Lame duck council options limited to deal with hiring
On Thursday Niagara regional councillors voted to launch another probe related to the tainted 2016 chief administrative officer hiring process, but staff members at the heart of the controversy may be safe from immediate consequences because of Ontario’s election rules.
The municipal election deadline passed at 2 p.m. Friday, and eight sitting councillors have chosen not to run for re-election. As a result, council may constrained by the so-called “lame duck” provisions in the Municipal Act to take action against CAO Carmen D’Angelo, Regional Chair Alan Caslin’s policy director, Robert D’Amboise, and regional communications director and former Caslin staffer Jason Tamming.
Under the Municipal Act, a council becomes a lame duck — it cannot hire or fire staff and faces tight spending restrictions — if less than three-quarters of councillors are running for re-election.
With eight of 31 councillors not stepping forward, regional council just barely crosses that threshold.
“That is how it seems to me,” said Brock University political science professor David Siegel. “In terms of what happens to employees, there may be other legal options here. I am not a lawyer, but that is my understanding of the act.”
D’Angelo, D’Amboise and Tamming are under scrutiny following two Standard exposes on the CAO hiring process.
The paper has learned that while he was a candidate for
CAO, D’Angelo downloaded four documents — three written by D’Amboise and one by Tamming — that contained interview questions and answers as well as confidential information on other candidates.
Following the first story in April — it found one memo written by D’Amboise containing candidate information was obtained by D’Angelo — regional council hired Toronto lawyer Marvin Huberman to investigate the hiring process.
Huberman’s report cleared the process of wrongdoing. However, he did not obtain any digital evidence, instead relying on a paper copy of the memo, and accepted “improbable” statements by D’Angelo as credible.
Among those statements was a claim by D’Angelo that he could not check his 2016 emails for any memos because his phone was stolen October 2016.
Last week, a second Standard report found that D’Angelo received two other memos from D’Amboise — one containing further candidate information and another with interview questions — and one from Tamming that provided answers D’Angelo used in a written submission to the CAO hiring committee chaired by Caslin.
At the time, Tamming was the communications director in Caslin’s office.
During Thursday’s council meeting, led by a request by Lincoln Mayor Sandra Easton, regional council passed a motion directing the Region’s lawyer and IT director to search D’Angelo’s phone and regional services for the documents along with asking Niagara Peninsula Conservation Authority, where D’Angelo worked in 2016, to search their servers. No mention was made during the meeting if the phone being searched is the same phone D’Angelo says was stolen.
No phones used by D’Angelo were sources of information for The Standard’s expose.
During the debate on the issue, Caslin attempted to quash any discussion of D’Amboise and Tamming, even behind closed doors, saying the issue is a human resources matter.
“These are not our employees, they are the CAO’s employees,” Caslin told St. Catharines Coun. Brian Heit when he tried to have a discussion about the men moved into a close meeting. “This is an operational issue for the CAO, not for council.”
However, in 2017, D’Angelo told the Town of Pelham that D’Amboise was not his employee , but rather answered directly to Caslin.
The town was complaining about the conduct of D’Amboise, who was sending emails to a town staffer pretending to be an old high school friend.
In an April email to The Standard on the subject, D’Angelo said D’Amboise is a member of the “political branch” who works for Caslin.
Caslin’s attempt to rule Heit’s motion out of order was defeated by a vote of council, which eventually passed the motion to search for the documents.
When Heit was asked to explain why he wanted to discuss a staff issue and he referenced The Standard’s stories, Caslin said he didn’t know about them because “I don’t read the newspaper, that newspaper.”
The Standard sought comment from Caslin for both stories on the CAO hiring process, and in emails to him detailed what the reports would say. He declined to be interviewed for both stories but did send email responses.
In April, he said he could not comment on an HR matter and last week he said council had already voted the matter closed and criticized the paper for not turning its evidence over to Huberman. Council also passed a motion Thursday asking staff to hire an external supervisor to monitor on the search for the documents obtained by D’Angelo.
On D’Angelo’s recommendation, council directed staff to hire an “external independent governance auditor.” It is not clear what powers this person will have, if they will also supervise a search for NPCA records, nor how they will be selected by regional staff.
Council did not vote to empower this supervisor with any of the powers of a municipal ombudsman. Welland Coun. Paul Grenier said investigations by Ontario Ombudsman Paul Dube or an integrity commissioner are embargoed after the election nomination date has passed.
Council does not sit again until September, and it is not clear when a search for records will begin, or if a records preservation order has been placed on Region and NPCA records.
Since the second Standard expose was published, there have been calls for D’Angelo’s firing, something that may not be possible until after the election now that council is in a lame duck situation.
Siegel said while the Municipal Act may prevent this iteration of council from firing any staff, there could be other options they could pursue.
“They could negotiate a settlement where someone agrees to leave,” he said.
For more on this story go online to www.stcatharinesstandard.ca.