Elected officials could have used forgotten bylaw to foot the bill for ombudsman investigation
City councillors could have met with investigators from Ombudsman André Marin’s office with a lawyer paid for by the municipality, Northern Life has learned.
Confidential city documents show that City Solicitor Jamie Canapini wasn’t aware of a bylaw dating back to the former Regional Municipality of Sudbury. The bylaw states that city employees — including members of council — forced to use outside lawyers can have the cost hiring that lawyer paid for by the municipality.
“I thank the mayor for raising this issue with me and sincerely apologize for not being aware earlier of the bylaw in question,” Canapini writes in a confidential letter to Mayor Marianne Matichuk and the rest of city council dated July 4. “For this oversight, I take full responsibility.”
In an interview with Northern Life Sept. 7, Canapini said his office found the bylaw after receiving questions from Matichuk and some other councillors regarding who would pay for private legal counsel.
“It’s a bylaw from 1991 that was passed by the Regional Municipality of Sudbury that we came across as we were going through our archives,” Canapini said.
“I had told council at one point that I wasn’t aware of any bylaw that allowed for that. An inadvertent mistake, obviously. I atoned for it, and I believe you have the memo that shows that I discovered it and informed councillors immediately.”
He said when the Region and seven municipalities merged at the turn of the century, thousands of bylaws had to be collected and merged into files and it was inevitable some would be missed.
“Obviously, in a perfect world, our files would be complete and up to date. But unfortunately, due to the passing of time and the huge volume of documentation that was compiled at the time of amalgamation, our files weren’t completely up to date in this circumstance,” Canapini said.
“I’ve been here for 2.5 years and this is the first I’ve come across it. Now that we’ve discovered this one, obviously we’re going to be diligent as possible to ensure that our files are up to date.”
The bylaw doesn’t limit the amount that can be claimed for legal costs. Instead, the bills would be sent to Canapini’s office, which determines whether they are reasonable.
Only Matichuk and city clerk Caroline Hallsworth brought their own lawyers when they met with investigators from the ombudsman’s office in June. The ombudsman was investigating a complaint that councillors held four closed-door meetings in 2011 that should have been open to the public.
The cost of both lawyers can be paid for by the city. In an email Sept. 7, Matichuk’s office said the mayor followed city policies in hiring her own lawyer for the ombudsman interview, but declined to say whether she would be seeking to be reimbursed.
“At all times, the mayor has striven to follow city’s policies, as well as remain open and accountable to taxpayers,” the email stated. “When the city’s policy regarding legal representation was made clear, the mayor followed it and co-operated with the ombudsman's investigative team.
“That policy entitles councillors, the mayor and, in this case, the city's clerk, to outside legal representation in such matters. Questions about the cost of legal services should be directed to the city solicitor’s office.”
Ward 3 Coun. Claude Berthiaume and Ward 9 Coun. Doug Craig were the only city councillors who met with investigators, and they did so without a lawyer present.
Canapini denies he instructed councillors not to meet with Marin’s team of three investigators.
In this case, I think they took a courageous stand, to be honest, to say, ‘Look, where is your authority to be saying that?
“I don’t (tell) council to do anything,” he said. “That’s not what lawyers do. Lawyers, when consulted by a client, will provide a legal opinion on a particular issue and provide the client with options. Then the client decides what action to take based on those options.”
Once the client – in this case, city council – decides what option they want to pursue, the lawyer’s job is to help them carry out that decision. Which is something very different than giving them orders, he said.
“I see that it has been reported in the media that I told them not to attend. That’s just not the case. I raised a concern with them about the ombudsman saying that they weren’t allowed to have a (city) lawyer in the room. And I reported that to them. So council took action that they deemed necessary.
“In this case, I think they took a courageous stand, to be honest, to say, ‘Look, where is your authority to be saying that?’”
Canapini said he and the ombudsman had — and still have — a difference of opinion on whether Marin has the power to exclude the city’s legal department from the interview process.
“I asked them to please tell me where it says in the (Ombudsman) Act that you have the authority to do this,” he said. “And the answers we got were, unfortunately, unsatisfactory ... The ombudsman’s office did not provide us with any authority that I found persuasive at all.”
So councillors directed the city’s legal department to remain during the interviews, Canapini said. The decision whether to remain once the investigators told city lawyers to leave the room was up to the politicians themselves, he said.
“We asked councillors to decide whether they wanted to leave with us,” he said. “And that decision was totally up to them individually, because of the offences section of the Ombudsman Act.”
That section states that not co-operating with ombudsman investigators could result in fines or jail time. While council was cleared of all wrongdoing, Marin chastised councillors for not co-operating with the investigation, and characterized them as the least co-operative council he has ever had to deal with.
Canapini rejects outright the idea that councillors wouldn’t co-operate.
“Councillors co-operated fully,” he said. “They attended every interview at every appointed time, sat at the table and said they were ready to answer every and all questions you may have in respect to the closed-door meetings. It was the ombudsman’s choice to cancel those meetings. Not the councillors, not mine. It was the ombudsman’s choice.”
This isn’t the first time Canapini has made news for giving a controversial opinion. Canapini clashed with Auditor General Brian Bigger when bigger was auditing Sudbury Transit in 2011.
Canapini refused to give Bigger documents detailing council’s efforts to recover $580,000 in missing transit ticket money. He argued they were covered by solicitor-client privilege, were the property of city council and advised them not to turn them over to the auditor.
Bigger’s office spent $20,000 on outside legal advice in an attempt to gain access to the documents, which council eventually agreed to turn over. The transit audit eventually revealed that the city kept renewing the contract of its ticket vendor, even though the vendor, Tony Sharma, owed the city hundreds of thousands of dollars for transit tickets.
It was that controversy that, in part, led to the four closed-door meetings the ombudsman investigated. In his report, Marin writes that the meetings were held to discuss whether to renew Bigger’s contract.
Some weren’t happy that Bigger spent money on outside legal advice and, as a result, had exceeded his budget. Council eventually agreed to bring in an outside auditor to examine Bigger’s work. His office was given an excellent review and council gave him a new contract in June.
Canapini disagreed with Bigger again in August. Under direction of city council, Bigger reviewed a new policy covering the Healthy Community Initiatives funds, which allow councillors to spend $50,000 a year in their wards with few restrictions.
Unused funds from one year can be carried over to the next, and Bigger’s review found that ward fund spending doubled in the two years before the 2010 municipal election.
He also found other issues with the funds, including the idea of councillors making spending decisions on their own. Bigger said municipal councils are supposed to make those decisions collectively, at the committee or city council stage.
“With these funds, many spending decisions are made by individual councillors in a forum that is not available to the public,” Bigger’s report reads. “Details of capital projects, contributions, grants and donations are not available to the public until the money is already spent.
"This may place staff and other members of council in reactive or defensive positions, making it more difficult to challenge specific expenditures if guidelines are not as clearly defined as is possible.”
But Canapini told councillors he already reviewed the legal aspects of the funds and found no issues.
“As you know, legal services has already provided an opinion, so we were surprised to see this recommendation,” Canapini said Aug. 14. “We provided this opinion prior to the report, and we provided Mr. Bigger with a copy of that.
“After extensive research, we didn’t find anything illegal about the activity,” he said. “The policy … does not suggest anything illegal, unethical or untoward.”
Canapini said Sept. 7 that he can’t concern himself with how his opinions are perceived by the public. His first priority has to be the rights of his clients, he said.
“I can’t let that dictate my job,” he said. “My job is to provide an unvarnished, objective legal opinion to my client, which is the City of Greater Sudbury, represented by city council. I can't worry about the effect that's going to have on me personally in the media.
"I do my job as best I can and I fight vigorously to uphold my clients’ rights. That’s what I did in private practice for 20 years and now that I work in the public service, that doesn’t change. I still fight for my clients’ rights.”