A decision on conflict of interest allegations against Erin councillor Deb Callaghan is expected “shortly.”
While the applicant is seeking tough sanctions, Callaghan’s lawyer Thomas Arnold is asking that all items in the conflict of interest application be dismissed.
The second day of hearings on the matter came before Justice Michael G. Emery on Oct. 23.
On the first day of the hearing, Oct. 20, applicant Mark Adamiak’s lawyer Americo Fernandes argued there should be serious repercussions should the judge find Callaghan guilty of any of the three alleged breaches of the Conflict of Interest Act.
The application alleges pecuniary interests were breached as a result of Callaghan voting on two staff wage increases and a vote regarding Erin’s proposed operational review.
Fernandes contended that since Callaghan was not currently seeking re-election, a ban on running for office for a single term of office was not sufficient.
He also argued for additional sanctions, including repayment of any wage increases Callaghan’s husband incurred over the past two years as a result of her vote as well as payment of all court costs and a public apology.
On day two, Callaghan’s attorney Thomas Arnold stated, “We seek this application be dismissed on all grounds.”
He contended the votes on the salary increases fall under an exemption in which the councillor or spouse is a member of a volunteer fire brigade.
He stated Callaghan also had no pecuniary interest in the vote on the town’s operational review because the report at that time was strictly preliminary and the document did not mention specific individuals or departments under review.
Without that information, Arnold argued any pecuniary interest on a possible or hypothetical change to the fire chief’s salary would be remote or insignificant.
Arnold also stated that if the judge found Callaghan had breached the act, it was through inadvertence, not an error in judgement.
The judge asked for clarification on whether the defense was relying on the error in judgement argument.
Fernandes had stated the argument was not plausible based on testimony from others, including Mayor Lou Maieron. But Arnold said there is no evidence to support that claim.
Arnold also suggested that documented statements provided by the Erin mayor may not be credible, “whereas my client’s statements have the ring of truth.”
Arnold said the legislation regarding conflict of interest requires serious consideration and any ruling to disqualify someone from holding public office should be based “on clearly proven facts. The will of the electorate should not be taken lightly.”
Arnold suggested in this case “the applicant has the burden to prove the Conflict of Interest Act was broken and that the exceptions do not apply.”
He pointed out that none of the votes in which Callaghan participated specifically named her husband (Erin’s fire chief).
Arnold stated parts of the Act exist to exclude conflicts such as taking part in votes regarding public utilities, even if the councillor uses the service.
He stated a similar exception exists where members of the board are members of a local volunteer fire brigade. He stated the same applied where the spouse was a member of that brigade – in this case the Erin Fire Department.
The question, he contended, was not whether the fire chief was a volunteer firefighter, but whether he was a member of a volunteer fire brigade.
Erin’s municipal bylaws defining its fire department include volunteer firefighters and full and part-time officers.
Arnold added, “The applicant has not raised evidence that the fire department is not a volunteer fire brigade.”
He noted Callaghan’s vote on the operational review report regarded the creation of a citizens committee and the town CAO preparing a report within a six-month time period. The financial impact to Erin would have been $10,000.
The document itself, he said, contained no reference to the fire chief, the fire department nor any specific department within the town.
Additionally, Arnold argued the resolution included nothing about wages for any staff member.
“The only financial reference was the cost of proceeding with the review … and to consider the recommendation as part of the 2015 budget.”
Judge Emery questioned how Callaghan could vote to bring a motion of consideration to the table, then vote against it.
(Councillors regularly second motions/recommendations simply to bring the items forward for discussion.)
Arnold stated the issue was whether Callaghan’s vote represented a pecuniary interest – “I don’t believe the vote itself is relevant.”
Emery stated that in items of pecuniary interest, the councillor must not only declare a pecuniary interest, but refrain from partaking in any part of the discussion – “I would think that would include seconding a motion.”
Arnold maintained that much of the operational review at that point was hypothetical in nature – and any pecuniary interest would be so as well.
“The Act deals with pecuniary interests – not hypothetical ones,” Arnold said.
He explained that even if the legislation involving a volunteer fire brigade was not considered applicable there would still be the matter of a “hypothetical pecuniary interest” which would be so remote as to not influence the councillor’s decision.
Arnold further stated if the court decides there was a pecuniary interest “it was inadvertent.”
In looking at the meaning of inadvertence, Arnold said that meanings include oversight, inattention, carelessness and the like.
He pointed out that following legal advice – provided to all of council in 2013 – Callaghan has refrained from voting in any matter involving the fire department whether or not there is the potential of a pecuniary interest.
“That evidence is not suggesting Callaghan has a pecuniary interest on each matter involving the fire department – but rather an abundance of caution.”
Arnold then commented on transcripts from Erin Mayor Lou Maieron and the report of integrity commission John Craig in relation to the mayor.
The judge questioned how that report applied to this case and why the commissioner himself had not been requested to comment.
Arnold argued the commissioner by his nature was not a compellable witness – his role in the report was to be independent and impartial.
The defense had hoped not to illustrate the nature of the interaction of the document’s author and the mayor – but rather the truth of the statements within.
Fernandes objected to the use of the integrity commissioner’s report and questioned the truth of its contents.
In asking how he could allow this document to be used, Arnold pointed out the document was used by Fernandes in the previous cross examination of Callaghan.
Fernandes again argued against the use of the document by the defense, stating, “They are trying to portray Maieron as a horrible person.”
The judge then asked if Craig’s report was directly tied to the application before the court. His concern was that this could be considered a collateral attack.
Arnold considered it a test of the credibility on the mayor’s testimony.
Judge Emery said that since the commissioner was not available for cross examination, there is no way to test the report.
Arnold then pointed out in terms of credibility it comes down to what Maieron said versus what Callaghan said.
He then asked that the judge consider the actual testimony provided within the documents rather than summaries which portrayed a different picture of Callaghan’s responses.
Judge Emery pointed out his role was to base his decision on the evidence before him, not to pass judgement on the credibility of the witness statements.
Arnold maintained that Callaghan was clear in her responses throughout her statements and cross examination in that any votes or discussion, of wages or the operational review was through inadvertence – not intent.
He said if any sanctions were imposed they should be minimal.
Arnold pointed out that Callaghan was not seeking re-election and a decision would affect her reputation.
He also believed that repayment of the wages would also be inappropriate as the decision was based on an overall wage increase for all staff within the municipality – the fire chief was not singled out.
Since the wage vote in 2012 was not a recorded vote, the judge questioned the impact of Callaghan’s vote.
“Would (the vote) have carried anyway?” At the same time, he was not convinced that exceptions applied because of the involvement of the volunteer fire brigade.
Following a brief break, the judge made the following comment.
“The Superior Court does not condone photos being taken in the court room and I ask whoever has taken them to please delete them.”
Staff had indicated the same message in the hall during the break, at which point Mayor Lou Maieron began deleting images from his camera.
Then, instead of providing a brief summary of the applicant’s case, Fernandes appeared to be outlining the entire arguments made on Oct. 20.
He contended that even if the exceptions regarding volunteer fire brigades did apply, he had seen no evidence that the department in Erin was “volunteer.”
For him, the main issue was the $2,600 in wages paid to the fire chief as a result of Callaghan’s vote on increases.
As to the operational review, even though it did not proceed at that time, “there could have been an effect.” He also considered Callaghan’s later awareness of the potential pecuniary interest as an admission of her wrong-doing.
The judge pointed out the comments were made a few weeks after – not during – the decision. He said the issue in question is whether Callaghan considered the potential pecuniary interest while voting on the matters.
Emery stated a decision would be made “shortly” … but did not specify a time frame in which his decision would be made.
There was no update provided as of the Advertiser’s deadline.