George Rust-D'Eye concluded that Clark's action in leaking a recording served no public interest, was politically motivated, and violated the Code of Conduct.
By Ryan McGreal
Published August 07, 2009
Next Tuesday, Council will decide what to do with Councillor Brad Clark, who was recently investigated by the city's interim integrity commissioner for leaking an audio recording and transcript of a conversation between Mayor Fred Eisenberger and Hamilton Spectator columnist Andrew Dreschel to the media.
The report from that investigation has now been published in the City's website [PDF link].
The investigator, George H. Rust-D'Eye, also investigated Mayor Eisenberger over the content of the leaked conversation - sharing confidential information about a city staff member with Dreschel - and determined that while the Mayor did contravene the city's Code of Conduct, he did so in a manner that was "wholly proper" and consistent with his responsibilities.
The Mayor was investigated under the old rules that preceded council's decision to establish an integrity commission, but because Clark leaked the tape after the commission had taken effect, he was investigated under the new rules.
The report was delayed while Hamilton Police investigated Eisenberger's claim that the recording was stolen from his office. The police ultimately determined that there was insufficient evidence to indicate theft. This suggests that Ian Dovey, the former mayoral communications advisor who leaded the recording to Clark, had possessed the recording himself.
Rust-D'Eye indicated that Clark originally refused to divulge the name of his source, having promised to maintain confidentiality, but that he later acknowledged it was Dovey after Rust-D'Eye "clearly established Mr Dovey to be the 'source'" via other evidence.
He was not able to interview Dovey, but he did manage to exchange some written correpondence with Dovey. Apparently, Dovey recorded Eisenberger's conversation with Dreschel, in which he provided some confidential information "off-the-record" to clarify a situation (the employment status of former Economic Development General Manager Lee Anne Coveyduck) about which Dreschel had written in a previous column.
In January 2008, Dovey played an excerpt of the audio recording to Clark, and then sent him an email with an attached MP3 file of the audio recording on Clark's request. Later, on June 19, 2008, Dovey sent Clark another email, this time with a transcript of the recording. The text of the email read:
Here is the written transcript which should pick up the audio portion. My strong suggestion again [emphasis added] is that the stroy comes out with the other Hamilton media at the same time as Kevin's piece is published.
It seems clear that Clark and Dovey had made and discussed their plan to leak the recording to the local media, and that this happened after Dovey was let go from his position as the Mayor's communications advisor. Clark and Dovey had been friends prior to working for the City of Hamilton, while they both worked in the Provincial government (Clark as an MPP and Dovey as a communications advisor).
Clark told Rust-D'Eye that when Dovey was terminated, he was allowed to keep his tape recorder and recorded interviews with the Mayor, a practice he considered "standard" and had also performed at Queens Park.
On February 15, 2008, Dovey launched a legal action against the city for false dismissal, though Clark claims he did not know Dovey was about to launch the action when they were discussing the recording.
After Clark received the transcript from Dovey, he forwarded the MP3 to Kevin Werner at the Hamilton Mountain News. Clark also forwarded the email to Robert Ribaric, his executive assistant, and sent the transcript to fellow Councillors Scott Duvall and Sam Merulla.
Merulla, in turn, forwarded the email to the Mayor's office, at which time the Mayor hastily organized the press conference in which he announced that he believed he had "contravened the Council's Code of Conduct" and claimed that the recording had been stolen from his office.
Around the same time, Werner contacted Eisenberger to ask whether he had leaked confidential information to Andrew Dreschel, and Councillor Terry Whitehead also warned the Mayor that the recording was at large.
Clark argued that his decision to leak the recording constituted "whistleblowing". As he told Rust-D'Eye, "The Mayor, who had been admonishing Council for leaking information, and he's breaching our own Code of Conduct for releasing that information." He noted that no one knew about the conversation, but argued that the recording was "already in the public domain" because it had been conducted with a member of the newsmedia.
Clark decided to release it to the media rather than to Council or the city clerk, he explained, because he "wanted the public to know right from the get-go as opposed to something being filed with the Clerk that has no discussions publicly. The public needed to know what was going on."
He added, "More importantly, councillors needed to know that this wasn't going to be tolerated any more. It's become a bit of a laughingstock down here that the anticipation is that as soon as in camera information comes before Council, you'll read about it on the front page of the Spectator, adn it happens all the time. There are no repercussions."
Rust-D'Eye had concluded from his earlier investigation of Eisenberger's actions that the Mayor had disclosed the information to set the record straight after others had leaked information about Coveyduck to the press, and that this was consistent with his duties as Mayor under Section 226.1 of the Municipal Act.
In contrast, Rust-D'Eye concluded of Clark's actions, "It is far more difficult finding a public interest or purpose in the actions of Councillor Clark, over a year later, having received a transcript of the conversation, in the circumstances outlined in this report, in publishing it to a member of the press, more than a year following the departure of the management employee from the employment of the city."
In his Findings of Fact, Rust-D'Eye asserted that the recording qualifies as a "municipal record" of "personal information" under the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA), a record created by the Mayor's communications advisor. The physical tape may belong to Dovey, but the information recorded on it belongs to the City. It therefore falls under Section 48 of the MFIPPA, which prohibits disclosure of personal information.
Rust-D'Eye argued that Clark should have forwarded the recording to Council, the Mayor, the City Solicitor or the City Clerk "to be dealt with accordingly". He concluded that "Councillor Clark's conduct in [leaking the recording] involved a primarily political motivation with no foreseeable or calculable public interest objective or public benefit."
Because he was unable to interview Dovey, Rust-D'Eye could draw no firm conclusions about Dovey's actions or motivations, but he did conclude that Dovey was not legally authorized to take the recording with him or to share it with Clark. As a result, Clark did not lawfully receive the recording and hence was not authorized to publicize it. Doing so was therefore a breach of the City's Code of Conduct for Members of Council.
In contrast to Eisenberger, Clark "contravened both the spirit and intent, as well as the words, of the Code of Conduct".
However, Rust-D'Eye does not recommend imposing a financial penalty on Clark, seeing "little purpose to be served" in doing so. Instead, Rust-D'Eye recommends a reprimand - specifically his own report, which Council will consider this coming Tuesday.