Innovative Client Services Department Services novateurs pour la ciient?le February 13, 2020 Sent via email D. Bruce Sevigny Sevigny Dupais LLP Labour Employment Lawyers 228 Hunt Club Road, Suite 204 Ottawa, ON KW 1C1 Re: Councillor Rick Chiarelli Dear Mr. Sevigny, i am writing in response to your letter of February 11, 2020, regarding your client, Councillor Rick Chiarelli, and a request that the City andlor the City?s independent integrity Commissioner stay or terminate any ongoing investigations into the actions of your client. As you can appreciate, i am not able to speak on behalf of the Integrity Commissioner, though i have sought to address a number of the points you raised in relation to that matter, as well as the separate workplace harassment investigation currently underway. can advise that the integrity Commissioner informed City Council yesterday, in response to questions arising from the tabling of his interim report into investigations involving Councillor Chiarelli, that he fully intends to see his investigations to their conclusion. i can similarly advise that the City has no intention, for the reasons outlined later in my response, to terminate its workplace harassment investigation. At the outset, there are a number of inaccuracies set out in your letter that I believe require correction. Much of the argument that underlies your demand to end the investigations is premised on the view that City Council is the ?ultimate statutory decision maker? in relation to allegations of breaches of the Code of Conduct for Members of Council. This is not correct. As you are presumably aware, subsections 223.2(1) and taken together, require the municipality to establish a code of conduct for members of council and to also appoint an integrity Commissioner ?responsible for performing in an independent City of Ottawa d?Ottawa Innovative Client Services 133136311118?!de Floor Services novatcurs poor is ciient?ic 1 to Laurier Avenue West 3? ?tage Ottawa, ON Ki? 1} I i 10, avenue Lauricr Quest ottawaca - Ottawa (Ontario) Ottawaca Direct Line (613) 5802424 Ext. 21933 Fax {613) 560-1383 Ligno directs (68} 58063424 posts 219333 E?Mail David.whito@ottawa.ca 'i??i?copicur {613) 5604383 Edi/tail David.white@ottawa.ca manner" (underiine added) functions associated with the application of the code, among other things. Pursuant to the City of Ottawa?s Code of Conduct for Members of Council, the integrity Commissioner is responsible for receiving and investigating complaints that a member of Council has breached the Code of Conduct. Furthermore, it is the integrity Commissioner, acting independently, who is responsible for determining, based on the evidence obtained through his own investigation, whether there has been a breach of the Code of Conduct, and for reporting those findings to Council, along with any recommended corrective action. note, in this regard, that the Code of Conduct and associated investigative procedures are set out in By-law 2018400, passed unanimously by the former City Council of which your client was a member. City Council?s role, pursuant to the Municipal Act, 2001 and the Code of Conduct, is limited solely to matters of penalty (is. a reprimand or suspension of remuneration of up to 90 days) and does not extend to factual findings. Concern then that City Council andior individual Members of Councii have prejudged the outcome of the complaints ignores the fact that it is only the integrity Commissioner, acting independently, who can determine whether Councillor Chiarelli is in breach of theCode of Conduct. As there has been no suggestion that the Integrity Commissioner is in any way biased, or that your ciient has been denied any procedural fairness in terms of an opportunity to respond to the allegations made against him, the position that your ciient has somehow been denied the chance for fair consideration of his position and an opportunity to defend against the allegations and to thereby clear his name are obviously unfounded. To the contrary, understand that Councillor Chiarelli has had ample opportunity to respond to the allegations since being advised of the investigation on August 16, 2019, but has destined to do so, preferring instead to threaten legal proceedings challenging the jurisdiction of the Integrity Commissioner, In light of the above, any argument that the ?ndings of the integrity Commissioner?s investigation into possible breaches of the Code of Conduct by Councillor Chiarelli have been prejudged, fails to appreciate the statutory scheme and is without merit. On the issue of the City?s workplace harassment investigation, I would note only that the Ontario Occupational Health and Safety Act requires the City to have a policy with respect to workplace harassment (ss. 32.0.1 and, in order to protect a worker from workplace harassment, ensure that an investigation is conducted into incidents and complaints of workplace harassment By virtue of the fact that the Act imposes a legal obligation on the City, i must advise that the City is not prepared to suspend or terminate the investigation into allegations of workplace harassment involving your client, which investigation is being carried but by an external independent investigator. Lastly, i would like to address the allegations that you have directed at me, in my capacity as City Solicitor, notably in relation to our exchange of what I had understood to be ?strictly confidential? correspondence (at least according to your letter of November 25, 2019) of late last year and which was provided to certain members of the media by parties unknown, shortly after its delivery to me at 5:01 pm. on February 11, 2020. in your letter, you have sought to impugn the basis of my request for further particulars regarding the account from your firm that was presented to the City Clerk?s of?ce for payment. The basis of my request, including particulars as to the date on which Councillor Chiarelli was advised of the Integrity Commissioner's investigation, was that a number of the amounts claimed appeared to be unrelated to the investigation. This was either because they were incurred before the Councillor was advised that there was, an investigation, or were in respect of such matters as ?reviewing correspondence from third party? and preparing responses to same. ln this regard, would note that City Council?s Council Expense Policy, intended to ensure the proper stewardship of taxpayers funds, does not allow councillors to charge to their of?ce budgets matters that are personal to the councillors. This would extend to legal fees incurred in order to respond to such things as media or other third party inquiries, unrelated to City business. Furthermore, while the Code of Council for Members of Council does provide that a Member who is the subject of an investigation ?may consult with a lawyer and charge this to their of?ce budget", a purposive review of that section dictates that the aim of such consultation is to ensure that the Member is aware of her/his legal rights and obligations, so as to ensure the objective of the Code of Conduct to promote integrity, accountability and transparency, is met. That ?consultation" would not, in my view, extend to retaining counsel at public expense for purposes of challenging the jurisdiction of the integrity Commissioner, or other strategic or public/media relations advice and advocacy. Nor do the Code of Conduct or the Council Expense Policy permit a Member of Council to expend public funds in relation to investigations mandated by the Occupational Health and Safety Act. Accordingly, should your client wish to identify those portions of the invoice that are solely in respect of the consultation with your office in relation to the limited mandate set out above, I would be pleased to review same with the City Clerk?s Office. Lastly, I must advise that are not in a position to comment on the basis for City Council?s decision to decline Councillor Chiarelli request for authorization to be absent from meetings of Council. However, if you have additional medical evidence that you would like me to provide to Council, or should your client wish to make a further request for authorization to be absent from future meetings of Council, based on any such new evidence, he is certainly free to do so. However, I am unaware that any such request has been made. ln sum, any suggestion that Councillor Chiarelli has been denied an opportunity to prove that he has not breached the Code of Conduct for Members of Council is clearly incorrect, given the independent nature of the fact-tinding investigation being conducted by the lntegrity Commissioner. The City also has a statutory responsibility to complete its separate investigation into allegations of workplace harassment by your client, which investigation has been undertaken by an external independent investigator. Despite your assertion that ?there is considerable duplication and overlap? between these investigations, the mandates, processes, and potential remedial actions for each are legally distinct. As a result, the City has no intention of ceding to your demand that it terminate its investigation into alleged workplace harassment by Councillor Chiarelli. Regarding the threat of ?future judicial review proceedings?, would merely advise that the City will vigorously respond to any such proceeding in order to defend the integrity of the Code of Conduct for Members of Council and its Council~approved investigative scheme, which will include seeking recovery of the legal costs of such defence, in keeping with the City?s standard approach in litigated matters. I trust the above clearly sets out the City's position in this matter. In light of the publication of your demand letter of February 11th, I have provided a cepy of this response to all Members of Council. Regards, ?rm. DA WD G. WHITE City Solicitor Avocat general Legal Services I Services juridiques Innovative Client Services Department Services novateurs pour la clientele