiliating situation and was disrespectful towards the Chief.

111. The Panel found that a further incident, which constituted a form of antagonistic and unprofessional conduct towards the Chief, was Mr. Oliver’s statement at the July 4, 2011 meeting to the effect that the issue of the validity of the Chief’s contract would be put to a vote at the July 11, 2011 meeting. This amounted to a form of intimidation and harassment, given that the meeting had been called at the Chief’s request specifically to discuss and settle the issue of his contracts and assuage his concerns regarding his continued employment with the Service.

112. At that meeting, Mr. Oliver also deliberately withheld from Chief Foley the fact that the Board had already obtained a legal opinion regarding his contracts. Mr. Oliver continued to withhold this information from the Chief through the July 11 and August 8 meetings. We found that keeping this critical information from the Chief, although it might be considered privileged, was unprofessional and disrespectful. The Panel did not accept Mr. Oliver’s explanations for his behaviour that the Chief did not need to know the details of the opinion because he was not a Board member and that Chief Foley would not likely have been receptive to the solution proposed in the legal opinion.

113. Mr. Oliver engaged in further problematic behaviour when he chose not to approach Chief Foley prior to speaking with Constable Travers of the Belleville Police Service about the Chief Foley’s rumoured interference with an investigation into the motor vehicle accident which was caused by Shawn LaPalm’s stepson.

114. All of the above identified incidents are tangible examples of Mr. Oliver’s disrespectful conduct toward Chief Foley. These instances occurred in the context of the ongoing controversy about the legality of the Chief’s contracts and are illustrative of a failure to respect the dignity of the Chief.

115. The fourth allegation in the Notice of Hearing pertained to actions taken by Mr. Oliver on his own, without any formal authority from the Board, outside the context of Board meetings.

116. In particular, at the April 12, 2011 Board meeting, Mr. Oliver tabled two documents which he requested be appended to the caucus minutes. The first document, being a letter signed by former Board member, Robert Anderson, stated that no vote had been taken on the Chief’s contract extension. The Panel found that this statement contradicted the evidence of Michael Regan and Rosanna Clark, both of whom testified that Mr. Anderson was in favour deferring the vote. The second document was Mr. Oliver’s affidavit containing statements attesting to his position that he never approved the prior Board minutes that allegedly had approved the Chief’s contract extension.

117. Mr. Oliver acknowledged that he had prepared the letter for Mr. Anderson’s signature and contended it was his duty as a member of the Board to raise the issue at the Board meeting. Mr. Oliver contended that he was merely documenting the facts rather than building a case against the validity of the Chief’s contract extension. In his mind, he did not require formal Board authorization to gather the evidence that he tabled at the April 12 board meeting. There was no evidence that he received prior Board approval to undertake this action.

118. We concluded that Mr. Oliver was a Board member and was acting as such when he sought and prepared this documentation. Whether there was approval of the contract extension was an issue of critical importance to all of the new Board members and should have been brought to, and first discussed by the Board, before any action was taken. Accordingly, the Panel found that Mr. Oliver breached section 5 of the Code when he discussed the matter with Mr. Anderson and proceeded to prepare the letter for Robert Anderson and his own affidavit without prior Board authorization.

119. The Panel found that, while motive or intended purpose might have been difficult to glean from the above-described events if considered in isolation, a review of what transpired at other Board meetings, most notably in March, June and July 2011, suggested that Mr. Oliver’s actions in April, 2011 were focused on gathering information with a view to ultimately challenging the legality of the contract extension.

120. Mr. Oliver was found to have engaged in a second fact finding exercise a few months later, while he was still an active Board member and Chair of the Board. On his own and without first obtaining Board authority, he initiated his own inquiry to determine whether Chief Foley had interfered with an investigation conducted by the Belleville Police Service concerning an accident caused by Shawn LaPalm’s stepson.

121. Mr. Oliver called a Belleville police officer, Constable Mark Travers, on his cell phone to inquire about a “rumour” that Chief Foley had “stuck his nose into the investigation” with a view to having the charges against Shawn LaPalm’s stepson withdrawn. Mr. Oliver did not contact Chief Foley prior to making his inquiries of Constable Travers and it was not until Constable Travers informed Chief Foley in September 2011 that Chief Foley became aware of Mr. Oliver’s call to Constable Travers. Mr. Oliver’s investigation failed to uncover any wrongdoing on the part of either Chief Foley or Shawn LaPalm.

122. Mr. Oliver testified that he was simply following up on rumours he had heard. He confirmed that he did not bring the information to the Board prior to contacting Constable Travers, although he conceded that the Board is responsible for the Chief’s actions. Mr. Oliver denied that he was engaged in an investigation, and characterized his call to Constable Travers as “innocent” and he made the call in his personal capacity, not as the Chair of the Board. However, he testified that if he learned of inappropriate behaviour on the part of Chief Foley or Shawn LaPalm, he would then have assumed his role as Chair and taken appropriate action. He offered no explanation as to why he did not first contact Chief Foley for a clarification.

123. On the basis of that evidence, we concluded that Mr. Oliver’s actions infringed the provisions of section 5 of the Code, which prevents a board member from speaking on behalf of the board without authorization. The breach occurred while Mr. Oliver was acting in his capacity as a Board member. It was the Panel’s finding that it was not open to Mr. Oliver to take the position that he acted in the capacity of a concerned citizen in the community when he made the inquiries.

124. We found that his actions were not impartial nor were they inspiring public confidence in the integrity of the Board. Mr. Oliver conveniently forgot the principle that a police services board acts as whole, not through its individual members. In fact, we found that his actions were such that the individuals he approached, or those who would ultimately become informed of his inquiries, would definitely be left questioning the integrity of former Board members and Chief Foley.

125. When considered over the entire time period of his membership on the Board, Mr. Oliver’s behaviour presented as a course of conduct focussed primarily upon the issue of the legality and validity of Chief Foley’s contracts. In our view, this justified the need to carefully review his conduct overall in order to determine whether it could be considered as the product of an error in judgment, whether it remained at the level of a failure to satisfactorily perform in the role of member or Chair, or whether it rose to the much more serious level of misconduct.

126. In assessing whether Mr. Oliver’s conduct rose to the level of misconduct, we took into account the statutory requirements of the Act, the Code, the Board’s By-law regarding the duties of the Board members and the Chair and the principles established by the case law.

127. We adopted the principles set out in Norman Gardner and Toronto Police Services Board, March 1, 2004, (OCCPS), in which the Commission established that board members have a responsibility to conduct themselves with the “utmost circumspection and prudence” and the highest levels of honesty and integrity.

128. There is also no doubt that board chairs have an added leadership role and therefore a higher duty, in addition to their member responsibilities. We found that the description of this role as set out in Gardner, supra applies equally well to Mr. Oliver’s conduct.

129. Of particular significance in this case, as elaborated upon in Wallaceburg, supra, is the importance of the oath taken by police service board members to faithfully and impartially discharge their duties. This is a significant and unqualified commitment and therefore conduct in breach of the Code cannot be excused by lack of proper advice or information. It is also not mitigated by a lack of experience.

130. The Panel’s analysis resulted in a finding that Mr. Oliver’s failure to abide by the provisions of the Act was deliberate and therefore wilful, thereby constituting misconduct. In our view, Mr. Oliver acted in a manner that was deliberate or, at the very least, amounted to wilful blindness to the provisions of the Act and the Code.

131. Mr. Oliver’s conduct was also persistent and took place over a period in excess of eight months and was only interrupted when he was required to cease exercising his duties on account of the Commission’s investigation.

132. Mr. Oliver engaged in what we have determined to be misconduct notwithstanding the training and the advice he received from the police service advisors with whom he conferred about the very issues he was focused on as a new member of the Board and as Board Chair. Mr. Oliver persisted with his actions and the advancement of the new Board’s “agenda”, as it was revealed over time and in Mayor Cooney’s speech. Unfortunately, these actions were inconsistent with the requirements of the Board’s own Procedural By-laws and the Code.

133. We found that Mr. Oliver did not impartially discharge his duties or uphold the letter and spirit of the Code of Conduct in a manner inspiring public confidence in the abilities and in the integrity of the Board. His behaviour did not foster harmonious relations among Board members or facilitate mutual respect as was required under the Board’s By-law. His conduct amounted to more than a simple error in judgment or a failure or inability to perform the duties of his position in a satisfactory manner, and was found to rise to the level of serious misconduct.

134. At the conclusion of the hearing, we were left questioning Mr. Oliver’s understanding of his role as a police services board member and as Chair under the Act. It appeared that Mr. Oliver equated his role on the Board to that of an elected official, accountable to like-minded community members, and as such failed to grasp that his role was that of a “public steward” tasked with important duties of civilian oversight of the police service in accordance with the legislative scheme.

135. By adopting this approach, Mr. Oliver either failed to understand, or refused to accept the Board’s role of oversight of policing activities in the community and the requirement that the Board must insure the maintenance of the public’s respect for and confidence in the police service. We concluded that, once he was appointed Chair, Mr. Oliver allowed the Board to become, in effect, an extension of municipal council and permitted the Board to be high-jacked by municipal politicians who, as it happened, held views similar to his own and who were promoting a particular agenda.

136. Our finding of misconduct was not based on an assessment or an attempt to censure Mr. Oliver for his beliefs or opinions with respect to policing, the decisions of the old Board, or any reservations he may have had regarding the Chief’s abilities, or the legality of the extension of the Chief’s contract. We accepted, as acknowledged in Gardner, supra, that the conduct of a board member should not be viewed in a vacuum, and should be considered in light of the community concerns of the day.

137. We were satisfied from our review of the statutory provisions, including the Charter, the Code and the applicable case law, that the provisions of the Code did not unduly restrict Mr. Oliver’s ability to raise the issues or ask the questions that he did. We are mindful that the Code specifically provides for the possibility that a member may wish to express disagreement with a police services board decision.

138. We found that, in essence the only restrictions imposed upon Mr. Oliver by the Act and the Code were not with respect “what” he wished to do as a Board member or as Chair, but “how” he conducted himself and “how” he allowed other Board members to conduct themselves once he became Board Chair.

SUBMISSIONS ON PENALTY

139. Counsel for the Commission and for Mr. Oliver both pointed to the limited number of Commission decisions dealing with the issue of penalty for members of police services boards having engaged in misconduct. They referred to the same three decisions, being the Wallaceburg, Gardner and Aspden decisions, supra. This is where the parties’ agreement on the appropriate penalty ends.

Submissions on behalf of Mr. Oliver

140. On behalf of Mr. Oliver, Mr. Hurley argued that the penalty ought to be limited to a one day suspension. The general thrust of his argument was that the three relevant Commission decisions are of limited precedential value in this case. He structured his submissions around the eight penalty assessment factors identified in the Gardner decision, namely public interest, the seriousness of the misconduct, damage to the reputation of the a police services board or a police service, recognition of the seriousness of the misconduct, the ability to reform and rehabilitate, general and specific deterrence, employment history and personal circumstances.

141. On the issue of public interest, Mr. Hurley submitted that Mr. Oliver was concerned about municipal expenditures and that the “disinterested” members of the community who testified at the inquiry believed that the community’s interests were being served through Mr. Oliver’s involvement on the Board. He argued that this fact ought to weigh in favour of Mr. Oliver and the imposition of a lesser penalty.

142. With regard to the seriousness of the misconduct, Mr. Hurley pointed out that Mr. Oliver’s behaviour was not dishonest, corrupt or focused on obtaining a personal advantage from public office. He also invoked Mr. Oliver’s sincere belief in the words and positions he articulated in public and the fact that the issues he spoke to were important to both him and the community in support of his submission that the misconduct in this case should fall at the low end of the scale.

143. Mr. Hurley argued that there was no evidence of any damage to the reputation of either the Board or the Service on account of Mr. Oliver’s behaviour and suggested that, to the contrary, Mr. Oliver’s actions brought transparency and accountability to the Board’s dealings. In support of this position, he referred to the decision of the Board’s current Chair to end Chief Foley’s employment under the terms of his original contract, suggesting as the Panel understands the argument, that Mr. Oliver’s concerns about the legitimacy of the contract extension were justified and ultimately acted upon.

144. In relation to whether Mr. Oliver has acknowledged the seriousness of the misconduct, Mr. Hurley reiterated Mr. Oliver’s continued belief that he served the community’s interests as best he could and that accordingly “this is not a mitigating factor”. The Panel understands this submission to mean that Mr. Oliver cannot acknowledge that he engaged in any form of misconduct because of his belief that he was acting in the community’s best interests.

145. Mr. Hurley pointed to Mr. Oliver’s acknowledgement at the hearing that he made some mistakes, and suggested that this fact, in conjunction with Mr. Oliver’s lack of experience as a chairperson in any organization and his willingness to take a principled stand on issues that mattered to him and the public, are characteristics that suggest an ability to reform and be rehabilitated.

146. Mr. Hurley also suggested that because Mr. Oliver had not engaged in dishonest behaviour, and that his expression of an honestly held belief related to matters of public importance, the criteria of general and specific deterrence has limited application in this case.

147. Addressing Mr. Oliver’s employment history, Mr. Hurley referred to Mr. Oliver’s roots in the community as an insurance broker working at a firm founded by his grandfather, and the high regard which members of the community have had for his community involvement. Mr. Hurley also suggested that Mr. Oliver’s employment as an insurance broker requires the highest levels of probity and integrity.

148. Finally he invited the Panel to consider the impact on Mr. Oliver of the hearing process itself, including the time leading up to the release of the findings decision, and the fact that the finding of misconduct was well-publicized, as constituting a sufficiently harsh form of punishment in the circumstances.

Submissions on behalf of the Commission

149. At the opposite end of the spectrum, Mr. Whitehead submitted, on behalf of the Commission, that removal from the Board is the appropriate penalty in this case, in light of the Panel’s finding of misconduct. In support of this position, Mr. Whitehead suggested that:

a. The standard for a Chair of a police services board is higher than for a board member. We note that this is a legal consideration rather than a factual one;

b. Mr. Oliver exhibited a continuous, repeated course of conduct over time;

c. Mr. Oliver’s actions were intentional and deliberate;

d. Mr. Oliver exhibited no remorse for his behaviour;

e. Mr. Oliver continually ignored training and advice on appropriate conduct; and

f. the penalty of removal is more appropriate than suspension in the circumstances.

150. Mr. Whitehead referred the Panel to the Wallaceburg and Gardner decisions, supra, in which it was established that police services board members have a heightened responsibility for ensuring law enforcement and crime prevention in comparison to community members, and, that Board Chairs have a leadership role in this respect. Mr. Whitehead also pointed to the Board’s own by-laws which make it clear that Mr. Oliver, as the Chair, can be found responsible for the conduct of other board members.

151. Mr. Whitehead referred to the Panel’s characterization of Mr. Oliver’s misconduct in its findings decision as being continuous and repeated over time. He submitted that the continuous repetitive nature of Mr. Oliver’s behaviour ought to be considered as an aggravating factor in the circumstances.

152. He also pointed to the Panel’s determination that Mr. Oliver’s actions were intentional, deliberate and public in their nature and therefore were characterized as misconduct rather than a mere neglect of duty. Arguing that Mr. Oliver has expressed no remorse regarding his conduct, Mr. Whitehead referred to Mr. Oliver’s musings at the hearing that he is left with more questions than he initially had regarding the contract extension, and this highlighted the Panel’s concern about Mr. Oliver’s apparent lack of understanding of his role as a Board member and chair.

153. Mr. Whitehead also stressed the fact that Mr. Oliver ignored the training and advice provided by the police service advisors and this prevents Mr. Oliver from referring to training as a mitigating factor in this case. Mr. Whitehead, in fact, suggested that in light of the Panel’s finding that Mr. Oliver’s misconduct could be perceived as more serious given that he received advice from both advisors on the very issues that preoccupied him and the rest of the new Board, the issue of training could be considered as an aggravating factor. He further submitted that Mr. Oliver’s lack of experience could not be considered a mitigating factor in this context.

154. Finally, with respect to the Commission’s position that removal is the appropriate penalty in the circumstances, Mr. Whitehead argued that suspension would only be appropriate if the evidence pointed to Mr. Oliver having learned from his experience and being inclined to adjust his future behaviour. He argued that, based on the evidence, there is no reason to believe that a suspension would alter Mr. Oliver’s understanding of his role as a police services board member or chair. He also suggested that neither the investigation nor the hearing process could be said to have had a deterrent effect on Mr. Oliver sufficient to ensure that his view of his role and his behaviour on the Board would be different in the future. He pointed to Mr. Oliver’s perception of his role as a defender of the taxpayer, in line with the perception of Mayor Cooney and Wilf Shier, as evidence of his viewpoint about how Board business ought to be conducted. In this context, Mr. Whitehead reiterated the Panel’s finding that the fundamental issue in this case is not what Mr. Oliver’s convictions were or the reasons why he held them, but rather how he conducted himself as a Board Member and Board Chair. He argued that because Mr. Oliver demonstrated a lack of understanding at the hearing of how his conduct affected others involved in policing and the oversight of policing in the community, it would not be appropriate to consider anything short of a removal from the Board as a penalty in this case.

155. In his submissions, Mr. Whitehead highlighted the elements in the Panel’s findings that ought to be taken into account as aggravating factors when considering the appropriate penalty, namely that Mr. Oliver:

• publicly challenged the validity of the Chief’s contract extension;
• publicly challenged the actions of the Chief for not answering questions during public sessions of Board meetings;
• publicly challenged the actions of previous Board members;
• allowed the public and the Mayor to challenge Chief Foley during public meetings on issues that were relating to his rank and other policing issues; and
• made comments to the media following the August 26, 2011 administrative “suspension” placed upon him on account of the Commission’s investigation.

156. Mr. Whitehead also pointed to the fact that the record does not contain any evidence of Mr. Oliver having changed his views on what constitutes proper conduct as a board member since he engaged in the impugned behaviour, and that neither the investigation nor the hearing process seem to have altered his opinions about the issues that concerned him while he was an active Board member. On that basis, Mr. Whitehead argued that a suspension would not be sufficient to act as a specific deterrent for Mr. Oliver.

157. Mr. Whitehead also submitted that an order of removal would be consistent with both the need for specific and general deterrence in that it would serve to reinforce the values and expectations of the Commission as well as those entrenched in the Code, and send the message to police services board members who engage in conduct that discredits or compromises the integrity of the board or the police service that they will not be entitled to continue to hold the privilege of serving their community through membership on the police services board. He further suggested that the removal penalty would serve to signal to the community of Stirling-Rawdon and others across the province, as well as to chiefs of police, police officers and police services board members and chairs, that a failure to discharge their duties in a manner that inspires public confidence in the abilities and integrity of the province’s policing institutions and that fails to respect the dignity of individuals, will not be tolerated.

REASONS

158. Subsection 25(5) of the Act limits the options for penalty which can be imposed on police services board members to deal with misconduct, or a failure to perform their duties, to either suspension or removal. The Act further provides that a suspension operates to prevent reappointment of the affected member during the period of suspension only; on the other hand, removal precludes a member from being appointed as a member of any police services board indefinitely into the future (subsection25(9)). Removal is, therefore, undeniably serious in its consequences and it stands to reason that this penalty is to be reserved for the most egregious forms of misconduct.

159. As detailed in the findings decision, the Panel found that Mr. Oliver engaged in a course of conduct which, as it related to the Chief’s contract extension primarily, but also to former Board members, was deliberate and persistent. This conduct spanned a period of approximately eight months and was only interrupted because Mr. Oliver was required to cease exercising his duties on account of the Commission’s investigation. We found that Mr. Oliver’s misconduct occurred notwithstanding the training he received with respect to board responsibilities under the Act and the Code.

160. He sought and obtained specific advice about the possibility of submitting a complaint to the Commission regarding the old Board’s extension of the Chief’s contract or taking legal action. It was determined that Mr. Oliver’s actions were consistent with an agenda set by the new Board, over which fellow Board member, Mayor Cooney, had significant influence. For the reasons set out in the findings decision, these actions were inconsistent with the requirements of the Board’s own procedural By-law and the Code.

161. Following its review of the evidence produced at the inquiry, the Panel concluded that Mr. Oliver did not impartially discharge his duties or uphold the letter and spirit of the Code in a manner inspiring public confidence and the abilities and integrity of the Board. The Panel found that Mr. Oliver’s conduct did not foster harmonious relations among Board members or promoted the mutual respect that is contemplated under the Board’s By-law. For this reason, Mr. Oliver’s conduct discredited and compromised the integrity of the Board and the Service and amounted to misconduct rather than a simple failure to perform the duties associated with the position of Board member and Chair.

162. The question for penalty purposes is whether the misconduct which Mr. Oliver engaged in is sufficiently serious, considered in light of the penalty assessment factors, to warrant the imposition of the removal penalty.

163. Being mindful of the serious consequences that attach to a decision to impose the penalty of removal, the Panel has determined that this more severe penalty is warranted in the circumstances for the reasons set out below.

164. The Panel recognizes that the Gardner and Aspden decisions, supra, are not directly on point in that they address conduct unrelated to police services board activities per se. The Gardner decision is nevertheless helpful in that it considered the factors that are relevant to an assessment of the appropriate disposition under subsection 25(5) of the Act for conduct engaged in by police services board members. While Mr. Hurley correctly pointed out in his submissions that the Gardner decision was set aside by the Divisional Court, we note that it was on an issue of jurisdiction and not the appropriateness of the Commission’s assessment of the factors to be considered regarding penalty.

165. Further, the Panel does not agree with Mr. Hurley’s submissions that the Wallaceburg decision is of limited precedential value because it involved a police services board which deliberately flouted the law and did not have a “genuine and honest belief” that it had the legal authority to act as it did.

166. There are some significant similarities between the Wallaceburg matter and this one, namely that the conduct engaged in relates specifically to board business and in both cases, advice was sought and provided by advisors, but was not followed.

167. In fact, it strikes the Panel that the conduct at issue in this case could arguably be seen as more egregious than the conduct at issue in Wallaceburg given its sustained and persistent nature. Mr. Oliver’s behaviour was not limited to a single event, decision or occurrence, but rather, as the Panel pointed out in paragraph 620 of its findings decision, amounted to a course of conduct which continued over a period of approximately eight months.

168. It has been suggested that the Panel ought to consider Mr. Oliver’s misconduct as minor in nature given that it was not driven by dishonesty, corruption or focused on the pursuit of personal gain. In our view, in the particular circumstances of this case, the fact that Mr. Oliver did not engage in dishonest or corrupt behaviour is irrelevant to the Panel’s determination of the appropriate penalty.

169. Misconduct engaged in by a police services board member in furtherance of board business does not have to be dishonest, corrupt or focused on personal interest to be considered serious. While these characteristics may be relevant to the assessment of misconduct that is personal or private in nature and calls into question a member’s character or morality, when assessing misconduct that is engaged in to further board business, it is more appropriate to consider such characteristics as whether it was informed or not; deliberate or inadvertent; persistent or isolated; purposeful or gratuitous and generally respectful or not of the requirements of the Act and the values which the Code is intended to uphold.

170. We have found in this case that although some discreet actions taken by Mr. Oliver could be considered innocuous when taken in isolation, the evidence supported a finding that, when considered as a whole, Mr. Oliver’s actions formed part of a pattern or course of conduct, and given its intentional and repetitive nature, must be characterized as misconduct, rather than a simple failure to satisfactorily perform his role as a member and as Chair of the Board. That misconduct, in our view, can also be characterized as serious, in light of its public focus and overall impact upon the Chief, the Service, former Board members and the community.

171. Mr. Oliver has also invoked the sincerity of his belief in the words and positions he expressed in public while he was actively engaged in Board duties as a mitigating factor for our consideration. This argument is somewhat misplaced in its focus as well, in that it does not address the core question at the center of the inquiry, which is the need for the Panel to assess “how Mr. Oliver conducted himself, rather than to what end”. Properly framed for the purposes of assessing the seriousness of the misconduct, the question becomes whether Mr. Oliver had or can be found to have held a sincere belief that his behaviour was consistent with the Code and his duties as a Board member and the Chair.

172. Focusing on the conduct, and not its end purpose, we find, in light of the evidence, Mr. Oliver did not hold such a belief, nor could he, given the training and advice he received.

173. It is arguable that, in contrast with the facts of the Wallaceburg matter in which the police services board terminated the employment of members of the police service in contravention of the statutory requirement to obtain prior consent from the Commission, it might be more difficult for Mr. Oliver to appropriately gauge his conduct in light of the Code requirements. Because those requirements refer to general concepts, they might be arguably open to interpretation. We refer in particular to section 7 which speaks of a duty of loyalty, faithfulness and impartiality; and, to section 8 which refers to the obligation to uphold “the letter and spirit of the Code of Conduct” and “will inspire public confidence in the abilities and integrity of the Board”.

174. Nevertheless, the evidence has established that Mr. Oliver and the other new Board members discussed and sought advice from the Board’s police service advisors on the very issues they were concerned about. In addition, legal advice was sought with respect of the legality of the Chief’s contract extension, which the evidence also establishes was not accepted or followed. On the basis of these findings, the Panel cannot accept that Mr. Oliver could hold a genuine and honest belief that his conduct was respectful of the statutory and Code requirements.

175. As noted in its findings decision, the Panel also determined that Mr. Oliver equated his role on the Board to that of an elected official and was clearly of the view that he was accountable to like-minded community members. We concluded that this stated viewpoint confirms a failure of Mr. Oliver to grasp that his role was that of a public steward tasked with duties of civilian oversight of a police service charged with the duty of providing adequate and effective policing in consultation and co-operation with the Chief. We are unable to ascertain whether this outlook was the product of a genuine misunderstanding, or wilful confusion or blindness. However, what is clear is that Mr. Oliver has taken the position that his conduct was justified given the right of elected council members to speak their mind in the context of performing their board duties. As was highlighted in the Wallaceburg decision, such a justification cannot serve to excuse the impugned conduct.

176. Considering Mr. Oliver’s lack of recognition of the seriousness of his misconduct, we conclude that there is no mitigation effect in the circumstances. In fact, as Mr. Whitehead has suggested, Mr. Oliver’s perception of his role as a board member tends toward being an aggravating factor.

177. Mr. Hurley argued that there is no evidence of damage to the reputation of the Board or the Service and to conclude otherwise would constitute an exercise in speculation. The Panel disagrees with this submission. The evidence presented at the hearing by the former Board members, the police service advisors and Chief Foley establishes that, at the very least, Mr. Oliver’s impugned conduct caused stress and humiliation for a number of people, including former Board members and Chief Foley. Furthermore, the fact that the so called “disinterested witnesses” called by Mr. Oliver suggested that Mr. Oliver’s actions brought transparency and accountability to the Board is not an indication that other community members were of the same view.

178. A summary of our findings with respect to the issue of damage to reputation is set out in paragraphs 97 to 113 of this decision, and we do not propose to repeat all of the evidence that relates to this issue. We simply highlight, by way of example, the editorial in the Belleville Intelligencer of June 27, 2011, wherein Chief Foley was chastised, as evidence of the existence in the community of a negative perception of the Chief, which flowed directly from his treatment by the new Board, with Mr. Oliver at its helm. Further, Chief Foley testified that as a result of the new Board’s focus on the legality of his contract extension and his credentials for the position of Chief, he was left not knowing where he stood, and whether he had a future with the Service. The treatment he was subjected to by the new Board and Mr. Oliver affected not only the Chief, whose authority was undermined, but the Service itself.

179. Another startling example of conduct that clearly and negatively impacted the Chief and the Service, was Mr. Joseph Way’s admonishment of the Chief in the public session of the August 8, 2011 board meeting in which Mr. Way referred to Chief Foley’s obligation under subsection 41(2) of the Act which requires a chief of police to obey the board’s lawful orders and directions. One could not think of a more effective way of humiliating the Chief in public and we are left with no doubt that this statement had the effect of undermining the Chief’s authority within the Service and would have a definite negative impact on his reputation within the community.

180. While Mr. Oliver did acknowledge at the hearing making some mistakes, this acknowledgement is, in the Panel’s view, limited to relatively minor aspects of his behaviour, being predominantly procedural in nature. It cannot be said however, that Mr. Oliver has admitted to any mistakes of “substance”, or expressed any remorse for his behaviour. The evidence clearly establishes that while he was an active Board member and at the time of the inquiry, Mr. Oliver was convinced of his views and of the propriety of the conduct he engaged in to advance those views. Of particular significance, Mr. Oliver testified at the hearing that having heard the evidence unfold, he was left with more questions than before the hearing began. He also could not or would not identify what he might do about the issue of the contract extension if he resumed active membership on the Board. In his mind, the integrity of the Board was brought down by the actions of the former Board members and the Chief and not his conduct or that of the new Board members.

181. We conclude on the basis of this evidence that if Mr. Oliver was given the opportunity to continue to serve as a member of the Board, he would behave essentially the same way, pursuing what he honestly believes in with little if any regard to the requirements of the Act, the Code or any Procedural By-law.

182. This approach of “the end justifying the means” is precisely the problem at the root of Mr. Oliver’s behaviour. In the Panel’s opinion, this is why the behaviour can be characterized as serious misconduct, as such an approach clearly goes against the obligations of police service boards and board members to have a proper understanding of the law, to make use of creative and cooperative effort, willing to accept advice and being of the highest level of honesty and integrity (Wallaceburg, supra, page 25).

183. Further, it must be noted that Mr. Oliver’s approach and perception of his conduct fails to meet the requirements of the Board’s own By- law, which, in its purpose statement, establishes that “this policy defines the ethical guidelines applicable to all members of the Stirling-Rawdon Police Services Board. Every member shall adhere to this policy in the performance of their duty. Strict adherence to the principles in this policy will allow members to pursue their mandate, foster harmonious relations among members and facilitate mutual respect and public confidence.”

184. We are mindful of Mr. Oliver’s status in his community, and accept, as Mr. Hurley has submitted, that he is held in high regard in the community for his integrity and commitment to community service. This does not however change our assessment that in this instance, because of Mr. Oliver’s particular mindset with respect to his role on the Board, the potential for reform or rehabilitation is not present.

185. As it was set out in Gardner, supra, at page 13:

The conduct of Board appointees is regulated in a number of different ways. Prior to taking office, a board appointee is required to take an oath of office. In this oath appointees solemnly swear or affirm that they will perform their duties to the best of their abilities “faithfully, impartially and according to the Police Services Act, any other Act, and any regulation, rule or by-law.” This is also expressed as a positive duty in regulation.

These are not meaningless obligations or commitments. It is important that members who do not meet these obligations are held accountable in a manner that promotes general deterrence. To our minds this is a relevant factor in this case.

186. The Panel views the issue of general deterrence as a very relevant factor in this case given that the misconduct at issue in this inquiry relates to board business and involves the breach of a substantial number of provisions of the Code.

187. Further, with respect to specific deterrence, we believe that Mr. Oliver should not be allowed to hide behind his beliefs and use them to justify what we have found to be a significant disregard for process and the rules of proper conduct. Under the civilian oversight scheme, process is key. The integrity of the system and the confidence which the public needs to have in its principal actors depends on it. The fact that misconduct relates to process and the manner in which Mr. Oliver carried himself, does not make it less significant.

188. As a practical matter, the Panel acknowledges that Mr. Oliver has been suspended since August 26, 2011, which amounts to a period of over three years. This constitutes more than two-thirds of the full term of his appointment.

189. Arguably, a suspension for the period served to date would be considered significant by any measure. It also far exceeds what Mr. Oliver has suggested is the appropriate penalty (which the Board interprets as to mean one additional day beyond the effective suspension resulting from the investigation and the inquiry).

190. The question for this Panel is whether a suspension of this entire length is sufficient in the circumstances, or whether removal is the only appropriate measure, as has been suggested by the Commission.

191. For the reasons expressed herein, the Panel is of the view that the only appropriate penalty is removal, given the seriousness of the misconduct, which was intentional, deliberate, persistent and very public, and the effect upon the Chief of Police and his authority over the Service, the damage to the reputation of the Board and the Service and finally, the public interest in assuring adequate and effective policing in the community.

192. For these reasons, pursuant to subsection 25(5) of the Act, we order the removal of Mr. Oliver as a member of the Stirling-Rawdon Police Services Board, effective immediately.

DATED AT TORONTO THIS 25TH DAY OF NOVEMBER, 2014

Roy Conacher, Q.C. Noëlle Caloren

Vice Chair, OCPC Member, OCPC