Stephen Fournier: The Public Had a Right to Know – Kilger Council Whistleblower Scandal in Cornwall Ontario Heats Up

CFN – Two reports were released by the City of Cornwall Ontario.  What they mean are critical.  What happens now?  Only the city’s high priced legal fire power led by Will McDowell and judges will determine things at the end.

Sadly council as a group are now officially exposed to have held back truths of the Whistle Blowing scandals that have hit our city thanks to the Mayor covering up for his good friend former CAO Paul Fitzpatrick who was allowed to slither off to retirement with a Golden Parachute estimated to be more than $100,000.   The city clerk was also allowed to slither off to retirement too.

HR Manager Robert Menagh was thrown under the bus.  While his $300K settlement may seem generous in his specialized field of employment another gig will be difficult without the full truth coming out to clarify his own role in these scandals.  Diane Shay, some of her family, at least one nurse, and other victims lie in the path that has led to the City of Cornwall having to raise taxes 2.88% this year due to massive legal services and settlement packages estimated to be over $2,000,000 and counting which comes down to nearly $50 per resident!

Stephen Fournier has sent in reports for the two Whistleblower cases.

However I found merit in the complainant’s position that the public had the right to know or at least receive some form of notice that a whistleblower complaint was under investigation. In my  opinion, the term “personnel matters” is so broad that it lacks the general degree of specificity  contemplated under the procedural requirements of Section 239 of the Act. The reports  conclude with a sample resolution, which takes the form of a procedural recommendation and provides sufficient detail concerning a ‘personnel matter/issue’ without breaching the confidentiality rights associated with the matters that precipitated the closed meeting
complaints.

And here’s a kicker.

The Act requires that the report be considered in an open meeting of council.

If as Whistleblower Deputy Fire Chief Rob Hickley asserts in his allegations that they mayor has been in Conflict of Interest then council of the whole has been in gross negligence hiding the facts of these cases from we the media and the public.

From one of the reports:

The complaint was filed and forwarded by courier to the closed meeting investigator on January 30, 2013. The investigator was out of the country until February 17, 2013, and subsequently the file was opened and activated during the week commencing on February 18, 2013.

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The background details and events that led to this closed meeting investigation are summarized as follows:

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.1. On May 31, 2012, a whistleblower complaint was filed with Cornwall City Council;

2. On June 18, 2012, Council appointed a senior general manager and legal counsel to investigate the complaint;

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3. On July 30, 2012, the author of the whistleblower complaint expressed concern in writing to the council regarding the need for amendments and changes to the whistleblower policy to properly address such matters as, notification of the investigation and appointment of an investigator, witness protection protocols and staff training and development. The author of the closed meeting complaint alleges City Council has not taken- or at the very least has not announced publically as of January 7, 2013, the details of any action to address the concerns delivered to council in writing on July 30, 2012;

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4. On April 16, 2013, the general manager appointed by city council advised the investigation of the whistleblower complaint is approaching completion; and

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5. In summary, the complainant maintains that not all of the matters considered or actions taken by council respecting the said whistleblower complaint discussions qualified as (an) item(s) for consideration in closed meetings of council under the
Act.    This report responds to the complainant’s request for a formal investigation, subject to the jurisdictional limitations described earlier in this report.

How many meetings would Mayor Kilger have attended without disclosing his conflict if interest?  How many were covered up by this council as a whole who all have violated their declarations of office?

Results of the Investigation:

Council considered this particular matter in a number of closed In-Camera meetings from June 18, 2012 to February 19, 2013.

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Specifically:

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1. The resolution to move in camera and the agenda and minutes of the special InCamera Committee of Council meeting held on June 18, 2012, refer to matters pertaining to s.239 2(b) “personal information about an identifiable individual, including municipal and local board employees”. Under Item #1- “ConfidentialPersonnel Issue”- two items were considered by council. With respect to this
matter council appointed by motion Stephen Alexander and its legal council, 6 David Sheriff-Scott to deal with the complaint filed with council on May 31, 2012 under the city’s Whistleblower Policy. The complainant was subsequently  advised of council’s action on the matter.

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2. The resolution to move in camera at the special In-Camera Committee of Council  meeting held on July 16, 2012, references matters that were considered on the  following grounds: “2(b) personal information about an identifiable individual, including municipal and local board employees”; and “2(f) advice that is subject to solicitor-client privilege, including communications necessary for that purpose”.   The record of the meeting indicates three matters were discussed under Item #1-Confidential- Personnel Issues. With respect to the whistleblower complaint dated May 31, 2012, Council directed by motion its legal counsel to consider and take certain actions regarding the matters pertaining to this complaint based on a report prepared by the City’s legal council. Although the minutes of this closed meeting did not note the presence of the City’s legal counsel, Mr. Alexander
confirmed that Mr. D. Sherriff-Scott attended this meeting.

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3. The resolution to move in camera at the special In-Camera Committee of Council meeting held on July 16, 2012, under the heading Item #1- D. Sherriff-Scott references matters that were considered on the following grounds: “2(b) personal information about an identifiable individual, including municipal and local board employees”; and “2(f) advice that is subject to solicitor-client privilege, including communications necessary for that purpose”. The record of the closed meeting indicates the matter was discussed under Item #1 Confidential- Update on Whistleblower Matter where council directed Mr. Alexander and Mr. Sherriff Scott to continue the investigation of the whistleblower complaint and address certain matters raised by the complainant.

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4. At the In-Camera Committee of Council meeting held on October 22, 2012, council received an update on this matter from Acting CAO, Mr. Alexander, under the closed meeting agenda heading- “3- Confidential- Updates on Personnel Issues”. The resolution to move in camera references s.“2(b) personal information about an identifiable individual including municipal and local board
employees” to deal with “Item 3. Report -2012- Verbal- CAO”.

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5. The motion to move in camera and the agenda and minutes of the In-Camera Committee of Council meeting held on February 11, 2013, refer to a report that is added to the meeting agenda and is entitled “Confidential Report from the Office of the CAO” regarding: “2(b) personal information about an identifiable individual including municipal and local board employees”; “2(e) litigation or potential litigation, including matters before administrative tribunals, affecting the municipality or local board; and 2(f) advice that is subject to solicitor-client 7 privilege, including communications necessary for that purpose”. At this meeting Council agreed by resolution to move the in camera meeting from February 16th to February 19th, 2013, to further deal with the whistleblower complaints.

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6. The motion to move in camera and the agenda and minutes of the special InCamera Committee of Council meeting held on February 19, 2013, refer to a report that is entitled “Confidential Report from the Office of the CAO” regarding: “2(b) personal information about an identifiable individual including municipal and local board employees”; “2(e) litigation or potential litigation, including matters before administrative tribunals, affecting the municipality or local board; and 2(f) advice that is subject to solicitor-client privilege, including communications necessary for that purpose”. The record for this closed session indicates that council received a presentation by the city’s legal counsel appointed to this file.  The matters that were addressed pertained to correspondence that had been received between December 2012 and February 2013 from the complainant’s solicitor for the whistleblower complaint filed on May 31, 2012. Specifically, Council endorsed the recommendations presented by the City’s legal counsel and directed Mr. Alexander to continue and complete the investigation in accordance with its directions of June 18, 2012.

Summary of Findings, Conclusions and Recommendations:

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The key findings, conclusion and recommendation with respect to this request for an investigation follow below.  In summary, the complainant maintained that while the allegations set out in the whistleblower complaint should be handled in confidence to ensure a fair process;  council did not act in an open and transparent manner while processing the complaint.

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At certain points in the process such matters as appointing an investigator, granting the powers of investigation, etc., should have been considered in (a) open session(s) rather than entirely in camera or closed meetings. The complainant also believes the public
was entitled to know the position or title of the individual whose conduct was the subject of the whistleblower complaint.

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Under Section 239(1) of the Act, members of Council must assess- even when the matter falls under one of exceptions- whether the need for confidentiality should prevail over the requirement to conduct its business in open meetings. In effect, the exceptions
or grounds that permit a matter to be considered in a closed session in Section 239(1) are discretionary and not mandatory.

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Therefore, a municipal council or committee or board thereof, must carefully weigh the right of confidentiality and the public right for 8 open and transparent local governance in any matter that may meet the grounds for a closed meeting.
In this case, the handling of a complaint under the City’s Whistleblower Policy precipitated this particular closed meeting investigation. One of the central principles in  any whistleblower complaint-handling policy is the requirement for a confidential and
anonymous process. Otherwise the effectiveness and confidence in the application of  such a policy in the workplace with respect to the fundamental protections afforded the whistleblower, the witnesses and the accused will be eroded.

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It is clear from the records of the closed meetings and the oral evidence that Council considered and provided staff and/or legal counsel direction on various elements of the complaint- handling and investigative process in order to move forward and address the
specific details and nature of allegations set out in the whistleblower complaint. As such, it is the investigator’s opinion that Council’s actions to preserve the confidentiality of the process were warranted in this case. The matters that were discussed in the closed
sessions from June11, 2012 to February 19, 2013, and the grounds cited for doing so were appropriate under Section 239 of the Act.

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In closing, however, the complainant’s position that the public had the right to know or at least receive some form of notice that a whistleblower complaint was under investigation merits consideration. The handling of a whistleblower complaint constitutes
one of the many human resource/personnel procedures (recruitment, pay equity, salary range classifications, job descriptions, codes of conduct, etc.) that are conducted by municipal councils as matters of corporate policy.

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In this case, the records indicate that the procedural requirement under the Act to provide a general description the nature of the matter to be considered in closed session (in addition to citing the legislative grounds under Section 239) was fulfilled through a specific reference to a confidential report/discussion. The confidential report/discussion was often referred to as a Confidential (Report)- Personnel Matter(s)in the resolutions of the open council meeting to move in camera.

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In the opinion of the investigator, the term “personnel matters” it is so broad that it lacks the general degree of specificity contemplated under the procedural requirements of Section 239 of the Act. The following sample resolution serves as both a
recommendation and an example of a description of the matter, which provides sufficient detail without breaching the confidentiality rights associated with the matter that precipitated the closed meeting complaint:

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THAT the Council of the Corporation of the City of Cornwall move at (time) into a closed meeting as provided for under Subsection 293(2) (b) – personal matters about an identifiable individual, including municipal and local employees. 9 Specifically, to consider a Confidential Report relating to the City’s Whistleblower Policy.

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It is recommended that the City incorporate into its closed meeting procedures the degree or level of specificity in its general description of a matter to be considered under Section 239(2) of the Act in a closed meeting as illustrated in the above sample
resolution.
Respectfully submitted,
Stephen Fournier,
Closed Meeting Investigator

That was a mouthful!   A question?   Is Mayor Kilger responsible for what is being said behind closed doors to keep Council members from talking to the public about what the public have a right to know, under the law, and who required this wrongful blanket secrecy?

If City Council repeats that it was relying upon professional advice from the multiple lawyers it has been paying with taxpayers’ money to keep all of this secret from the public, when is Council going to acknowledge those lawyers might be wrong?  Who is representing the public’s legal rights behind closed doors?   Why won’t City Council agree to pay the legal costs of Shay and Hickley, who are the ones standing up for the law/public rights?

Why won’t the city admit whether they are paying the Mayor’s legal fees and expenses?

Why won’t the city give a simple GLOBAL SUM for the amount of tax dollars they’ve spent on these scandals for 2012?

How much did the city spend on its internal investigation that the public has no access to?

Why won’t the city give out the amounts they paid in advertising to different media as they did in 2012?

Should all of council be forced to resign for covering up for Mayor Kilger who finally may be forced to declare his conflict of interest?

Should city management fire its legal firm and engage one to try and recoup the monies wasted in this mess from those responsible?

There is one link between the Project Truth $50M + coverup and these Whistleblower scandals and that’s Mayor Bob Kilger.

All that Project Truth did was cover up a systemic abuse of power.  That power and those behind it are what is costing this city its future.   The big issue isn’t the way Mr. Kilger has behaved.  He’s destroyed his legacy; but those of council, Denis Thibault, Denis Carr, Syd Gardiner, Elaine MacDonald, Gerry Samson, Bernadette Clement, David Murphy, Glen Grant, Maurice Dupelle, and even Andre Rivette although he deserves some bonus points for being brave enough to try and communicate his frustration at the process.

Those actions; giving CFN an on camera interview resulted in the mayor and council abusing him in closed council barbarically which also resulted by condemnation by Mr. Fournier.

And of course former councilor Leslie O’Shaugnessy who resigned from council rather than participate in the scandals once they became apparent to him.   The councilor repeatedly villainized by another columnist that allegedly has written campaign speeches for Mayor Kilger in the past, Claude McIntosh.

And that ladies and gentlemen is what’s wrong with the Municipal Act of Ontario as there are no simple processes to invoke assistance to the public to deal with corruption and cover ups at council.   Imagine a criminal system where a thief could only be charged if he reported that he had stolen something?  That’s what we are dealing with when it comes to conflict of interest.

Does that make sense to you?

The bigger question is how many millions of dollars will this end up costing the city of Cornwall all because an aging city manager wanted a bit on the side and never learned to not poop where he eats?

 

 

We will be updating this story as comments and more info become available.

UPDATE

I reached Mayor Kilger who said the following:

I have no comments, I have no comments, I have no comments for you at any time.