Fox to finalize rules for henhouse?

By David Broadland, July/August 2013

With questions about her own conduct still unanswered, is the City manager the best person to approve a Code of Conduct for her staff?

(NOTE: A few hours after this story had gone to press, Victoria City Manager Gail Stephens sent a letter of resignation to Victoria City councillors)

Such delicious irony: In late March a group of 12 Victoria citizens, including a former mayor, petitioned City councillors to hold an inquiry into the conduct of City Manager Gail Stephens around a report she gave shortly before the last civic election. Their request was openly supported by councillors Geoff Young and Lisa Helps, who called for Stephens to provide a written explanation of her conduct.

Then, at the very same council meeting in April at which Stephens was expected to explain herself (behind closed doors), councillors were presented with a report by KPMG, the City’s financial auditor, that included a recommendation that City Hall develop a “Code of Conduct” for its staff. And now more irony: In late June, councillors received—without so much as a single comment or question from any of them—a staff report noting that such a code was “in the process of being finalized and approved by the City Manager.”

As you may recall, the citizens group wanted to know why Stephens had apparently misrepresented the financial state of the Johnson Street Bridge Project before the last civic election. Documents obtained by the group through an FOI showed Stephens had been advised in a memo written by senior staff in the City’s finance department that $5.2 million in known costs had not been included in any public accounting of the project’s budget. In spite of that advice, Stephens went on to report to councillors and the public—45 days before an election—that the project was on budget. Documents obtained by FOI show that two days after the election, the estimated cost of the project had climbed by $11 million.

The appropriateness of Stephens finalizing and approving a Code of Conduct for City of Victoria staff could well be a matter of public concern, especially for those 12 citizens who petitioned councillors for an inquiry into her conduct. It will be interesting to see what she approves. The conflicts that could arise can be predicted, to some degree, by considering the City of Vancouver’s Code of Conduct, first introduced there in 2008 and amended in 2011.

For example, Vancouver’s Code of Conduct states, “The City Manager, General Managers and their equivalents shall not engage in any public Political Activity other than voting in an election.” Vancouver’s definition of “Political Activity” includes “carrying on any activity in support of or in opposition to a candidate before or during an election period.”

How will Stephens handle this issue? Let’s consider the conflict involved in her taking on the establishment of an effective code of conduct around the issue of “political activity” by looking at her own conduct before the last civic election. She publicly reported that a controversial infrastructure project was on budget. She coupled that with the announcement of a grant from the federal government and concluded the City would not have to borrow as heavily for the project as had previously been expected. Her report provided support to Mayor Fortin’s political position in relation to the bridge project. That position was: We have made a good decision and everything is going better than planned; we won’t have to borrow as heavily for this project as we thought, which will allow us to look after other needs.

If Stephens’ report had been strictly factual, nobody would have suggested it had been political. But the 12 citizens found evidence that Stephens’ report was not based on all the facts available to her. In her defence, Stephens has said that at the time she made her report, her staff were still gathering facts. But if they were still gathering facts, why didn’t her report say so?

One possible answer to that question is that Stephens acted politically. Her untrue report provided support to a candidate, or candidates, in the subsequent election. If she had been the City Manager of Vancouver, her activity arguably would have contravened her governing Code of Conduct. So how will she handle the issue of “political activity” in a Victoria Code of Conduct? Will she provide adequate safeguards against City managers engaging in political activity? Or will she protect the kind of political involvement her own administration apparently practices?

The question of whether Stephens is the most appropriate person to be overseeing development of a Code of Conduct for City employees becomes more compelling considering the recent release of a record sought by Focus through an FOI request.

After we reported in our April edition on Stephens’ apparent misrepresentation of the facts before the last election, Stephens hired lawyer Joe Arvay who demanded that we retract our story. Arvay, in a letter copied to City councillors, claimed, “...Ms Stephens was advised that some of the estimated costs had actually been reduced, based on changes to the cost of materials and that such cost-savings would offset any of the added costs set out in the memo. There was no reason for Ms Stephens to doubt the accuracy of the advice that she had received in September that the project was on budget.”

Was Arvay’s letter to Focus really a message to City councillors that Stephens had evidence that would support her claim, but because of impending legal action against Focus, he couldn’t provide it to them?

After requesting that Stephens provide us with any record that would support her claim, and having received no response, Focus filed an FOI request for the written record that would back up Stephens’ claim. In early June the City responded to that FOI stating that “a staff search for records held in the City Manager’s office...has resulted in no responsive records.” Sheryl Masters, the manager of the City’s FOI office, explained the absence of a record this way: “I am advised that the City Manager regularly receives verbal information and advice and she has confirmed this is the circumstance in relation to this matter.”

Stephens didn’t respond to a recent request from Focus for specific details on the advice she was given that led her to report the project was on budget.

The verbal advice Stephens was given appears to be what a lawyer would call “hearsay,” and would be inadmissible in a court of law. Did Stephens provide that hearsay evidence to Victoria City councillors? Did they accept it? If so, why? The rules around closed council meetings conveniently allow these questions to go publicly unanswered.

Similarly, Stephens’ leadership in producing a Code of Conduct for employees will raise an eyebrow or two if it includes in its key principles any commitment to “Accountability.” On that subject the Vancouver code states: “Council officials, staff and advisory body members are obligated to answer for a responsibility that has been entrusted to them. They are responsible for the decisions that they make. This responsibility includes acts of commission and acts of omission. In turn, decision making processes must be transparent and subject to public scrutiny; and proper records are kept and audit trails in place.”

Stephens’ administration has a highly unusual record on the issue of accountability. Assistant Information and Privacy Commissioner Jay Fedorak recently confirmed to me that Stephens’ administration is the only municipal government in the 20-year history of BC’s Freedom of Information and Protection of Privacy Act to apply for a Section 43 authorization against a journalist—not to mention a group of three journalists “and anyone acting on their behalf.” Section 43 is a provision in FIPPA that allows a public body to take a break from its legal obligation to provide access to public records. In the City’s case, it could have blocked access for a year or more to the record that showed Stephens apparently ignored her finance department’s assessment of unaccounted bridge project costs. Fedorak said that previous to the City’s Section 43 application, the only other attempt against a journalist was by a “police force” in 2003. (Business in Vancouver’s Bob Mackin was Sectioned 43ed by BC Pavillion Corporation in February 2013.)

When I mentioned to Fedorak that it had taken the Office of the Information and Privacy Commissioner 45 days before any of the people named in the Section 43 application were notified, Fedorak said, “I think what happened there is the investigator had been working on [the City of Victoria] for some time and hadn’t realized you hadn’t been informed. It was very unfortunate.” But the delay wasn’t material to the outcome, Fedorak said, because “we were working on the City.” Fedorak described to me how OIPC handles such applications and said, “We tend to work with the party that is not on the right side of the law.” He made it clear, in this case, the party “not on the right side of the law” had been the City of Victoria. Fedorak said the City would have been advised by an OIPC investigator that should its application go to an adjudication and an order, it would have little chance of success.

Even while Stephens’ administration was spending thousands of taxpayer dollars trying to evade accountability, it misled councillors about the real implications of its application, and failed to inform them of the advice OIPC had provided—that they were on a fool’s quest. Stephens’ administration withdrew its application hours before an adjudication process was to begin. A subsequent FOI showed the City had prepared no submission for OIPC in support of its application.

Stephens’ public resumé now lists a dismal historic attack on both media access to public records and the basic principle of government accountability. With questions about her apparent misrepresentation of the financial state of a major infrastructure project before a civic election still publicly unanswered, it’s a measure of how effective Mayor Fortin and his council are at protecting the public interest that they would sit passively on the sidelines while Stephens finalizes and approves a Code of Conduct for City employees.

David Broadland is the publisher of Focus.