By Mike Wiliscraft
After 13-plus months of waiting, Grimsby council was given two options on a whistleblower policy at its March 22 meeting.
In a 5-4 vote, council approved an “internal” whistleblower policy – which will not allow staff to file complaints anonymously or to a third party – as its main motion.
However, when council was informed staff had not been given an opportunity to provide any input on the new policy, a motion to defer was approved to allow time for full research and input to be conducted.
In January 2020, council approved a new code of conduct which did not include a whistleblower policy. It came directly to elected officials with no public input or prior vetting by them.
At the Feb. 3, 2020 meeting of council, some members of council thought it key to include a third-party option.
“Having a third party as being the focus of hearing any whistleblower complaints, concerns, issues…most industries outside of municipalities are doing that. The federal government is doing that. I think we should seriously consider that resolution,” said Coun. Reg Freake.
“Pulling it out of the Code of Conduct policy gives it more credence.”
By separating it, the intention was to have staff generate a report and return to council with a possible resolution on the matter “to have some further conversation on it,” said Dorothy Bothwell at the time.
After more than a year passing, council was given two options:
That as per Council resolution C-20-30 a standalone, employee based Whistleblower Policy with both an internal and third-party reporting mechanism and an anonymous reporting option, with associated service provider costs be approved;
“That a stand alone, employee based Whistleblower Policy with an internal report mechanism be approved and recommended”
Dan Rummo, Grimsby’s interim human resources manager, told council last week an internal policy followed best practices.
The report he filed with council stated, “Primary goal of confidential reporting, reprisal protection and an investigation, can be achieved without an anonymous option.”
However, several members of council were not buying what Rummo was selling.
“What if the problem was the CAO?” Coun. Lianne Vardy asked.
“What happens when the problem, eventually, goes up to the CAO? There is no option that allows for a third party. That’s my major concern.”
Rummo said if a complaint against the CAO were to come, it would be directed to the town clerk.
“I think, having to bring a complaint forward to council against your boss puts you, puts one, in a very unenviable position, one that might be so unenviable that they might try to avoid it,” added Vardy.
“That would be somewhat understandable. Without the third-party option, you can run into those problems.”
Vardy’s comments were particularly poignant given the drama which unfolded last summer with Mayor Jeff Jordan – after seeking legal opinion from two lawyers, removing CAO Harry Schlange pending an investigation into a series of complaints made by several Town of Grimsby staff.
The matter led to Councillors Randy Vaine, Dave Kadwell, John Dunstall and Dave Sharpe avoiding a special meeting of council called to deal with the matter. Coun. Kevin Ritchie happened to be unavailable for that meeting.
When Ritchie was available the following week, council voted 5-4 to reinstate Schlange and force the mayor to issue an apology.
The fallout, Vardy and other councillors have contended, showcases the need for a third-party reporting mechanism, but other council members don’t agree.
Coun. Dave Kadwell said he had no issues with the recommendation, noting, “I will be supporting Option 2.”
Freake was concerned the research process only included other Niagara municipalities, while there 444 in the Province of Ontario.
While Rummo had noted smaller municipalities did not have third-party complaint options, Freake said, “Maybe it is time they did”.
He cited comments made by CAO Harry Schlange a year ago when Schlange told council he wanted the Town to “leap frog the competition…We want to be better” when it comes to how the municipality operates.
Implementing an incomplete whistleblower policy would not follow that edict, he said.
“It is to protect the people complaining, if we’re not doing that, we’re failing,” said Freake.
Coun. Vaine said, while the Town may not provide a third-party complaint options, any staff members with concerns do have other options outside of Town policies.
“I’m all about protecting people. We have to remember council is the final say. The CAO works for us. There are other options people have if they are uncomfortable going through the process,” said Vaine.
“There are other options depending on the severity of it. If it’s a criminal offence, a sexual assault or something, you always have the option of the police. The people have the option of going to the lawyers. You have the option to go to the human rights commission, Labour board. There are lots of options.”
Coun. Bothwell said council could “do better” by approving a more complete policy, citing other area municipalities such as Oakville and Mississauga, which do have third party reporting. She said by ignoring other area municipalities “we have overlooked a number of municipalities that have implemented them successfully.”
“The worst thing is to have staff feel they can’t go anywhere and they can’t talk to anyone. That is a morale buster.”
Coun. Ritchie reiterated the same points Vaine had stated, noting “I don’t think that more options have been available to members, whether they’re covered under Bill 168, the police, the labour board. There’s all kinds of other things to go through.”
“Not all of us here are qualified in human resources, so thank you for your expertise on this matter, and the legal that is there.”
Ritchie then asked the report be received and that council proceed with Option 2.
Clerk Sarah Kim conducted a straw vote which chose Option 2 as the main motion by a 5-4 margin with Ritchie, Vaine, Kadwell, Dunstall and Sharpe voting for Option 2, while Vardy, Bothwell, Freake and Jordan voted for Option 1.
During the vote, Vardy noted that staff should be given a “vote” which she later described to be an opportunity for input on the policy.
“More than us voting on this, I think it would be really important if this were put to staff and they had an opportunity to weigh in because it is their whistleblower policy,” said Vardy.
During discussion on the chosen option, Vardy asked Rummo if staff had been consulted at all when a direction for the policy was chosen?
“We have consulted with the CLT team. We’ve shared it amongst ourselves. We’ve shared it with our experts, of course legal and the working team to bring this forward,” said Rummo.
“So it has not been shared with all staff?
Vardy asked again.
“No,” said Rummo.
“That’s a concern, because it comes back to that issue ‘what if the issue is the CAO?’. How would the management team say something that would be contrary to the CAO? There would be fear of reprisal, potentially,” Vardy noted.
Based on that, Vardy said the report “was not valid” to come to council lacking “fulsome staff input”.
This new information led Bothwell to issue a motion to defer the matter to staff to allow for staff input before the matter is decided.
As a motion to defer takes precedent over the initial motion on the floor, it went right to a vote.
This vote to defer was approved 6-3. Kadwell, who stated he approved of Option 2 voted in favour of the referral for staff input. This led to a long pause when Sharpe’s turn to vote came up, after which he, too, voted in favour.
This left Ritchie, Dunstall and Vaine opposing. Vardy, Bothwell, Freake and Jordan also supported the motion to defer.