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Independence,
Accountability, and
Effective Police
Oversight:
Maintaining Public Confidence in the
Peterborough Police
Services Board
Report by Mark Sandler,
Administrator of the Peterborough
Police Service Board
(December 16, 2016 to
July 1, 2017)
August 1, 2017
(Disponible en français)
Please
email OCPCRegistrar@ontario.ca for questions
or additional copies of the report.
1.
On March 8, 2016,
the Solicitor General requested that the Ontario Civilian Police Commission
(�OCPC�) �investigate, inquire into and report on� matters relating to the
ability of the Peterborough Police Services Board (�Board� or �PPSB�) to
provide civilian oversight of policing in a manner consistent with its
statutory obligations.
2.
The OCPC commenced
an investigation and on December 16, 2016, the OCPC concluded that the ongoing
dysfunction of the Board constituted an emergency and appointed an
administrator pursuant to subsection 23(1) of the Police Services Act (�PSA�).
3.
I was appointed as
administrator from December 16, 2016 to July 1, 2017 to �ensure that the PPSB
comply with its statutory obligations, including ongoing compliance with the
PSA and its regulations, and to promote the creation of respectful and/or
functional working relationships between those involved in the provision of
policing services to Peterborough that nonetheless allow for vigorous debate
and the airing of diverse points of view�. I was asked to provide a report with
�a detailed analysis of the change to the PPSB process and the reasons
therefor.�
4.
Peterborough has
gone through a tumultuous period during which the Board failed to meet its
statutory obligations and contributed to an unfortunate public and political
display that unfairly denigrated the character and performance of the Chief and
Deputy Chief of Police. The Mayor, while a member of the predecessor board, was
directly involved in making inflammatory, disparaging and misleading comments
about the senior leadership of the service and the service itself. He was
ultimately found to have violated the Code
of Conduct for Board members and suspended from the board. He did not contest this finding in the
Divisional Court where other allegations against him were dismissed. During
this tumultuous period, there were resignations from the Board due to its
dysfunction, several Code of Conduct
investigations into a former Chair of the predecessor board and the Board due
to complaints against him, lawsuits between the Board and the Chief and Deputy
Chief of Police and a lawsuit initiated by the City of Peterborough against the
Chief and Deputy Chief. In the past six years, 13 Board members have populated
the predecessor board and this Board.
5.
The Board�s role
during this time and prior to my appointment reflected a failure to meet its
obligations, a failure to maintain its independence from the municipal council,
and a failure to defend its employees from unfair and politically motivated
attacks. Its actions contributed to low morale among the police service and an
erosion of public confidence in the quality of policing in the community.
6.
During my
appointment as administrator, the Board was receptive to my involvement and
advice. Even those who had questioned the need for my appointment worked
constructively with me. For example, if I had any issues or suggestions
respecting the proposed agenda for a Board meeting, I shared them with Ms.
Pritchard Pataki and, through her, with the Chair. Since the OCPC�s Order
reflected concern about how often the Board addressed matters in the absence of
the public, I also provided input on which matters should be addressed in
public and which in the absence of the public. These suggestions � which were
not extensive � were addressed. I was satisfied that items for business were
appropriately identified in the agenda and that the Board, pursuant to the
Chair�s direction and in the spirit of transparency, properly limited matters
to be discussed in the public�s absence.
7.
At the Board
meetings, I was a full participant in the Board�s discussions. Board members
frequently asked me for guidance on a wide range of issues, which I was pleased
to provide. To the credit of the Chair, Mr. Hall, and Ms. Pritchard Pataki, the
Board meetings were well-organized, efficient and well conducted. Every Board
member had the opportunity to be heard on the issues and spoke to and about
each other in a respectful way. As elaborated in my report, they also spoke to
and about the Chief and Deputy Chief and their Service in a respectful way.
Indeed, every member of the Board publicly expressed admiration for the
Service, the Chief and Deputy Chief respecting the high calibre of the work
being done by the Service and the quality of its senior leadership. The Chief
and Deputy Chief are exceptional, highly dedicated officers who lead a
progressive, effective police service. They enjoy wide support in the Service,
and for good reason. As described in my report, the Board had not always shown
appropriate public support for its Service and senior leadership in the past.
8.
All of the Board
members kindly acknowledged at my last Board meeting as administrator that they
greatly valued the input and advice I provided in that role. I, in turn,
acknowledged (as I do in this report) their cooperation with me throughout, and
their willingness to adopt or consider my recommendations as to best practices.
This was particularly evident at the Board�s governance retreat which I
facilitated at the Board�s request.
9.
I am satisfied that
the Board is currently functioning in accordance with its statutory mandate and
has made significant advances to regain its role as an effective civilian
oversight mechanism. For that to be sustainable and to improve, I make a number
of recommendations.
10. A business plan is not only a statutory requirement, but it
provides a clear, transparent and effective basis for framing and evaluating
the work of the Police Service, the Board and the Chief and Deputy Chief. It is
a critical element of civilian oversight of policing and is a basis for ongoing
dialogue with the public about their priorities and concerns.
11. After letting the plan lapse in 2015, the Board was able to
develop a substantially complete plan during my term as administrator, though
tweaks remain to be made.
12. I recommend:
a.
The development of a business plan should represent an ongoing and
continuing process in which the Board is engaged.
b.
The Board should improve and formalize the process by which it
gives substantive input into and direction to the development of the plan.
c.
The Board should meet periodically to review the business plan and
the progress made on milestones.
13. Performance evaluation and remuneration reviews of the Chief and
Deputy Chief are not only required by the PSA and the employment contracts, but
they represent the most direct tool the Board has to evaluate the extent to
which the senior leadership of the police service is implementing the Board�s
policies and executing the business plan. This provides a formal and
evidence-based process by which the Chief and Deputy Chief can identify areas
of success and areas for improvement and allow the Board to raise any
performance issues directly.
14. The Board went over two years without conducting a formal
evaluation during which time it contributed to, and failed to address
unwarranted negative statements about the Chief and Deputy Chief. During my
term as administrator, the Board conducted fair and evidence-based evaluations
and reviews of the Chief and Deputy Chief of Police. It is essential that these
reviews continue on an annual basis.
15. I recommend:
a.
The Board, within six months, amend its by-laws to require it to
conduct an annual performance evaluation and remuneration review of the Chief
and Deputy Chief.
16. Civilian oversight of policing cannot be effective if it is not
public and transparent. The PSA has strict criteria for when the exclusion of
the public is permitted. Unless the Board meetings are dealing with public
security or sensitive personal information, they should be public. Greater
public access enhances public confidence in the Board�s civilian oversight, and
assists the Board in identifying and addressing the concerns of the community.
This develops and strengthens relationships between the Board, the Police
Service and the public.
17. The Board had, in the past, excluded the public for reasons that
were not permitted under the PSA. More broadly, the Board had not been
sufficiently proactive about public outreach and promoting greater
accessibility to its meetings. During my term as administrator, the Board took
positive steps to ensure and increase public access to its meetings. It sought
clarity on the limits of exclusion under the PSA; it held meetings in Cavan
Monaghan and Lakefield and considered holding meetings in more open venues in
Peterborough.
18. Minutes of Board meetings are an important tool for transparency
and accountability. They also serve as a record of the proceedings to ensure
corporate history and continuity.
19. The Board�s practice has been to rely on spare minutes that record
only formal decisions on motion. More expansive minutes would promote
accountability.
20. I recommend:
a.
The Board should create a policy within six months to govern the
use of in camera sessions for Board meetings.
b.
The Board should consider opening some committee meetings to the
public.
c.
The Board should develop a larger strategy for public outreach.
d.
The Board should formally incorporate public input into its
policy.
e.
The Board, within six months, should develop a corporate policy on
minutes that incorporates best practices with respect to transparency and
accountability.
21. The Board is often called on to navigate issues that require good
and independent legal advice. As a public body, it also has an obligation to
ensure that it is spending resources on legal fees wisely and effectively. Care
must be taken to ensure that it does not change lawyers who provide advice that
is unwelcome or that lawyers are retained without clarity as to who is
instructing them. Agreed upon rates should be competitive and ensure value for
money.
22. The Board had, in the past, cycled through counsel whose advice
some members did not agree on. Lawyers were retained without the agreement of
the whole Board and in circumstances where potential conflicts, the nature of
their retainer and their instructions were not clear. Significant costs were
incurred in this way. During my term as administrator, the Board retained
General Counsel and has retained other lawyers at competitive rates to do
specialized work. The Board is now able to instruct counsel and access high
quality legal advice in a clear and cost-effective manner.
23. I recommend:
a.
The Board, within six months, implement a policy for retaining
lawyers that incorporates best practices and provides clarity around conflict
of interest, selection, instruction and remuneration of counsel at competitive
rates.
b.
The Board, within 6 months, establish clear guidelines governing
the indemnification of the Chief and Deputy Chief for legal fees.
24. The Board has a complex relationship with the Chief and Deputy
Chief. It must not serve as only a �cheerleader� for the Chief, Deputy Chief
and the police service but must provide careful, detailed and transparent
oversight and policy guidance. However, the Board is also the employer of the
Chief and Deputy Chief and must ensure that it takes steps to clarify and
correct seriously misleading and disparaging public statements about them or
their work. On a practical level, the Chair of the Board must work closely with
the Chief. Board meetings provide a shared opportunity for the public, the
Chief and the Board to engage on policy issues and on priorities, objectives
and milestones in the business plan.
25. The relationship between the Board and the Chief and Deputy Chief
was significantly impaired in Peterborough. Some Board members contributed to
the false and disparaging narrative about the Chief and Deputy Chief. That
false narrative is described and addressed in my report. Of course, the Board
was also in litigation with the Chief and Deputy Chief. The breakdown of that
relationship undermined the Board�s ability to provide effective public
oversight.
26. I recommend:
a.
The Chair of the Board and the Chief have set weekly meetings to
address issues of significance.
b.
The agenda of the Board meetings should not be finalized, absent
exceptional circumstances, until the Chief has been consulted about its
contents.
c.
The Chair continue the important steps taken to build the
relationship between him and the Chief.
27. The members of the Board are part-time appointees with other
personal and professional obligations. At the same time, civilian oversight of
policing in Peterborough is complex and time-consuming. Care must be taken to
avoid placing undue burdens on individual members or staff and in ensuring
responsibility is shared through the effective use of delegation and
committees.
28. During my term as administrator, a disproportionate burden fell on
the Chair and one of the Board members. This created delays, inefficiencies
and, at times, frustration.
29. I recommend:
a.
The Board continue to address and clarify the respective roles of committees
and the Board as a whole.
b.
The Board address the uneven allocation of work on a priority
basis in accordance with the guidance provided above.
c.
The Board should consider greater delegation of the Chair�s
functions in some clearly defined cases.
d.
The Board should amend its by-laws to require that one of the two
positions of Chair and Vice-Chair be held by a provincial appointee and the
other by a municipal appointee.
30. Although the Mayor has a statutory right to sit on the Board, his
past involvement has been highly contentious and contributed to some of the
ongoing issues respecting the Board�s ability to provide civilian oversight.
Given the Mayor�s history with the Board, it would be difficult for the Board
to maintain its independence from municipal council should he choose to return
to it. This independence is a necessary and important element of the public�s
confidence in civilian oversight of policing in Peterborough.
31. Before and during my time as administrator, the Mayor made
inflammatory, divisive and inaccurate comments about the senior leadership of
the Police Service. Legitimate concerns
have been expressed about the ability of the Board, and the Police Service
itself, to function properly were he to return to the Board.
32. It would be unwise for the Mayor to return to the Board. This view
is not only held by his detractors, but by some who admire him. The Board has
been through a tumultuous period. It must now look forward. It would be
difficult to be forward thinking if the Mayor or an obvious proxy for the Mayor
became a Board member at this point in time.
33. The Board, as currently composed, has made significant strides. It would
be unfortunate if the existing goodwill were undermined by the introduction of
any polarizing influence at the Board.
34. I recommend:
a.
The Mayor decide, in the public interest, not to sit on the Board.
b.
Should the Mayor return to the Board, the Solicitor General and
OCPC carefully consider taking timely and effective action to avoid any
dysfunction that threatens the Board�s ability to discharge its statutory
responsibilities.
35. To be clear, nothing in my report is intended to prevent or
inhibit the Mayor from forcefully addressing the issues of concern to him as a
non-member of the Board. After all, he is the duly elected Mayor and a member
of the municipal council and this community.
36. When my term as administrator commenced, the Board had no
succession plan in place in contemplation of the retirement of members of
senior leadership at the Service. Such a plan would promote an objective,
evidence-based, non-partisan search for suitable candidates. It would provide
opportunities for advancement within the Service, not merely opportunities for
external hiring. It would be designed to inspire confidence in the process, and
dispel concerns that someone attempt to place their �thumb on the scale� or
advance a personal agenda, rather than the best interests of the Service. An
outline of a succession planning process is now well under way, and has
attracted the full support of the Board.
37. I recommend:
a.
There be a written policy incorporating such a succession plan
within three months.
38. There continue to be challenges for this Board. I am hopeful that
the important steps taken during my term will be sustainable. I am also hopeful
that additional steps will be taken in accordance with my recommendations.
39. In addition to those already identified, I recommend:
a.
The Board participate in a facilitated governance retreat on an
annual basis. (This is in addition to any training required by the Solicitor
General pursuant to s. 31(5) of the PSA and s. 3 of O. Reg. 421/97.)
b.
The Board, within 12 months, release a report publicly setting out
what it has done to implement the other recommendations contained in this
report.
40. The Board has the opportunity to succeed in leading what is
already a progressive and efficient Police Service into the future. If it is
unable to do so, the Solicitor General and the OCPC have tools available to
them to act decisively and quickly.
1.
On March 8, 2016,
the Solicitor General requested, pursuant to subsection 25(1) of the Police Services Act, R.S.O. 1990, c.
P.15 (�PSA�) that the Ontario Civilian Police Commission (�OCPC�)
"investigate, inquire into, and report on" matters relating to the
ability of the Peterborough Police Services Board (�PPSB� or �Board�) to
discharge its statutory responsibilities. The Solicitor General had concluded
that, despite receiving �unprecedented support" from the Ministry of
Community Safety and Correctional Services (�MCSCS� or �Ministry�), the Board
continued to struggle to discharge its mandate. He was concerned that this was
having an impact on policing in the community that the Board serves.
2.
In response, the
OCPC commenced an investigation into the Board. In December 2016, the OCPC
concluded, based on the evidence collected during its investigation, that the
ongoing dysfunction of the Board constituted an emergency and that the
appointment of an administrator pursuant to subsection 23(1) of the PSA was
therefore necessary in the public interest.
3.
The PSA confers
certain powers on the OCPC to oversee police service boards in Ontario. For
example, pursuant to subsection 23(1), the OCPC may, after holding a hearing,
suspend or remove one or more members of a board and/or appoint an
administrator to perform specified functions if it finds that a board has
flagrantly or repeatedly failed to comply with prescribed standards of police
services.
4.
Pursuant to subsection
24(1) of the PSA, the OCPC may also make an interim order to appoint an
administrator, without notice and without holding a hearing, if it is of the
opinion that an emergency exists and such an order is necessary in the public
interest. In December 2016, the OCPC did precisely that.
5.
In its December
2016 Order, the OCPC said the following:
The current and ongoing investigation has produced a body of reliable evidence that the PPSB has been, almost from its formation in 2015, in a state of perpetual crisis. The ill will between some members of the PPSB, some members of council and the Peterborough Police Service is palpable and has been present for some time. It shows no signs of abating. The situation in Peterborough over the past few years has been characterized by highly public disputes. Examples include disputes related to the dissolution of the former Peterborough-Lakefield Community Police Service, a dispute triggering a lengthy hearing by the OCPC into the conduct of the Mayor, and, most recently, a very public contractual dispute between the PPSB and the Chief and Deputy Chief of Police, followed by a civil suit by the City of Peterborough against the Chief and Deputy Chief of Police. Based on the information collected, the OCPC is of the opinion that the PPSB has failed to comply with a number of statutory and regulatory responsibilities under the PSA. The PPSB has been unable to complete certain simple and routine statutory duties such as the finalization of a business plan. It has also failed to set priorities and conduct a performance evaluation of the Chief and the Deputy Chief of Police. These failures raise urgent concerns about the PPSB's ability to handle its broader responsibilities and to ensure that the public has confidence in the delivery of police services in the community.
6.
The OCPC provided
several specifics which it said arose from the evidence it had collected so
far:
�
Members of the PPSB
have consistently engaged in conduct to undermine the role and effectiveness of
the Chief of Police and the Deputy Chief of Police;
�
Members of the PPSB
have attempted to interfere with the deployment of officers;
�
Members of the PPSB
have repeatedly exercised authority without direction or support from the PPSB
itself, acted in a manner contrary to the Code of Conduct, and in a manner that
undermines public confidence in the provision of police services in
Peterborough;
�
The Board has
failed to manage routine business required by statute including:
- Failing to prepare a business plan;
- Failing to set required objectives and priorities with respect to
law enforcement and public safety matters;
- Failing to provide performance oversight of, and set remuneration
for, the Chief and Deputy Chief of Police;
- Failing to establish a policy to indemnify the Chief of Police for
legal costs; and
- Failing to provide public access, as necessary, to Board meetings.
�
The support
provided by MCSCS to assist the Board has been ineffective and the Board's
dysfunction has continued;
�
Members of the
public and other civic officials are concerned about the ongoing dysfunction of
the PPSB; and
�
Members of the
Police Force are experiencing increased stress and damage to morale because of
the dysfunction.
7.
My appointment as
administrator was effective as of December 16, 2016. It was to expire, unless
renewed, on July 1, 2017. The OCPC�s Order indicated that the administrator was
�to ensure that the PPSB comply with its statutory obligations, including
ongoing compliance with the PSA and its regulations, and to promote the
creation of respectful and/or functional working relationships between those
involved in the provision of policing services to Peterborough that nonetheless
allow for vigorous debate and the airing of diverse points of view.� The
administrator was also to produce a report, "including a detailed analysis
of the change to the PPSB process and the reasons therefor.�
8.
Based on the
performance of the PPSB during my term as administrator, I am satisfied that
the PPSB has taken important steps to comply with its statutory obligations and
to promote a respectful and functional working relationship with the
Peterborough Police Service (�PPS� or �Service�), its senior leadership and the
municipal government. In this report, I identify additional steps, which, in my
view, the Board must take. I also make recommendations to promote
sustainability of the gains made over the past seven months. Despite the
continuing need for improvement and sustainability, I recently recommended to
the OCPC, which accepted my recommendation, that my appointment not be renewed.
9.
This report
completes my responsibilities as administrator. It explains the approach that I
took to my duties, and outlines some of the work done by the Board during my
term. There are a number of affected individuals who express concern over
whether the undeniably good work done by the Board during my term will now
continue. As stated above, my recommendations are designed, in part, to address
that concern.
10. It was of importance to me that this report be made available to
the public. This may not be mandatory under existing legislation. However, the
OCPC supported the release of this report to the public. There are compelling
reasons for doing so.
11. First, regardless of what gains have been made in ensuring that
the Board performs its statutory duties, it is also important that the public
have a well-placed confidence in the police force, which services their
community, and the Board, which provides civilian oversight. This would be
difficult to achieve without a publicly accessible report.
12. Second, as the OCPC observed in its December 2016 Order, the
Service, its leadership and the Board have been through a tumultuous period.
This included the dissolution of the predecessor police force and board, a
contractual dispute between the Chief, Deputy Chief and the Board, a lawsuit
initiated by the City of Peterborough against the Chief and Deputy Chief, the
prosecution of Mayor Bennett for alleged misconduct while he was a member of
the predecessor board, and the investigation of a former Chair of both the
predecessor board and this Board for alleged misconduct. (The OCPC
investigations into complaints against the former Chair relating to his role on
both boards were never completed given his resignation from the predecessor
board and the expiry of his term with the current Board.) The legal disputes between the Chief, Deputy
Chief, the Board and the City have since been settled. However, the parties
each undertook that the terms of settlement were to remain confidential. As a
result, I cannot disclose those terms of settlement in my report. However, I
can (and do) briefly address some of the misinformation and false public
narratives circulated in connection with these issues, which had the potential
of unfairly undermining public confidence in the Service, the Chief and Deputy
Chief.
13. As will be reflected in the body of this report, I am mindful of
the desire for affected parties to set past disputes behind, and look to the
future. This is commendable. It is why my report does not dwell on the past
disputes, but only provides enough information to correct the public record,
and explain my recommendations.
14. Finally, the publication of my report promotes accountability. The
public is entitled to ask on a periodic basis whether, and to what extent, my
recommendations have been adopted and if not, why not.
15. The OCPC�s Order said that the administrator shall have the �full
power and authority to fulfill his or her mandate and functions and shall have unimpeded
access to any and all past and current PPSB records as the administrator may
specify for the purpose of this Order.�
16. As the administrator, I was to perform the following functions:
�
Attend, either in
person or by conference call or video conference, regularly scheduled and
special meetings of the PPSB, including all in camera portions
thereof;
�
Attend, either in
person or by conference call or video conference, subcommittee meetings of the
PPSB;
�
On his or her own
initiative or upon request from any member of the PPSB, provide advice to the
PPSB and/or individual members, where appropriate, about: PPSB processes
including, but not limited to, issues such as the recording of votes, taking of
minutes, scheduling of agenda items, delegation of authority and composition of
subcommittees;
�
Achieve and
maintain compliance with the PSA and any applicable regulations made pursuant
to the PSA;
�
Establish best
practices for the ongoing governance of the Board and a protocol for its
relations with the Service, Peterborough City Council and other organizations
as necessary;
�
Have full power and
authority to make any changes he or she sees fit to the PPSB processes;
�
Make
recommendations to the Executive Chair of the OCPC on the Board's composition,
including the power to suspend any or all of its members;
�
Work with the PPSB
to engage the public in discussion about the PPSB and its role; and
�
Advise the
Executive Chair of the OCPC about the need to vary or cancel the December 2016
Order in response to changing circumstances and in consultation with the Board.
[1] In camera meetings are those held in the absence of the public.
17. At the outset, I was acutely aware that the OCPC's decision to
appoint an administrator without a prior hearing was controversial. Some felt
that the Board was functioning appropriately without an administrator, and
that, in any event, there was no urgency to prompt the appointment without a
hearing. This view was expressed in forceful terms. For example, Mayor Bennett,
who had previously been in a lengthy legal dispute with the OCPC, challenged
the appointment in the media. He was certainly not alone.
18. Others, including the Chief, Deputy Chief, other senior officers,
and several Board members, welcomed the appointment.
19. I met with the members of the Board separately and collectively,
as well as with the Board's executive assistant, Niquel Pritchard Pataki. I
conveyed the same message at each meeting. It was my preference to work
cooperatively with the Board, rather than to "take over" the
responsibilities of the Board or its Chair. I set a number of goals that I
wanted the Board to achieve or work towards, and I discussed how we could
collaborate to permit the Board to do that.
20. I attended every Board meeting, held at least monthly, and a
number of committee meetings. I also participated in several committee meetings
by telephone.
21. At my first Board meeting, I outlined for the Board and the public
my background as a criminal and regulatory lawyer for 37 years, as someone who
had worked extensively with the PSA, and who had acted for the Ontario
Provincial Police, three of its Commissioners, and for front-line officers. I
had also served as counsel for a number of public inquiries and systemic
reviews, some of which required an understanding of policing practices and
procedures, and the systemic issues facing the policing community. It was also
important to include my connection to the City of Peterborough where I was born
and initially raised. At that meeting, I responded to a number of questions
posed by members of the Board.
22. A majority of the Board members candidly advised me that they were
unconvinced that an emergency existed or that the specifics identified by the
OCPC in its Order were accurate or, if accurate at one time, continued to
represent ongoing issues for the Board. Nonetheless, they unanimously voted not
to legally challenge my appointment, but instead, to take me at my word and
agree to the collaborative approach that I outlined. The Board is to be commended
for taking the "high road" in its approach to my appointment from the
beginning and throughout my term as administrator.
23. From December 2016 to June 2017, I played an active role in the
work of the Board. Ms. Pritchard Pataki provided me, in advance, with the
anticipated agenda for each Board meeting, together with materials provided to
the Board. Similarly, she provided me with background materials relevant to
committee meetings. I also examined many documents relating to the activities
of the Board that preceded my appointment. I met with the Chair, Bob Hall, on a
number of occasions, sometimes immediately following a Board meeting.
2 I also discussed
this approach with the Commission, which agreed with it. This, too, was
communicated to the Board.
24. As will be discussed below, the Board had gone through a
tumultuous time prior to the OCPC�s investigation and my involvement. A number
of Board members felt that they had already moved past the tumultuous time in
the Board�s life before my appointment. For example, they felt that their
meetings already had a respectful tone, and were transparent to the public. I
accept that some of that perspective is accurate. However, there remained an
ongoing failure to meet some of the Board�s statutory requirements and there
remained some unresolved issues, which threatened the lasting effect of any
improvements. These had to be addressed.
25. During my appointment as administrator, the Board was receptive to
my involvement and advice. Even those who had questioned my appointment worked
constructively with me. For example, if I had any issues or suggestions
respecting the proposed agenda for a Board meeting, I shared them with Ms.
Pritchard Pataki and, through her, with the Chair. Since the OCPC�s Order
reflected concern about how often the Board addressed matters in the absence of
the public, I also provided input on which matters should be addressed in
public and which in the absence of the public. These suggestions � which were
not extensive � were addressed. I was satisfied that items for business were
appropriately identified in the agenda and that the Board, pursuant to the
Chair�s direction and in the spirit of transparency, properly limited matters
to be discussed in the public�s absence.
26. At the Board meetings, I was a full participant in the Board�s
discussions. Board members frequently asked me for guidance on a wide range of
issues, which I was pleased to provide. To the credit of the Chair, Mr. Hall,
and Ms. Pritchard Pataki, the Board meetings were well-organized, efficient and
well conducted. Every Board member had the opportunity to be heard on the
issues and spoke to and about each other in a respectful way. As elaborated
upon below, they also spoke to and about the Chief and Deputy Chief and their
Service in a respectful way. Indeed, every member of the Board publicly
expressed admiration for the Service, the Chief and Deputy Chief respecting the
high calibre of the work being done by the Service and the quality of its
senior leadership. As described later in this report, the Board had not always
shown appropriate public support for its Service and senior leadership in the
past.
27. I also met with, or spoke to, Chief Rodd on a regular basis and
with Deputy Chief Farquharson less frequently. I met with other senior
leadership of the Service, including the Presidents of the two police
associations, and on occasion, rank-and-file officers. The Chief and Deputy Chief are exceptional,
highly dedicated officers who lead a progressive, effective police service.
They enjoy wide support in the Service, and for good reason. I alluded earlier
to a false public narrative that needs to be corrected. One aspect of that
relates to the Chief and Deputy Chief and their legal disputes with the Board
and the City. They lived through what some would describe as a campaign of
misinformation with little means to defend themselves publicly. I return to that
point later.
28. I also met with, and spoke to, the external consultants, Michael
Mitchell and Moe Hodgson. The Board retained them to prepare the Board�s
Business Plan. They have a wealth of first-hand experience in policing issues.
Their retainer required that they examine the Service�s existing processes,
relevant qualitative and quantitative data, programs and initiatives, clearance
rates, existing priorities and a wide range of other information pertaining to
their undertaking. They interviewed many of the Service�s employees from both
the uniformed and civilian ranks. They met with dozens of community agencies.
They met with municipal representatives. They spent hundreds of hours in the
Service�s headquarters both day and night to observe, first hand, how the
police interact with the public and each other.
29. Through this work, it became evident to them (as they communicated
to the Board) that the Service provides an �exceptionally high level of service
in all of the communities that it serves. No major problems were identified
with respect to how the organization is administered or the manner in which it
operates. The current resources are being fully and effectively utilized and
because of this, the Business Plan focuses on the continuation or enhancement of
many of the successful programs which the police currently provide to the
public.� They confirmed that the Service�s clearance rates for crime are high;
and its proactive initiatives to address crime, mental health, and addiction
and to promote community engagement compare most favourably to other police
forces in Ontario. They concluded, as did I, that these successes are
attributable in no small measure to the Chief and Deputy Chief, their senior
management and to many of the rank-and-file officers under their command.
30. To fulfill my responsibilities, I also met with, and spoke to,
Jeeti Sahota, the MCSCS� Police Services Advisor, Public Safety Division, who
attended the Board meetings as an observer. Other MCSCS advisors attended Board
meetings before and during my term as administrator. Ms. Sahota was
particularly helpful in directing me to relevant guidelines, policies and
training manuals, and in providing me and the Board with insights into the
likely future of policing in Ontario.
31. Of course, it was the Solicitor General and the MCSCS, which
requested that the OCPC take action to address the dysfunction at the Board. If
Justice Michael Tulloch�s recent recommendations on civilian oversight of the
police are accepted, the Ministry may soon assume the oversight powers
pertaining to police services boards currently held by the OCPC. Indeed, the
OCPC supported that change in its submissions to Justice Tulloch. As guidance
to whomever assumes this mantle in the future, it is my view, admittedly with
the benefit of hindsight, that it would have been preferable if the Ministry
and the OCPC had acted more forcefully and certainly more quickly in addressing
the undoubted dysfunction that existed in Peterborough � for example, during
the period that the Chief and Deputy Chief, the Board and the City were
embroiled in a series of legal disputes.
32. With the Board�s approval, and sometimes at its specific request,
I also reported back to it on several projects, which I undertook on the
Board�s behalf. For example, I reviewed the legal bills submitted to the Board
by a number of law firms over the years, recommended a best practice that the
Board adopted for better monitoring of legal costs, and assisted the Board in
hiring its new General Counsel at competitive rates.
33. The Board also requested that I facilitate a governance retreat,
which I did at the end of my term as administrator. At the retreat, I
facilitated discussion respecting a number of governance issues that arose
during or preceding my term. At the same time, I identified best practices
around those recurring governance issues, and my views as to how the Board
could continue to move forward in a constructive way. The Board committed
itself to considering a number of these best practices and to referring them
for possible implementation to the Policy Committee.
34. All of the Board members kindly acknowledged at my last Board
meeting as administrator that they greatly valued the input and advice I
provided in that role. I, in turn, acknowledged (as I do in this report) their
cooperation with me throughout, and their willingness to adopt or consider my
recommendations as to best practices.
35. I referred earlier to the Board�s executive assistant, Ms.
Pritchard Pataki. She provides tremendous support for the Board's work. The
quality of her work is outstanding. This includes her detailed, accurate,
evidence-based reports to the Board. I believe that the tumultuous period in
the Board�s history was particularly difficult for her since she was compelled,
at times, to work in what can only be described as a poisoned environment. This
Board is, in part, differently populated, but in any event fully acknowledges
her value as its employee. The Board would be unable to fulfill its mandate
without someone of her calibre and skill.
36. Throughout my term, at its conclusion and in this report, I have
identified areas where there can be continued improvement in governance.
Nonetheless, as I stated earlier, I am satisfied that the Board is currently
functioning in accordance with its statutory mandate. That is why I recommended
to the OCPC that my appointment not be renewed.
37. Pursuant to subsection 27(5) of the PSA, the Board is to be
composed of five members: the Mayor or, if he or she chooses not to serve,
another member of the municipal council, a second member of the municipal
council, a community representative also selected by municipal council and two
individuals appointed by the provincial government.
38. The Peterborough-Lakefield Community Police Service was the
predecessor of the current police force. As its name suggests, the City of
Lakefield had an �ownership� interest in the predecessor police service. As the
negotiated price of that ownership interest, the City of Lakefield contributed
approximately $900,000 to the Peterborough-Lakefield Community Police Service�s
annual budget. One of the Board members was a City of Lakefield appointment.
39. Several years ago, the Peterborough municipal council voted to
dissolve the Peterborough-Lakefield Community Police Service and its board.
This was to take effect on January 1, 2015. The PPS and the PPSB were created.
The PPS continued to provide the same level of policing in Lakefield as its
predecessor did, but now on a contractual basis only. Not surprisingly, since
the City of Lakefield no longer had an ownership interest in the Service, it
contributed significantly less revenue to the Service�s budget (a reduction of
about $400,000 per year). Another key consequence of this change was that
Lakefield lost its seat at the Board table. This meant that Peterborough�s
municipal council now controlled (as it still does) the selection of the
majority of the Board�s members.
40. The decision to dissolve the predecessor service and board was
controversial. Some felt that the decision to dissolve or de-amalgamate was a
financially costly exercise conducted solely to allow the Peterborough
municipal council and, more particularly, Mayor Bennett, to control the Board.
That is for others, not me, to determine.
41. When the predecessor board and service were dissolved, there was
initial uncertainty as to whether the Chief and Deputy Chief would be
reappointed to serve on the newly constituted Service. The Chief and the Deputy
Chief both had contracts negotiated with the predecessor board that
unequivocally provided that they were entitled to extensive remuneration
(including the equivalent of one year�s salary) if the predecessor service was
dissolved. This legal entitlement was not dependent on whether the Chief and
Deputy Chief were rehired by the new Service or on whether they were rehired in
the same positions.
3 The contractual arrangement, to be precise, is with the Township of Selwyn.
42. Contrary perhaps to the public�s perception, these or similar
contractual terms are hardly unique. The Chief�s contract contained this
�dissolution term� since 2010. It was repeated in contract renewals in 2011
through 2014. It originally came from a prototype developed to assist chiefs
and deputy chiefs, and was accepted by the predecessor board after full
discussion with the Chief and vetting by the predecessor board�s counsel. The
Deputy Chief�s dissolution term was no different in substance. These dissolution
terms (which might also be described as �poison pills�) are designed, in part,
to discourage boards or municipal councils from exercising poor judgement that
might adversely affect policing in their community. Indeed, when this term was
first introduced into the Chief�s contract, it seemed improbable that the
fiscally disadvantageous decision would be made to dissolve the service. Later,
the dissolution term provided an incentive for the Chief and Deputy to remain
with the new Service, despite the obvious political and administrative turmoil
which had already surfaced and was likely to continue. The arbitrator in the
contract dispute observed that the dissolution term provided the Chief and
Deputy Chief some comfort to sign a new employment contract, and that the term
effectively constituted a �signing bonus� granted by the predecessor board and
guaranteed to be paid by the successor Board. He noted that the fact that the
Chief and Deputy Chief continued uninterrupted employment was irrelevant. However,
whatever one�s views on these contractual terms, the bottom line is that they
were negotiated by arm�s-length parties and were binding on the predecessor
board and on the Board as well. Members of the predecessor board who had
discussed these terms also became members of the Board.
43. The language contained in the contracts of the Chief and Deputy
Chief was unequivocal. That language clearly addressed the very scenario that
unfolded here. The Board had sound legal advice available to it that the
contracts were fully enforceable. The Chief and Deputy Chief expressed
willingness to the predecessor board to negotiate some reduction in what they
were otherwise legally entitled to. Nonetheless, the newly constituted Board
adopted a highly adversarial stance.
44. That stance was manifested in a variety of ways. The contracts
provided for binding and final arbitration with no right of appeal. The Chief
and Deputy Chief were compelled to take the matter to arbitration. The
arbitrator decided in favour of the Chief and Deputy Chief in the summer of
2015. The Board refused to respect the arbitrator�s decision. Instead, it
initiated an application to judicially review the decision, though judicial
review was legally unavailable. When the Board refused to comply with the arbitrator�s
decision, the Chief and Deputy Chief were compelled to obtain a Court order
requiring the Board to comply. The Board chose not to comply with the Court
order. The Board�s stance was strongly supported by Mayor Bennett � as was a
lawsuit initiated by the City of Peterborough against the Chief and Deputy
Chief which made a series of serious, inflammatory and totally unsupportable
allegations against them, including misfeasance in public office. This could
only be described as a war of attrition, especially when the Board declined to
indemnify the Chief and Deputy Chief for legal costs in defending against the
City�s lawsuit.
45. All of this was accompanied by a host of disparaging remarks made
in public about the Chief and Deputy Chief. Their employment effectively
precluded them from fully defending themselves in public. Ordinarily, the role
of defending them from unfair attack would fall upon the Board. To state the
obvious, the Board did not assume that role. Indeed, some members of the Board
advanced the unfair public narrative about the Chief and Deputy Chief.
46. The legal dispute also exacted a heavy financial toll on the
public. The total legal costs consumed by the Board and by the City to fight
the Chief and Deputy Chief easily exceeded the costs associated with complying
with the Board�s contractual obligations. Equally important, the level of
rancour shown in fighting the Chief and Deputy Chief infected the relationship
between the Service and the Board, and the public�s perception of those involved.
4 To be clear, not all members of the Board
supported the stance identified here.
47. Nothing I have said diminishes the rights of affected individuals
� indeed, the public at large � to engage in vigorous debate on issues of
importance. What motivated the municipal government to dissolve the prior
police service and board? Did this benefit the community? Should the
predecessor board have agreed to the contract entered into with the Chief and
Deputy Chief? Should the Chief and Deputy Chief have waived the terms of the
contract that they negotiated with the predecessor board? Did the Board and the
City act wisely or imprudently in challenging the contracts of the Chief and
Deputy Chief? Reasonable people can disagree � and vigorously so � on some or
all of these issues. But the public attacks on the Chief and Deputy Chief went
well beyond the scope of legitimate debate or criticism. Some of these attacks
appear to have been designed to destroy the reputations of the Chief and Deputy
Chief. They took a significant toll on them both. These unfair, sometimes
uninformed attacks also adversely affected the Service�s senior leadership and
the rank-and-file officers. Many of them felt � with justification � that their
Service and its leadership were being unfairly maligned and that they were left
undefended.
48. In less than six years, the PPSB and its predecessor have been
populated by 13 different Board members. This is explained, in large part, by
dysfunction at the Board.
49. During those six years, two provincial appointees resigned due to
the dysfunction they witnessed firsthand at the Board. Mayor Bennett
temporarily stepped aside as a member of the predecessor board as a result of
charges of misconduct levelled against him under the PSA. He was initially
found guilty of multiple offences, though all but one of those findings were
set aside, on consent, on appeal to the Divisional Court. He did not dispute
the finding that he had engaged in misconduct respecting disparaging comments
he made while a member of the predecessor board, about the Chief of Police, the
Peterborough-Lakefield Community Police Service and the Peterborough-Lakefield
Community Police Services Board, in breach of ss. 8 and 13 of the Members of
Police Services Board � Code of Conduct,
O. Reg. 265/98. Garth Wedlock, another Council appointee to both boards,
resigned from the predecessor board while he was being investigated by the OCPC
for potential misconduct relating to the performance of his duties as a member
of the predecessor board. Accordingly,
that investigation was never completed. Nor did the OCPC complete a second investigation
relating to Mr. Wedlock�s conduct as Chair of the current Board since his term
expired. Any OCPC investigation relating to Mr. Wedlock could only be
resurrected in the event that Mr. Wedlock again became a member of the Board.
50. This tumultuous legacy must now be overcome by the Board.
51. As indicated earlier in this report, I set goals that I expected
the Board to achieve or work towards. These goals are identified here, together
with how the Board has dealt with them.
The Business Plan
52. Section 30 of Ontario Regulation 3/99 reads as follows:
30. (1) Every board shall prepare a business plan for its police
force at least once every three years.
53. Subsection (2) sets out items that the business plan shall
address. These items include the objectives, core business and functions of the
police force, including how it will provide adequate and effective police
services. As well, the business plan is to include quantitative and qualitative
performance objectives and indicators in a number of areas, such as the police
force�s provision of community-based crime prevention initiatives, community
patrol and criminal investigation services.
54. At the outset of my term, the Board had no current business plan in
place. Its last business plan expired in 2015. The Board had discharged one
external consulting firm, based on dissatisfaction with its work, and returned
to the consultants who created the Board�s last business plan.
55. A committee of the Board, the Business Plan Steering Committee,
spearheaded almost entirely by Ken East, a member of the Board, was responsible
for working with the external consultants and the Service�s senior leadership
to produce the business plan. Drafts of the business plan were circulated for
the entire Board�s consideration. The Board devoted a special meeting to
evaluating the draft business plan, and providing input on its improvement.
Ultimately, the Board approved, in principle, a business plan. This business
plan has been submitted to the municipal council on the understanding that the
Board would subsequently �fine-tune� the plan and finalize its graphics and
physical presentation.
56. I am satisfied that the Board has essentially completed the
business plan in fulfillment of its statutory mandate. The committee, most
particularly Mr. East, worked very hard, as did the external consultants and
the Service�s senior leadership to produce the plan.
57. The process leading to its development was less than ideal. Of
course, part of the problem (including the added costs associated with the
business plan) rested with the perceived need to discharge one external
consulting firm in favour of another. I will not comment on the Board�s
decision to change consultants. The Board was very well-served by the
consultants who ultimately completed the plan. They were highly experienced and
experts in policing, already had a working knowledge of this Service, and were
well situated to assist the Board in identifying priorities going forward.
58. In my view, the process was flawed in other ways. The Board should
learn from the experience moving forward.
59. First, the development of a business plan should represent an
ongoing process. In a sense, the groundwork for the next business plan starts
the day after the previous business plan is finalized. Its preparation should
certainly not await the expiry or near expiry of the previous plan. After all,
its development is an opportunity for the Board to discuss and identify the
Service�s objectives and priorities, and how they will be fulfilled, on an
ongoing basis. Indeed, the Board has an obligation in law to identify the
objectives and priorities for a given year, in consultation with the Chief, and
measure the Service�s performance against those objectives and priorities (see
s. 31(1)(b) of the PSA). The business plan facilitates this exercise. Simply
put, the development of this plan should have commenced far sooner.
60. Second, the committee and the external consultants received little
input from the remainder of the Board through much of the process despite the
committee�s repeated requests for that input. As the administrator, I provided
extensive input as various drafts were circulated to the Board for its
consideration. Board members generally reserved their comments until the
business plan was discussed at a special meeting. The comments at that meeting
generated a significant re-writing of the plan. This was, in candour, a
reflection that the committee and the external consultants were, to some
extent, �flying blind� as to what the Board�s expectations were. The committee
was entitled to receive earlier direction and guidance respecting this
fundamental document. This was especially so since the Board had been without a
business plan for a lengthy period of time.
61. Third, too much of the Board�s input, once given, involved
�word-smithing�, that is, efforts by Board members to draft language on the
fly. This is always a difficult exercise when the Board as a whole meets to
evaluate any lengthy written document. Indeed, I assisted the Board in some
quick �word-smithing� myself to better focus the Board on the remaining issues
to be considered.
62. I do not regard these comments as criticisms of the Board per se,
but instead as useful lessons moving forward. As reflected below, I addressed
the respective roles of committees and the Board at the Board�s governance
retreat.
63. I also wish to impress upon the Board that it should not minimize
the importance of the completed business plan. It should not be treated simply
as a mandated document that is divorced from the ongoing work of the Board and
the Service. It informs the public as to the Service�s objectives and
priorities, and should form the basis of an ongoing dialogue with the public.
It provides important guidance to the Chief as to the expected policy
directions of the Board that must be implemented by the Service. As I have
already said, it assists the Board and the Chief to identify annual priorities
and objectives. I expect that the Board will periodically review the business
plan to determine whether or to what extent milestones have been met.
64. In summary:
�
A business plan is not only a statutory requirement,
but it provides a clear, transparent and effective basis for framing and
evaluating the work of the Police Service, the Board and the Chief and Deputy
Chief. It is a critical element of civilian oversight of policing and is a
basis for ongoing dialogue with the public about their priorities and concerns.
�
After letting the plan lapse in 2015, the Board was
able to develop a substantially complete plan during my term as administrator,
though tweaks remain to be made.
I recommend:
a.
The
development of a business plan should represent an ongoing and continuing
process in which the Board is engaged.
b.
The Board
should improve and formalize the process by which it gives substantive input
into and direction to the development of the plan.
c.
The Board
should meet periodically to review the business plan and the progress made on
milestones.
The Performance Evaluation and Remuneration Review of the
Chief and Deputy Chief
65. Effective Board oversight requires that the Board evaluate the
performance of the Chief and Deputy Chief at least on an annual basis (see the
requirement reflected in s. 31(1)(e) of the PSA). The evaluation process is
itself a means to inform the Board about the ongoing work of the Service, and
the extent to which its policies are being effectively implemented. It also
provides an important opportunity for the Board to identify areas for
improvement. At the outset of my term, the Board had done no performance
evaluation of the Chief and Deputy Chief since 2014.
66. The performance evaluation is of course linked to the remuneration
of the Chief and Deputy Chief. There is a contractual obligation on the Board
to review their remuneration on an annual basis (see also the requirement
reflected in s. 31(1)(d) of the PSA). This may result in changes to their
annual compensation or benefits.
67. The Board�s failure to conduct a performance evaluation of the
Chief and Deputy Chief or review their remuneration since 2014 was particularly
problematic here. This failure, which extended beyond the settlement of the
contractual dispute and lawsuit, could reasonably be regarded by the Chief and
Deputy Chief as retribution for the assertion of their legal rights. It could
also reasonably be regarded as another example of a Board choosing to disregard
its contractual obligations to the Chief and Deputy Chief. This failure did
nothing to alleviate the residual tension between the Chief, Deputy Chief and
some members of the Board.
68. Against that background, I monitored closely the work of the
Labour Relations Committee to whom these issues were delegated. As
administrator, I of course supported the completion of these evaluations and the
remuneration reviews as soon as possible. To the credit of the committee,
composed of Dave Haacke and Mr. East, and the Board as a whole, the entire
issue was ultimately dealt with in a fair and dispassionate way. Both the
committee and the Board recognized, among other things, that they were required
to demonstrate fiscal responsibility, while being sensitive to the fact that no
evaluations or reviews had taken place since 2014 and to the need to signal to
the Chief and Deputy Chief that the Board was moving forward.
69. The Committee�s evaluations were fair and evidence-based. They
were considered and supported by the entire Board. Those evaluations reinforced
the Board�s confidence in the performance of the Chief and Deputy Chief
overall.
70. Similarly, the Committee and the Board carefully considered the
issues surrounding remuneration. They were assisted by the comparators and
extensive data accumulated with the assistance of Ms. Pritchard Pataki.
Although the committee and the Board appropriately discussed this issue in
closed session, the committee�s recommendations and the Board�s ultimate
decision on remuneration showed fiscal responsibility, coupled with appropriate
acknowledgement of the work that had been done by the Chief and Deputy Chief.
71. The Committee met with the Chief and Deputy Chief as part of this
process. I believe that both the Chief and Deputy Chief appreciated the
approach taken by the Committee and the Board to their evaluations and
remuneration. This process reflected well on the Board. I add that the Chair,
Mr. Hall, showed great sensitivity in how this issue was dealt with at the
Board level.
72. In the course of this dialogue, the Board identified issues
associated with the remuneration or benefits of any future chiefs or deputy
chiefs of the Service. For example, Board members questioned whether future
contracts should contain different terms in the public interest. They were also
mindful of the need to ensure that this Service is always attractive to those
seeking leadership or rank-and-file positions in policing. This was an
important dialogue for the Board to have, and demonstrated to me that the Board
was fulfilling its statutory responsibilities.
73. In summary:
�
Performance
evaluation and remuneration reviews of the Chief and Deputy Chief are not only
required by the PSA and the employment contracts, but they represent the most
direct tool the Board has to evaluate the extent to which the senior leadership
of the police service is implementing the Board�s policies and executing the
business plan. This provides a formal and evidence-based process by which the
Chief and Deputy Chief can identify areas of success and areas for improvement
and allow the Board to raise any performance issues directly.
�
The
Board went over two years without conducting a formal evaluation during which
time it contributed to, and failed to clarify or address, unwarranted negative
statements about the Chief and Deputy Chief. During my term as administrator,
the Board conducted evaluations and reviews of the Chief and Deputy Chief of
Police. It is essential that these reviews continue on an annual basis.
I recommend:
a.
The Board, within six months, amend
its by-laws to require it to conduct an annual performance evaluation and
remuneration review of the Chief and Deputy Chief.
Public Meetings and Minutes
74. In its Order, the OCPC expressed concern about whether too many
matters were debated by the Board in the absence of the public.
75. Subsections 35(3) and (4) of the PSA read as follows:
Proceedings open to the public
(3) Meetings and hearings conducted by the board shall be open to the public, subject to subsection (4), and notice of them shall be published in the manner that the board determines.
Exception
(4) The board may exclude the public from all or part of a meeting or hearing if it is of the opinion that,
(a) matters involving public security may be disclosed and, having regard to the circumstances, the desirability of avoiding their disclosure in the public interest outweighs the desirability of adhering to the principle that proceedings be open to the public; or
(b) intimate financial or personal matters or other matters may be disclosed of such a nature, having regard to the circumstances, that the desirability of avoiding their disclosure in the interest of any person affected or in the public interest outweighs the desirability of adhering to the principle that proceedings be open to the public.
76. Section 4 of Ontario Regulation 421/97 is also relevant. It
provides that Board members shall keep confidential any information disclosed
or discussed at a meeting of the Board, or part of a meeting of the Board, that
was closed to the public.
77. There was evidence that, in the past, too many items of business
were dealt with in closed session, rather than publicly. As well, Ministry
advisors and the executive assistant were unnecessarily excluded during some of
the Board�s past sessions. Early in my term, I did identify items in several
Board agendas that could be dealt with in public despite being marked for
closed session. I discussed this issue with the Chair, Mr. Hall. He interpreted
the words �may exclude� under s. 35(4) of the PSA as conferring a wide
discretion upon the Board to conduct matters in the absence of the public. As
elaborated upon below, I respectfully do not agree with that interpretation.
However, what was more important was that the Chair readily agreed to my few
suggested changes to the agenda which addressed this issue, and expressed his
personal commitment to open and transparent Board meetings. He was true to his
word. I was satisfied that during the balance of my term, the Board dealt with
business items in public, except in the limited circumstances contemplated by
the legislation.
78. At the governance retreat, I provided some further guidance on the
exclusion of the public at Board meetings. In my opinion, despite the
discretion conferred upon a board by the words, �may exclude� under s. 35(3) of
the PSA, that discretion is narrowed significantly by the words that follow and
by existing jurisprudence.
79. Meetings of the Board are presumptively to be held in public per
s. 35(3) of the PSA. This presumption applies to all parts of a Board meeting.
80. The exclusion of the public is only permissible if one of the two
exceptions set out in s. 35(4) exist. There is no general discretion to exclude
the public beyond those two exceptions.
81. The first exception only applies if matters of public security may
be disclosed. Even if this is so, the Board must also determine that the
balancing set out in s. 35(4)(a) favours exclusion of the public.
82. The second exception only applies if intimate financial or
personal or other matters may be disclosed of such a nature that the balancing
set out in s. 35(4)(b) favours exclusion of the public. For example, this
exception permits the Board to exclude the public when seeking or obtaining
legal advice that is the subject of solicitor-client privilege.
83. At the retreat, we briefly discussed scenarios that would justify
the exclusion of the public, and scenarios that would not. The Board appeared
to be committed to the best practices identified at the retreat. Indeed, I was
somewhat playfully taken to task by the Chair for recommending that the retreat
itself be held in closed session. Although I continue to see a distinction
between an educational program or retreat for Board members, and a Board
meeting accessible to the public, I was delighted at the Chair�s position since
it again demonstrated a commitment to openness as the default position. With
the Board�s permission, I outlined at the next Board meeting, in public, what
had taken place during the retreat.
84. I recommend that the Board create a policy within six months to
address this issue. Not surprisingly, I am of the view that it can largely
track the best practices identified at the retreat. At the same time, I
recommend that the Board consider, with the assistance of its General Counsel,
the extent to which some committee meetings should similarly be open to the
public in the future.
85. During my term as administrator, the Board also took steps to
improve public access to its Board meetings. At the Board�s initiative, Board
meetings were held in Cavan Monaghan and in Lakefield. The Board also
considered whether some future meetings could be held in locations within the
City of Peterborough other than at police headquarters. Police headquarters,
and the obvious security requirements associated with a meeting there, do not
create the most welcoming environment for members of the public and media.
86. Members of the public, including deputations, did attend several
Board meetings. They were welcomed by the Board and treated respectfully. At
least one member of the media also attended every public meeting. However,
attendance by members of the public was quite spare and at times, non-existent.
I recommend that at least some of the Board meetings held in Peterborough take
place in a community centre or another venue more conducive to public
attendance.
87. I recommend that this should form part of a larger strategy of
outreach to the public. The current Board has already expressed its desire to
promote greater outreach. The new business plan supports measures to ensure
that citizens and stakeholders are aware of, and engaged in the activities of
the Board. Rolling-out the new business plan represents one opportunity for
community outreach, as the Board, the Chief and Deputy Chief identify for the
public the priorities and challenges of the Service moving forward. Public
forums on �hot topics� respecting local policing (such as the fentanyl problem
or increased drug trafficking activities or property offences in the downtown
core) are useful means for the police force both to inform the public and be
informed by them. I should observe that the external consultants received some
valuable input from community agencies and members of the public on how the
Service might best serve the community. Most were too detailed for inclusion in
the business plan. However, the consultants agreed to provide a record of these
ideas for future consideration by the Board, the Chief and Deputy Chief. I
recommend that this record form the basis for a policy-driven discussion at one
or more of the Board�s meetings this year.
88. The OCPC�s Order contemplated that I would evaluate the adequacy
of the Board�s minutes for its meetings. In fairness, this issue did not figure
prominently in my overall assessment of the Board�s work. Boards take a range
of approaches to how their meetings are memorialized. The minutes of some
boards capture much of the discussion that takes place at their meetings,
including the positions taken by individual board members. Other boards keep
extremely spare minutes of their meetings. This Board�s minutes fall into the
latter category. They essentially capture only decisions made, on formal
motion, by the Board. In fairness to the Board, there are no statutory
provisions, Ministry guidelines or policies that assist in identifying best
practices in this area. The Chair pointed out that the Board�s approach to its
minutes is similar to the approach taken by the municipal council.
89. Nonetheless, in my view, the current minutes fail, in some
respects, to promote accountability and transparency. Accordingly, we discussed
best practices respecting Board minutes at the governance retreat.
90. The purpose of minutes of Board meetings is only partially to
record the Board�s formal decisions. They should also serve to memorialize
important issues raised at a Board meeting, and the content of verbal reports
presented to the Board. For example, at most Board meetings the Board receives
comments from the Chair and from the Chief, sometimes in public and sometimes
in closed session, depending on their subject matter. At present, no record
whatsoever is kept of those comments. Similarly, the minutes do not capture
less formal requests for the executive assistant or the Chief or committees to
return to the Board with further information. Accordingly, they provide little
assistance in monitoring whether such requests were adequately followed up on.
They also provide little assistance to absent members of the media or absent
Board members as to important dialogue that was not captured in formal motions.
91. Reasonable people can differ as to the adequacy of board minutes.
But I suggested to the Board that best practices favour at least a �middle
ground� to the preparation of minutes. So, for example, more complete minutes
might be necessary:
�
where, as already discussed, the Board has received
comments from the Chair and/or Chief, the minutes should reflect the substance
of what the Chair and/or Chief had to say; otherwise, they do not inform
anyone;
�
where a decision is deferred or only part of a motion
is decided after extensive discussion, the minutes should explain the issue
that prompted deferral or a partial decision only; this is to be
differentiated, for example, from a pro forma deferral of a motion;
�
where the decision is materially different from what
was recommended or proposed in a committee report or other report, the minutes
should capture briefly why the Board has decided differently;
�
where there is no unanimity on a point, the minutes
should reflect that the Board was not unanimous, especially if the dissenting
Board member(s) would like their dissent to be noted, and what the point of
contention was;
�
where the Board gives direction, not captured in a
motion, the minutes should reflect that direction;
�
as already noted, where information is requested from
the Chief or the executive assistant to be later provided, that should be
captured in the minutes; and
�
where oral reports are given by a committee, their
substance should be captured in the minutes; of course, the availability of a
written report by the committee may make this unnecessary.
92. At the conclusion of the governance retreat, the Board agreed to
refer these best practices to its Policy Committee. I recommend that the Board,
in consultation with its General Counsel, develop a written policy on its
minutes within six months of the release of this report. I also recommend that
the Board develop, at the same time, a written policy on committee minutes.
93. In summary:
�
Civilian oversight of policing cannot be effective if
it is not public and transparent. The PSA has strict criteria for when the
exclusion of the public is permitted. Unless the Board meetings are dealing with
public security or sensitive personal information, they should be public.
Greater public access enhances public confidence in the Board�s civilian
oversight, and assists the Board in identifying and addressing the concerns of
the community. This develops and strengthens relationships between the Board,
the Police Service and the public.
�
The Board had, in the past, excluded the public for
reasons that were not permitted under the PSA. More broadly, the Board had not
been sufficiently proactive about public outreach and promoting greater
accessibility to its meetings. During my term as administrator, the Board took
positive steps to ensure and increase public access to its meetings. It sought
clarity on the limits of exclusion under the PSA, it held meetings in Cavan
Monaghan and Lakefield and considered holding meetings in more open venues in
Peterborough.
�
Minutes of Board meetings are an important tool of
transparency and accountability. They also serve as a record of the proceedings
to ensure corporate history and continuity.
�
The Board�s practice has been to rely on spare minutes
that record only formal decisions on motion. More expansive minutes would
promote accountability.
I recommend:
a.
The Board
should create a policy within six months to govern the use of in camera
sessions for Board meetings.
b.
The Board
should consider opening some committee meetings to the public.
c.
The Board
should develop a larger strategy for public outreach.
d.
The Board
should formally incorporate public input into its policy.
e.
The Board,
within six months, should develop a corporate policy on minutes that
incorporates best practices with respect to transparency and accountability.
The Retainer of Lawyers
94. Early in my term as administrator, I identified a number of issues
around the retention of legal counsel by the Board. First, the Board hired a
number of different lawyers for specific projects or litigation, but had no
lawyer per se to advise it on the regular, recurring legal issues that arise in
the life of a busy police services board. The Board needed such a lawyer,
otherwise referred to as its General Counsel, albeit working for the Board on a
part-time or as-needed basis. Indeed, I largely assumed that role during most
of my term as administrator.
95. Second, there was no consistent approach to when a lawyer would be
hired.
96. Third, there was little or no consideration by the Board of the
hourly rates of retained lawyers, or any limits on legal fees, which could be
incurred without prior authorization.
97. Fourth, the hiring and firing of lawyers during the tumultuous
period appeared to reinforce the Board�s dysfunction and highly politicized
approach to the contentious issues faced. For example, some Board members
complained that one lawyer was hired without the approval of the Board as a
whole, and despite concerns about that lawyer�s connection to another Board
member. They felt that the Board was paying for that lawyer�s work despite the
fact that it was not instructing the lawyer. They also questioned the quality
of the advice given by that lawyer. It also appeared, at times, as though the
Board�s majority fired at least one lawyer because it did not like the advice
received, however sound. It is unnecessary for me to dwell on these claims,
except to say that my own review demonstrated that the Board was paying, in the
first instance described above, an hourly rate that was not truly competitive,
but more accurately approximated rates for a downtown Toronto commercial law
firm. That was unacceptable. It is also counterproductive to fire any lawyer
because the advice given, although sound, is not what the Board would like to
hear.
98. During my term as administrator, I recommended to the Board that
it hire General Counsel. I created a list of suitable candidates, and provided
the Board with some background on each. The Board chose to hire one of those
candidates, Mr. Woody McKaig (of Sullivan Mahoney LLP), a highly skilled lawyer
with expertise in policing issues. He agreed to competitive rates for his
firm�s legal services on behalf of the Board. We also established some
parameters around his firm�s retainer. Mr. McKaig has commenced his work on
behalf of the Board, and I am satisfied that the Board is being well served in
a fiscally prudent manner through his retainer.
99. I advised the Board that some of the speciality legal work could
continue to be done piecemeal by other counsel, again at competitive legal
rates. For example, the Board has benefitted from the legal work at competitive
rates done by Joel Dubois (Perley-Robertson, Hill & McDougall LLP) and John
Ewart (Ewart O�Dwyer) on recent files. I recommend that the Board should seek
Mr. McKaig�s advice as to what work should continue to be done on a piecemeal
basis by other counsel. He has already shown sensitivity in how this issue
should be addressed.
100.
At the recent
governance retreat, I outlined for the Board some suggested best practices
around the retainer of legal counsel. We also discussed the distinction
(imperfectly understood) between a lawyer hired by the Board and a lawyer hired
by the Chief. The distinction is an obvious one in circumstances where the
Chief is in an adversarial relationship with the Board. It is less obvious when
the legal work to be done for the Chief, by its very nature, nonetheless
requires some separation from the Board. For example, the Chief must hire his
prosecutors for PSA prosecutions. The Board�s lawyer cannot generally serve as
prosecutor given the Board�s adjudicative responsibilities under the Act.
101.
I recommend that
the Board formalize a policy around the retention of lawyers within six months.
Again, it will not surprise anyone when I suggest that such a policy track some
of the best practices I identified at the governance retreat.
102.
Such a policy might
include the following components:
�
Absent exigent circumstances, the retainer of lawyers
(other than the Board�s General Counsel) to undertake legal work should be
pre-approved by the Board;
�
More specifically, the Chair or any other Board member
should generally not be retaining a lawyer on his/her own initiative without
prior Board approval;
�
The Board may consider the retention of a lawyer, as
needed, through email exchanges or conference calls, subject to confirmation at
the next Board meeting;
�
Hourly rates and a reviewable ceiling or �cap� on fees
per project should generally be set by the Board and approved in advance. (On
my recommendation, the Board adopted this approach on specific projects that
arose during my term as administrator.);
�
The Board is entitled to delegate some of these decisions
to a committee or a member of the Board;
�
The Board�s General Counsel should be first consulted
on whether another lawyer will be retained for a specific project;
�
In some instances, the Chief has the right/obligation
to retain a lawyer where the Board is in a conflict of interest;
�
The Chief should discuss with the Board�s General
Counsel (other than in cases of obvious conflict of interest) whether the
Board�s General Counsel can provide the Chief with needed legal advice. The
Board�s General Counsel will often be able to serve this function where there
is a commonality of interest between the Chief and the Board;
�
The Chief should establish competitive rates and a
ceiling or �cap� on fees per project where he/she is required to retain a
lawyer; and
�
In cases where the Chief is in an adversarial position
vis-�-vis the Board, he will of course retain his/her own lawyer to advance
that position. However, the Chief should generally not use that lawyer on other
matters pertaining to the Service.
103.
I also recommend
that the Board establish clear guidelines on the indemnification of legal fees
for the Chief and Deputy Chief within six months (in accordance with ss.
31(1)(h) and 50 of the PSA). No guidelines or policies currently exist. The
tumultuous period demonstrated the need for such guidelines or policies.
104.
In summary:
�
The Board is often called on to navigate issues that
require good and independent legal advice. As a public body, it also has an
obligation to ensure that it is spending resources on legal fees wisely and
effectively. Care must be taken to ensure that it does not change lawyers who
provide advice that is unwelcome or that lawyers are retained without clarity
as to who is instructing them. Agreed upon rates should be competitive and
ensure value for money.
�
The Board had, in the past, cycled through counsel
whose advice some members did not agree on. Lawyers were retained without the
agreement of the whole Board and in circumstances where potential conflicts,
the nature of their retainer and their instructions were not clear. Significant
costs were incurred in this way. During my term as administrator, the Board
retained General Counsel and has retained other lawyers at competitive rates to
do specialized work. The Board is now able to instruct counsel and access high
quality legal advice in a clear and cost-effective manner.
5 This is no
reflection on the quality of the work done by the Chief�s lawyer.
I recommend:
a.
The Board,
within six months, implement a policy for retaining lawyers that incorporates
best practices and provides clarity around conflict of interest, selection,
instruction and remuneration of counsel at competitive rates.
b.
The Board,
within 6 months, establish clear guidelines governing the indemnification of
the Chief and Deputy Chief for legal fees.
The Board�s Relationship with the Chief
105.
During my term, the
Board has taken steps to enhance its relationship with the Chief and Deputy
Chief. These include the Labour Relations Committee�s positive interactions
with the Chief and Deputy Chief in connection with their evaluation and
remuneration, and repeated public acknowledgements by the Board, and each of
its members, of the impressive leadership shown by the Chief and Deputy Chief.
106.
I wish to explain
the importance of the last point. A police services board is not to serve only
as a �cheerleader� for the police service or its senior leadership. This means,
among other things, that a police services board should not uncritically assume
that any criticism levelled at its police service or senior leadership is
wrong, and must be challenged. Indeed, effective civilian oversight requires
that the Board constructively evaluate and critique the work of its Service and
officers, and how it can contribute, without interfering with day-to-day
operational decisions, to a more effective and efficient Service. However,
there are circumstances where the Board must defend its Service and senior
leadership from misleading, disparaging remarks. As I have already said, during
the tumultuous period in the Board�s history, it failed to defend its Service
and senior leadership from inaccurate, highly misleading attacks, which it knew
or should have known to be false. This has had a lingering effect, which will
take time to overcome. One way to overcome this history is, simply put, to
�give credit where credit is due.� That is, the Board should publicly show its
support for the Service and its senior leadership when that support is needed
or warranted.
107.
Another way to
repair the relationship between the Board and its senior leadership is perhaps
equally obvious. The Board � most particularly its Chair � must communicate
with the Chief on a regular basis. A healthy relationship between the Board and
its Chief necessarily involves frequent communication. The Board should always
seek the Chief�s advice, for example, on the content of the Board�s meeting
agendas. The Chief and Chair should engage in an ongoing dialogue about the
Service�s priorities and objectives, and whether they are being met and, if
not, how the Board might address the issue.
108.
During my term, I
found the relationship between the Chair and Chief to be somewhat tenuous. The
Chief must endeavour to move beyond some of the difficult history described
earlier. The Chair, on the other hand, must take exceptional measures to build
the relationship. On a number of occasions, the Chair had not met with the
Chief prior to Board meetings. On some occasions, the Chief was caught by
surprise when third parties raised issues with him that should have been the
subject of prior discussion with the Chair or Board. This was an issue that I
identified a number of times during my term, and at the governance retreat. It
had not been satisfactorily addressed prior to the end of my term.
109.
On July 5, 2017, I
again raised this issue with the Chair. He gave me his personal commitment to
take added steps to improve this relationship. The Chair also committed to the
measures I have recommended here. In particular, I recommend that the Chief and
the Chair meet or speak by telephone on at least a weekly basis on issues of
significance to the Chief or Board. Given their busy schedules, these meetings
should be set well in advance (for example, at a fixed time on every Monday
afternoon). I also recommend that the agenda for a Board meeting not be
finalized, absent exceptional circumstances, until the Chair has consulted with
the Chief on its contents. Of course, the Deputy Chief may also participate in
the dialogue between the Board and Chief or substitute for the Chief when the
Chief is unavailable. I learned that the Chair had taken important steps to
fulfill his personal commitment to me after my term expired and prior to the
Board�s July meeting. He is to be commended for doing so.
110.
In summary:
�
The Board has a complex relationship with the Chief
and Deputy Chief. It must not serve as only a �cheerleader� for the Chief,
Deputy Chief and the police service but must provide careful, detailed and
transparent oversight and policy guidance. However, the Board is also the
employer of the Chief and Deputy Chief and must ensure that it takes steps to
clarify and correct seriously misleading and disparaging public statements
about them or their work. On a practical level, the Chair of the Board must
work closely with the Chief. Board meetings provide a shared opportunity for
the public, the Chief and the Board to engage on policy issues and on
priorities, objectives and milestones in the business plan.
�
The relationship between the Board and the Chief and
Deputy Chief was significantly impaired in Peterborough. Some Board members
significantly contributed to the false and disparaging narrative about the
Chief and Deputy Chief. Of course, the Board was also in litigation with the
Chief and Deputy Chief. The breakdown of that relationship undermined the
Board�s ability to provide effective public oversight.
I recommend:
a.
The Chair
of the Board and the Chief have set weekly meetings to address issues of
significance.
b.
The agenda
of the Board meetings should not be finalized, absent exceptional
circumstances, until the Chief has been consulted about its contents.
c.
The Chair
continue the important steps taken to build the relationship between him and
the Chief.
Delegation and the Role of Committees
111.
Members of the
Board serve in a part-time capacity. Most have full-time jobs in addition to
their duties to the Board. Board members are to be commended for their service
and dedication to the community. But they must be available on a timely basis
to respond to issues as they arise in the life of a very busy police service.
This is particularly so for the Chair. It is important that the executive
assistant be able to obtain timely access to the Chair for executive decisions.
During my term, this was not always the case. As well, Board members may seek
direction or guidance from the Chair on a variety of issues pending a formal
Board meeting. Sometimes, Board members were frustrated at their inability to
obtain timely responses from the Chair.
112.
I am very
sympathetic to the many demands on the Chair�s time. He is committed to serving
the Board. As I said earlier, I was impressed with both his intellect and his
skill in conducting Board meetings and in navigating the Board through some
difficult issues. I believe that he is personally committed to a �forward
looking� approach on the Board�s part. If he regularizes his communications
with the Chief, and puts measures in place to ensure timely responses to
queries from the executive assistant and fellow Board members, he is very
capable of serving the Board and the community well.
113.
I also recommend
that the Board consider the delegation of the Chair�s responsibilities, in
clearly defined instances, to either the Vice Chair or another Board member
designated by the Board for that purpose. To promote a balanced approach to the
Board�s work, and enhanced confidence in its work, I recommend that one of the
two positions of Chair and Vice-Chair be filled by a provincial appointee, and
one by a municipal council appointee, and that this approach be adopted in the
Board�s practices and through an amendment to s. 4 of the Board�s by-law Number
105-2014.
114.
At the governance
retreat, I devoted a significant portion of time to the role of the Board�s
committees. During my term, I was impressed with committee work that had been
done on a variety of issues. For example, labour relations (the collective
agreement and the evaluations and remuneration reviews pertaining to the Chief
and Deputy Chief), business planning, and development of a new limousine by-law
and the RFP for towing companies. But I also identified areas for considerable
improvement.
115.
A disproportionate
amount of the Board�s committee work was (and continues to be) done by one
Board member, Mr. East. He recognizes the demands on his fellow Board members
who have their own full-time jobs. Nonetheless, this disproportionate workload
is not healthy and may ultimately discourage Mr. East from continuing to
perform his highly valued work on behalf of the Board. This would be very
unfortunate.
116.
Committee work must
be respected. Of course, the Board as a whole has ultimate decision-making duties,
subject to delegation. The Board not only has the right, but the duty, to
evaluate the work of its committees and their recommendations. However, I saw
examples that could only be described as �micromanaging� issues already fully
considered by committees. For instance, this included unnecessary
�word-smithing� of the draft business plan at the Board level.
117.
At the same time, I
also observed issues being raised for the first time at a Board meeting,
despite the prior opportunities for Board members to provide input at certain
intervals in the process. I have already referred to the development of the
business plan for which the committee and the external consultants did
unnecessary work due to a lack of timely direction or guidance from the Board.
118.
These observations
should not distract from my ultimate conclusions that the Board is now
fulfilling its statutory duties, that the quality of committee work was
generally impressive, and that the Board members relate to each other in a
respectful, positive way. I also acknowledge that there is no formula for how
deferential the Board should be in considering the work done by its committees.
Indeed, the answer is not to take a rigid approach to these issues. Sometimes
issues will occur � and properly so � to Board members that require a detailed
critique or consideration of the work done by a committee, even if the timing
is unfortunate.
119.
I provide the
following guidance to address the issues identified above:
�
All Board members should periodically remind themselves
that some deference should be shown to detailed work done by a committee in
determining the nature and extent of the Board�s ultimate approach to that
work. Nonetheless, ultimate decision-making continues to reside with the Board
as a whole.
�
The Chair and the Board�s General Counsel, when
present, can play an important part in reminding the Board of its role.
�
Generally speaking, detailed drafting at the Board
level is unhelpful and does not represent a good use of the Board�s time. The
Board�s focus should be largely on providing overall policy direction, rather
than �word-smithing�.
�
Despite time constraints, Board members must
collectively ensure that they are familiar with the distributed Board
materials, including committee reports, in advance of their meetings, and take
greater initiative in providing input to committees, when requested to do so,
between regular Board meetings.
�
The Chair should also assume greater responsibility
for addressing workload imbalance as it arises. This may mean temporary
re-assignment of Board members to a particular project or temporarily assisting
committee members personally on that project.
�
Workload issues may also mean greater involvement of
the Board�s General Counsel, now that this position has been filled, in
providing support for committee work. My involvement in issues around the
retention of lawyers (described earlier) was designed to ensure that legal
services are provided in an efficient way and at competitive rates. But the
Board cannot be �penny wise and pound foolish.� The Board has a single
executive assistant and no other support staff. The greater use of General
Counsel to support the work of committees will ultimately be both
cost-efficient and relieve some of the workload, which is now problematic. It
will also assist the executive assistant in ensuring that her workload does not
spiral out of control.
120.
In summary:
�
The members of the Board are part-time appointees with
other personal and professional obligations. At the same time, civilian
oversight of policing in Peterborough is complex and time-consuming. Care must
be taken to avoid placing undue burdens on individual members or staff and in
ensuring responsibility is shared through the effective use of delegation and
committees.
� During my term as administrator, a disproportionate burden fell on the Chair and one of the Board members. This created delays, inefficiencies and at times, frustration.
I recommend:
a.
The Board
continue to address and clarify the respective roles of committees and the
Board as a whole.
b.
The Board
address the uneven allocation of work on a priority basis in accordance with
the guidance provided above.
c.
The Board
should consider greater delegation of the Chair�s functions in some clearly
defined cases.
d.
The Board
should amend its by-laws to require that one of the two positions of Chair and
Vice-Chair be held by a provincial appointee and the other by a municipal
appointee.
Independence of the Board and the Future Role of the Mayor
121.
I said earlier that
the Board must, to some extent, overcome the legacy of a tumultuous period in
its recent history. I have already identified several important steps to enable
the Board to do so, including frequent, regularly established communication
between the Chief and the Chair, and the Board�s public support for the Service
and its senior leadership. Another important step relates to the Board�s
independence.
122.
The members of the
Board have an obligation to act in the best interests of the Service. Indeed,
they are bound to comply with the Code of Conduct set out in O. Reg. 421/97.
So, for example, they cannot use their office to advance their own personal
interests. They must refrain from engaging in conduct that would discredit or
compromise the integrity of the Board or the Service.
123.
One of the Board�s
duties is to submit operating and capital estimates to the municipal council,
showing the amounts required to maintain the police force and provide it with
equipment and facilities; and to pay the expenses of the Board�s operation
other than the remuneration of the Board members. Municipal council establishes
the overall budget for the Board, and in doing so, is not bound to adopt the
estimates submitted by the Board. However, the municipal council cannot approve
or disapprove specific items in the Board�s estimates. Further, if the Board is
not satisfied that the budget established for it by council is sufficient to
maintain an adequate number of police officers or employees or to provide the
police force with adequate equipment or facilities, the Board may request that
the OCPC conduct a hearing to resolve the dispute (see s. 39 of the PSA).
124.
As noted earlier,
three of the Board members are appointed by municipal council. One is to be a
member of municipal council, and one is to be the Mayor or an alternative to
the Mayor who will also be a member of municipal council. This creates an
interesting and sometimes challenging dynamic when the duties of the Board and
of the municipal council intersect. How these duties are reconciled is well
beyond the scope of my report, except as discussed below. However, what is
clear, in law, is that members of the Board, including a Mayor, are subject to
the dictates of the PSA and its Regulations, including the Code of Conduct.
125.
During the
tumultuous period, some felt that some Board members were not acting in the
best interests of the Service, and were advancing an alternative agenda. Given
those perceptions, it is of particular importance that the Board both work
collaboratively with municipal council, and show its independence from council
when in the Service�s interests.
126.
During my term as
administrator, I felt that the Board took significant steps to demonstrate its
independence, while working with the municipal council. For example, the
municipal council and the Mayor asked the Board to revisit last year�s
estimated budget, which it submitted to the municipal council. A motion by the
municipal council asked that the Services� capital budget be revisited by the
Board to consider reducing the budget by $102,255 and suggested to the Board
that it consider deferring vehicle purchases, such as the purchase of a new van
for the employment of the Emergency Response Team, in response to the reduced
budget allocation.
127.
The Board did
reconsider the budget that it had submitted, but decided that it should remain
as is, a decision ultimately respected by the municipal council. Several Board
members also expressed concern that it was inappropriate that the Mayor or the
municipal council earmark a specific budget allocation for reconsideration,
given council�s lack of authority to approve or disapprove specific items in
the estimates under s. 39(4) of the PSA. The point here is that the Board
showed independence from the Mayor and municipal council, but approached the
issue in a respectful, constructive way. Another constructive dialogue took
place over the allocation of surpluses created when the Service came in �under
budget� in the last fiscal year.
128.
Similarly, on
several occasions, the Mayor has been publicly critical of representations made
by senior leadership of the Service. He has challenged its use of resources,
and its commitment to fiscal constraint. The tone of his remarks is sometimes
strident, confrontational and can be disparaging. All of the Board members, in
public session, expressed regret at some of the Mayor�s public statements. They
felt that his comments, at times, are inaccurate and unfair, and equally
important, unhelpful in restoring confidence in policing. In one instance, the
Chair, Mr. Hall, responded to the Mayor in writing, pointing out how the Board
had shown great fiscal responsibility in the budgets submitted to municipal
council. The tone of the Chair�s response was respectful and in keeping with
the view that the Mayor is entitled to his opinion. In fairness, the Mayor�s
response was equally respectful and constructive.
129.
Some of the Mayor�s
detractors would have preferred a stronger response. That view was also
understandable, given the Mayor�s history with the current Board and
predecessor police services board, the Chief and Deputy Chief. However, the
point here is that, whether one agrees or disagrees with how the Board dealt
with this issue, it made a decision informed by all of the relevant factors, as
one would expect from a functioning, independent board.
130.
That being said, in
discussing the future of this Board, there is undeniably an "elephant in
the room." It cannot be ignored. It relates to the future role, if any, of
Mayor Bennett as a member of the Board.
131.
A number of
individuals have expressed their deep concern about the possibility that the
Mayor will return as a member of the Board.
132.
There is no doubt
that views are polarized on the Mayor and his involvement with the Board. On
one hand, some see Mayor Bennett as disruptive and divisive. They feel that the
Mayor orchestrated a campaign of misinformation against the Chief and Deputy
Chief, and set out to publicly humiliate them - and unfairly so. They believe
that the Mayor bears a large share of the responsibility either directly or through
his proxies for the tumultuous period in the Board's life, and that he
continues to represent an impediment to the effective and efficient policing
the community requires.
133.
Such individuals
point, as an example, to the dissolution of the former police services board as
an attempted assertion of control on the Mayor's part.
134.
Others praise the
Mayor as an independent crusader for fiscal restraint by the Service. In their
view, the Mayor appropriately questions whether the Service's allocation of
resources is as efficient and effective as it might be.
135.
Nothing in this
report is intended to prevent or inhibit the Mayor from forcefully addressing
the issues of concern to him. After all, he is the duly elected Mayor, a member
of municipal council, and a member of the community serviced by the PPS. He is
an important voice on the issues of local importance.
136.
However, the
question is whether the Mayor has a role to play, if he chooses to do so, as a
member of the Board. In the past, the Mayor was precluded from sitting as a
member of the Board pending the charges against him under the PSA, and during
the period of suspension imposed on him. As previously indicated, his charges
were mostly disposed of by the Divisional Court. He took no issue with the
finding of misconduct that he made disparaging remarks about the Chief, the
predecessor board and former police service. In relation to this finding of
misconduct, the hearing panel made strong findings. It concluded, for example,
that the �comments in public directly undermined the Board. To consciously
sabotage the Board in public is contrary to any conduct expected of Board
members particularly the conduct obligations explicitly articulated in the Code
of Conduct.�
137.
After a prolonged
legal dispute, the Mayor was successful in having all of the remaining charges
dismissed against him. As a result of the disposition in the Divisional Court,
the Mayor is no longer precluded from returning as a member of the Board.
138.
In my respectful
view, it would be unwise for him to return to the Board. This view is not only
held by his detractors, but by some who admire him. As already stated in this
report, the Board has been through a tumultuous period. It must now look
forward. It would be difficult to be forward thinking if the Mayor or an
obvious proxy for the Mayor became a Board member at this point in time.
139.
First, as already
indicated, the Mayor was found guilty of making disparaging comments about
senior leadership of the Service. Although he abandoned any legal challenge to that
finding, his public comments do not display any regrets for his misconduct. He
is fully entitled to take that position as a non-member of the Board. However,
it is not conducive to promoting and sustaining the healthier environment that
now exists at the Board.
140.
Second, the Mayor
continues to sharply criticize the Service's senior leadership. At times, he
uses inflammatory and divisive language. At one Board meeting, the Board
collectively in public session lamented the unhelpful comments being made by
the Mayor. Several indicated that they had counselled the Mayor not to comment
in that way. In my view, there have been several instances where the Mayor's
recent public comments were inaccurate and unfair to the Service and its
leadership. Again, I fully defend the Mayor�s right to vocalize any position �
but the obligations of a member of the Board raise different considerations.
141.
Third, the Service,
its senior leadership and at least some of the rank-and-file officers, rightly
or wrongly, have no confidence in the Mayor as someone who can objectively and
fairly evaluate the work of the Service and work in a respectful way with its
leadership. They believe that the Mayor continues to harbour animosity towards
the Chief and Deputy Chief and as a result, will be unable to forge a
respectful relationship with the Service and its officers. A number expressed
deep concern when the Mayor publicly expressed his desire to play a part in the
selection of any new Chief or Deputy Chief.
142.
To date, the Mayor
has chosen not to return as a member of the Board. This can only be regarded as
a wise decision in the best interests of the Service and the community. In the
event that he chooses to return to the Board, the Solicitor General and the
OCPC will have to decide whether to intervene to avoid a return to a
dysfunctional period in the life of the Board. I recommend that any
intervention should be timely.
143.
The Board, as
currently composed, has made significant strides. It would be unfortunate if
the existing goodwill were undermined by the introduction of any polarizing
influence at the Board.
144.
In summary:
�
Although the Mayor has a statutory right to sit on the
Board, his past involvement has been highly contentious and contributed to some
of the ongoing issues respecting the Board�s ability to provide civilian
oversight. Given the Mayor�s history with the Board, it would be difficult for
the Board to maintain its independence from municipal council should he chose
to return to it. This independence is a
necessary and important element of the public�s confidence in civilian
oversight of policing in Peterborough.
� Before and during my time as administrator, the Mayor made inflammatory, divisive and inaccurate comments about the senior leadership of the Police Service. Legitimate concerns have been expressed about the ability of the Board, and the Police Service itself, to function properly were he to return to the Board.
I recommend:
a.
The Mayor
decide, in the public interest, not to sit on the Board.
b.
Should the
Mayor return to the Board, the Solicitor General and OCPC carefully consider
taking timely and effective action to avoid any dysfunction that threatens the
Board�s ability to discharge its statutory responsibilities.
A Succession Plan for Senior Leadership
145.
Finally, I advised
the Board during my term as administrator that I wanted to see a succession
plan in place in contemplation of the retirement of members of senior
leadership at the Service. Such a plan would promote an objective, evidence-based,
non-partisan search for suitable candidates. It would provide opportunities for
advancement within the Service, not merely opportunities for external hiring.
It would be designed to inspire confidence in the process, and dispel concerns
that someone not attempt to place their �thumb on the scale� or advance a
personal agenda, rather than the best interests of the Service.
146.
Through the hard
work of Ms. Pritchard Pataki and Mr. McKaig, the outline of a succession
planning process is well under way, and has attracted the full support of the
Board. The need for such a process has also been identified in the new business
plan. I recommend that the process be incorporated into written policy within
six months of the release of this report.
147.
In summary:
�
A succession plan for senior leadership of the Police
Service would inspire confidence that there is an objective, non-political
process for the selection of senior leadership in the future.
�
During my time as administrator, the development of a
succession planning process has commenced. The need for such a process was
identified in the business plan.
I recommend:
a.
There be a
written policy incorporating the succession plan within three months.
148.
There continues to
be challenges for this Board. Some question whether its members have merely
been �on their best behaviour� for me, and will revert to dysfunction now that
my term has concluded. I prefer to be optimistic about the Board and the good
faith of its members. I am hopeful that the important steps taken during my
term will be sustainable. I am also hopeful that additional steps will be taken
in accordance with my recommendations. In addition to those already identified,
I recommend that the Board participate in a facilitated governance retreat on
an annual basis. (This is in addition to any training required by the Solicitor
General pursuant to s. 31(5) of the PSA and s. 3 of O. Reg. 421/97.) I also
recommend that within 12 months, the Board release a report publicly setting
out what it has done to implement the other recommendations contained in this
report.
149.
The Board has the
opportunity to succeed in leading what is already a progressive and efficient
Police Service into the future. If it is unable to do so, the Solicitor General
and the OCPC have tools available to them to act decisively and quickly.
Please
email OCPCRegistrar@ontario.ca for questions
or additional copies of the report.