By Pepper Parr
July 31st, 2023
BURLINGTON, ON
This is not a nice story.
The information set out is disturbing. There are two parts to this story. One about the belief that email to the City Clerks office is being diverted. The other is that the city is using authority it does not have when it comes to the matter of Trespassing on city property.
Let’s go through the details we have about email being diverted. The first email sent by Ann Marsden to the Clerk’s office is set out below:
First email
———- Forwarded message ———
From: Anne Marsden <anneandave@gmail.com>
Date: Mon, 10 Jul 2023 at 09:57
Subject: COUNCIL DELEGATION JULY 11, 2023
To: <clerks@burlington.ca>
Please register Anne and Dave Marsden Health, Safety and Access Advocates to speak in Council Chambers to:
12.2 Public Conduct Policy and Trespass By-law Office of the City Clerk.
12.4 Civic Square
We are travelling home from up North and will not have internet/email access for most of today after 12 noon so please confirm as soon as possible and provide a contact phone number in case we hit any snags travelling home.
Anne and Dave Marsden
308-1425 Ghent Ave
Burlington
Ontario
L7S 1X5
905-467-2860
anneandave@gmail.com
This was Ann Marsden seeking permission to delegate to city Council. She had asked for confirmation.
City Clerk Kevin Arjoon did not respond to the request for confirmation that Ann Marsden was going to be delegating..
Email # 2
———- Forwarded message ———
From: Anne Marsden <anneandave@gmail.com>
Date: Mon, 10 Jul 2023 at 10:59
Subject: URGENT REQUEST FOR DELEGATIONS CONFIRMATION FOR COUNCIL TOMORROW
To: Arjoon, Kevin <Kevin.Arjoon@burlington.ca>, <clerks@burlington.ca>
Kevin and Clerks – can you please provide this confirmation asap as we will lose our email connection as previously explained In Council delegations.
12.2 Public Conduct Policy
12.4 (f) Civic Square
Anne and Dave Marsden
Health Safety and Access Advocates
308-1425 Ghent Avenue
Burlington
Ontario
L7S 1X5
905-467-2860
anneandave@gmail.com
This was the second email requesting permission to delegate. While they did not get a confirmation Ann decided to go to city hall prepared to delegate.
They showed up ready to delegate with a prepared script Ann would read and give a copy to the Committee Clerk to ensure they met all the Procedural By-law delegation requirements.
Dave goes for an agenda – there were none left. They beckon to Debbie Hordyk, the Committee Clerk, who gets them a copy of the agenda. Ann notices that they are not listed on the agenda. She asks Hordyk why they did not receive the confirmation requested and gives her a copy of the first email addressed to: clerks@burlington.ca
They also question whether they are on the delegation list. The Clerk did not respond to this question and instead commented “I wonder why I did not get this” ?
Hordyk advised she only needed the one email sent at 09:57 and left the Marsdens to return to the Council Table
Ward 4 Councillor Shawna Stolte, serving as a Deputy Mayor, in the absence of the Mayor Chairs the Council meeting.
Deputy Mayor Stolte approaches them and thanks them for attending and confirms she is chairing the Council meeting.
The Marsdens presumed they were on the delegation list especially after the Deputy Mayor thanked them for coming. They were shocked and resisted the urge to correct what was happening.
Councillors Bentivegna and Stolte move the Motion to accept what they understood to be unregistered delegations.
The Council meeting gets to the point where delegations are going to be heard and Chair Stolte says there is some delegation management to be done and that she needed a Motion to waive provision in the procedure bylaw to permit people who were not registered to delegate to do so. She asked for a Motion to allow three unregistered delegations to speak to Council which included Anne and Dave Marsden.
A three second pause and Councillor Bentivegna moves the Motion which Councillor Kearns seconds. The motion to waive the procedural by-law passes unanimously.
Anne, with Dave by her side, read heir first delegation. After their first delegation was read into the record and while getting her papers ready for their second delegation she commented to Stolte: “I did understand that I had registered to delegate before noon yesterday. “ to which Deputy Mayor Stolte responded “Noted”. What is not yet known is if Stolte brought the matter up with the City Clerk and if she did what the City Clerk had to say in the way of response.
It takes guts for the Marsdens to go before Council and say what they expect will likely be ignored by council and print media as well.
So – what happened? Was this just an example of sloppy work in the Clerk’s Office? Anne and Dave Marsden don’t see it that way. They believe emails to the City Clerk, City Manager Tim Commisso and City Solicitor Blake Hurley are not getting to them directly.
Ann Marsden making her delegation related to the Public Behaviour Trespass by law that was listed as a Consent item and approved by Council without a word of debate.
They believe they are being diverted.
If the Marsdens are correct – there is a very serious problem at City Hall.
Ward 1 Councillor, Kelvin Galbraith, decided he didn’t like what ward 1 resident Tom Muir was legitimately saying and doing and advised Muir that he would not receive any service from Galbraith’s office in the future.
What is becoming evident is the level of rot that has set in at City Hall.
It gets worse. Tomorrow – city decides to use authority it does not have
Related news story.
The Public Behaviour Trespass Bylaw
Is email to the City Clerk requesting to delegate before City Council being diverted ? The evidence suggests this may be the case. COMMENT UPDATE: City Clerk, Kevin Arjoon has verified that all the Marsden emails to Councillors and staff are diverted to the Clerk’s Office. The reason, according to Burlington City Clerk, Kevin Arjoon, is so the emails can be properly actioned! Arjoon has failed to respond to:
Who in the Clerk’s Office is receiving the emails?
Who instructed the Marsden emails to staff/council members be diverted?
The Clerk also verified this diversion of the Gazette published Marsden emails from clerks@burlington.ca was responsible for the Public and Council being informed the Marsdens had not registered for two delegations at the July 11, 2023 Council meeting. At least five minutes before the Council meeting began, Arjoon had been provided the evidence by Committee Clerk Debbie Hordyk that the Marsdens had met the by-law requirements for delegation
Further, Arjoon claims he worked with Council to correct the email not getting to clerks@burlington.ca and thus Committee Clerk Debbie Hordyk, until the Marsdens physically handed it to Debbie Hordyk, in Council Chambers, prior to Council beginning. Arjoon’s fix, as can be seen by all viewing the July 11, Council meeting video, saw the Chair ask for a motion to waive the Procedural By-law. Clearly this was a deliberate act of deceit by the City Clerk to obtain an unnecessary vote of Council, the purpose of which was to divert attention from what was occurring with the Marsden’s timely email request of clerks@burlington.ca to delegate.
The result of the deceit, has led to two very important matters of huge public interest improperly remaining on the Consent Agenda at the July 11, 2023 Council meeting. The Marsdens were properly registered for a delegation on both these items which required their transfer to the Regular Agenda, which did not occur.
This results in a question of the legitimacy of the policy and new by-law, the first Trespass By-law the city has approved. Both of which were put in place to protect clients of the City’s recreation programmes and were long overdue. The staff review of the policy was ordered by Council to occur December 2020.
It is the Marsden’s intention to request Deputy Mayor Stolte, who chaired the July 11, 2023 Council meeting, to:
1. Correct the minutes to show Council were informed, noted by Chair Stolte, the Marsdens had registered to delegate at the July 11, 2023 Council meeting and, therefore, the Motion to Waive the Procedural By-law was applicable to only one delegate, not three.
2. Put forward a Motion of Reconsideration to the August 24, 2023/September Council meeting that will place
Public Conduct Policy and Trespass By-law (CL-08-23) and Civic Square and Brant Street renewal – project initiation (ES-27-23) on the Regular Agenda of the appropriate September/October Committees and the following Council meeting.
3. Put a motion before Committee that:
• requests a report from Clerk Kevin Arjoon that explains the delay in complying with the Council review date of December 2020 on the Public Conduct policy and other Corporate Policy review dates.
• requests a report from the City Legal Director Blake Hurley as to why a Trespass By-law has not been in place to support the Public Conduct corporate policy since the policy was first introduced, given the apparent lack of authority to issue trespass notices without such a by-law.
Anne Marsden is not the only person having problems with their email going to city hall.
On January 3, 2023 I sent an email to Kevin Arjoon, the Clerk, Tim Commisso, City Manager, Nancy Shea-Nicol, and Blake Hurley, Legal, and other Senior Managers in Burlington City. An edited part follows to show the essence of my comment point here regarding the fate of this email, and whether all of these people are getting their mail. It is something previously sent to the Integrity Commissioner and City Council.
January 3 2023
“I should have copied the Clerk and Legal on this correspondence to the Integrity Commissioner and Council earlier, but I did not expect the bad experience I have had. I am sending this material and information to you because I don’t know where else to send it at City, and I feel your responsibilities as Senior Staff make these issues part of your responsibilities and purview.
I have read the City web pages on Transparency and Accountability, including the City Citizen Engagement Charter among other things.
I note that the City says – “The City of Burlington is committed to maintaining transparency in our information and accountability in our processes.”
On the role of the Integrity Commissioner, the City says – “The role of the IC is to support the City’s ethical framework and enforce the Code of Good Governance. They provide guidance on various ethical codes and policies and investigate potential breaches of the Code.”
The following correspondence of mine provides evidence in my opinion indicating breaches of transparency, accountability, ethics and breaches of the Code that are relevant to the duties of the Clerks office as overseer of procedure and the written Codes of conduct.
1. The following Investigation procedure contained in the City Code of Good Governance page 7 of 9, was not followed by the IC:
Investigation
If the Integrity Commissioner determines that a formal investigation is required he or
she shall proceed in the following manner, subject to the Integrity Commissioner’s
ability to elect to exercise the powers of a commissioner under Parts I and II of the
Public Inquiries Act:
• The Integrity Commissioner shall provide a copy of the complaint and any
supporting materials to the member whose conduct is in question with a request
that a written response to the allegation be provided to the Integrity Commissioner
within ten days
• The Integrity Commissioner shall provide a copy of the response provided by the
member to the complainant with a request for a written reply within ten days.
I did not receive the response of the Councilor. I think this a serious contravention of the Code, and not keeping with the tenets of procedural fairness that IC cited for providing the Councillor with my evidence. With respect to me, it amounts to the withholding of evidence that the procedural order specified as required.
The Councillor was provided with all my complaint evidence, but I was provided with none of his response. That is obviously not procedural fairness as the Code says.
I asked for but did not receive any acknowledgement of receipt from the IC or Council or the Clerk or any Party, nor did anyone respond.
So, nobody responded and so, apparently, nobody is responsible, transparent and accountable no matter what the City says is Policy.
Like the case of Anne Marsden, did any of the Senior and Responsible staff on my mailing list not get my mailing?”
The Clerk is first, as he has the responsibility and duty to respond to my point of enforcing the procedural rules of the City and the Codes of Conduct. His Office also pays the bills for the IC.
The bottom line is: The Clerk did not respond to me regarding this failure by the IC to follow this written procedure in the Code of Good Governance, and did not provide any transparency or accountability in response of explanation of this IC failure and its previous failure to acknowledge my message raising it..
I have tried to communicate with Councillor Galbraith but he sent me a message telling me flatly, with no foundation at all, that I will receive no further communication from his office.
I wrote the Mayor asking her if she was going to allow this as it transparently violated any number of the City Code policies, and Engagement Charter, Provincial polices on Councillor duties, the Councillor’s Oath of Office, and so on in common sense, shared by many friends.
The Mayor responded that the Councillor could limit interactions with someone when “deemed necessary”, but with no elaboration, allowing it to be arbitrary. I searched for any City documentation, looking for where it was written what “deemed necessary” meant, and what grounds described it, but I could not find anything.
It is noteworthy that previously Mayor Meed Ward inserted herself into this IC complaint contrary to her stated policy that Council did not get involved in conflict of interest complaints that the IC is stated to investigate independently.
This insertion involved her copying correspondence between myself, her and Council, to the IC, bypassing the responsibility of the IC to keep any information they receive (my evidence file) during their investigation confidential. This correspondence included an evidence file I had sent the IC, that included the added Mayor’s inappropriate personal opinion comments regarding my evidence directly to the IC.
I messaged the IC on November 28 at 11:47 am, expressing my multiple concerns about this Mayoral interference. It is further noteworthy that the IC sent their Disposition Report to me the very next day, November 29, at 4:20 pm. In that report, they note some recent public attention generated by this matter. This public attention was in fact generated and led by Mayor Meed Ward and Councillor Galbraith.
In a Councillor Galbraith interview with the BurlingtonToday, he stated, without evidence, that the identification of him as the subject of an IC complaint was done before the complaint had been filed – this is not true. He used this claim to go public with the Mayor to further interfere with the IC investigation.
He provided an IC March 2022 Advice Memorandum October 19, 6 days before the election, where the IC explicitly concluded that he had a conflict of interest for planning applications in the MTSA as a whole and was required to recuse himself from participation in these applications.
This IC Advice Memorandum and conclusion was published in the Gazette on that date. There was no mention of him being named in an IC complaint at this time before the election.
The real public attention was caused by them with their Spectator Opinion piece of November 25, long after the filing of the complaint.
I ask, what is the Councillor doing interfering in an IC complaint that is against him, and adding another conflict of interest to the original conflict of interest complaint against him?
My focus point – nobody at IC, or Council, or the Clerk, or other recipients of my messages, even as I requested, acknowledged receipt, or responded with any transparency or accountability, despite obvious duties at City Hall and City professed Policy.
Did they lose their emails? Did the Clerk lose his?
Is this incompetence, or rot?
Pepper – this is a long one, sorry ahead of time. If you want me to take it back or tell me.
On January 3, 2023 I sent an email to Kevin Arjoon, the Clerk, Tim Commisso, City Manager, Nancy Nicol-Shea, and Blake Hurley, Legal, and other Senior Managers in Burlington City, a slightly edited part of which follows to show the essence of my comment point here regarding the Clerk, Kevin Arjoon, the Clerk’s Office and if the City Manager, and Blake Hurley (Legal) are getting their mail. It is a forward of part of something previously sent to the Integrity Commissioner and City Council.
I asked for but did not receive any acknowledgement of receipt from any party, nor did anyone respond.
My real point is that I received no acknowledgement of receipt from the Clerk, or any response or explanation of any kind. Nor did any of the other staff this was sent to provide any response.
So, the same treatment as I received before, where nobody responded and nobody is responsible, transparent and accountable no matter what the City says is Policy.
I initially sent this to the Clerk as first, who has the esponsibility and duty to respond to my point of enforcing the procedural rules of the City and the Codes of Conduct. His Office also pays the bills for the IC.
The bottom line is: The Clerk did not respond to me regarding this failure to follow written procedure in the Code of Good Governance and did not provide any transparency or accountability in response of explanation.
January 3 2023
“I should have copied the Clerk and Legal on this correspondence to the Integrity Commissioner and Council earlier, but I did not expect the bad experience I have had. I am sending this material and information to you because I don’t know where else to send it at City, and I feel your responsibilities as Senior Staff make these issues part of your responsibilities and purview.
I have had no response from the Integrity Commissioner (IC) or the City, not even to my request for a confirmation of receipt.
I have read the City web pages on Transparency and Accountability, including the City Citizen Engagement Charter among other things.
I note that the City says – “The City of Burlington is committed to maintaining transparency in our information and accountability in our processes.”
On the role of the Integrity Commissioner, the City says – “The role of the IC is to support the City’s ethical framework and enforce the Code of Good Governance. They provide guidance on various ethical codes and policies and investigate potential breaches of the Code.”
The following correspondence of mine provides evidence in my opinion indicating breaches of transparency, accountability, ethics and breaches of the Code that are relevant to the duties of the Clerks office as overseer of procedure and the written Code of conduct.
1. The following Investigation procedure contained in the City Code of Good Governance page 7 of 9, was not followed by the IC:
Investigation
If the Integrity Commissioner determines that a formal investigation is required he or
she shall proceed in the following manner, subject to the Integrity Commissioner’s
ability to elect to exercise the powers of a commissioner under Parts I and II of the
Public Inquiries Act:
• The Integrity Commissioner shall provide a copy of the complaint and any
supporting materials to the member whose conduct is in question with a request
that a written response to the allegation be provided to the Integrity Commissioner
within ten days
• The Integrity Commissioner shall provide a copy of the response provided by the
member to the complainant with a request for a written reply within ten days.
I did not receive the response of the Councilor. I think this a serious contravention of the Code, and not keeping with the tenets of procedural fairness that IC cited for providing the Councillor with my evidence. With respect to me, it amounts to the withholding of evidence that the procedural order specified as required.
The Councillor was provided with all my complaint evidence, but I was provided with none of his response. That is obviously not procedural fairness as the Code says.
I have tried to communicate with Councillor Galbraith but he sent me a message telling me flatly, with no foundation at all, that I will receive no further communication from his office.
I wrote the Mayor asking her if she was going to allow this as it transparently violated any number of the City Code policies, and Engagement Charter, Provincial polices on Councillor duties, the Councillor’s Oath of Office, and so on in common sense, shared by many friends.
The Mayor responded that the Councillor could limit interactions with someone when “deemed necessary”, but with no elaboration. I searched for any City documentation, looking for where it was written what “deemed necessary” meant, and what grounds described it, so that it resulted in complete withdrawal of representation, transparency and accountability. I could not find anything, but indeed found exactly the opposite everywhere I looked.
Further, the Mayor said her Office did not have the time or resources to ask the Councillor what untold interactions he was basing his action of no communication on, or otherwise inquire into the matter.
Then she further suggested how I could keep myself informed with no Councillor.
It is noteworthy that previously Mayor Meed Ward inserted herself into this complaint contrary to her stated policy that Council did not get involved in conflict of interest complaints that you investigate independently.
This insertion involved her copying correspondence between myself, her and Council, to one of your officers. This correspondence included the text of the November 3 evidence file I had sent you, that included her comments that appeared to indicate that she had already made up her mind about my complaint without your investigation and report.
I include at the very bottom below, a message I sent to the IC on November 28 at 11:47 am, expressing my multiple concerns about this Mayoral interference. It is further noteworthy that the IC sent their Disposition Report to me the very next day, November 29, at 4:20 pm. In that report, they note the recent public attention generated by this matter. This public attention was in fact generated and led by Mayor Meed Ward and Councillor Galbraith.
Also of note, in the Councillor Galbraith interview with the Burlington Today, he stated that the identification of him as the subject of an IC complaint was done before the complaint had been filed – this is not true. He provided an IC March 2022 Advice Memorandum October 2019, 6 days before the election, where the IC explicitly concluded that he had a conflict of interest for planning applications in the MTSA as a whole and was required to recuse himself from participation in these.
This IC Advice Memorandum and conclusion was published in the Gazette on that date. There was no mention of him being named in an IC complaint at this time before the election.
The complaint was actually filed on October 25 2022, and any identification of him as subject to a complaint did not happen until after that date as I kept it confidential because of the rules restricting election day restrictions for submission. There is no other evidence to show he was so named.
The real public attention was caused by them with their Spectator Opinion piece of November 25, long after the filing of the complaint.
I ask, what is the Councillor doing interfering in an IC complaint that is against him, and adding another conflict of interest to the conflict of interest complaint against him?
So here I am.
We agree Jim. We would add to the list of incompetence surrounding this July 11, 2023 Council meeting why the Clerk did not pull the Public Conduct Policy and Civic Square from the Consent Agenda given the Procedural By-law required such and why the minutes do not note, Shawna Stolte’s “noted”.
Our emails requesting delegations in the Goldring/Ridge era were diverted and we only got to delegate if a third party emailed the request to the registration email that appears on the wrb site.
Incompetence can be every bit as damaging to a city as malice, especially when ignored.
Never attribute to malice that which is adequately explained by incompetence.