Ombudsman’s process violated right to legal counsel: Caldarelli

One of the 10 city councillors who refused to co-operate with the ombudsman’s investigation said she did so because the process violated her right to legal counsel.

Ward 10 Coun. Frances Caldarelli said she and the rest of city council were willing to be interviewed by investigators from Andre Marin’s office.

“We weren’t reluctant to co-operate at all,” Caldarelli said. “But we wanted someone from the city solicitor’s office present.”

When informed that wasn’t allowed under the ombudsman’s investigation procedures, Caldarelli and nine other city councillors refused to answer questions. Only Ward 3 Coun. Claude Berthiaume and Ward 9 Coun. Doug Craig agreed to proceed without a lawyer.

“If you look at the Charter of Rights and Freedoms, everyone in this country is entitled to have legal representation,” she said. “So we all went, we were all there, we said we would be glad to be interviewed, but we want a member of the city’s legal staff to be with us, and they said no. So we said that we can’t stay.

“You can’t tell someone that they have to go and talk to them, and answer their questions, without legal representation. That’s not reasonable and that’s not fair.”

Caldarelli said her past experience dealing with Marin’s office – when he investigated closed-door meetings held during the Elton John ticket controversy in 2008 – made her reluctant to answer questions without a lawyer this time around.

“The ombudsman takes great pains to say that this is not an intimidating experience, that it’s not adversarial,” she said. “I can tell you that the (Elton John) investigation they did was extremely intimidating.”

When asked why she didn’t have her own lawyer present, which is permitted under the ombudsman’s rules, Caldarelli said the legal issues surrounding the case are specific to municipal law and require specialized knowledge.

“I can say this because my husband’s a lawyer, my kids are lawyers — I come from a whole family of lawyers,” she said. “Lawyers tend to specialize. The guy who made your will is not going to know very much about municipal law. That was the issue.

“I was not being interviewed as Fran Caldarelli, citizen. I was being interviewed as Fran Caldarelli, city councillor. And so it’s perfectly reasonable to take with you legal representation from the city. They were investigating the council, and they are the council’s lawyers.”

Marin’s office was asked to investigate four private or ‘in-camera’ meetings held last year. In his report, he writes the meetings were held to discuss whether to renew the contract of Auditor General Brian Bigger.

In those discussions, held in October, November and December 2011, council agreed to have Mayor Marianne Matichuk find a firm to audit Bigger’s office.

Marin ruled that councillors were discussing a personnel matter and, under the Municipal Act, were allowed to hold those meetings behind closed doors. But he singled out Sudbury councillors as the least co-operative of any council he has ever investigated.

“The fact that only four of the 14 individuals we asked to interview were prepared to co-operate with my office is an affront to the citizens of Sudbury,” Marin wrote. “The abysmal co-operation level of this city council has offended the Ombudsman Act.”

He said that under the act, anyone who refuses to co-operate with an investigation is subject to a fine of $500 and up to three months in jail. While his office isn’t pursuing charges, he criticized councillors for not “respecting the rule of law.

“In future, we expect greater maturity from council members under investigation. We will not hesitate to avail ourselves of the legal tools at our disposal to ensure that the Sudbury council co-operates fully.”

Caldarelli said the fact city council was cleared of all wrongdoing is being ignored because of Marin’s harsh words for those who didn’t co-operate.

“It made me a little confused as to why he would go into such great detail scolding us when he found that we had done absolutely nothing wrong,” she said. “We all knew the meetings were legal before this process even started. One thing that is a problem is that people can send in these complaints and remain completely anonymous ... It’s very hard to defend yourself when you don’t know who you’re defending yourself against.”

She said the entire process is a costly exercise that should be reviewed by the province to evaluate whether it’s a good use of taxpayer’s money.

“They spent a great amount of money on these interviews,” she said. “They sent up a team of three people that were here for several days. It’s a very, very expensive process. And it just seems to me that the process needs to be overhauled somehow.”