J’Accuse: An Open Letter to TVT Councillors regarding the Integrity Commissioner’s ruling against Judy FarrellOctober 18, 2018
To all members of Tay Valley Township Council,
Please read this open letter carefully. It has been submitted to all members of Council, and also to the media and the general public.
This open letter is an appeal to Tay Valley Township Council to order an immediate review of the Integrity Commissioner report authored by John Ewart, which was made public on October 9th. In this report, Councillor Farrell was found to have violated the TVT Code of Conduct by having, purportedly, released to a third party (myself) an email, dated March 8, 2018 and time-stamped 6:36 pm which had, in the subject line, been marked “Confidential” by TVT’s Chief Administrative Officer, Larry Donaldson.
As I will demonstrate below (Issues #1 and #2), there are several critical issues with Mr. Ewart’s report, which cause it to be fatally flawed.
Moreover, an additional consideration (presented below as Issue #3) shows that it was entirely inappropriate for Township Council to make the report public six days before voting started in the municipal election, particularly as this was done on the basis of the de facto claim that Councillor Farrell ought to be singled out for public shaming by a panel of fellow Councillors who are themselves above reproach in the matter of leaking information relating to Mr. Donaldson’s March 8th email.
ISSUE #1: THE REPORT FAILS TO CONSIDER EVIDENCE DEFINITIVELY EXONERATING COUNCILLOR FARRELL
As Councillors are aware, Mr. Donaldson’s claim to the Commissioner was that forwarding the email was a violation of TVT’s Code of Conduct, because it is impermissible under the Code for any Councillor to make public any document that Mr. Donaldson, at his sole discretion, has labeled “Confidential.” He had attached such a label to the email he sent out at 6:36 pm.
Councillor Farrell’s defence was that the email she sent to me did not contain the word “Confidential” in the subject line, and was sent to her at 6:35 pm on March 8. She did not deny the existence of another email, sent at 6:36 pm, with the word “Confidential” in the subject line. She only denied that this second email was the one that she had forwarded to me.
Therefore, the question of whether Councillor Farrell violated the Code turns on a factual issue: whether I was sent the 6:36 pm email, or whether what was sent to me was another email, time-stamped 6:35 pm.
Councillor Farrell pointed this out to the Integrity Commissioner, whose report uses the following words to take note of her defence:
It is difficult to explain how the Member [i.e. Councillor Farrell] came into possession of an e-mail of March 8 2018, as the contents of the two e-mails are identical save and except for the subject line containing the words “Draft Media Release—Confidential” and the time of the email.
I respectfully submit that this apparent mystery is not nearly as baffling as the Commissioner seems to think. One possible explanation—and the one that I think is the most likely—is that Mr. Donaldson sent out an email at 6:35 pm, in which he forgot to use the word “Confidential” in the subject line. We’ve all done this sort of thing. So then he sent out a second email, containing identical content about my wife and myself, but with the word “Confidential” added to the subject line. Maybe he sent out a note “recalling” the first email. Maybe he didn’t.
Oddly, the Integrity Commissioner never explored this possibility in his report. Despite the lack of corroborating evidence from any source other than Mr. Donaldson’s testimony, the Commissioner wrote the following:
I accept the evidence of the Chief Administrative Officer that the e-mail of 6:36 p.m. was the only e-mail at that time sent to all members of Council including the Member, and did contain the cautionary wording in the subject line as to the confidential information contained in the e-mail. It was this e-mail that was forwarded by the Member to a third party.
Even more oddly, the Commissioner never contacted the recipient of the email (me) to see if I could produce a copy. The time stamp on my copy of the email evidence would have settled the dispute regarding 6:35 vs 6:36. If the email in my possession were time-stamped 6:36 and contained the subject line “Confidential,” this would be definitive proof that Councillor Farrell had violated the Code of Conduct. If the email sent to me did not contain the subject-line and was time-stamped 6:35, this would be definitive proof that Councillor Farrell had not violated the Code.
With this in mind, the first thing I did when I read the Commissioner’s report was to review the copy of the email in my possession. For the convenience of readers, I have attached it to the present email, labelled “1) 2018.03.08 Donaldson memo to TVT councillors.”
Please note: Councillor Farrell did not forward Mr. Donaldson’s email. She printed out the email, and emailed me a photo of the print-out of Mr. Donaldson’s March 8th email.
(As an editorial side-note, I observe that presumably Councillor Farrell had printed Mr Donaldson’s email and that she sent me a copy of the photo in order to avoid sending other materials in the email thread, thus showing a very high degree of respect for confidentiality.)
At any rate, the important point is this: The email has the time-stamp “6:35,” and it does NOT contain the subject-line “Confidential.” This is definitive. Councillor Farrell did not violate the Code of Conduct in sending me this email.
Conclusion: This document is definitive proof that the Integrity Commissioner’s finding of guilt is in error, and must be revisited.
ISSUE #2: THE INTEGRITY COMMISSIONER’S REPORT RELIES UPON EVIDENCE THAT HAS BEEN ALTERED
In the course of his investigation, the Integrity Commissioner seems to have asked Mr. Donaldson how he had become aware of the fact that I was in possession of an email that Mr. Donaldson had sent out on March 8th. The Commissioner was therefore furnished with a copy of the email that I had sent Mr. Donaldson on March 12 at 12:45 am.
The Commissioner makes reference to my March 12 email on p. 9 of his report, where he writes:
Subsequent to the email of March 8, 2018 of 6:36 p.m., an email was received by the Chief Administrative Officer from a third party on March 12, 2018, which contained the following: “I was recently forwarded an e-mail sent by you on Thursday, March 8, at 6:30 p.m. to all Members of Tay Valley Township Council in which you make false statements about my conduct and that of (spouse) at a meeting on January 16, 2018.”
For the convenience of readers, I have taken a photograph of this page of the report, and sent it as an attachment. It is labelled, “2) Ewart report, p. 9.”
Upon reading this passage of the Commissioner’s report, I looked up my own copy of the email, which I retain in my outbox. Then, at the suggestion of my wife, I looked at the copy from Larry Donaldson’s inbox (which is in her possession as a result of a freedom of information request that she had filed under authority of the Municipal Freedom of Information and Privacy Protection Act).
For the convenience of readers, I have taken a photograph of the first page of the email taken from Mr. Donaldson’s inbox. It is labelled “3) 2018.03.12. Email from Larry Donaldson’s Inbox.”
To be clear: The document in the attachment is the exact document that would have been shown to the Integrity Commissioner.
The copies in my outbox and in Mr Donaldson’s inbox are identical. Neither of them conforms, in one critical respect, with what is is written in the version of the document quoted on page 9 of the Integrity Commissioner’s report. What I actually wrote was:
I was recently forwarded an email, sent by you on Thursday, March 8 at 6:35 pm to all members of Tay Valley Township Council, in which you make false statements about my conduct and that of my wife, Robyn Mulcahy, at a meeting on January 16th. These are quoted below [….]
How can this inconsistency be explained?
One possibility is that this is all the Commissioner’s fault. For this to be true, the Commissioner would have had to
have looked at the document in Mr. Donaldson’s inbox and to have seen the correct time (6:35);
failed to note that this time-stamp confirms Councillor Farrell’s version of things; and
subsequently, in writing his report, the Commissioner would have had to have made a further error, typing “6:30” when he meant to write “6:35.”
I’ll submit that this explanation seems unlikely. Surely, if the Integrity Commissioner had read my email to Mr. Donaldson in its correct form, he would have noted that I had written that I received a copy of an email time-stamped 6:35 pm. Given that the entire case on which he was ruling rests on the email having been sent at 6:36 pm, it is inconceivable that when he was looking at the original, the Commissioner could have failed to notice that I had written “6:35.”
On the other hand, any investigator might reasonably assume that I had rounded to the nearest half-hour in my email to Mr. Donaldson, if that’s what he saw in the document as it was shown to him (or as it was read to him, if Mr. Donaldson did not actually provide a written copy).
This distinction is vital. The Commissioner writes “6:30” in the very same sentence where he takes it as a given that Mr. Donaldson sent out only one email, at 6:36. If, at any time, the Commissioner had noticed that I had made reference to “6:35” in my email to Mr. Donaldson, it is obvious that he would have recognized the implausibility of Mr. Donaldson’s claim that on May 8th he had sent only a single email, time-stamped 6:36, and would have investigated further. He would, among other things, have refused take Mr. Donaldson’s assurance at face value, as he does on p. 15 of his report: “The Chief Administrative Officer confirms that only one e-mail was sent out by the Chief Administrative Officer at 6:36 pm.”
For the Integrity Commissioner to make an error, in the presence of an unaltered copy of my March 12 email, would require a degree of incompetence that is simply unimaginable. It beggars the imagination to go one step further and suggest that, having failed to notice that I had written “6:35,” the Integrity Commissioner went on to commit a keystroke error in writing his report and accidentally typed “6:30” when he had meant to write “6:35.”
So, if sloppiness on the part of the Commissioner does not serve as an explanation, then the only remaining possibility is that the copy of the report that was given to the Integrity Commissioner had been altered prior to his inspection of the document, with “6:35” changed to read “6:30.”
Perhaps there is an innocent explanation for this, although none comes easily to my mind. It is certain that the Commissioner received his copy of my March 12 email directly from Mr. Donaldson (as my email has never been made public, and copies exist only in the hands of Mr. Donaldson, my wife, my lawyer, and myself).
Therefore, it is incumbent on Mr. Donaldson to demonstrate that an innocent explanation exists. It is incumbent upon Council to demand an explanation. Given that the charges against Councillor Farrell were made public, Mr Donaldson’s explanation should also be given publicly.
Conclusion: The Integrity Commissioner’s finding was made in part because of evidence that had been altered.
ISSUE #3: THE “CONFIDENTIAL” INFORMATION WAS LEAKED BY ANOTHER MEMBER OF COUNCIL OR STAFF TO ANOTHER THIRD PARTY (DAVID TAYLOR)
I now want to draw your attention to a matter that I have never before raised publicly. On March 8, a letter was mailed to me by a Tay Valley resident named David Taylor.
For the convenience of readers, I have taken a photograph of the letter. It is labelled “4) 2018.03.08. Taylor Letter.”
Mr. Taylor wrote that he was concerned about
…comments by residents of this community about an incident that took place at Tay Valley Township offices recently in which you were said to have been involved.
To help understand what took place, could you please advise:
If you took part in a meeting with staff at Tay Valley Township office to discuss a building permit issue concerning a property on which your wife was planning to build a school,
If there was a loud exchange with township staff during the meeting, which some staff have characterize as shouting?
Council members did not know of the January 16th meeting until Mr. Donaldson’s March 8th email was circulated (unless Mr. Donaldson or other staff members had been chatting about it with one or more Councillors). Thus, the only way that Mr. Taylor could have had this information could have been:
if he had been told of the January 16th meeting by a staff member (presumably either Mr. Donaldson himself, or one of the other three staff members present at the January 16th meeting); or
if he had been informed by a Councillor of the contents of the March 8th email almost immediately after the email had been received—meaning that the Councillor had thereby committed the same breach of the Conflict of Interest code with which Councillor Farrell was subsequently charged.
Therefore it would certainly appear possible that the very staff that declared this matter confidential was simultaneously leaking the very same information to selected members of the public. Alternatively, one of the Councillors who voted on October 9th to make the Integrity Commissioner’s report public—presumably in the expectation that publicizing the report would reduce Councillor Farrell’s chances of reelection—had leaked the very same information, for which Councillor Farrell was being publicly shamed.
With regard to the latter alternative, I have this to say: The possibility that another Councillor, who had himself/herself leaked the very same information from Mr. Donaldson’s March 8th email, may have been sitting on Council on October 9th, and may have voted in favour of making the Integrity Commissioner’s report public with the goal of ruining Councillor Farrell’s reelection prospects for the very offence of which he or she was himself/herself was secretly guilty, is a grotesquery befitting a Stalinist show-trial, or the climactic scene in a Kafka novel.
Conclusion: While Judy Farrell did not reveal Confidential Information in an inappropriate manner, one or more of her accusers and/or her inquisitors did so.
CONCLUSION: IMMEDIATE ACTION REQUIRED
The travesty of justice that has been caused by these proceedings needs to be reversed.
A new Council will be sworn in on December 1. But it is the current Council, with its current membership, that caused this mess in the first place, and it is on your shoulders that the responsibility falls, to set right the wrong that happened under your watch.
It is your duty to acknowledge the existence of fatal errors in the Integrity Commissioner report, relating to the March 8 email, which you rushed to make public before Councillors had had a chance to read it.
You must ask how it is that the Integrity Commissioner was provided by your staff with evidence that had been altered.
Additionally, it is the present Council that has an obligation to deal with the fact that either a member of your staff, or else a currently-sitting Councillor, released the very same March 8th information regarding the January 16th meeting, for which Councillor Farrell has been sanctioned and—by your decision—publicly shamed in a manner clearly calculated to cost her the election.
I suggest that you start your work by acknowledging, via a resolution of Council, adopted in open session at the earliest opportunity, that a profound injustice has been done to Councillor Farrell. It is the only decent thing to do.
Scott Reid, MP
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