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 lawtimesnews.com
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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