October 5, 2005 Report
Start time: 11:00 am, Adjourned 11:26 am

Councillors: Braden, Bratina, Bruckler, Collins, Ferguson, McCarthy, Merulla, Morelli, Pearson, Samson and Whitehead

Chair: Mayor DiIanni.

Absent: Councillors Jackson, McHattie, Mitchell

Councillor Kelly arrived 4 minutes before adjournment.

Media: The Hamilton Spectator (E. McGuinness) and CHTV

CATCH: report by J. Roberts

Staff present : P. Barkwell - City Solicitor, G. Peace - City Manager, K. Christenson - City Clerk, C. Biggs - Legislative Assistant

AGENDA
Item 9.1
Issue respecting a personal matter about an identifiable individual and matter affecting litigation or potential litigation.

(tape picks up on discussion about whether to go "in camera" or not.)

Glen Peace : ".there's the documents that were referenced in the Municipal Act, procedural by-law public documents, so there's nothing within this report that aren't public domain. The only issue is the debate. If in fact you choose to have a debate, regarding that issue, should be in camera. The actions you take will be by motion which will be public . if you intend to discuss this matter, the discussion should be in camera, anything else is in the public domain.

Councillor Collins : Just to be clear, when I read the paper this morning, termination of office, censure, rescinding of appointments - everything in the report has already made its way into the newspaper. I question now whether or not any of this information is still confidential.

Peace : All of those issues are public, the procedural by-law, the Municipal Act are all public - only your debate.

Mayor DiIanni : What I guess I'm hearing from Mr. Peace is what's confidential is how those options apply to an identifiable individual. The suggestion is that we do that in camera.

Councillor McCarthy : I simply move that we receive this information and that no action be taken.

DiIanni : I will accept that motion. I do sense that people do want to have a discussion about that. If that's not the case, then we'll deal with that. Just hold that and we'll come back to you on that.

McCarthy : Sure

Councillor Ferguson : I think along the same lines. I think what we need to do as a Council is establish policy around Councillors . as opposed to one individual. . If we had a policy in place we would have that to fall back on should something arise in the future. I would like to discuss establishing a policy in the public.

DiIanni : I'm going to suggest that may be an important conversation to have at some point as a corollary to what this needs to deal with but we do have this report that we need to consider any discussion around that report that we can either have in public or in camera. The suggestions for the reasons stated for being in camera and out of that may come suggestion around some further things.

Councillor Merulla : Keep in mind that this issue isn't related to Council environment. It wasn't related to anything at City Hall at all. . so I'm not sure that would even play a role over and above what we already have as a code of conduct and the rules that we set out in conjunction with staff . I think the frameworks in place. The issue that we need to deal with, as you mention, is what's before us today.

DiIanni : Indeed, however some Councillors may want to modify, strengthen, change them, whatever, and that's not a discussion that would be inappropriate, remembering the context that you've provided as well. I need some direction from Council then. I need a motion to move in camera, if that's what people wish to do.

Councillor Whitehead : I'm going to move that we have this discussion outside of camera. Because I believe that there's nothing here, as already stated, that is confidential. The nature of the debate should stay away from the personality and deal with the issues.

DiIanni : Help me out Mr. Clerk. We don't need a motion to stay out of camera, we're already out of camera. Given that, do I need to test the will of the group on that? (City Clerk K. Christenson speaks off mic.) In the absence of a motion to move in camera, we're going to continue discussion.

Whitehead : (to Clerk) If we start drifting. bring it to our attention so we don't compromise that intent. (Clerk speaks off mic.) Councillor Bruckler starts to speak, DiIanni (interrupts): I need a motion Councillor.

Bruckler : I move we move into camera.

DiIanni : Seconded by Councillor Pearson. Motion is defeated 6-5. Away we go.

DiIanni : Councillors you have before you a report. Any questions?

Councillor Ferguson asks the City Solicitor (P. Barkwell) to let them know should any venture into any confidential issues.

McCarthy : The reason I suggested just receiving this report is because it's had extensive coverage, the issue, in my mind, doesn't warrant a continuing rehashing of the issues. There was an apology, there was action taken by this Council in speaking with the individual. I would like to see the feeding frenzy end, to be perfectly honest. I think that it has taken its toll, taken its course. I think appropriate measures were taken and apologies were issued. And I think that's enough.

DiIanni : You're moving to receive. Do you have a seconder - Councillor Braden. Questions or comments on the recommendation.

Merulla : I actually would support that motion if a significant stakeholder, such as the Police Association, hadn't made the request. If this was strictly politically motivated by a group or some that can be seen as politically motivated, I'd be the first one to support that motion. But we're dealing with a key stakeholder, the Police Association, I'd hate to have a request of their's fall on deaf ears. I know, from my perspective, working with the police is one of my most significant priorities. and I think it would be unfortunate if we didn't take some sort of action on behalf of over 700 police officers in this community.I'm not suggesting he should resign, that is entirely up to Councillor Mitchell, but I do believe we need to take some sort of action in the name of respecting the men and women of our police force. At the appropriate time, I would like to move for censure on this issue.

DiIanni : Censure it?

Merulla : Yup.

DiIanni : Let me see how this goes and then we'll consider that.

Councillor Bratina : With respect to the previous speaker, I don't think this is an issue between this Council and what the Police Association stated because that's their feelings and that's fine and I respect their feelings, but obviously there is no mechanism, according to the information we have, to deal with that. I'd just put that aside. What I am concerned about is the comments that were made regarding obstruction of justice with regard to the loans program, because that reflected on the integrity of this Council and staff. Councillor Mitchell has apologized for those remarks and I suspect that he didn't intend to besmirch our integrity. But that was the real issue. I'm sure as a couple days and weeks go by the energy will dissipate from this, Councillor will have learned a serious lesson, and we will all get on with our lives. But I do want to emphasize this hasn't got anything to do with getting a police ticket; it has to do with besmirching the integrity of Council and staff by making a reference to an obstruction of justice with regard to our moving ahead with the loans program. So, I accept the motion as it stands and I would be pleased to just get on with our day. Thanks.

Whitehead states that we are accountable to our taxpayers and that "this office is held in highest regard - and it's taken a bit of a hit in the recent weeks." He refers to the police, the loans program and the Council as being "besmirched". The complaint from the Police Association "will influence my decision" "Not to do anything" would send a bad message to the taxpayers and he cannot accept this. He will second the motion for censureship.

DiIanni : I will consider that, depending on what happens to the first motion.

Bruckler asks for a clear definition of censureship within this report.

Peace : Censureship in this context would be a motion from Council that would outline the position of Council as it relates to the specific Councillor and the actions that occurred in and around August 24, 2005

P . Barkwell (City Solicitor): The act of censuring a member of Council has no real legal implication. . it is an expression of Council's disapproval and really that is all it amounts to.

DiIanni : But it's a strong statement to make . or is it?

Barkwell : I think in the context of procedure and small "p" political, it is a strong statement to be made. In the legal sense, it has no particular import. It has a procedure and political effect, yes.

Bruckler feels this has taken place in the previous meeting with Councillor Mitchell. "Do we want to hang a ball and chain around the individual's foot. . censuring as I understand it. We've had the apologies. My concern is perhaps that we get on with it as well. Things that we might do, other items within this report, would really hinder his ability to serve the community. The constituents need to be served; he's done that relatively well . for any Councillor to serve the community they need the opportunity for full participation. Anything we do that minimizes that hurts the constituent and that is my biggest concern.

Councillor Samson : I don't want to just accept this particular report because without indicating a particular action, it leaves all kinds of questions out there and I certainly support what C. Merulla is suggesting - that we censure. Censure to me is an indication of our feeling to the particular actions that have taken place. It's not in any way restricting his exercise of his office, which I would not be in support of, but it is a statement to the community and to the Police Association, that we view this particular conduct as being very serious, and we do not approve of it in any way, so let's get on with it. After we had our last meeting, the actions which C. Mitchell has taken in the interval.I'm very pleased that he has taken those particular actions. Censure to me . we've dealt with it, it's on the public record, that's the stand we've taken and let's move on with it. We have to take an action, we can't just receive a report which outlines 4-5 different actions. We have to do one of those and that's why I'm in full support of C. Merulla's motion.

Ferguson : For clarification to C. Merulla, if we pass this motion of censure, what's gonna happen tomorrow? What does censure mean in your mind?

Merulla : We are distancing ourselves from having someone claim that every one of two officers is corrupt, distancing ourselves from someone that claims that council is guilty of obstruction of justice, distancing ourselves from one who has claimed that the loans program is corrupt. So basically tomorrow we'll wake up having distanced ourselves from ludicrous allegations of this community, particularly men and women of the police force.

Ferguson : OK - that's fair. As for as the C. Mitchell incident, that's fine. I'm more concerned with what happens the next time. I think all Councillors should have it clear in their mind that if they cross that line again, what could happen to them. C. Mitchell has covered all those issues in his apology, he's taken action this week that will remedy some of those, we hope, but we need to have a clear road map - (a) what happens the first time for a Councillor, and (b) what happens the second time. I also want to say that last Thursday, I was extremely proud of this Council, the way we handled this. It could have been a lot worse, but I was extremely proud the way Council didn't kick a guy when he's down. But I think 'if you do this, this will happen'. . we can't ask for his resignation, that comes from the individual, so the only thing we can do is censure him from a: council, b: committee, c: from all the rest. But we need to have that policy in place.

Morelli : . I think I know what censure is . there has to be some consequence of his action . we should formalize the fact that if it happens again . it will bring about very serious repercussions . the judge and jury are the electorate. great to develop some policy so that all Councillors know going forward what the rules are, but let's be fair here. Dave (Mitchell) made a major mistake and he's responsible for it . hope to God that none of us make the same mistake, but I think the first time's a little bit different from the second time .I think that needs to be made very clear to David . I would look to your leadership Mr. Mayor to formalize that in a form of writing . spoke the other day about the human side here . we should formalize the fact that we have his apology . give staff some direction to develop a policy . that's where I stand, we can wrap it up . and we can get on with our business here . I would urge Council to receive this report, develop that kind of a censure, and in terms of responding to you, and I'd be pleased with that. From a police perspective.that's exactly what we did.

DiIanni passes Chair to Councillor Braden.

DiIanni : I think this is a good debate and sensitively handled by all the speakers thus far. The motion before us is one of simply receiving the report without taking action. I understand the ??? of that, and although I'd like to go there, I think C. Samson said it very well - there is an expectation that we formalize what we said in private, in a public way. This is essentially what the censure motion is. It's not going to be news to anyone; certainly isn't news to the press that we've disapproved and expressed that disapproval. A formalization of that is what will bring some closure as well as meeting some of the expectations of the public and others who have complained. Probably the rules are pretty clearly spelled out in the documents that are before us. We might need to bring them together especially since this report is not written and somehow disseminate them to Council and this is to address the issue that C. Ferguson is talking about. I'll undertake to do that as well as communicate with the Councillor on behalf of the Council, depending on what we decide to do. If it is a censure motion, I realize we got a motion to receive, but I am sensing that people may want to go in that direction rather than the simple receive. We would need to spell that out clearly - we would need it to be a public motion. I have some wording here anticipating this is where we might go, that at the appropriate time I can share with you, if this is what you want to do. It essentially was drafted by staff to allow us to go in that direction.

DiIanni resumes Chair

Collins : For me this was an emotional issue as I have two police officers in the family: one that is still in the force, and another one that's retired. I discussed this issue privately with C. Mitchell for about ½ hour a couple weeks ago, and clearly stated that if his comments were not correct, that he should come forward and apologize. He lived up to his word. He promised me that he would, if in fact that what he thought was true did not materialize, he would in fact retract his statement and he did that last week. But this. was taken to another level. Council was brought into it in regards to the obstruction of justice charge, and so for me my emotions are telling me to do something different, but my head is suggesting that I support the censure motion that is here this morning and for those reasons I'll be doing that.

DiIanni : No other speakers. We have your motion C. McCarthy. We've heard what seems to be the mood(?) so do you want to go forward with the vote or -

McCarthy : Yes. I'm still presenting the motion as it reads in everyone's agenda, with an inclusion that no further action be taken.

DiIanni : That's still essentially received. That's been seconded - I've forgotten by whom - but the Clerk will have captured that - C. Braden (seconded). All in favour of simply receiving the report - so that's defeated . ( McCarthy & Braden in favour - the rest against)

I'll recognize your motion of censure. Can I tell you what staff has drafted - they have this before them:

1. that Council has reviewed the actions and statements of C. David Mitchell made on August 24, 2005 and subsequently in regard to the incident complained of by the Hamilton Police Association,
2. that this Council believes that the actions and statements made by C. Mitchell on the set date, fall below the standards of conduct which are expected by members of Council and
3. that this Council therefore formally wishes to express its censure of C. David Mitchell's conduct in this matter.

That's essentially the statement. C. Merulla , seconded by C. Whitehead. All in favour?

Braden : Can I speak to that.

DiIanni : Well we can. Yes, indeed if you want to speak.

(Sound system not functioning, then starts) Braden: . at this point I'm going to see if I can avoid doing those.

DiIanni : We can go into camera if you've got some very specific things to say, Councillor.

Braden : This won't be helpful, but we need some honesty and integrity in this room, and I'm always in favour of the underdog. I continue to be spoken to, and that's all I intend to say.

DiIanni : What would you like to do Councillor?

Braden : I'll pass. There's no support and I don't want to dominate this meeting. I'm really upset with the direction this is going here. I'm here to move ahead.

DiIanni : Fair enough.

Bratina : If the Councillor has some information that the rest of the Council needs to know I think he should share it.

Braden : Let me give you an example. Let me put my foot in my mouth. This isn't half as serious as how we dealt with the allegations of the illegal donations to the campaign. This doesn't measure a fraction of that. And that's opening a can of worms that I really don't want to do. But when we look at it, that's a really serious issue. The issue we're talking about this morning is a real screw-up on behalf of an individual, in my language, and it's unfortunate that happened. But we need to move ahead.

Merulla : Just on that point. I think the difference - let's separate the two. One is exactly an allegation, this is an actuality. So let's not move ahead and just draw conclusions. I take offence to the games that are being played. Thank you.

Braden : I'm not talking about allegations - and I don't want to go there. I just want to put it in perspective.

DiIanni : Uh - let me measure my words here - Back to the motion, and it's a motion of censure.

Bruckler : With the censure I think it might be important too that this Council . can send a clear message to the Hamilton Police Association for our total support of them and their services .

DiIanni : Okay. I still have a motion of censure before us and I was about to take a vote. All in favour of the censure motion. Against. That's CARRIED. ( McCarthy and Braden vote against.)

I need a motion on the report.

Ferguson : . I still don't think the process is absolutely clear in terms of ??? . We need to know who's on first, who's on second.

K. Christenson : Clearly in your procedural by-law . deals with the code of conduct for Council, the thing that C. Ferguson's referring to is there's no penalty clause there. You really are, based on the contents of the report, limited in what actions you can take. C. Morelli indicated that really the judge in this case is the constituents in the next election. But the options are spelled out for you in this report. I don't know what else I could bring back to Council in that regard.

DiIanni (to Ferguson): Do you have some specific suggestions.

Ferguson : Clearly, the judge is the constituents. what will trigger a censure and what are the penalties ???. Do we have the jurisdiction to ban someone from all committee work, and at what point would we impose that?

Christenson : Every incident would have to be addressed on its own by Council. It's your code of conduct that you have approved in the terms of the content of your procedural by-law and that's . it has to come back to you, because there is no penalty clause in there. To try and spell out per incident - would be hard pressed to do that.

Ferguson : Okay.

Whitehead : General framework is here, up to this Council . how we address it. Can't presume what the penalties going to be without understanding the individual circumstances .

DiIanni : Need a motion on the report - (Clerk responds - off mic)

Do we need to confirm this? (Clerk responds - off mic)

Motion to Adjourn.