Commentary

Muzzle Tough

Councillors vote to silence citizens after they file with Integrity Commissioner.

By Graham Crawford
Published April 02, 2012

Councillor Lloyd Ferguson wants to muzzle engaged citizens. I don't think we should let him.

According to a recent CATCH report, most members of the Accountability and Transparency Sub-Committee, including Councillors Terry Whitehead and Judi Partridge, agree that who citizens talk to and when they talk to them should be heavily regulated, including very clear penalties. Joey Coleman's piece on RTH does a great job of highlighting the Sub-Committee's plan and its implications.

In the March 31, 2012 edition of the Spectator, Councillor Sam Merrulla is quoted saying, "A number of us have been victim of frivolous complaints that become fodder for news and blogs and so on. It's not part of our role to be subject to slander and libel."

Seemingly, every time Ferguson talks about the public complaint process, he references the complaint I lodged against him back in 2010. He never mentions me by name, but he always says that I was politically motivated, that I tried to disrupt his campaign for re-election, and that Integrity Commissioner Earl Basse's ruling of vexatious meant my complaint was slanderous.

He also says that the very next day after I filed my complaint, the Spec ran a front page story "above the fold" about Ferguson and the complaint. I have done a detailed search of the Spec archives, and cannot find such a story, although Emma Reilly did do a story that was featured on the front page on two of my poster campaigns, one of which featured Ferguson but which made no reference to my complaint. If I've missed something here, I'm sure Lloyd will let me know.

I admire creative writing. A lot. But when the same fanciful story is told again and again, and presented as fact by an elected official in the public chambers, on the public airwaves, at formal sub-committee meetings, and on the record, my preference for the truth is kindled - especially when that same elected official uses this fanciful story as the basis for his proposal to muzzle engaged citizens.

Ferguson wants to make all formal complaints null and void should the complainant comment in the media about the complaint before Integrity Commissioner Earl Basse rules on the complaint.

Here's the statement made by Ferguson on the Bill Kelly Show to which I took exception and on which my complaint was based. At the time, Ferguson was the Chair of the City Hall Renovation Committee. Please humour me and read it twice before reading further.

I hope Tim Horton's puts in a competitive bid because they are a Hamilton icon and it would be nice to have them in City Hall since they got their start in Hamilton. But we have to go through a competitive process to make sure we get full value for the taxpayer.

Some might ask, "So what?" I took exception to the fact that the Chair of the Renovation Committee declared a personal preference for a potential vendor on the public airwaves before the bids had even been received.

I was not then, nor am I now, suggesting there was any relationship whatsoever between Ferguson and the Tim Horton's Corporation. I suggested nothing sleazy, illegal, or underhanded. What I said was I did not think his comments were appropriate.

Just to put Ferguson's statement and my complaint in further context, have a look at the following statements that use the same sentence structure but with different Councillors names and different vendors.

NOTE: THESE STATEMENTS ARE FICTITIOUS. NEITHER THE COUNCILLOR NOR THE VENDOR ACTUALLY SAID THIS. THEY ARE MY CREATION AND I MEAN NO DISRESPECT TO THE COUNCILLORS NOR TO THE CORPORATIONS NAMED. THEY ARE USED PURELY FOR ILLUSTRATIVE PURPOSES.

Imagine if Bob Bratina, as Chair of HECFI, said:

I hope Vrancor puts in a competitive bid because they are a true Hamilton developer and it would be nice to have them involved with HECFI since they've done a lot in Hamilton. But we have to go through a competitive process to make sure we get full value for the taxpayer.

Imagine if Terry Whitehead was the Chair of the committee that determined what will be done with the Auchmar estate, and he said about the corporation that offered to purchase the Auchmar lands and to build townhouses on the land and to restore the manor house:

I hope Hi-Rise puts in a competitive bid for Auchmar because they did a great job on the Lister Block and it would be nice to have them involved with the Auchmar lands since they've done such good work. But we have to go through a competitive process to make sure we get full value for the taxpayer.

Imagine if Tom Jackson was the Chair of the committee that determined which supplier would be awarded the contract for bridge repair for the City of Hamilton, and he said:

I hope Dufferin Construction puts in a competitive bid for the City's bridge repairs because they're an excellent company that has a ton of provincial experience and it would be nice to have them involved with the City since they're so good at what they do. But we have to go through a competitive process to make sure we get full value for the taxpayer.

What do you think? Would you support the right of the elected official to declare such a preference? I don't. Not at all.

Mr. Basse, in his ruling on my complaint, concluded:

Based on the evidence presented and reviewed and in accordance with the civil standard on the balance of probabilities, it is the Commissioner's finding that Councillor Ferguson's remarks in the interview on CHML did not contravene the City of Hamilton Code of Conduct or other procedures, rules or policies governing a member of Council's ethical behaviour.

Also, based on the evidence presented and reviewed and in accordance with the civil standard on the balance of probabilities, it is the Commissioner's finding that the complaint regarding the conduct of Councillor Ferguson is deemed to be vexatious. As per Section 12(3) of By-Law 08-154, the fee for registering the complaint shall not be refunded.

When I received his ruling of "vexatious", I have to admit I was incredulous. Mentioning a personal preference for a potential vendor is deemed to be acceptable behaviour on the part of an elected official, and complaining about it was deemed to be inappropriate behaviour on the part of a citizen. Wow.

Basse made reference to some of the posters that had appeared in my window at Hamilton HIStory + HERitage in prior months commenting on Ferguson's recommendation of and support for replacing the white Cherokee marble with concrete.

How my posters, or any other comment I had made about Councillor Ferguson previously should in any way affect Basse's ruling about the validity of my complaint about what the Councillor said is beyond me. Are we to conclude that if you have ever criticized an elected official in the past, that it will forever damn you as an engaged citizen should you file a complaint about that same Councillor on an unrelated matter? Double wow.

When Ferguson appeared on the Bill Kelly Show after Basse's ruling, Kelly asked him to explain the term vexatious. Lloyd was quick to say it meant slanderous. Triple wow.

Finally, in December, on yet another visit to the Bill Kelly Show, Ferguson suggested my complaint was politically motivated and that there was planned media collusion, that it was slanderous, and that I had tried to interfere with his re-election effort. Insert your own wow here.

This was so far over the line, not to mention false, that I sent Ferguson an email saying we needed to talk before this got even more out of hand. We met. He was gracious. So was I. I explained I still felt my complaint was justified, but that I had chosen to let the matter drop.

I meant what I said. I have not written about this ruling since it came down almost two years ago. But enough is enough.

Lloyd won't let go of this. He is using the facts I have shared with you as his rationale for muzzling citizen complaints. I was prepared to leave this experience as just that, an experience, but when this same elected official becomes emboldened by a ruling I believe to be utterly ridiculous, I felt compelled to share the story.

I'll let you decide whether or not you think my complaint was valid or vexatious.

I'll let you decide whether citizens should be blocked from seeking out or reacting to a request from the media to discuss their complaint before the Commissioner rules on that complaint.

I'll let you decide if Ferguson and fellow Councillors Whitehead and Partridge should be supported in their efforts to shut down "politically-motivated" free speech because they believe citizens should not engage in politics with politicians.

All together now: wow.

Graham Crawford was raised in Hamilton, moving to Toronto in 1980 where he spent 25 years as the owner of a successful management consulting firm that he sold in 2000. He retired and moved back to Hamilton in 2005 and became involved in heritage and neighbourhood issues. He opened Hamilton HIStory + HERitage on James North in 2007, a multi-media exhibition space (aka a storefront museum) celebrating the lives of the men and women who have helped to shape the City of Hamilton.

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By Pedro (anonymous) | Posted April 02, 2012 at 10:06:25

Let's turn the whole process into a prohibitive labyrinth of rules so nobody complains, then cancel it due to lack of use. Then Council will brag how much money we've saved and how we've cleaned up City Hall so much we don't even need an Integrity Commissioner. This is what City Council calls a "win-win" scenario -- they win twice, of course.

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By granny (registered) | Posted April 02, 2012 at 10:32:26

This affirms my belief that citizens are better served by taking their complaints to the media. The Council process is obviously rigged in favour of politicians. Leave it to the media to determine whether the complaint has sufficient validity to report. Obviously politicians are unable to make unbiased judgements about that.

It is our right and responsibility to complain where we see unethical, biased or corrupted behaviour by politicians, but nothing says we HAVE TO use the political puppetry process.

Clearly that process is window dressing and a waste of public money.

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By Desmond (anonymous) | Posted April 02, 2012 at 11:50:21

Comments with a score below -5 are hidden by default.

You can change or disable this comment score threshold by registering an RTH user account.

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By Pxtl (registered) - website | Posted April 02, 2012 at 14:07:45

... I finally got the pun.

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By Oi Oi Oi Vey (anonymous) | Posted April 02, 2012 at 14:40:56 in reply to Comment 75634

Don't call it a conspiracy!

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By FYI (anonymous) | Posted April 02, 2012 at 15:24:07 in reply to Comment 75631

Indicating a preference during an open, competitive bidding process could have left the city open to tens of thousands of dollars in legal costs (if not more). If Tim Horton's had bid and won, the other bidders would have had grounds to sue.

Ferguson comes from construction, he would have been involved in hundreds of bids, he should know better. When he was at Dufferin and somebody at the City involved with selecting winning bidders had gone on the radio and said they hoped Pigott got the contract over Dufferin since they were such a Hamilton institution, you can believe Ferguson wouldn't have been happy about it. That's probably why this stings him so much, he should be embarrassed.

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By Lloyd F. and disclosure/conflict (anonymous) | Posted April 02, 2012 at 15:39:29

Uncle Lloyd's comment about possible Horton's donutery and city hall, that you refer to, was completely unacceptable. During debates about the cementing of city hall, suppose this: suppose Lloyd--"nice" man or not, had not as conflict of interest even, but by way of disclosure, reminded all at council, and the public, that he'd earned for decades from a company owned by cement. That would not have disqualified Lloyd from the debate unless HE recused himself--so he should have done reminded all of this. We find nothing on the public record that Lloyd ever disclosed or mentioned this at the time--never mind that he may have thought it was "common knowledge." Common to whom?

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By Borrelli (registered) | Posted April 02, 2012 at 16:37:54 in reply to Comment 75631

As if, Desmond. The T&A Subcommittee already requires a $100 down payment on complaints. There's no need to build the wall any higher, except to protect our precious councillors.

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By mrjanitor (registered) | Posted April 02, 2012 at 17:25:03

Excellent article, thank you for sharing this Graham.

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By TnT (registered) | Posted April 02, 2012 at 20:15:14

Watch out or a gavel may come flying through your window, Graham.

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By rule of law (anonymous) | Posted April 03, 2012 at 09:39:21

I'm going to suggest that your complaint was vexatious. It was proven that Ferguson had no interest in the matter and the bidding process was determined to be fair and separated from whatever influence Ferguson might be able to pull.

But the important thing is that this proves that the system works. Ferguson was vindicated. You lost your $100 and might think twice about doing it again. How out of this can the councillors get the idea that we need less accountability? There are no indications, and the election proved it, that anyone got misled by the Spec's coverage of the complaint. Due process means letting the system work. Council seems to be so worried about people mistaking an allegation for a conviction that they're proposing that we get rid of due process altogether.



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By what?? (anonymous) | Posted April 03, 2012 at 14:48:20

B.S.: You say, "It was proven that Ferguson had no interest in the matter and the bidding process was determined to be fair and separated from whatever influence Ferguson might be able to pull."

That's AFTER the fact--maybe you've been Spectatored too long. Graham is and was absolutely right in taking on Dreschel's pre-annointed candidate(see old Spec) Ferguson. Gutless cowering is no longer what citizens will take from council members or their life-long media touts. More on this for sure.

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By H+H (registered) - website | Posted April 03, 2012 at 15:06:47 in reply to Comment 75655

Rule of Law So, you think it's OK for elected officials to state a personal preference for a potential vendor, even though there is neither professional nor personal advantage for doing so, before the bids have even been received?

I never made any accusation about Ferguson's relationship with Tim Horton's, as I stated in the article.

In my opinion, what Basse should have said was that while there was no finding, nor any claim, of a relationship between the Councillor and the vendor, the Councillor did misspeak and is advised to refrain from declaring a preference for a vendor in public in future, lest he create the impression of a relationship and/or an impression of influence over vendor selection.

But hey, that's only my opinion of how I think the standard to which our officials should be held.

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By rule (anonymous) | Posted April 03, 2012 at 15:42:04 in reply to Comment 75666

it does smell a little funny when the context was you being angry about the marble. The analogies to dufferin concrete and a bridge are a bit off, since we're talking about a coffee shop. Making a big deal about a nonissue when larger, non-litigable issues are in the back of your mind gives at least me a moment of pause. But anyway, the point stands that even if he was right in that case, they're still wrong in this.

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By Dreschelferg (anonymous) | Posted April 03, 2012 at 15:43:19

Read this and consider:
Ferguson campaigner Dreschel in Nov.2007:
"Ferguson is the first to admit he still has a lot to learn about being a councillor. But he sees it as a duty to promote what he knows about business in an environment that is sometimes governed by emotion or lobbying.

Speaking of which, Ferguson thinks Hamilton's business community is doing a "horrible job" of exerting political influence with the city compared to the "fantastic job" unions are doing.

See. There it is again. That leadership thing."

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By TDR (registered) - website | Posted April 03, 2012 at 15:47:11

Thanks for the first-hand perspective. Regardless of how vexatious (or not) your complaint (or others') might be, there is absolutely NO reason to muzzle future complainants. It's not acceptable for councilors to cry that private citizens are picking on them. Let them fight back if they feel slandered. They can't shut up dissent before the fact, that's just grotesque.

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By TreyS (registered) | Posted April 03, 2012 at 15:59:49

I actually think Ferguson has a chance at being the next mayor.

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By Hud (anonymous) | Posted April 03, 2012 at 17:00:11 in reply to Comment 75672

I'll see you your Ferguson and raise you a Pasuta.

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By banned user (anonymous) | Posted April 03, 2012 at 22:22:42

comment from banned user deleted

Comment edited by administrator Ryan on 2012-04-04 06:02:55

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By Conrad66 (registered) | Posted April 04, 2012 at 09:13:44

This is for thoses who say its Hamilton`s fault for voting them at City Hall .. lol well if Hamilton whould step up and go for conseil ... .. since last election i only saw 3 words with more then one that was good to be a conseil member at City Hall

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By Gambler (anonymous) | Posted April 04, 2012 at 09:31:10

So for $100, a citizen can file a completely outrageous and damaging accusation, and to prevent it from ever being
investigated and proven wrong all they need to do is take it to the Spec where it will be front page news?

Seems like a lot of fun for a decent price.

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By Ryan (registered) - website | Posted April 04, 2012 at 09:34:36 in reply to Comment 75686

That was precisely Andrew Dreschel's argument in today's column.

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By TreyS (registered) | Posted April 04, 2012 at 09:53:04 in reply to Comment 75673

I wish we could get back Dave Braden. or perhaps MacIsaac for mayor. Ferguson is also a very skilled manager, and he sees the big picture usually, not just his ward.

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By Ryan (registered) - website | Posted April 04, 2012 at 10:14:47 in reply to Comment 75690

I've generally been impressed with Councillor Ferguson's willingness to follow the data.

He originally opposed the hiring of city staff to look for energy savings, but acknowledged he had been wrong when staff brought forward a follow-up report showing that they had saved the city a lot more in energy reductions than they had cost in payroll.

He also opposed LRT initially, but changed his mind after attending the city fact-finding trip to Calgary, Portland and Charlotte to see how their LRT systems worked.

On the other hand, he reflexively opposes urban backyard chickens and refused even to have staff do a feasibility study before deciding that there was no way he was going to change his mind on the matter.

Comment edited by administrator Ryan on 2012-04-04 10:15:49

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By wilbour (anonymous) | Posted April 04, 2012 at 14:38:50 in reply to Comment 75686

Isn't that what's happening now? The complaints are being published before any due process thus painting the accused guilty before any investigation and several are being deemed vexatious but yet the court of public opinion still paints the accused guilty because of the publicity

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By H+H (registered) - website | Posted April 04, 2012 at 17:06:26 in reply to Comment 75692

I agree. I think Lloyd Ferguson has been a solid performer.. He knows his way around a spreadsheet. He has voted on items from a city-wide perspective and even stated that his own constituents might not be happy with his vote. He is not afraid to ask appropriate questions, and to ask them appropriately.

I have said all this and more to him via personal emails.

For me, this takes nothing away from my complaint. It has already been stated that if Tim Horton's had submitted a bid and won, what might the implications have been? Let's say two of the other vendors heard the same Bill Kelly Show I heard. What if they said it gave the appearance of favouritism? What if they got legal? I'm not suggesting any wrongdoing whatsoever, but I am saying emphatically that we should not put our city in legal jeopardy because of an inappropriate and sloppy statement.

I still don't like the concrete on City Hall. I still like the way Lloyd handled himself during the stadium debate. I have commented on both. I'm permitted to comment on things I see. I'm even permitted to make a formal complaint when I think that it is the appropriate action to take. So are all citizens.

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By Ryan (registered) - website | Posted April 05, 2012 at 06:34:11 in reply to Comment 75716

What concerns me the most about Basse's decision that your complaint was "vexatious" is that it casts a chill over anyone making public comments about a councillor. If you criticize a councillor and then later file an integrity complaint against that councillor for another matter, will it be dismissed summarily because of your history of critical public commentary?

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