Special Report: Integrity Commissioner

Integrity Commissioner Report on Clark: Leak was Politically Motivated, Violates Code of Conduct

George Rust-D'Eye concluded that Clark's action in leaking a recording served no public interest, was politically motivated, and violated the Code of Conduct.

By Ryan McGreal
Published August 07, 2009

Next Tuesday, Council will decide what to do with Councillor Brad Clark, who was recently investigated by the city's interim integrity commissioner for leaking an audio recording and transcript of a conversation between Mayor Fred Eisenberger and Hamilton Spectator columnist Andrew Dreschel to the media.

The report from that investigation has now been published in the City's website [PDF link].

The investigator, George H. Rust-D'Eye, also investigated Mayor Eisenberger over the content of the leaked conversation - sharing confidential information about a city staff member with Dreschel - and determined that while the Mayor did contravene the city's Code of Conduct, he did so in a manner that was "wholly proper" and consistent with his responsibilities.

The Mayor was investigated under the old rules that preceded council's decision to establish an integrity commission, but because Clark leaked the tape after the commission had taken effect, he was investigated under the new rules.

The report was delayed while Hamilton Police investigated Eisenberger's claim that the recording was stolen from his office. The police ultimately determined that there was insufficient evidence to indicate theft. This suggests that Ian Dovey, the former mayoral communications advisor who leaded the recording to Clark, had possessed the recording himself.

Rust-D'Eye indicated that Clark originally refused to divulge the name of his source, having promised to maintain confidentiality, but that he later acknowledged it was Dovey after Rust-D'Eye "clearly established Mr Dovey to be the 'source'" via other evidence.

He was not able to interview Dovey, but he did manage to exchange some written correpondence with Dovey. Apparently, Dovey recorded Eisenberger's conversation with Dreschel, in which he provided some confidential information "off-the-record" to clarify a situation (the employment status of former Economic Development General Manager Lee Anne Coveyduck) about which Dreschel had written in a previous column.

In January 2008, Dovey played an excerpt of the audio recording to Clark, and then sent him an email with an attached MP3 file of the audio recording on Clark's request. Later, on June 19, 2008, Dovey sent Clark another email, this time with a transcript of the recording. The text of the email read:

Brad,
Here is the written transcript which should pick up the audio portion. My strong suggestion again [emphasis added] is that the stroy comes out with the other Hamilton media at the same time as Kevin's piece is published.
Thanks.
Ian

It seems clear that Clark and Dovey had made and discussed their plan to leak the recording to the local media, and that this happened after Dovey was let go from his position as the Mayor's communications advisor. Clark and Dovey had been friends prior to working for the City of Hamilton, while they both worked in the Provincial government (Clark as an MPP and Dovey as a communications advisor).

Clark told Rust-D'Eye that when Dovey was terminated, he was allowed to keep his tape recorder and recorded interviews with the Mayor, a practice he considered "standard" and had also performed at Queens Park.

On February 15, 2008, Dovey launched a legal action against the city for false dismissal, though Clark claims he did not know Dovey was about to launch the action when they were discussing the recording.

After Clark received the transcript from Dovey, he forwarded the MP3 to Kevin Werner at the Hamilton Mountain News. Clark also forwarded the email to Robert Ribaric, his executive assistant, and sent the transcript to fellow Councillors Scott Duvall and Sam Merulla.

Merulla, in turn, forwarded the email to the Mayor's office, at which time the Mayor hastily organized the press conference in which he announced that he believed he had "contravened the Council's Code of Conduct" and claimed that the recording had been stolen from his office.

Around the same time, Werner contacted Eisenberger to ask whether he had leaked confidential information to Andrew Dreschel, and Councillor Terry Whitehead also warned the Mayor that the recording was at large.

Clark argued that his decision to leak the recording constituted "whistleblowing". As he told Rust-D'Eye, "The Mayor, who had been admonishing Council for leaking information, and he's breaching our own Code of Conduct for releasing that information." He noted that no one knew about the conversation, but argued that the recording was "already in the public domain" because it had been conducted with a member of the newsmedia.

Clark decided to release it to the media rather than to Council or the city clerk, he explained, because he "wanted the public to know right from the get-go as opposed to something being filed with the Clerk that has no discussions publicly. The public needed to know what was going on."

He added, "More importantly, councillors needed to know that this wasn't going to be tolerated any more. It's become a bit of a laughingstock down here that the anticipation is that as soon as in camera information comes before Council, you'll read about it on the front page of the Spectator, adn it happens all the time. There are no repercussions."

Rust-D'Eye had concluded from his earlier investigation of Eisenberger's actions that the Mayor had disclosed the information to set the record straight after others had leaked information about Coveyduck to the press, and that this was consistent with his duties as Mayor under Section 226.1 of the Municipal Act.

In contrast, Rust-D'Eye concluded of Clark's actions, "It is far more difficult finding a public interest or purpose in the actions of Councillor Clark, over a year later, having received a transcript of the conversation, in the circumstances outlined in this report, in publishing it to a member of the press, more than a year following the departure of the management employee from the employment of the city."

Findings of Fact

In his Findings of Fact, Rust-D'Eye asserted that the recording qualifies as a "municipal record" of "personal information" under the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA), a record created by the Mayor's communications advisor. The physical tape may belong to Dovey, but the information recorded on it belongs to the City. It therefore falls under Section 48 of the MFIPPA, which prohibits disclosure of personal information.

Rust-D'Eye argued that Clark should have forwarded the recording to Council, the Mayor, the City Solicitor or the City Clerk "to be dealt with accordingly". He concluded that "Councillor Clark's conduct in [leaking the recording] involved a primarily political motivation with no foreseeable or calculable public interest objective or public benefit."

Because he was unable to interview Dovey, Rust-D'Eye could draw no firm conclusions about Dovey's actions or motivations, but he did conclude that Dovey was not legally authorized to take the recording with him or to share it with Clark. As a result, Clark did not lawfully receive the recording and hence was not authorized to publicize it. Doing so was therefore a breach of the City's Code of Conduct for Members of Council.

In contrast to Eisenberger, Clark "contravened both the spirit and intent, as well as the words, of the Code of Conduct".

However, Rust-D'Eye does not recommend imposing a financial penalty on Clark, seeing "little purpose to be served" in doing so. Instead, Rust-D'Eye recommends a reprimand - specifically his own report, which Council will consider this coming Tuesday.

Ryan McGreal, the editor of Raise the Hammer, lives in Hamilton with his family and works as a programmer, writer and consultant. Ryan volunteers with Hamilton Light Rail, a citizen group dedicated to bringing light rail transit to Hamilton. Ryan writes a city affairs column in Hamilton Magazine, and several of his articles have been published in the Hamilton Spectator. He also maintains a personal website and has been known to post passing thoughts on Twitter @RyanMcGreal. Recently, he took the plunge and finally joined Facebook.

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By grassroots are the way forward (registered) | Posted August 08, 2009 at 07:18:30

This is what I got out of all this kerfuffle:

Coveyduck was not effective in the job assigned, they wanted to get rid of her but had no real just cause. It seems one cannot be fired for being ineffective when you work for the city, but meanwhile, out there in the private sector for many workers, it happens all the time and given the fact the many cannot afford legal assistance, that does not seem to matter, to the elites of our society running things. For some workers there is no justice.

The mayor yakked about this to the spec reporter, meanwhile the conversation was taped by the communications guy, who kept and took his copy, who subsquently lost his job and is now suing for wrongful dismissal.

The mayor give all a tongue lashing about code of conduct, of which he breached, thus setting in motion, the rest of this sordid tale.

From a workers perspective, those the many low and middle income workers, who are not covered by collective bargaining, thus not entitled to any grievance or arbritration process, who may not be able to afford legal assistance, lose their jobs all the time. They are left with the Ministry of Labour to fight for severance or pay in lieu of notice, which they may or may not get, and currently is taking about a year even for an employment standards officer even to look at it. And even if the worker is entitled, it does not necessarily mean they get their money. I refer back to a article in the Toronto Star, recently where summer students were still waiting for monies owed to them by a employer who had claimed bankrupcty, yet opened up another company, and so on and so on.

It is these same workers who contribute taxes to the city, in which the elites running things, seem to have one set of rules for justice for themsleves, meanwhile the people who pay taxes in many cases are not entitled to any justice in regard to employment issues.

Did I get that right?

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By jb (anonymous) | Posted August 09, 2009 at 21:44:37

There is a reason for Coveyduck to get fired and I know why that is all I am saying, same as why Glen Peace stepped down and Tom Redmond got fired.

think about it

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By grassroots are the way forward (registered) | Posted August 10, 2009 at 00:33:00

The words that come to mind are the following:

Justice, fairness, equality, freedom, accountability and transparency

To be honest I do not think that this Integrity Commissioner is really going to solve the real issues that plague our community.

I found this though, the third rule of the infowar:

hide the truth, cover-up ,distort, lie, confuse, falsify, revert, divert and pervert the truth

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By Really? (registered) | Posted August 11, 2009 at 17:37:37

This City's politics hasn't changed much at all -- must be why nothing gets done around here, and could explain why we've had the same skyline for the last 30 years

Brad Clark should stick to Big Time BS'ing, errr, I mean Politicing. He seemed to shine in the Common Sense Revolution, but cannot get his foot into the municipal arena.

Go Back to Christmas Carols on Cable14, Mr Clark... At least you had some respect doing that!

This will not be forgotten come Nov 2010!!

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By Mevebs (anonymous) | Posted August 12, 2009 at 01:14:27

Justice, fairness, accountability are like mayonaise, they spoil when you leave them out in the sun.

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By Cal DiFalco (registered) - website | Posted August 14, 2009 at 09:06:43

These investigations are very costly and completely avoidable, where politicians respect and abide by the code of conduct. $68,000.00 for the Clark investigation and I don't know how much it was for the mayor's investigation, but that amount of money can buy a lot of food for those on ODSP, Ontario Works or the working poor. That, in of itself, should be a source of embarassment for offenders.

Cal

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By grassroots are the way forward (registered) | Posted August 14, 2009 at 15:08:03

Hi Cal: You are so right, that this whole exercise was a complete waste of time and precious resources.

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By jason (registered) | Posted August 15, 2009 at 09:01:32

I agree that this money could have been better spent, but sadly our democratic system has been hijacked by the wealthy. The only way to keep them accountable is to spend some of our own money and bring light to their unsavoury, selfish actions.

If you want to find blame with anyone about the cost, find it with the offenders who continually put their own interests ahead of taxpayers and our city. I for one am happy to spend tax money on exposing their scandalous actions instead of just letting it continue, unchecked for years and years.

Perhaps Clark should be forced to pay the cost of this investigation out of his pay. Money is the only thing that drives most politicians. Take some out of their pocket and I'm sure they'll start to clean up their act (of course, there's always the fact that they could easily find a corporate sponsor to pay their fines similar to what the previous owner of the Dynes Tavern did).

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By Question? (anonymous) | Posted August 15, 2009 at 09:33:58

If the Integrity Commissioner can slash his fee from the outrageous $600/hour to the scandalous $500/hour to simply retell a story already known, what does that say about his integrity?

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By Ryan (registered) - website | Posted August 15, 2009 at 11:53:58

I think Cal really nailed it when he wrote, "That, in of itself, should be a source of embarrassment for offenders." [emphasis added] The investigation cost a lot because it costs a lot of money to pay for a well-researched, well-written, comprehensive legal report on a controversial incident. The problem is not that Rust-D'Eye charged a lot; the problem is that the investigation had to be made in the first place.

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