Town councillors here have been cleared of numerous code of conduct allegations filed by Erin Mayor Lou Maieron.
The only people likely to pay for the recent round of failed complaints will be Erin taxpayers, who will be left to foot the $7,000 bill.
On Oct. 7 Erin council dealt with several code of conduct complaints lodged against various members of council.
All but two complaints were lodged by Maieron and all were dismissed by integrity commissioner Robert Williams because they are “vexatious”, “not even credible” or “intended solely to cause trouble,” among other reasons.
The reports from Williams, who also noted the complaints “serve no public purpose,” comprised over half of the Oct. 7 agenda package
Erin’s Code of Ethics for councillors was approved in March 2013 under the provisions of the Ontario Municipal Act. The town retained Williams in January 2014 to serve as its integrity commissioner.
Prior to discussion of Williams’ reports, Maieron made a lengthy statement indicating he was not taking part in the discussion on the complaints he lodged because acting further could be considered a potential misuse of power.
“The policeman doesn’t sit with the judge to decide the case,” Maieron said. He questioned whether anyone should be judging themselves, “But if council believes they can be judge of themselves in these matters … so be it. The public is watching.”
The current reports include no sanctions against councillors and motions passed by council were simply to receive the reports. However, when previous code of ethics reports were issued regarding Maieron, the mayor made extensive comments and took part in the voting on whether or not to receive the reports and on suspending his own pay.
In the mayor’s absence, councillor John Brennan chaired this portion of the Oct. 7 meeting.
The first complaints were lodged against councillors Barb Tocher, Josie Wintersinger and Deb Callaghan in relation to the Aug. 12 council meeting.
Maieron and residents David Lyver and Nyola Holliday each submitted a complaint alleging that Tocher, Wintersinger and Callaghan violated several sections of the code when they left a council meeting on Aug. 12, thereby resulting in the loss of a quorum.
Williams said neither Lyver’s nor Holliday’s complaint adhered to the format set out for such complaints – and neither clearly explained the alleged infractions.
On Aug. 12 council approved by a 4-1 margin to waive the rules of procedure to allow for reconsideration of a resolution passed on July 22.
Brennan then moved, and Wintersinger seconded, a motion to reconsider the resolution. Since both councillors had voted in the majority on July 22, this motion to reconsider was “procedurally correct,” Williams found.
At some point in the proceedings Tocher left the chambers. Callaghan then left the chamber. When Wintersinger also left, the quorum (the minimum number of councillors required to make decisions) was lost.
Upon their return, a resolution was made to reconsider the vote concerning a previous integrity commissioner report and recommendations, including docking the mayor’s pay for a month. The report and recommendations was subsequently approved by council.
Lyver contended the three councillors who left the meeting showed disrespect for council, the mayor and taxpayers.
Williams concluded it is a highly unusual situation for council to reconsider any matter passed at a previous meeting and “even more remarkable when the matter involves a report from the municipality’s integrity commissioner, let alone one concerning the individual presiding over the meeting.”
However, Williams stated that despite attempts by councillors to pose points of order and to vote on the motion on the floor (“both non-debatable procedures”), the mayor over-ruled his colleagues and continued to speak on integrity commissioner’s July 22 report.
This refusal by the mayor was in itself clearly a breach of council’s procedural bylaw, Williams stated. He added Maieron also failed to heed the rule limiting speakers to 10 minutes.
He stated members of council cannot be compelled to remain in a meeting; conversely, they can leave a meeting without permission.
“While there may have been alternative tactics available to councillors who wished to see the matter before them resolved, leaving the meeting does not, in my opinion, constitute a contravention of the code of conduct,” Williams stated in his report.
* * *
Next up was a complaint lodged by the Maieron alleging that Tocher has repeatedly “disregarded proper procedure for council meetings and violated several sections of the code.”
In his complaint Maieron characterizes Tocher’s behaviour as “disrupting almost every meeting,” routinely interrupting the mayor and other councillors, making “disrespectful facial gestures,” showing a “general disregard of proper process and the rules of procedure regulating meeting decorum,” as well as “a complete lack of professionalism.” Maieron also alleged Tocher demonstrated “harassment” of delegations.
Williams’ findings show Maieron included no dates, no exhibits nor the names of any witnesses to corroborate those allegations.
Williams stated the code of conduct is intended “to enhance public confidence that town’s elected and appointed representatives operate from a base of integrity, justice and courtesy.”
“In the light of other complaints filed with me, I do not doubt that Erin council meetings have been at times passionate, at times casual or perhaps even disorderly in character.”
Williams noted that Maieron chooses to place primary blame for these aspects of Erin council’s meetings at the feet of councillor Tocher and paints a portrait of himself as the victim of his colleagues’ actions.”
Williams stated, “the integrity commissioner’s task is not to collect evidence in support of an indiscriminate complaint lodged under the code; it is to evaluate documented evidence brought to the integrity commissioner’s attention pursuant to specific or serial incidents of questionable behaviour.”
In addition, it is not within the integrity commissioner’s legislated powers to “expand” a complaint against others not named in the formal submission, stated Williams.
“If these infractions are so serious as to require the integrity commissioner to step in, why did it take 45 months for them to surface?”
If such behaviour was evident from the beginning of the council term, or even when the code of conduct was adopted in 2013, Williams wondered why the complaint was filed with less than two months remaining in the current term.
“Given that the accused and the complainant are competing against each other for the same office in the October municipal election, the timing of this complaint must be considered extraordinary,” Williams stated.
“The flurry of complaints lodged in Erin close to nomination day cannot be coincidental and should prompt the next council to consider a review of the code so as to reduce the possibility that it may be open for use in an electoral campaign.”
He considered the complaint against Tocher to be “vexatious” and “intended solely to cause trouble for someone or to annoy that person without having a legitimate claim requiring resolution.”
Williams said similar to the previous complaint “there is a complete absence of incidents, dates, references or evidence provided.”
* * *
Maieron also submitted a formal complaint against Callaghan, Wintersinger, Tocher and Brennan alleging that they violated the town’s procedural bylaw by permitting “an impromptu delegation” at a Feb. 18 meeting.
The mayor also alleged that “staff action” should be subject to examination by the integrity commissioner in relation to the procedural rules followed at this meeting.
By agreeing to hear the delegation, Maieron contended council violated the town’s procedural bylaw thereby setting the stage for the situation that led to an investigation of his actions by the integrity commissioner in relation to this topic.
Maieron’s sworn statement includes a number of other accusations pertaining to the CAO, the clerk, other town staff, the town’s integrity commissioner (past and present) and his council colleagues, as well as perceived precedents and “directions” to Williams about how the complaint should be handled.
In addition Williams stated that Maieron proposed sanctions against his colleagues and staff since “what is good for the goose is good for the gander.”
Williams noted the complaint makes no direct connection between the events that transpired and any of the 12 specific sections of the code listed in his complaint.
Williams said there were some fairly important questions in the allegation that needed to be dealt with regardless of timing. He explained complaints must be submitted no more than six months after the alleged violation and no action shall be taken on a complaint made to the town after that deadline.
“First and foremost, the entire complaint is based on a faulty interpretation of what occurred on Feb. 18,” said Williams, who noted the minutes of the meeting show plainly that the agenda was amended at the outset of the meeting to permit the delegation to address council.
Williams stated council agendas are routinely amended at the outset of meetings; this is nothing extraordinary and hardly a violation of the procedural bylaw.
Williams added he was led to understand that despite the bylaw, individuals are routinely invited by the mayor to address council on a more-or-less impromptu basis.
“To contrive to spin this event into the trigger for an avalanche (the later code inquiry) is untenable; the charge that hearing a delegation is a code of conduct violation is not even credible,” Williams found.
“There is a disturbing tendency in Mr. Maieron‘s sworn statement to include gratuitous remarks about the motives, competence and activities of several town staff. I am reluctant to quote in this report some of the full statements he made but several words and phrases verge on the defamatory.”
Williams added, “I do know that statements of this sort by an elected official would be a flagrant violation of the code of conduct if they were made in public (in a sworn statement no less). They could possibly even lead to court action. Fortunately, for Maieron, the statement he submitted is confidential to the integrity commissioner and was only shared with the councillors identified in the complaint.”
Williams determined that Callaghan, Wintersinger, Tocher and Brennan did not violate the code of ethics by permitting the Feb. 18 delegation to speak.
* * *
Maieron submitted a formal complaint alleging that councillor Callaghan violated the code of conduct by failing to declare a pecuniary interest in relation to the CAO’s “review of the Town of Erin’s personnel policy” at the Aug. 12 meeting.
Maieron asserts that Callaghan violated the code “based on the fact that her husband … is considered part of town of Erin staff and so is governed by the town’s personnel policy.”
Williams said that when he looked at the document in question “it was a two-page staff report that stated the personnel policy was being looked at.”
He said to imply that looking at that report was a conflict was “simply implausable.”
The report was an update to council on the steps that have been taken to review the town’s personnel policies and its procedure manual “to ensure compliance with current legislative changes and workplace regulations.”
Williams stated that “for someone who purports to place a high priority on performing his ‘mayoral duties’ well, Maieron appears not to have understood the agenda item that was before council on Aug. 12.
“If council had been charged with approving or even receiving an amended policy and/or manual on Aug. 12, the situation would be quite different.”
But council did not make a decision on personnel policies that night; nor were such policies even placed before them.
“The assertion that councillor Callaghan’s participation in a discussion of this particular report is somehow a contravention of the code of conduct is completely groundless,” Williams said.
“I would go so far as to suggest that, in the light of the tone and language used in this submission and despite Maieron’s assertion that he is not being malicious in filing it … the complaint is vexatious.”
He added, “I believe that it is intended solely to cause trouble for or to annoy councillor Callaghan and serves no public purpose.”
* * *
Additional complaints were lodged by Maieron against Callaghan alleging she violated the code of ethics in eight ways.
Maieron alleged that Callaghan filed an affidavit in response to a Municipal Conflict of Interest Act (MCIA) suit filed against her by a resident of Erin that stated she “had not received any specific advice or training” on the MCIA.
Maieron contended that he was “fairly certain” Callaghan attended “a closed training session on the MCIA” presented by two staff members from the Ministry of Municipal Affairs and Housing at the outset of the present term of council.
Therefore, in Maieron’s view, the statement in her affidavit is false and thus a violation of the code of conduct.
Williams agreed there a training session at an open meeting of council conducted by Ministry of Municipal Affairs and Housing staff at the outset of the present council’s term.
However, it was not a “training session on the MCIA,” as alleged, but a basic introduction to the ministry, its mandate and the legislative framework within which municipal elected officials operate, which included a component on the Municipal Conflict of Interest Act.
“Moreover, the materials presented to elected officials states clearly that the slides “should not be relied on for legal or official purposes.”
He added that his determination was the information in Callaghan’s affidavit was correct and therefore Maieron’s complaint cannot be supported.
* * *
The mayor also submitted a formal complaint alleging that Brennan contravened the code by making comments that misled council and the public and by not following proper conduct at a council meeting by promoting a “self-motivated political interest.”
The allegations involve events that took place at the Aug. 12 council meeting.
In this complaint Maieron states Brennan “made dishonest statements,” made “false and misleading” statements and “either forgot or deliberately lied.”
Maieron also alleged Brennan led “a planned deliberate action” that was organized for the sole purpose of responding “to the negative press” of an Advertiser editorial at the July 22 meeting.
Williams said the evidence he gathered did not sustain Maieron’s claim.
The commissioner said just because four councillors agreed to reconsider a resolution did not categorically prove that they conspired in any way to bring this about.
Williams noted that when it came down to the vote on sanctions against Maieron, councillor Brennan did not vote with the majority – so there was not “collective action.”
He also believed Brennan was correct to seek agreement to split the original recommendation into two parts for consideration.
Williams said that in light of the serious allegations he asked “what actually was councillor Brennan’s ‘false statement’? What were his ‘dishonest statements’?”
He stated that both Brennan and Maieron are politicians and both were intending to seek office in October when the complaint was filed.
He determined that Brennan did not violate the town’s code of ethics in relation to his actions on Aug. 12 as alleged by Maieron.
* * *
Councillors had no questions on any of the reports before voting to receive them as presented by the commissioner.
Williams stated that a problem encountered in a number of the complaints lodged by Maieron is that a long list of rules are provided by the mayor with a statement that “‘all of these rules have been broken’ – but I’m not told how, in what form, or how the particular rule is said to apply to the circumstance in question. It makes it difficult for anyone to connect the dots.”
Williams said council should consider this “a teaching moment” and suggested councillors think about what is, and isn’t working with the town’s code of ethics.
Following the report, Maieron asked the commissioner if there are concerns with how the commissioner does his job and what steps can be taken.
Later, following a break in the council meeting, coloured pink letters signed “Lou Maieron, taxpayer” were distributed within the council chamber outlining Maieron’s campaign to end “government bullying.”
In the letter Maieron hinted that he will be launching a formal legal complaint about the code of ethics and the integrity commissioner with the Ontario Superior Court.
Clerk Dina Lundy later commented that the letter appeared to be similar to election-related materials, which were not to be handed out in voting stations (the administrative building is one such station).
Though the letter did not specifically state it was campaign material, the paper appeared to match that of campaign materials handed out by Maieron at a previous all candidates meeting.
The full integrity commissioner reports are included in the Oct. 7 Town of Erin agenda at www.erin.ca.
