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.