Despite finding, investigator recommends no penalty
BY VOICE STAFF
An investigation by ADR Chambers, a mediation and arbitration firm working on behalf of Niagara Region, has found that Pelham Mayor Dave Augustyn violated the Regional Code of Conduct in providing a confidential document to the Ombudsman of Ontario.
The Ombudsman is investigating an incident that occurred last December, when St. Catharines Standard reporter Bill Sawchuk’s laptop computer was briefly confiscated by Regional Staff, and Sawchuk was not permitted to continue reporting on a council meeting in progress.
The seizure occurred after an audio recorder was found at the press table during an in camera, or closed, portion of a Regional Council meeting.
Shortly after the Ombudsman’s investigation was announced, Region CAO Carmen D’Angelo sent an email to councillors, advising them that the Region’s legal counsel had created a list of “Do’s and Don’ts” for interviews with the Ombudsman.
The memo was marked “Privileged and Confidential,” and indicated that it was, “Not for Distribution.”
Augustyn provided copies of this memo, and D’Angelo’s email, to the Ombudsman.
In a complaint, Regional Councillor David Barrick asserted that Augustyn had violated the Regional Code of Conduct by leaking the documents.
After investigating, ADR Chambers’ Deborah C. Anschell found that Augustyn had indeed violated the code.
“Strictly speaking, I find that there was a violation by Councillor Augustyn of the confidentiality provisions of the Code. The information provided to him by Mr. D’Angelo, including the Interview Instructions Memo, was not intended for distribution to outsiders, including the Ontario Ombudsman but was rather intended to be held in confidence,” writes Anschell, in her final report on the complaint, dated June 1.
But Anschell also ruled that the presence of two mitigating factors meant that she would not recommend a reprimand.
The first was that the “Interview Instructions Memo” provided by D’Angelo to Council was not a document specific to the Ombudsman’s investigation, but rather a boilerplate document readily available on the internet. Because of this, Anschell writes, the fact that Augustyn leaked the document to the Ombudsman was not likely to affect the investigation.
Additionally, Anschell said that she believed Augustyn’s assertion that he felt obligated to provide any emails on the matter of the investigation to the Ombudsman, and that Augustyn had acted in good faith.
“While it would have been prudent for Councillor Augustyn to seek advice on this issue from Ms. Gibbs [the Region’s Director of Legal Services], the CAO or the external law firm that prepared the document before sending it to the Ombudsman, I find that Councillor Augustyn sent the email in good faith,” concluded Anschell.
In a covering letter accompanying Anschell’s findings, Edward McDermott, Niagara Region Integrity Commissioner concurs with Anschell’s decision not to recommend that Augustyn be reprimanded, though he reiterates the need for council to follow established rules.
“I do however want to reemphasize the importance of all councillors abiding by all of the confidentiality provisions of the Code,” McDermott writes, “as they are critical to the effective management of municipal government.”