Lawyer Fay Brunning Confirms Two Whistle Blowing Cases Against City Of Cornwall – February 14, 2013

CFN – CFN has just confirmed that Ottawa lawyer Fay Brunning has filed claim on behalf of two managers at City Hall in Cornwall over Whistle Blowing issues.

The city manager in charge of Whistle Blowing for Cornwall had been former CAO Paul “Fitzy” Fitzpatrick who has since been forced into retirement over these issues and those related to his relationship with former Glen Stor Dun Lodge Manager Donna Derouchie.

Here is the letter from Ms Brunning, unedited and in its entirety.

 

I have been contacted by Le Journal and Cornwall Free News with questions about whistleblower investigations at the City.   I will share this with all of your, given your media coverage for the public following the conviction of the City for illegal retaliation in October 2011.

 

First of all, yes, I can confirm that I act for two internal managers of the City who have filed whistleblower complaints to Cornwall City Council.  The first was given to Councillors on March 20 or 21, 2012.  The second was given to Councillors on May 31, 2012.  I cannot disclose the contents.

 

You will not find any public authority nor any public notice about the complaints, the appointment of any investigator, the powers of the investigator, etc.   Attached is the Whistleblower Policy in its existing form.  You will see that there is no provisions or powers in the event a whistleblower complaint is against the CAO or a member of Council.   Please note who is in charge of enforcing the Whistleblower Policy.

 

There have been no notices to other employees of the Corporation about investigations underway nor who is in charge of protecting other employees of the City who have/may have evidence to provide or have provided evidence and may suspect/believe they suffer retaliation.   Please recall that there was a conviction of the City in October 2011 for illegal retaliation and that Council was in the midst of seeking answers when the first whistleblower complaint was filed.    The other employees of the Corporation has been told nothing about the processes underway.    We have tried repeatedly to have City Council, without any success, notify the other employees or amend the Whistleblower Policy to outline exactly the process for protection for other employees who need to give their evidence, etc.   (Again, recall the conviction of the City for illegal retaliation in the workplace.)

 

Both of my clients have contested  that the complaints have been handled entirely in closed sessions of Council.  Stephen Fournier has received a complaint from each of my clients, as he is in charge of determining if all or some of the sessions of Council should be/should have been held in open session, including votes and motions.  We dispute that these complaints under the Whistleblower Policy are “personal matters” under s. 239 Municipal Act because all allegations pertain to business and operational conduct of the persons whose conduct is in question.  We have asked for but been provided with no legal authority from City Council as to why every aspect of the whistleblower complaints has been conducted without notice to the public or other employees, give the Whistleblower Policy is not applicable.

 

Both of my clients contest the legality of steps taken to date, and have communicated they would like to seek the assistance of the Court to enforce what we consider to be the law.  However, my clients were met with threats of costs being pursued against them by the City if they avail themselves of court proceedings.   My clients will have to risk their personal assets to bring forward these issues to the Court and to the public and to other employees in the workplace who are afraid of retaliation and not sure who is assigned to protect them/how to seek protection.   Unlike other municipalities, the only option for Cornwall employees is to go to the Court.   Cornwall has not enacted bylaws under Part V.1 Municipal Act so there is no integrity commissioner nor ombudsman.  There is no one independent of the Corporation to review this except Mr. Fournier on the issue of open/closed sessions, or the Court. 

 

One of the complaints involves application of the provisions of the Municipal Conflict of Interest Act.   To date, if you check the minutes of Council, no member of Council has declared any interest in the matters being heard in closed session, despite s. 6(2) MCIA.  If a member of Council has an interest under the MCIA, you will see, under s. 5 MCIA, that the member must declare it, it must be recorded in the minutes of the next open meeting and the member is prohibited from participating in meetings regarding the issue and the member cannot influence other members of Council on that issue.  http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90m50_e.htm

 

Since the Court decision in Magder v. Ford in Toronto, I have been asking if the MCIA was complied with, in Cornwall on these two whistleblower complaints.  I have also been challenging which law firm can advise the remaining members of Cornwall City Council on how to handle the potential breach  by one member of the MCIA and to how handle the two whistleblower complaints without any more participation/influence of the member in breach of MCIA.    Please see the LSUC Rules of Professional Conduct, Rule 2.02 (5) to (5.2) and the commentaries.  http://www.lsuc.on.ca/WorkArea/DownloadAsset.aspx?id=2147489377    There is a telephone number with the LSUC; the LSUC can answer questions from the public about what is supposed to happen if one officer or director of a corporation has or could have done something illegal and what steps the lawyer for the corporation has to implement.  Members of the public are the beneficial owners of the municipal corporation.

 

It is likely too late to remedy the breach of the MCIA,  to satisfy the public on questions of validity of the two current investigations underway because the member in breach has been participating in all the meetings, and involved in matters related to the complaints .   The public have not been given notice under s. 6(2) MCIA.

 

City Council has options under s. 274 Municipal Act, that we have asked be considered, because the participation/influence of the member in breach of MCIA can likely no longer be pulled out of the rest of Council, to satisfy the public’s right to ensure proper and neutral determination of the whistleblower complaints.

 

I also ask you to consult your own lawyer on these matters.  I am not providing legal advice, just basic facts of what has been happening.   We will not disclose the substance of the complaints unless this is taken before the Courts.

 

As you can appreciate, the pressure is very intense on my two clients.   I will only be answering in writing because everything I say is going to be reviewed.  There have been interim allegations against one of my clients about “serious breach of confidentiality” alleging one of my clients or another City employee contacted the media with certain information.  We subsequently had it confirmed that there was no evidence to support such a finding against my client or the other employee.

 

There is fear and confusion in the City workplace, so please be careful in contacting an City employees.    Please do not try to contact anyone whom you think might be my client.

 

I am answering the media inquires and providing information for the consideration of the public because you were investigating and reporting to the public on the facts about one year ago, following the conviction of the City of Cornwall for illegal retaliation arising out of resident abuse at the Lodge.   Not only are my clients being threatened with cost sanctions if they go to court, City Council has denied covering any costs for these two internal managers to get their own legal costs covered to protect themselves and to try to enforce the law.   We feel that our actions are of public benefit.

 

In the view of my clients, the public are the beneficial owners of the municipal corporation of the City of Cornwall.  The public need to get involved and to contact their councillors for information and answers, if the public want answers.    My clients need the protection of accountability and transparency to the public on these matters, which is a specific overriding requirement of the Municipal Act.   There is no public authority for the actions taken to date.

Contacted via phone, former councilor Leslie O’Shaughnessy had the following to state:

There is absolutely nothing that would surprise me pertaining to legal matters that would come out of the city of Cornwall.

 

This scribblers question is how many of these cases has the city been dealing with over the last six years of the Kilger and Fitzpatrick regime? How many millions of dollars have been frittered away on settlements and legal costs?

City Hall has not responded as of print time.

What do you think Cornwall?  You can post your comments below.