Municipal Council Receives Integrity Commissioner’s Report

May 6, 2017 @ 10:34

 

At Tuesday night’s Council Meeting, Council received the Integrity Commissioner’s Report, written by Ben J. Pascuzzi, Integrity Commíssioner.

 

During this Council Meeting, Item 8 there was a Public Hearing in accordance with the Planning Act (Committee Meeting, Committee of Adjustment) held to discuss two matters. After the this Public Hearing was held and concluded, Council returned to the regular meeting. Staff reports were received from and accepted by resoluti.on. Just as Council was going to Item 10.1 and 10.2; Integrity Commissioner Report and Amend Resolution RC16174 respectively; Councillor Liddle queried as to why Mayor Rody hadn’t called for “Declarations of Pecuniary Interest and the General Nature Thereof”. It was explained that he had at the beginning of the meeting as Item 5. Councillor Liddle replied that she thought that was for the Committee of Adjustment. Her declaration was accepted and noted for the record.

 

There was no discussion by Council (all members of Council were present for the discussion except Councillor Bill Chiasson) over this report, and the recommendation of Ben J. Pascuzzi, Integrity Commíssioner of a 60-day suspension of pay as per the Code of Conduct was accepted and put into place with the amending of Resolution RC16174. (The summary and resolution is below.)

 

A recorded vote was asked for by Councillor Besner. Mayor Rody directed that the vote be recorded, and Mayor Rody – Yes, Councillor Besner – Yes, Councillor Weitzel – Yes. Councillor Chiasson – Absent, Councillor Liddle – declared.

 

RESOLUTION # RC17088

WHEREAS on August 9, 2016, the Municipality of Wawa passed Resolution RC16174 finding that Councillor Tamara Liddle and Gerry Liddle had harassed CAO, Chris Wray;

AND WHEREAS Resolution RC16174 provided for specific sanctions against Councillor

AND WHEREAS Resolution RC16174 provided for specific sanctions against Councillor Tamara Liddle and Gerry Liddle;

AND WHEREAS CAO, Chris Wray filed a Code of Conduct Complaint against Councillor Tamara Liddle through a sworn affidavit dated September 19, 2016, noted as Complaint 2016-01;

AND WHEREAS the Municipal Integrity Commissioner determined that the complaint that was filed was neither frivolous nor vexatious nor made with bad faith and further that there were reasonable grounds for carrying out an investigation;

AND WHEREAS the complaint filed, the response by Councillor Liddle and the reply by CAO, Chris Wray were substantial in detail and included numerous pieces of correspondence, emails and other documents;

AND WHEREAS the complaint was not a single issue or incident or action, but rather reflects the ongoing interactions between the member and the complainant over a period of time;

AND WHEREAS there are two main themes in the complaint and investigation; being workplace harassment and conflict of interest;

AND WHEREAS the Integrity Commissioner found that the behaviour and actions of Councillor Liddle towards CAO, Chris Wray have violated numerous provisions of the Code of Conduct as outlined in the report;

AND WHEREAS the Integrity Commissioner noted that the violation of the Code of Conduct by Councillor Liddle is substantial and has been ongoing over a considerable period of time;

AND WHEREAS the Integrity Commissioner filed Report 1316-17 on March 24, 2017 with the Municipality of Wawa and as attached;

AND WHEREAS the report made specific recommendations which have been agreed to and are hereby recommended by Committee of the Whole (In-Camera);

NOWTHEREFORE BE IT RESOLVED that the Council of the Municipality of Wawa accepts and approves the following recommendations contained in Report 1316-17:

1. That Council receive this report.

2. That pursuant to the penalty provisions contained in Section 4.5.8 of the Code of Conduct, a suspension of the remuneration paid to Councillor Tamara Liddle as a member of the Council of the Municipality of Wawa be suspended for a period of 60 days from the acceptance of this Resolution.

INTEGRITY COMMISSIONER REPORT SUMMARY

This is a report on a complaint that a member of council Tamara Liddle violated Sections B, D of the Code of Conduct for Members of Council and Local Boards being Policy HR-017 and enacted by By Law No.2096-08. Specifically it is alleged that the member violated under Section B Section 1.0.0 and 3.0.0. lt is also alleged the member violated under Section D the following Sections: 1.1.0, 1 .2.0, 1.4.0, 1 .6.0, 1 .8.0, 1 .9.0, 1 .10.0 and 3.1 .0. This complaint arises from circumstances going back over a period of time which resulted in a Work Place Harassment Investigation being carried out pursuant to the Occupational Health and Safety Act and the Municipality’s own workplace policies as well as an Application made to Ontario Superior Court of Justice and complaints filed with the Ontario Provincial Police and the Ontario Ombudsman Office. Based on my investigation I have found that there has been violations of the Code of Conduct by the member and which are more particularly described below.

 

RECOMMENDATIONS

1. The lntegrity Commissioner recommends that Council receive this report.

2. The lntegrity Commissioner recommends that pursuant to the penalty provisions contained in section 4.5.8 of the Code of Conduct, a suspension of the remuneration paid to the member as a member of Council for a period of 60 days.

 

 

 

DECISION HISTORY

Thís report arises from a complaint filed by the Chief Administrator Officer (CAO), Chris Wray, against councillor, Tamara Liddle, said complaint by way of Affidavit dated September 19, 2016 and received by myself on September 26, 2016. As required under By-Law 2118-08 the By-Law creating the position of the Integrity Commissioner, an initial review and classification of the complaint was carried out and it was determined that pursuant to Section 3.3.3 of Appendix I – entitled the Complaint Protocol, the complaint was in whole or in part of a matter that onits face was with respect to non-compliance with the Code and therefore was within the jurisdiction of the lntegrity Commissioner to investigate. Further pursuant to Section 3.3.4 of the Complaint Protocol, it was determined that the complaint was neither frivolous or vexatious or made with bad faith and further that there were reasonable grounds for carrying out an investigation. Therefore pursuant to Section 3.3.5 of the Complaint Protocol, having determined that the complaint was within my jurisdiction and not otherwise rejected under Section 3.3.4 an investigation was initiated.

 

The complaint filed as well as the subsequent response of the member and the reply by the complainant were extensive in detail and included numerous pieces of correspondence, emails, and other documents. The complaint rather was not a single issue or incident or action, but rather reflects the ongoing interactions between the member and the complainant over a period of time. There are two main themes: workplace harassment and conflict of interest.

 

ANALYSIS/COMMENTS

From December 2015 until June 2016 NorPro Security & lnvestigations based out of Sault Ste. Marie, Ontario carried out an investigation at the request of the Municipality of Wawa against allegations of work place harassment levelled against Councillor, Tamara Liddle. The investigation was carried out by the Director of lnvestigative Services, Bob Kates. The complainant complaint filed included a copy of the Summary of the Final Report of that investigation. The complaint also included, but was not limited to, a number of supporting documents and correspondences and emails referred to in the NorPro Final Report Summary. The conclusion of the investigator was that in fact Councillor Tamara Liddle had engaged in actions and words which amounted to workplace harassment against the CAO, as well as causing significant stress and issues for other employees of the Municipality. As well, the investigation found that councillor Liddle ought not to have participated in a number of Council Meetings both ín camera and in public as she was put in an obvious conflict of interest pursuant to the Municipal Conflict of lnterest Act. lt was noted in the report that there were a number of attempts to have councillor Liddle participate in the investigation and be interviewed but that she failed to respond to the investigator’s request or refused to take part in the interview. The report noted that councillor Liddle had indicated that she was hoping to obtain legal advice from a lawyer pro-bono before participating. This alleged lack of ability by councillor Liddle to have legal representation was again raised in her response to the Code of Conduct Complaint. She also raised in her Response, that she questioned the validity and thus the conclusions of the investigation carried out by NorPro. As indicated in NorPro’s Final Report, councillor Liddle, questioned the legitimacy of the legal advice being provided to the Municipality of Wawa in particular to the CAO’s Employment contract on the sole basis that Wishart Law Firm being the Solicitor for the Municipality, she alleges, acted for both the Municipality and the CAO at the tíme the contract was finalized. By extension, she states in her response to the complaint, that as Wishart Law Firm was the Firm that had retained the services of NorPro to carry out the investigation that the investigatíon and the conclusion of NorPro cannot be trusted because they were hired by Wishart Law Firm which could not be trusted for the reasons stated. Councillor Liddle, however, in response to the complaint, while stating these matters, providing no evidence whatsoever, that NorPro acted inappropriately, in carrying out the workplace harassment investigation, or any substantive evidence to question any of the findings of the investigation. Therefore I have no reason not to accept the results and conclusions of the workplace and harassment investigation carried out by NorPro and therefore can rely on the conclusions reached by that investigation. There is simply no reason for the office of the lntegrity Commissioner to reinvestigate all of the allegations of harassment or conflict of interest. I have no reason not to believe the conclusion of NorPro. The evidence which they examined much of which was provided in the complaint, and which I examined as well, I therefore accept the conclusions of the investigator as stated in the Summary Report.

 

In reviewing the complaint filed and all of the various documents, emails, correspondences a clear pattern of inappropriate actions on the part of the member as alleged in the complaint can be seen. From the information and documentation provided it is clear that the member does not understand or refuses to accept her proper role as a member of Municipal Council, particular dealing with the CAO and Municipal staff generally and what constitutes a conflict of interest. There is clearly a lack of either understanding or simply acceptance of the difference between the role of an individual councillor versus the role of council as a whole. lt is quite clear in the Code of Conduct as well as the Municipality’s other policies and procedures and on a broader level under the Municipal Act, 2001, that it is the council who directs the staff both generally and in terms of individuals and the CAO directs members of staff as to carrying out the wishes of council and the process for which staff are obligated to follow. lt is council whom the Chief Administrative Officer (CAO) answers and reports to not individual councillors. lt is not the role of an individual councillor to assess and critique especially in public, the actions and work performance of the CAO or of any other member of staff. There is more than ample evidence that the member has done that on a number of occasions.

 

Even in the member’s response to the complaint, the member continues to either not understand or accept the relationship between council and individual councillors and municipal staff. She states for example:

1. “Mr. Wray started the NITGC” project and he will not consider reducing this department primarily, due to what I believe is ego driven.
2. “There’s also been a number of questionable travel trips that Mr. Wray has taken that should be looked at”
3. “l learnt these things from taxpayers, citizens there are upset and angry over Mr. Wray not overseeing the financial affairs of our town and his continued excessive spending”
4. “Mr. Wray interpretation of the above is – staff does not communicate directly with council as well as council does not communicate with staff. Mr. Wray insists that all communication is directed through him first.”
5. “lt is my opinion that the CAO/Clerk/Treasurer, Mr. Chris Wray, is not doing a good job in assisting council with the information they require to make informed discussions”.

 

In response to the complaint the member by her own admission has taken upon herself to assess Mr. Wray’s work performance and to comment on the remuneration ín which he receives.

In addition to the theme of Work Place Harassment, the complaint also gives rise to a number of potential conflict of interest incidents involving the member.

By Law 2118-08 referred to above, setting out the roles responsibilities, duties of The lntegrity Commissioner, under Section 3.3.3(c) states that the lntegrity Commissioner is not to investigate a Complaint that is not on its face a complaint with respect to non-compliance with the Code. lt specifically states that if the complaint on its face is respect to non-compliance with the Municipal Conflict of Interest Act the complainant shall be advised to review the matter with the complainant’s own legal counsel. However, the complaint in this case did not require myself to carry out an investigation as to Municipal Conflict of lnterest but rather states the NorPro investigation and report states violations of the Municipal Conflict of lnterest Act appear to have occurred that is in itself a violation of the Code of Conduct referring to conflict of interest Section 1.6.0 of the Code of Conduct. Therefore, if I accept, as I do, the report of the NorPro investigatíon, then it is a matter of applying those conclusions with regards to the member and the municipal conflict of interest incidents to the Code of Conduct.

Therefore, dealing with each of the alleged violations of the Code of Conduct by a specific section of the Code, I would further comment as follows first regarding Section D of the Code:

1. Section D 1.1.0 – As stated in the NorPro Report, the member violated this Section regarding the use of information by disclosíng to her spouse information which was arising out of the results of an in camera meeting, which the member would have been privy to. Council members have a duty to hold with strict confidence all information discussed in camera or that is determined to be confidential by the CAO/Clerk or specifically declared by council. Her taking notes during in-camera meetings and removing these notes from the meeting is a further violation of this Section.
2. Section 1.2.0 – states that members of council will comply with all laws of Canada, Province of Ontario and Municipality. Given that the member has been found to violate the municipality’s policies regarding treatment of employees and workplace behaviour and/or Occupational Health and Safety Act clearly the member has not been in compliance with this Section.
3. Section 1.4.0 – outlines relations between municipal employees and members of council. Members of council are expected to read and understand and respect the guidelines contained in the roles and responsibilities of council. Specifically members of council are to understand and acknowledge that only council as a whole through resolutíon of council has capacity to direct staff members and that members of council should refrain from using their positions to improperly influence members of staff in their duties, functions or to gain advantage for themselves. Members of council shall refrain from publically criticizing members of staff in any way that cast aspirations on their professional confídence and creditability. Members of council will read and respect the hiring policy. With the exception of the last point, the member almost to the word, has violated all of those points. Again as stated earlier, even in her response to the complaint the member continues to not understand or has not read or simply ignores the requirements imposed upon her for proper interactions with the CAO.
4. Sectíon 1.6.0 – dealing with conflict of interest and pecuniary interest. As discussed earlier, the NorPro report and other documents examined by me show the member did not declare pecuniary interest when advised to so by the City solicitor and the councillor ought not to have participated in a number of meetings as it may have put her in obvious conflict of interest. An absolute declaration of conflict of interest can not be made by me as the Municipal Conflict of Interest Act states at Section I that only a Justice of the Ontario Superior Court can determine whether or not a councillor has contravened the Act. However the members refusal to declare a conflict of interest and to participate in council deliberating where she has an obvious pecuniary interest leads to a finding of a conflict of interest. The member and her spouse are/were in property tax arrears yet the member participated in meetings of council dealíng with tax arrears. ln fact some of the harassment that was found was the member trying to influence the CAO with regards to those arrears. What is equalling troubling is the member insistence in this investigation and in her written materials that she is not able to afford to hire a lawyer or obtain a lawyer for free in order to advise her with regards to any matters raised and claimed in particular the conflict of interest matter. lt is clearly stated in Section 1.6.0 of the Code that it is the responsibility of individual councillors to ensure that they are aware and are trained in the application of the Municipal Conflict of Interest Act. The onus is on the councillor to identify the conflict of interest and to take appropriate action to identify the existence of the conflict in favour of his/her public duty. ln other words, ignorance of the law is no excuse. That being said the member was specifically advised by the municipal solicitors that she may be in conflict and should consider declaring, however, the member refused to accept that advice. The only grounds for refusal the member has provided is that the member does not trust the City’s solicitors and rejects their advice or direction on the basis that the member feels that the City solicitors are acting in the interest of the CAO, however again, the member provided no evidence for this whatsoever.
5. Section 1.8.0 – states that members should conduct all business in an open transparent manner, however, with the notable exception of decisions regarding personal or property acquisitions. The member’s comments publicly violate this section.Section 1 .10.0 – states that members as part of their professional
6. Section 1 .10.0 – states that members as part of their professional development shall participate in opportunities for professional development they are required to stay updated on issues and trends so that they may be as efficient and effective as possible, carrying out their duties and responsibilities. The member communicated to me in past discussions as well as in her written materials that she was not familiar with all of the provisions of the Code of Conduct. ln fact at the beginning of this investigation, the member requested that I forward her copies of the By-Laws both setting out the roles and duties of the Integrity Commissioner as well as the By-Law outlining the Code of Conduct. Certainly the Municipality should facilitate opportunities for members of council with their professional development, once someone has been successfully elected as a member to council, it is that member’s responsibility to familiarize themselves with the By-Laws, Rules, Policies of the Municipality and specifically seeks assistance when necessary. One cannot simply violate the provisions of the Code of Conduct and carry out behaviour that is not ethical according to the Code and then later argue that they did not receive significant training and therefore did not understand their roles or responsibilities under the Code or other municipal policy.
7. Section 3.1.0 – states that council and local boards shall support the maintenance of a safe, healthy and friendly workplace environment for municipal employees, for citizens and business dealing with the municipality. Council and local boards will seek to achieve a team approach in an environment of mutual respect trust and acceptance of their different roles. Without repeating everything that has been discussed in this report, the member’s own individual actions did not contribute to this and the complaint in a nutshell is that the member’s actions and words and deeds have created anything but a healthy, friendly, positive workplace environment for the CAO.

My comments in regards to the alleged violations of Section B of the Code are as follows:

1. Section 1.0 – ls a statement of basic personal and corporate values and therefore it would be a regurgitation to go through that list as they are further fleshed out in further sections of the Code which I have already touched upon.
2. Section 3.0.0 – states that members of council and local boards will act with honesty, integrity and generally conduct themselves in a way that both generates community trust and confidence as individuals and enhance the role and image of council and local government generally. Members of council shall at all times seek the common good for the community in which they serve. While the member in this case may have felt that her actions and words towards the CAO and the questioning of the CAO’s integrity, position and actions were for the greater good in moving the community forward her statements and actions and ways of expressing and articulating what she perceived to see as shortcomings or failures of the CAO would do anything but generate trust and confídence in a local government.

 

CONCLUSION 

These investigations are always difficult. ln most cases I do not know the member personally and therefore cannot state what her personal beliefs or intensions are. That being said, whether it is because of ignorance (lack of knowledge of the Code of Conduct and other municipal policies) whether it is because the member is aware not of the Code however, rejects it and feels that she is right in what she see as her role as a councillor is impossible to state for sure. lf a member’s behaviour and actions violate the Code of Conduct then a complaint must be upheld. The member from the beginning of the investigation to the end and in her written materials submitted as well as correspondences to me clearly demonstrates that she sees it as her duties to “stand up for the community” and that personally criticizing, demeaning or taking it upon herself to investigate the CAO she has done nothing wrong. ln fact she has done a number of things wrong. She continues to insist incorrectly that the City solicitor’s are acting on behalf of the CAO and therefore the CAO had a lawyer paid for by the community but this is simply not supported by the facts. The complainant did hire his own legal counsel at one point, she indicated that she could not afford to have her lawyer advise her and therefore she does not fully understand her role and obligations as an elected official. As stated earlier it is her responsibility to know not only her rights but responsibilities and duties both under the Code or otherwise. The member is simply not familiar and not knowledgeable for whatever reason of matters that are critical to her role as councillor which she should be familiar with and knowledgeable with. In summary, it appears that the member feels that her actions and words towards the CAO, are justified and she is doing her job as a member of council. The member feels that in fact, she has been the victim by the findings of the NorPro investigation and by the actíons taken by council towards her as a result of those findings. In summary the member simply does not understand, know or rejects that basic roles of staff/administration/council as a whole and an individual councillor. As a result, her behaviour and actions towards the CAO have violated numerous provisions of the Code of Conduct as outlined in this report. Given how fundamental and serious these breaches are it is why I have recommended a 60-day suspension of pay as per the Code of Conduct as well as the Municipal Act, 2001. While this is the first complaint received by me against the member, the member’s violation of the Code of Conduct is substantial and has been ongoing over a considerable period of time.

Ben J. Pascuzzi

Integrity Commíssioner