Silverberg hired by outside lawyer, but paid by the city
Although taxpayers paid the bills, in both 2002 and 2003 Christine Silverberg (CES & Associates) was actually hired by David Estrin of the outside Gowlings legal firm. A report released on Wednesday by city manager Glen Peace includes the following two statements:
"On April 29, 2002 CES & Associates was retained by Gowlings at the recommendation of Mr. David Estrin, under the initial direction of Mr. Chris Murray [the city's acting manager of the Red Hill project]".
"On June 27, 2003, CES & Associates was put on a formal retainer by David Estrin to assist Gowlings to provide legal advice to the City of Hamilton."
The information outraged Mountain councillor Terry Whitehead. "To me it appears as a way of circumventing a policy that was in place for the city at the time, by having Estrin hire Silverberg as opposed to the city, while we paid the invoices." Whitehead told a council meeting on Wednesday.
"I can't understand for the life of me, how a protest, or concerns about a protest, fall under legal advice," he stated. "This doesn't make sense to me."
Whitehead's comments didn't get a reply, but concerns have been raised several times over the last few years about the relationship of Estrin and Gowlings to the city, and especially how that has been used to restrict the release of information to the public.
Shortly after Gowlings was hired in the summer of 1999, the city began refusing to release studies related to Red Hill. For example, a Freedom of Information request for a study on flying squirrels in the valley was turned down with an argument that the materials had been shared with the city's outside lawyers and were therefore protected by client-solicitor privilege.
A written request for the squirrel studies from a city councillor was also refused through a letter from David Estrin. This denial of information was eventually ruled illegal by the provincial privacy commissioner, but not until after the expressway construction began in the spring of 2003.
In 2000, local media learned that lobbyists had been hired through Gowlings but were unable to secure details of the contracts again because the city used client-solicitor privilege to block a Freedom of Information request.
The control exercised by Gowlings over the Red Hill file was further exposed in the summer of 2003. In late July, about twenty individuals received a letter threatening that the city would sue them and take their homes if they interfered with expressway construction.
The letter was signed by Elaine Holt, the acting city solicitor, but in the resulting backlash, Holt admitted to councillors that she had only signed the letter, and that it had actually been written by the outside law firm.
Last month, a Freedom of Information request obtained by CATCH revealed that the Gowlings firm billed the city for more than one million dollars between April 2002 and May 2004 for Red Hill related matters.
Police neutrality led to hiring of Silverberg
The new information released this week by city manager Glen Peace suggests that the main reason the city hired Christine Silverberg was because the Hamilton police force refused to align with city officials against expressway opponents, especially Aboriginal people. This refusal appears to have led officials to employ the former Calgary police chief as well as a private security company to deal with citizen opposition to the project.
Peace's report lists four reasons for hiring Silverberg. Three describe opposition to the project that was well known before, especially from Aboriginal people. The fourth cites "information provided to City officials that Hamilton police . wished to remain neutral, and would not be advising the city on their strategy or actions."
This was reiterated in comments by Mayor Larry DiIanni at Wednesday meeting of councillors. "The police had a role to play. They made it very clear . that their job was not to report to the city. Their job was to enforce the law. And they wanted . an arms length relationship from the city in terms of how things were evolving. And therefore the city needed to ready for some things as well, and again the report outlines that very, very clearly."
Among the tasks assigned to Silverberg described in an appendix to Peace's report were dealing with "breaches of the peace", "managing the threats of violence" and advising city officials "as to how to manage the relationship and expectations of the police".
Both Flamborough councillor Dave Braden and Mountain councillor Terry Whitehead challenged the mindset that the city could not rely on the police to address any potential illegal activities.
Whitehead pointed to local police expertise, especially in dealing with labour disputes and ensuring "peace on the strike lines", and questioned "why we hire a former chief . as the person who is going to quell the issues around the protest, and suggest we don't have the expertise in house."
Braden noted the widespread praise for deputy police chief Ken Leedernste for "doing such a good job at keeping everybody level-headed and avoiding even the idea of unrest" and asked "why would we hire a consultant?" Peace agreed with the assessment of Leederntse, but maintained that "there was other issues that had to be done [by Silverberg] as far as contingency planning and information gathering".
No one takes responsibility for knowing about Silverberg bills
All of the staff who would have known about the $50,000 a month payments to Christine Silverberg are no longer employed by the city. And none of the politicians are admitting they knew about the bills either.
The report on Silverberg released this week by city manager Glen Peace says "Rand Rozell (city solicitor), Kevin McGuinness and Elaine Holt (acting city solicitor), all of whom are no longer with the city, signed the invoices in question."
The head of public works during the period, Peter Crockett, has also taken a job outside the city, as has former city manager Bob Robertson. According to the report, both were involved in the original hiring of Silverberg in the spring of 2002, along with Maureen Wilson, who was then chief of staff for Mayor Bob Wade. Wilson previously was executive assistant to former regional chairman Terry Cooke, and has since left the city's employment to bear his child.
An expressway implementation committee set up in 2002 to oversee the project was chaired by then councillor Larry DiIanni until his election as mayor last fall. When the Silverberg payments first became public three weeks ago, Wade told the Spectator that he didn't need to know the details about Silverberg because the implementation committee was there to provide political oversight.
"When you have people in place to do a job, you let them do it ," the former mayor told the newspaper. ""I haven't any idea how the money was spent. She was brought in on the recommendation of (lawyer) David Estrin. She would come and go. I sat in on two or three meetings in the mayor's office, but had no knowledge of her fees."
Mayor DiIanni is also pleading ignorance of the details. He told the media in November that he would have to ask staff to tell him what Silverberg did and what daily or hourly rate she charged. He told the Toronto-based magazine Nova Res Urbis that "the contract with Ms. Silverberg ended in 2003 with a completely different administration."
Unsatisfied with all this, councillor Dave Braden took up the matter with Peace at the December 8 council meeting. " I'm simply asking if you sir, or the mayor, or anybody else in staff were aware that bills were coming in at a particularly high level?"
Peace said all those authorized to sign the cheques had since left the city, but Braden pressed on. "I want to know if anybody knew that those cheques were being written," he told Peace. The city manager said he didn't know the specifics, so Braden turned his attention to acting Red Hill project manager Chris Murray, who has held that post for several years.
"Did Chris Murray know that this corporation was writing cheques to the consultant that we're talking about for the amount of money that we have now seen here in this report?"demanded Braden. Peace noted Murray wasn't a signing officer. Braden pointed out that wasn't the question.
He eventually got a reply from Murray who said "I did not know the specific amount of each cheque." When Braden asked if he had a general idea of the payments, Mayor DiIanni cut off the questioning.
Hidden payments to Silverberg misled councillors and public
A staff decision to divide payments to Christine Silverberg in 2002 between two city accounts led city councillors to underestimate the costs of rehiring her in 2003. The Hamilton Spectator reported in 2002 that the former Calgary police chief worked on the Red Hill Expressway project for nearly $60,000.
But information now made public shows that figure only included her invoices for the first month, and it ignored a separate set of payments that was charged to the Greenhill combined sewer overflow (CSO) project in the valley. The latter bills, which covered the same three month period that she worked on the expressway, totalled nearly $50,000. It now appears that city councillors were not told about these additional billings when they were asked to approve the rehiring of Silverberg in 2003.
The Greenhill bills were also not provided when a citizen used a Freedom of Information request to obtain a list of city expenditures allegedly caused by protestors.
At a committee meeting on December 8, councillor Terry Whitehead described this payment division as "a manoeuvre for deception", noting that "what is called the Greenhill CSO project and the Red Hill Creek Expressway. was all part and parcel of the same thing relative to the concerns" about Aboriginal opposition to disturbance of gravesites.
And councillor Dave Braden, who voted against rehiring Silverberg in 2003, pointed out that city officials have long been including the sewer remediation in what they call the Red Hill project. "I can remember very clearly, [project manager Chris] Murray saying this isn't a road - this is before we had the 'more than a road' little jingle - this was economic development, this was a dream, this is a creek realignment, this is a storm sewer."
The city report on Silverberg released on December 8 says her work in 2002 "crossed a number of dimensions, all of which were focused on providing advice on the development of a corporate strategy to avoid legal conflict, or the building of relationships with Six Nations".
