On September 24, 2024, I am making a deputation to Council regarding Integrity Commission Robert Swayze’s report of his investigation of Code of Conduct complaints from four members of Council. I will be summarizing the Commissioner’s findings – and sharing my concern that his advice to Council can only serve to discourage members even more from communicating openly with residents of the County, especially about contentious issues. I will also be addressing the Commissioner’s apparent attempts to influence the political reporting of The Picton Gazette.
Good evening Mayor Ferguson and members of Council.
On September 10, 2024, Council received a report from Integrity Commissioner, Robert Swayze, regarding his investigation of Code of Conduct complaints from four members of Council. Mr. Swayze also made a brief presentation and answered questions that evening.
The County’s website lists only one other investigation by the Commissioner, from nearly six years ago. So, it’s been a rare occurrence – to Council’s credit.
Under the Code of Conduct, the Commissioner may grant a complainant’s request for anonymity. [County of Prince Edward, Code of Conduct for Members of Council, section 15.7.] In preparing my deputation, I asked every member of Council whether they were a complainant or respondent or neither in this investigation. All the complainants have chosen to remain anonymous.
Tonight, I want to share a concern that the Commissioner’s advice to Council might discourage members from communicating openly with residents of the County, especially about contentious issues. I urge Council to revisit the Commissioner’s advice, and to seek additional input from others (e.g. the Local Authority Services branch of the Association of Municipalities of Ontario) who have experience balancing the needs for transparency in open government and confidentiality in closed meetings.
Under Ontario’s Municipal Act, an Integrity Commissioner’s powers of inquiry are expansive and formidable. In the present case, the Commissioner asked every member of Council – including obviously the four complainants – for any information in their possession that might reveal an offender – “without receiving any relevant information.” He asked the CAO to ask senior staff the same question. He reported that “She also did not receive any useful information.” [Report of Robert Swayze, Integrity Commissioner, Code of Conduct Complaints re: Picton Terminals Litigation, September 4, 2024, p. 4]
After pursuing these and other lines of inquiry, the Commissioner reached two conclusions:
- “The detail of the comments from the residents in deputation to Council and the reports in the media, are sufficiently close to many things discussed in the meetings that I believe the Code has been contravened.”
- “I have insufficient evidence to identify any attendee [as an offender].” [Report of Robert Swayze, Integrity Commissioner, Code of Conduct Complaints re: Picton Terminals Litigation, September 4, 2024, p. 4]
In his report, the Commissioner’s failed to cite a single example – even a heavily redacted example – of a resident’s comment to Council or a report in the media to substantiate his first conclusion. It’s difficult, therefore, to assess the reasonableness of his conclusion, when his standard is “sufficiently close to.” The Commissioner also offered no examples of this concern when he appeared before Council. Indeed, it was unclear how he thought any confidential information had been disclosed by anyone.
“I wasn’t able to come up with any evidence that any member of Council, or member of staff for that matter, disclosed any confidential information. Now, I tried in my report to give Council a strong message. My advice is not that, you know, the strict [inaudible] something that is unknown was said as members [inaudible] my finding that something that was unknown to anybody except the attendees at closed session. I didn’t find any of that. … Obviously, because there was no specific information given, I didn’t recommend any sanction against any member of Council.” [Videorecording, Council Meeting of September 10, 2024 (starting at 2:57:35). Transcription mine.]
Beyond recounting his methods and conclusions, the Commissioner also wanted to send “a strong message” or “a strong recommendation and advice” to Council. [Videorecording, Council Meeting of September 10, 2024 (starting at 2:58:02)]
One version of his message was: “[I] advise every member of Council not to discuss publicly any litigation matters, whether such comments may be confidential information or not.” [Report of Robert Swayze, Integrity Commissioner, Code of Conduct Complaints re: Picton Terminals Litigation, September 4, 2024, p. 4] Another version was: “… if you’re dealing with litigation in closed session, don’t say anything; in other words, whether it’s known or not.” [Videorecording, Council Meeting of September 10, 2024 (starting at 2:58:50). Transcription mine.]
To illustrate his concern, the Commissioner’s report singled out a statement from Councillor Hirsch that appeared in The Picton Gazette of June 19, 2024: “I am solidly in favour of continuing to pursue the court case. The costs involved are nothing compared to the damage that will be caused to the County if Picton Terminals succeeds in getting what it wants. Picton Terminals has been very explicit about what it plans to do.”
The Commissioner dismissed several complaints from members of Council that their colleague’s statement to the Gazette disclosed confidential information from a closed meeting. The Commissioner’s analysis included:
- The facts Councillor Hirsch disclosed were public knowledge
- He did not disclose any legal advice that the closed meeting received about the municipality’s litigation with Picton Terminals
- He expressed his disagreement with the resolution passed by Council
- He did not misrepresent Council’s decision
- He was entitled to disagree publicly with Council
- He did not contravene the municipality’s Code of Conduct, Procedural By-law, or the Media Relations Policy
Nonetheless, immediately alongside this analysis, the Commissioner advised that “Councillor Hirsch should not have given this interview to the Gazette on Picton Terminals.” [Report of Robert Swayze, Integrity Commissioner, Code of Conduct Complaints re: Picton Terminals Litigation, September 4, 2024, p. 4]
On September 10th, Councillor Hirsch asked the Commissioner about this:
Councillor Hirsch: “You cited in the report an example of a statement that I happened to give to The Picton Gazette, and while you concluded, at the end, and I’ll just read from the report, ‘In my opinion he’s entitled to disagree publicly and did not contravene the Code, the procedural by-law, or the media relations policy.’ Nevertheless, you make the statement that I should not have given this interview to the Gazette. So, I’m just curious, what the reason for that would be? I was very careful, I’m always very careful, if I choose to speak with the media.”
Commissioner Swayze: “I referred to the strong message I try to send in my report. I didn’t impose sanctions against you for what you said, but I disagree with your decision to make that interview with the Gazette. It’s litigation. You’re benefiting – possibly – the other side of the litigation, and you’ve got to keep absolutely everything confidential, as far as I’m concerned. But I’m not going to recommend sanctions against somebody who discusses common knowledge, even though that person declares that they’re opposed to the decision of Council. I don’t need the other side to the litigation learning that. It doesn’t help the County at all, by that statement that you made. That’s my reason.” [Videorecording, Council Meeting of September 10, 2024 (starting at 3:09:09). Transcription mine.]
The Commissioner’s admonishment of Councillor Hirsch specifically is gratuitous. The member’s reported opposition to Council’s decision was already a matter of public record and readily available to Picton Terminals. [Videorecording of live broadcast (starting at 4:18:36) and Minutes of Council Meeting, June 11, 2024.] Councillor Hirsch’s statement to the Gazette would seem to be of no possible benefit to Picton Terminals. The members of Council who complained about Councillor Hirsch’s statement to the Gazette were wrong and should have done their homework. How much more collegial – and less costly – would it have been if these members had been more forthright and brought their concerns to Councillor Hirsch directly?
The Commissioner’s advice to Council generally is overreach. Council needs to hold closed meetings in exceptional circumstances – and the need to discuss litigation affecting the municipality is one of the clearest examples. Discussions during a closed meeting should be restricted to matters that fit within the exception. Attendees need to refrain from discussing matters that fit within the exception. Attendees should *not* be restricted – as the Commissioner has strongly advised – from discussing other matters, and certainly *not* matters of public knowledge.
Finally, I want to share a concern about an aspect of the Commissioner’s work that exceeded his mandate.
I learned of Mr. Swayze’s return to the County from an editorial in The Picton Gazette of August 14, 2024. The Gazette’s publisher, Karen Valihora, wrote:
“Last week, I was accused of bias in my reporting on this subject by the County’s Integrity Commissioner, Robert Swayze. I have no idea why. It is not his job to supervise the local newspapers. Mr. Swayze confronted me with an email I had sent to Chief Maracle in June, right after Council voted to settle, asking for an interview. In my note, I suggested that the well-known opposition of the Mohawks of the Bay of Quinte to Picton Terminals’ expansion plans would be a strong counter-force in the conversation around a settlement. Mr. Swayze asked me to agree that a ‘professional journalist’ should not send requests that demonstrate an obvious bias in favour of one side of a debate over another. Journalists need to work hard to get all sides of a story, and particularly the facts of the matter at hand. That is hard to do when everything happens in secret, behind closed doors.”
The Commissioner has offered no explanation of his exchange with the Gazette – either in his report or in his appearance before Council – and none of you asked him for one.
I’ll say again, an Integrity Commissioner’s powers of inquiry are expansive and formidable. I worry that Mr. Swayze has sent “a strong message” to Council not to discuss certain matters that are public knowledge. And I especially worry that Mr. Swayze has apparently tried to tell a local newspaper publisher how to do her job – and wonder who put him up to it.
I hope that no member feels excused by Mr. Swayze’s message from explaining themselves to the public. And I sincerely hope that no member feels emboldened by Mr. Swayze’s message to try to silence colleagues with whom they strongly disagree.
The Integrity Commissioner’s findings and conclusions are what they are. His “strong message” however provides no remedy for anything like Council’s handling of litigation with Picton Terminals.
More – not less – communication and accountability from members of Council, especially around contentious issues, needs to be the order of the day.
Thank you.
