Stolte to Face Losing 5 Days’ Pay for Stating “Final Cost over $50 million” for Bateman Purchase

An Integrity Commissioner report resulting from four complaints against Burlington’s Ward 4 councillor, Shawna Stolte, has recommended she be deducted five days pay for breaching the city’s code of conduct.

Principles Integrity, a private company appointed as Integrity Commissioner by the City of Burlington in 2018, and which acts in the same capacity for over 40 other municipalities, school boards and police service boards, issued its recommendation on April 8th, but the report was only made public today, at the instance of Councillor Stolte herself.

Councillor Kelvin Galbraith (Ward 1) and Councillor Rory Nisan (Ward 3) made four complaints to the integrity commissioner on January 30th 2022, alleging that Stolte had breached confidentiality obligations stipulated by the City’s Code of Good Governance. These complaints were themselves withheld from the public until today.

Approached for comment today, Burlington’s Mayor Marianne Meed Ward stated “I have not had a chance to read the material. I will do so over the long weekend and provide my comments at the Burlington Council meeting on April 19”. Councillor Nisan also declined to comment until after Tuesday’s Council Meeting. Councillor Galbraith had not responded to a request for comment at the time of publication.

The complaints made by Galbraith and Nisan were that:

1. On December 6th 2021, Stolte stated “the reality is that the final cost will be well above $50M …” for the purchase and redevelopment of Robert Bateman High School. The complaint claimed that all discussion of the Bateman costs was confidential.
2. On November 15th 2021, Stolte revealed confidential information about park and community amenity space (again relating to the Bateman purchase).
3. Stolte ‘must have’ revealed the presence of asbestos at Bateman, as the asbestos was mentioned by a relative of Stolte on social media. They contended this could only have been learned from Stolte.
4. Stolte advised a constituent that a Committee of Adjustment decision about a controversial development at 3088 Balmoral Avenue in Burlington’s wealthy Roseland neighbourhood was being considered by Council Committee on January 10th 2022 as part of its confidential agenda. The item was listed on the agenda as only a “Confidential Update on a Litigation Matter”.

Three of the four items relate to the controversial plans to purchase the former Robert Bateman High School, on which the 905er reported some weeks ago. The debates surrounding the proposed purchase have taken place largely out of the public eye. This secrecy contrasts with the purchase of the former General Brock High School in 2009. While the offer price in 2009 was kept private, as required by the Municipal Act, the discussion about the implications of the purchase, and even the budget impact for the city, was highly public, as was a commonly-cited ballpark figure of $9 million for the costs involved.

Stolte contends that the city has been using closed sessions more than it did before the 2018 election, a claim paralleled by similar claims of overuse of closed sessions in other cities, especially Hamilton. It also comes amidst growing claims that the Integrity Commissioner system both fails to hold councillors who commit serious ethical breaches to account by providing a mechanism for them to be removed from office, and can be used as a tool to shut down political opponents, including private citizens who volunteer for city committees and boards.

Two of Four Complaints Upheld

The Integrity Commissioner judged that Stolte had indeed contravened the provisions of the city’s Code of Good Governance on two items, but dismissed two others. It is now down to her colleagues on Burlington Council to decide whether they agree with the Integrity Commissioner’s Report and wish to implement the penalty suggested. It is within their remit to disregard some or all of the recommendations.

The question must be asked whether the information released by Stolte causes any harm to the city with regard to the primary reason why meetings are held in closed session: legal negotiations.

The first upheld complaint was item 1. The $50 million figure mentioned by Stolte with regard to the Bateman purchase, as the report itself acknowledges, does not reflect any number mentioned in closed session, nor is it the price that the city is willing to pay Halton District School Board to purchase Bateman. It is only the property transaction – the cost of the land being negotiated with with HDSB and the legal details of the purchase – that needs to be considered confidential under the strict terms of the Municipal Act, and the Act specifically states that closed sessions are to be used as minimally as possible. But in a culture where councillors and staff act as judge and jury of the closed session criteria, but both often benefit from keeping items out of the public eye, there is no adequate system for defending the public interest from the abuse of closed sessions.

The Commissioner also upheld item 4—the mention of the address of a Roseland property to a constituent. What is beyond doubt is that the public was aware of a controversy relating to a development proposal for the property. The City was, in an unusual move, appealing the decision of its own Committee of Adjustment relating to the development proposals for 3088 Balmoral Avenue.

As a matter with legal implications, the debate over the city’s decisions needed to be confidential, but there was nothing relating to the location itself that was not already in the public domain. All that was unknown was the date on which it was being considered, and whether it was to be considered in public or not. In this case, the reason why the integrity commissioner found fault with Stolte was that she unilaterally decided to reveal more than the official city agenda revealed. Stolte might be right, but it was not her decision to make alone.

If so, Stolte is guilty of erring on the side of openness, rather than secrecy. But the agenda item itself was at greater fault, surely, for needlessly hiding the fact that a confidential decision was being made. As Stolte has stated in her response, citing case law, “it is insufficient to simply parrot the test of the statutory exception (e.g. ‘Confidential Update on a Legal Matter’) by simply re-stating it without adding additional context … as this fails to provide meaningful information to the public about the general nature of the matter being considered in closed session”. Those words would appear to apply absolutely in the case of 3088 Balmoral. There was no benefit or public interest to hiding the agenda item, even if the discussion needed to be private, and yet the city hid it anyway.

It is a harsh judgement that punishes a councillor for keeping their constituents informed of a matter previously entirely open to the public. And it is a harsh judgement that punishes a councillor for mentioning a hypothetical number that did not relate to the purchase price of the Bateman property, but sought to give the public a reasonable insight into the scale of decisions being made by council.

Using the ‘Nuclear Option’ Against a Colleague

Most importantly, the decision of Nisan and Galbraith to use such an extreme measure—the most extreme option available to them to censure a political opponent—over minor transgressions calls their judgement into question.

The complaints against Stolte are insignificant compared to recent Integrity Commissioner complaints made in other cities. Nobody is alleging that Stolte is corrupt, or had anything but good intentions in trying to make sure information was public unless absolutely necessary.

Compare that to the unproven allegations made against Sam Merulla in Hamilton in 2020 (multiple complaints were dismissed or determined to be outside the Integrity Commissioner’s remit) or claims of repeated bullying and threats by Terry Whitehead, also in Hamilton, in an Integrity Commissioner Report, of “half a dozen separate incidents, involving as many different management staff, who experienced similar bullying”, when only in a single incident was he actually censured and docked pay. Other Councillors stated his behaviour had gone unchecked for years, and a cursory view of Hamilton’s council meetings this week will show little has changed in Whitehead’s behaviour. Yet the Integrity Commissioner complaints in most if not all of these cases did not come from other councillors, but from the public.

Why could the dispute with Stolte not be resolved between the councillors and with staff, since it amounts entirely to a difference of opinion on interpretation of the Municipal Act? After all, by reporting Stolte to the Integrity Commissioner, Galbraith and Nisan have now ensured the facts she is said to have revealed will reach a far greater audience than they would have reached before.

Indeed, just how rare such complaints are can be seen from Principles Integrity’s own statistics. They handled 15 ‘inquiries’ between July 2018 and August 2020, according to the Hamilton Spectator. In only one case was a formal report issued, as the other 14 were either resolved by the parties concerned, or outside the commissioner’s remit. Yet, this is at least the second report in recent years to recommend punishments for people found to be at fault for wanting to keep the public informed of information already largely or entirely public. They other decision was made against Hamilton LGBTQ+ Advisory Committee Chair Cameron Kroetsch in 2020. Principle Integrity’s business depends on councils and public boards renewing their contracts to act as commissioner every few years.

Questions also arise about the judgement of the City Clerk, Kevin Arjoon, and City Manager, Tim Commisso, in allowing the growing number of council items considered in closed session, and for letting a councillor’s request for a clear and unambiguous rules in a Closed Session Protocol to cause a fundamental rift between councillors that is unlikely to be repaired this side of the 2022 election.

Because ultimately, it is difficult to see how Stolte will be the one who is politically harmed by the Integrity Commissioner’s report when she and her colleagues stand before the court of public opinion in October.