Friday, December 6, 2013

Integrity Commissioner Robert Swayze's trail of bias

Ontario has seen a new warrior come to greater public attention. The battlefield for this guardian of honour is municipal politics. His, or her, title is the Integrity Commissioner, and with such a title in tow we may expect a knight in shining armour. After all integrity has connotations of sound moral principles, uprightness, honesty and sincerity (all borrowed from the Webster's Dictionary). These warriors have been provided with a certain degree of legislative armour through the Municipal Statute Law Amendment Act, 2006. Ready and willing, they forge out into the quagmire of municipal politics, for a hefty fee of course. No one would be expected to take on such daunting tasks purely on altruistic reasoning, and at the end of it all it is only tax payers' dollars, a well that government seems to think is limitless.

These staunch and courageous warriors are provided with the task to enforce and defend issues surrounding Code of Conduct and behaviour of those we elect, and those who claim to act on our behalf. Municipal politics is not all that simple, as one may think. At the centre sits the mayor or regional chair, with all sorts of councillors, boards and committees. It is a web of sorts that spreads its sticky tentacles throughout the community, and at times beyond. Today we find many municipalities instituting codes of conduct as a base guideline or a framework for those we trust with representation of the greater good. When something goes wrong, and as human nature will have it, it always does, these warrior knights come crashing in. Yet there is an almost disturbing reality, these warriors have no real authority or power to do anything.

The Municipal Statute Law Amendment Act 2006, Bill 130 is a lengthy document, as all government legislation is. Its language could intimidate the uninitiated individual to seek an interpreter of such a language. Regardless of the complexity of language this is the bible for all the procedures that municipalities follow, and section 223.3 outlines the Role of Integrity Commissioner followed by section 223.4 - Inquiry by Commissioner. Here we may fall into a false sense of security thinking that our knights truly have some authority. Under section 223.4 it claims that the commissioner has the authority to gather any documents and question witnesses under oath. Further examination allows for a tremor of an alarm.

As an integrity commissioner, he or she have the authority to compel witnesses to give evidence under oath and gather, or even demand, all and any documents pertinent to an inquiry. When an investigation is complete the commissioner is no more effective than the armchair sports enthusiast yelling out advice and tips at a television screen. This courageous, and dare say expensive, knight can only present any recommendations to city council. It is up to council to implement those recommendations or not. Council decides what they wish to do and may at their discretion ignore the commish in total.

Finally section 223.4 outlines any penalties that may be recommended by the commissioner. Even if dishonesty, breach of trust, lack of dignity etc, etc. is proven a commissioner may only recommend a reprimand or at worst the suspension of a councillor's pay to a maximum 90 days. Now is when one realises that the armour is simply a fake, and the warrior's weapons provided by the government equivalent to the special effects wizards on a movie set. A question looms in the air, even if the pay of a councillor is suspended, who gets the money then? After all it is still taken from the bottomless pit of the public purse, as the councillor doesn't get it. Who does?

With all these realities put into their right place a bigger question is raised, as if there is room for a bigger one at this point. Regardless of the impotency of an investigation, still the fact that an integrity commissioner had conducted an investigation can be spun by media into a blemish or worse on the reputation of an elected individual. But what if the integrity commissioner and the investigation itself raise serious questions of integrity? The premise upon which any investigation is conducted is that it is absolutely fair to both sides of an argument. Any integrity commissioner must remain throughout his or her investigation totally impartial. If that is not the case and it can be proven to be so, where does that leave the whole process of commissioners and their investigations. What happens to sections 223.3 and 223.4 of the Municipal Statute Law Amendment Act 2006 Bill 130? Have these knights then only become highly paid mercenaries?

Exactly such a situation has developed in Niagara, Ontario with the integrity commissioner brought in to investigate complaints against a regional councillor. Two complaints were before Robert J. Swayze, one from four staff members of Niagara Regional Housing and another from a director of Regional Public Health. These complaints were made against Regional Councillor Andy Petrowski.

Regional Councillor Petrowski has been described as a 'bull in a china shop', and his demeanour may not always be pleasant. He is naturally loud and expressive and for that reason, Councillor Petrowski can be seen as intimidating. Most of all Councillor Andy Petrowski is not a man who plays by silent rules of what has become government. It is because of this unwillingness to tow the politically correct line, that Councillor Petrowski finds himself often as a target for those who would rather continue business as usual.

Integrity Commissioner Robert J. Swayze sets out details in his report as to the nature of the complaints. He also states that he spent quite some time with those who filed the complaint. Quoting from page 3 of the report Mr. Swayze states, “I questioned the four NRH staff, firstly as a panel and then each of them individually.” Robert Swayze's background is that of a Barrister and Solicitor, and as such it is safely presumed that with such a background he is somewhat in tune with human nature. Interviewing the four complainants of the NRH first as a panel is bewildering. At that point the four staff members of the NRH were in a position to present a unified chorus, and the report clearly confirms that as a fact in the opening of its conclusion.

No lawyer accepts as fact simple testimony without verification. In the situation of the staff members from the NRH, background would not of been provided, or one that only suited possibly the chorus. The situation surrounding the “severely handicapped” tenant of a building where the landlord was and is the NRH, is both disturbing and unacceptable. It has been claimed that the July 23rd 2013 meeting was a “case conference meeting” to “discuss solutions for a hard-to-serve tenant.” These are all words taken from Commissioner Swayze's report. Such language had to of come from staff members of the NRH, and it appears that the mental picture painted here is of a tenant who was difficult to work with. What else would “hard-to-serve tenant” mean?

Facts paint a very different picture in this situation revolving around double-amputee Bob Hansplant. None of the NRH staff would have told Commissioner Swayze that the intolerable conditions that Bob Hansplant had to endure lasted over three and a half years, with the NRH staff in full awareness. Did Commissioner Robert Swayze want to know all the facts before stating in his report's conclusion, “I believe the testimony of the six staff members I interviewed...” All the alarming facts surrounding the tenant Bob Hansplant, including photographs of his apartment and a video interview were available. More disturbing is the clear evidence that a senior member of the regional staff had intentionally misrepresented the truth about the building and its landlord where this tenant lived.

Had Commissioner Robert Swayze given as much time to interviewing, either as a “panel” or individually, witnesses who had a different perspective, would his decision have altered? The email alone by Steve Murphy to Regional Clerk Janet Pilon had to have raised doubt on the accuracy of anything from the NRH staff. Niagara Regional Housing staff claimed “how upsetting” the facts, when published, were to them. Yet regional staff have been known to misrepresent the truth, provide intentional misconception and simply say what is the opposite of truth before. Simply refer to the letter by former Regional Chairman Peter Partington dated September 27th 2010.

Former Regional Chair Peter Partington had little choice but to change the flow of words by regional staff such as Andrew Pollock, Director, Waste Management Services. He also had to admit that the Summer Greenscene 2010 had misrepresented the truth regarding the recycling of plastic bottle caps. In its newsletter delivered to all residents of the Niagara Region it claimed “Caps are not recyclable.” That was not true and in the end former Regional Chair Peter Partington had to admit it. Furthermore look at the case of Dr. Valerie Jaeger, the most senior regional medical officer.

Robert Swayze as a Barrister and Solicitor chose the extreme opposite of impartiality and fairness. He claims to have given enough time to Councillor Petrowski to provide additional information. Yet to provide an investigation, all facts and information are required from both sides, it was not the case here. In an article written by Micheal McKiernan titled Lawyers grabbing piece of integrity commissioner action for Robert Swayze
is quoted as saying, “It's an evolving field, changing all the time. There's such an enormous variety of issues that come up and you're always creating new law and new approaches.”

The Municipal Statute Law Amendment Act 2006, Bill 130 sets out the 'law'. Integrity Commissioners have no more power than the Ombudsman, and the famous jargon of Andre Marin, with “moral suasion.” No commissioner can do anything other than make recommendations to a city council, it is up to that respective council to act on those recommendations or not. What “new law” does any integrity commissioner create? He or she has no real authority nor power!

Further into Bill 130 - Reference to Appropriate Authorities, section 223.8 states, “If the Commissioner, when conducting an inquiry, determines that there are reasonable grounds to believe that there has been a contravention of any other Act of the Criminal Code (Canada) the Commissioner shall immediately refer to the matter to the appropriate authorities and suspend the inquiry until any resulting police investigation and charge have been fully disposed of and shall report to the suspension to council.”

Commissioner Robert Swayze is a Barrister and Solicitor with a speciality in municipal law. He is an individual with full understanding of the law and this section of Bill 130, even though he may not be a criminal lawyer. Another integrity commissioner had requested that further information was not divulged to her by a complainant regarding circumstances of a by-law fine being fixed by a mayor. Commissioner Suzanne Craig had said that even though she was not a judge she would have no choice but to stop her inquiry and contact appropriate authorities if she had heard any more on the issue. Robert Swayze on the other hand claiming that “you are always creating new law...” decided to possibly ignore the law already in place.

An individual had requested that Commissioner Swayze open an investigation for breach of the Code of Conduct against a member of the Niagara Regional Council and Mayor of St. Catharines, Brian McMullan. This request stemmed from a period of ugly and anonymous posts placed on the St. Catharines Standard's web page. The posts were not only slanderous in nature but had taken another alarming twist. One of the individuals using a fictitious name filed a false police report. According to the Criminal Code (Canada) filing a false report is breach of the Code and an offence which can carry time in jail.

Individuals who hide behind fictitious names and post insults and slander are simply cowards, and at times such cowards are best ignored. In this case the situation had reached a new level of insanity with the false police report. The target of these anonymous posts was Regional Councillor Andy Petrowski. Councillor Petrowski sought out ways to find an end to this malicious barrage of attacks. A newspaper article had appeared in The Standard regarding the posts and the issues which were the catalyst for the posts. Regional Councillor and Mayor of St. Catharines, Brian McMullan admitted to knowing the identity of some of these anonymous
individuals. Mayor Brian McMullan's direct words were published in The Standard's article. Admitting to the knowledge of the identity of one or more of the individuals who had committed a breach of the Criminal Code becomes a breach in itself and possibly conspiratorial in nature.

A member of the public brought this to the attention of Robert Swayze, himself a Barrister and Solicitor. Robert Swayze's response was not a surprise. He said “Your allegation that Councillor McMullan used information provided by the “phony Tim Lewis” against Councillor Petrowski is not wholly true.” Swayze claims that he “reviewed the press reports,” and if he had fully reviewed the press reports, as a lawyer, he would have to question the possibility of one disturbing fact. How could Mayor Brian McMullan admit to having knowledge of the identity of the anonymous individuals, as well as the “phony Tim Lewis,” and not find it a breach of the Code of Conduct?

Still it is not the first time that Integrity Commissioner Robert Swayze displayed what may be considered selective justice. An article by Doug Hallett of the Guelph Tribune titled 'Integrity commissioner slaps two councillors wrists', raises some ugly questions regarding Robert Swayze's M.O. In the situation surrounding councillors of the City of Guelph, it was apparent that two of the elected councillors had broken rank and provided information to Doug Hallett. In came Integrity Commissioner Swayze, he admits that he did not conduct a full investigation but he still made his comments and recommendations.

In this instance Robert Swayze states, “In my opinion, there is never justification for a councillor reporting complaints about staff to the press.” He further claims, “For this reason, granting the interview with the press and reporting the application is contrary to the Code.” For clarification what Swayze refers to as “the application” relates to the point that two councillors had filed or intended to file a Freedom of Information application. Swayze doesn't stop there, he further says, “the negative statements in the article on staff by both councillors Guthrie and Kovach are also contrary to the Code.”

This certified “specialist in municipal law” decided that he would conduct interviews with the CAO and Mayor of Guelph on a face-to-face basis for some 90 minutes. Yet when it came to the councillors who he made his comments against he refused to speak with them. It was later revealed that Councillor Gloria Kovach “requested a meeting with Swayze and attended said meeting armed with a full statement on the matter, which Swayze refused to accept from her.” (by Scott Tracey, Mercury staff writer).

One doesn't have to watch CSI too often to know what M.O. stands for, though in the case of Swayze versus fairness and objectivity, it is somewhat alarming. Commish Swayze said of the Guelph incident, “All councillors... must understand that they have been elected to become part of a team...” If that is Robert Swayze's mantra then the people who elect these councillors, whether in Guelph or Niagara or anywhere else, are in trouble. In the end Swayze guarantees that the people dwell on a cloud of misconception, believing that they elect their municipal representatives to represent their interests or that of their city as a whole. According to the certified specialist in municipal law, by the Law Society of Upper Canada, Robert Swayze, Barrister and Solicitor, elected councillors first must consider the team over everything else.

In Guelph Robert Swayze came in to investigate, or was it something else? His words were at the time that he “interpreted the referral as requiring my comment on the (news) report on the context of the Code of Conduct – and not as a direction to conduct a full investigation.” Still the whole issue was revolving around councillors and a news report in a local newspaper. In St. Catharines Regional Councillor and Mayor of St. Catharines admitted to having knowledge of the identity of individuals who had lied and committed slander. Then these individuals went further and breached the Criminal Code. Swayze responds “It is not within my mandate as Integrity Commissioner to “muzzle” members of council.” Yet in Guelph he did just that, he put a “muzzle” on councillors, told them that they are to think of the team first over any thoughts of the better good of all.

Robert Swayze's actions require serious questioning. It is not whether one likes Councillor Petrowski or not, whether one thinks of him as crass or passionate. Councillor Petrowski will make it clear that he advocates for those who elected him and not for the “team.” Councillor Brian Heit said it was an inadequate apology by Petrowski, yet Brian Heit is the same councillor who objected to acknowledge the death of a cripple who had endured intimidation and horrendous living conditions at the hands of Niagara Regional Housing. Will Brian Heit chastise Regional Councillor and Mayor Brian McMullan with the same words, that he has “to understand when he goes out of bounds”?

In the end this knight and protector of the 'Code' and teamwork simply leaves behind a load of questions. Without a doubt Robert Swayze will claim that the situation in Guelph was different to Brian McMullan's little public statement. He will claim that Councillor Petrowski doesn't understand “irony,” or that he misses it all together. At the end of it all, whether in Guelph or Niagara, Robert Swayze does not accept the possible fact that he indeed waves a muzzle in the air as a whip of intimidation when he threatens “I'll be back.”

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