Monday, May 30, 2016

Reply to City Solicitor's Reply

The following is Mr. McNie's reply to the City Solicitor's reply to his open letter:

May 30, 2016

Ms. Atwood-Petkovski,
Please be fair.  The audio/visual recording  of  Councillor Ferguson's public apology is "temporarily stored", (#1 below).  I pointed out in previous correspondence my concern is the permanent public record, i.e., there is no mention of the formal public apology statement in the committee meeting minutes.  After sharing this concern with the city clerk last week, (#2) the clerk's office sent a 'High' importance e-mail that same day to council saying "the inclusion of the apology in the Feb. 27, 2014 General Issues Committee minutes would require an amendment by Council."  Why didn't council take action last Wednesday?
Comments about the city's revised Workplace Violence Prevention policy and the city wide security review are also unfair as I wrote in earlier communication with the city, (#3).  The new violence prevention policy includes conduct by elected officials but it only protects city employees.  The city wide security review currently underway begs the question, why didn't a focused city hall review happen two years ago and why can't it happen now?
Most importantly; please answer my other questions;
  • Why didn't the city immediately call police when staff discovered the video's unauthorized editing and why wasn't the video properly protected in the first place?
  • Why didn't the city release the city hall surveillance video long ago, before it was shortened, if it 'set the record straight'? 
  • Why hasn't the city yet responded to Joey Coleman's reasonable 2014 request for "a serious conversation at City Hall about bullying and violence?"
  • Why is the city applying its 'no signs by-law' inconsistently and when it violates citizens' fundamental charter rights?
Hamilton residents have a right to know why the city appears to have responded so inappropriately and with so little transparency to a city hall incident involving physical force and a local citizen. Our public trust has been shaken. 
D. Scott McNie  
Mayor Eisenberger and Members of Council
Mr. Chris Murray, General Manager
Ms. Rose Caterini, City Clerk
Ms. Sandra Walker, CUPE 5167 President
The Integrity Commissioner for the City of Hamilton
Ontario Ombudsman's Office
The Hamiltonian.net and local media
#1: Councillor Ferguson's public apology,  General Issues Committee  Feb. 27, 2014   
 Chair, Councillor Sam Merulla:  "Meetings are webcast live... and temporarily stored on the city's website...Madame Clerk, are there any changes to the agenda?"
Clerk: "Good morning Mr. Deputy Mayor... there are no changes to the agenda today..."
Chair:  "I'm sorry to interrupt just for a moment.  (Don Hull, Director of Transit, was delivering a presentation to the committee)  Councillor Ferguson has a request to have the floor for a moment.  It's not relevant to this presentation but Councillor Ferguson the floor is yours."

Councillor Ferguson: "I apologize for interrupting you, Don and I just want to make a brief statement.  I want to apologize to, for last night to Mr. Coleman.  Following a very heated council debate as all of you know I left council and was wanting to speak with staff and a fellow councillor on a confidential matter.  Mr. Coleman was standing behind us.  I asked Mr. Coleman to step back and tried to move Mr. Coleman out of the way.  It was unacceptable and I apologize to Mr. Coleman, members of council and the public for my actions.  Thank you."

Chair:  "Thank you Councillor Ferguson.  Mr. Hall, the floor is yours again."

#2: E-mail Response to Ms. Rose Caterini, City Clerk, May, 24, 2016
"... I urge you to reconsider your decision not to mention Councillor Ferguson's 'public apology' in the minutes of the GIC meeting on Feb. 27, 2014.  

  • The Ontario Municipal Act 2001, Section 227 directs employees of the municipality to "establish administrative practices and procedures to carry out councils decisions."  I believe this includes consistently recognizing new items as 'changes' to the agenda or as 'new business'.  When the chair asked for 'any changes' Councillor Ferguson's request to make a public statement needed to be added then or later as 'new business'.  I think his public apology was a rare and significant event, understanding that he apologized to the victim again (this time publicly), to members of council "and the public." Councillor Ferguson spoke to all of us.  A failure to appropriately record his action is a disservice to all of us.  
  • The Ontario Municipal Act  2001, Section 228 requires the clerk to record "all motions, decisionsand other proceedings of the council."  Regardless whether his apology was an official agenda item, Councillor Ferguson clearly made a request to the chair 'to have the floor'.  The Deputy Mayor, Sam Merulla recognized his request, 'Councillor Ferguson the floor is yours' and on finishing his statement,  said 'Thank you Councillor Ferguson'.  I suggest the chair's agreement and courteous closure served to acknowledge Mr. Ferguson's 'brief statement' as an agenda item and a decision by the chair on behalf of the committee to accept his "formal apology" (Hamilton Spectator, March 3, 2014).  As such, Mr. Ferguson's act of public apology needed to be a part of the permanent meeting record.  That doesn't necessarily mean verbatim, that is the Clerk's decision.  But 'some mention' is appropriate.  
  • The Ontario Municipal Act 2001, Section 228 requires the Clerk to record proceedings "without note or comment."  As the minutes currently stand there is no mention of Councillor Ferguson's act of public apology.  By omitting any detail of an important public apology by an elected official to the victim, council colleagues and local residents;  the Clerk's Office appears to be passing 'comment' on the event's significance.  I believe this unintentional appearance of bias is not appropriate. I hope you can see merit in my concerns..."

    Dear Mayor Eisenberger and Members of City Council,
    Journalist Joey Coleman deserves a public apology from city council.  The city's inappropriate response to his frightening and humiliating experience, its failure to protect the complete video evidence, and its inaction to reject unfair accusations in the Basse Report are unacceptable.  
    On Feb. 25, 2015 the city's former Integrity Commissioner, Earl Basse  concluded Police Board chair Lloyd Ferguson "should not have made physical contact" with journalist Joey Coleman.  He  found him "in violation of Section 45a) and b) of the (Council) Code of Conduct" concerned with "harassment" and "abuse, bullying or intimidation."1 
    After months of silence (and help from the Ontario Ombudsman's office) the city responded this spring to questions asked last September. Hamilton residents learned city hall security staff didn't respond to the incident because they were "unaware". The city solicitor explained staff "are located on the main floor, and the encounter, which was quite fleeting, transpired in the lobby outside Council Chambers." She said, "I understand that no other staff acted upon, or were aware of there being any need for assistance."  She pointed to a revised Workplace Violence Prevention policy and a current city wide security review as results of the incident. But I'm still puzzled...   
    Security staff 'unaware'?  Staff are located at the foot of a wide open staircase leading to the second floor public area.  Media reported city hall was in an "uproar" and Mr. Coleman's             "cries of outrage" were heard by many.3  Security video images were available. Unaware? Are there enough staff?
    Is a 'fleeting' unwanted encounter not important?  When a CBC journalist was the victim of  a brief but unwelcome kiss last summer, her complaint prompted a police investigation because as BC RCMP spokesperson Staff Sgt. Brian Cumming said, "unwanted touching in any way is assault."4  It's 2016.  Enough said.
    Who is protected by the city's revised Workplace Violence Prevention policy?  Only city "employees... including elected officials."  But all taxpayers deserve protection from "workplace violence involving elected officials."  We too need mandatory reporting, emotional support, third party investigation services and automatic complaint transfer to the city's Integrity Commissioner without the usual $100 fee...  just like city staff.5
    Why isn't city hall security a priority?  Citizens have waited over two years for action.  The current city wide security review of water, public transportation, and other civic facilities is important but should take place independent of long awaited city hall changes.6
    More questions...
     Why isn't Councillor Ferguson's 'public' apology part of the permanent public record?   
    If  the security video disproved Mr. Coleman's claims of 'aggressive' language, 'clenching' and 'shoving', why didn't the city release it immediately? If the edited video 'set the record straight',  why didn't the original?9
    Is it true the city threatened to restrict Mr. Coleman's city hall access for violating its 'zero tolerance' policy because he swore in response to Councillor Ferguson's 'physical contact'?10  
    Why didn't the city protect the original security video when Mr. Coleman specifically asked city officials to "secure its footage of the second floor area... as this video may become evidence in future investigations of this matter and I wish to ensure my interests are protected"? His e-mailcontinued, "I thank you for your attention to this matter and will offer any assistance I can to any internal City review of this matter." 11
    Joey Coleman deserves justice.  Hamilton can and must do better.  
    Sincerely, D. Scott McNie
    Ontario Ombudsman's Office
    The Integrity Commissioner for the City of Hamilton
    Mr. Chris Murray, City Manager
    Ms. Janice Atwood-Petkovski, City Solicitor
    Ms. Sandra Walker, CUPE 5167 President
    Local Media

    Council Code of Conduct, Section 17ab - Harassment, (*not 45ab)   2 Correspondence with City Solicitor, Ms. Janice Atwood-Petkovski, Spring 2016  Hamilton Spectator, 'Councillor apologizes for pushing citizen journalist', Feb. 28, 2014  4 Hamilton Spectator, 'A woman's body - all of it - is her own', Aug. 14, 2015  5 City of Hamilton  'Violence in the Workplace Prevention Procedure',  approved by council Nov. 11, 2015  6 Current City Wide Security Review, reporting back to General Issues Committee prior to the 2017 budget process  7 General Issues Committee agenda & minutes, Feb. 27, 2014  8 joeycoleman.ca/In Regards to Councillor Lloyd Ferguson's Use of Force Against Myself',  Feb. 27, 2014  City of Hamilton Press Release, 'Ferguson says public release of security video shows real picture', Nov. 23, 2015  10 Hamilton Spectator, 'Questions about city hall culture', Nov. 9, 2015
    11 Joey Coleman's e-mail to city officials, Feb. 27, 2014 (part of Basse Report, Feb. 25, 2015)

1 comment:

  1. this has nothing to do with you getting escorted out of a meeting for demonstrating, which is not a charter right issue. You are entitled to demonstrate but not necessarily at public meetings. Feel free to carry all the placards and tshirts you like outside chambers


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