Raise the Hammer
Councillor Brad Clark just sent a letter to his fellow City Councillors and to local media, regarding the Integrity Commissioner's Report into Clark's actions related to last year's leak of an audio recording and transcript of a conversation between Mayor Fred Eisenberger and Hamilton Spectator columnist Andrew Dreschel.
The conversation, which took place in May, 2007, concerned Council's decision to terminate Lee Anne Coveyduck, the former general manager of planning and economic development, and controversy swirled around leaks of confidential information from Council to the local newsmedia.
Dreschel interviewed Eisenberger about the matter around the same time that the Mayor sent out a blistering email to Council decrying the "blatant lack of integrity" that the leaks entailed.
Then, in June 2008, the Mayor abruptly called a press conference in which he stated that he believed he had "contravened the Council's Code of Conduct" after a recording of the interview by Ian Dovey, Eisenberger's former media advisor, was leaked to the newsmedia via Councillor Clark.
An investigation into the Mayor's actions determined that he had contravened the Code of Conduct, but that his motives were "wholly proper" and that he acted consistently to protect the interests of the City of Hamilton. Council voted not to censure the Mayor.
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 investigation is completed and Council will debate the report this coming Tuesday. The report has not yet been released publicly.However, Clark just publicly released his response to the report, including a copy of a letter he sent on Noveber 28, 2008 to Detective Jim Elliott, the police officer investigating Eisenberger's claim that the tape had been stolen from his office. The police investigation eventually concluded that there was insufficient evidence of theft to pursue charges.
Below is the text of Clark's letter, in which he accepts "100 percent responsibility for my actions" but takes issue with some of the process and findings of the integrity commissioner's report.
August 7, 2009
Dear Mayor and Councillors,
Please receive this letter as my formal response to the Interim Integrity Commissioner's Report. I have fully cooperated with the commissioner and participated in three interviews. As I indicated when I requested this review, I accept 100 percent responsibility for my actions and I will accept any sanction from the commissioner or council. That being said I do not agree with all of the findings in the report and I would like to offer some suggestions for future improvement in the process.
I do not agree with the Commissioner's position that the tape or MP3 file is a municipal record. The tape was purchased by and owned by Mr. Dovey. The tape was always in Mr. Dovey's possession. It was never in the Mayor's possession. Regardless, if we accept the commissioner's position, then the record is discoverable under MFIPPA since the Mayor had relinquished solicitor client privilege by sharing the city's legal advice with an outside third party (reporter). Anyone in the public could file an FOI for this document and they would receive the file with the names severed.
I do not agree with the Commissioners narrow interpretation that there was no public interest in this matter. I point to a recent court decision by The Honourable Justice Gerald R P Moir in the case of Jasmine MacDonnell v. The Halifax Herald Limited (8 June 2009). There are remarkable similarities in that Ms. MacDonnell was the press secretary to the federal minister of Natural Resources, Ms. Raitt. The following are actual excerpts from the decision.
[6] Ms. MacDonnell was the press secretary to the federal minister of Natural Resources, Ms. Raitt. Ms. MacDonnell resigned lately. The resignation was connected to documents having been left at the Ottawa station of CTV after the minister submitted to an interview there. The documents included confidential material on the Chalk Lake reactor affair.
[7] Back in late January, the minister was interviewed by Steven Mahar of the Halifax Chronicle Herald. Ms. MacDonnell attended and she recorded the interview digitally.
[18] Here is where I see the restriction on prior restraint having some place in laws of invasion of privacy, if such a tort is to emerge. It is wrong to deprive the press, and the public it serves, of remarks made privately, but not confidentially in the sense of trade secrets or privileged communications, after those remarks became available because of poor record keeping or management.
[...]
[25] The importance of the freedom of expression and of the role of the media in providing scrutiny of the judiciary and government is made clear by the constitutional decisions of the Supreme Court of Canada starting with Dagenais v. Canadian Broadcasting Corp., [1994] SCJ 104.
Clearly, the courts have found that there is compelling public interest in the scrutiny of government.
With regards to the proceeding, I agree with the Commissioner that it is regrettable that Mr. Dovey was not available for an interview in person. Mr. Dovey has been stationed in Afghanistan throughout this process so there was not a complete discovery process.
I would also suggest to the council that the new integrity commissioner should review our bylaw for improvements. I found it troubling that I was not privy to any of the interviews or testimony of any witness. There was no opportunity to cross examine the witnesses for veracity. Likewise there was no opportunity for me to provide rebuttal witnesses. I would point out that even at our show cause hearings before our Licensing Tribunal, there is a process for cross examination. In this case, no witnesses were sworn in, testimony was by phone or in writing and the entire proceeding was in essence an Ex Parte Hearing.
I have also attached my responses to the police inquires [PDF link] regarding the Mayor's allegation that the tapes were stolen from his office. In fact, the police determined that there was no evidence of theft. This letter was provided to the Commissioner at his request.
I want to thank the council for supporting my request for this review and I accept the sanction as indicated by the Commissioner.
Sincerely
Councillor Brad Clark
The letter from Clark to the police is also available to read in PDF form.
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