Tuesday, October 3, 2017

Mixology of the English Language

Integrity, what is it? Webster's describes integrity as “the quality or state of being of sound moral principle, uprightness, honesty and sincerity.” An admirable quality in any human being without a doubt. Can we expect this quality in our elected officials? If integrity is too much to look for in those we elect then what can we look for as possible standards? If these qualities are too high a standard to use as a benchmark for those in public office certain codes governing acceptable and non-acceptable conduct are then designed.

When codes are designed to govern professional ethics and conduct, or procedural equality and fairness then without a doubt we will find someone in breach of these rules, and alleged breaches need to be examined and investigated. Now ordinarily, this investigator can be the head of a particular organisation or a senior individual within a human resource division. In politics most often an outside adjudicator is appointed who is required to be completely impartial and immune to any bias. These individuals are provided with the title of Integrity Commissioner, lending an air of authority and power.

Slap together Integrity and Commissioner and you have a political watchdog. These ICs come in all shapes and sizes like the varying levels of government. At the municipal level they have their authority outlined in the Municipal Act though they are limited in any consequences they can impose on politicians found to have breached the code.

In the Niagara Region much has been discussed in relation to the benefit of an Integrity Commissioner. Regional Chair Alan Caslin cried that he had been bombarded with too many complaints against his councillors that he could not cope with it. For that reason the Regional Municipality of Niagara appointed one John Mascarin of Aird & Berlis, a Toronto law firm, as its interim-Integrity Commissioner. John Mascarin was at the time the permanent IC for the City of St. Catharines.

Controversy surrounded the appointment of John Mascarin around potential conflict of interest. Mascarin's law firm Aird & Berlis just so happened to represent Chinese developers in negotiation with the Niagara Region for a possible $1.5 billion land development. Still it was John Mascarin's shining star status that appeared to have blinded all on this minor inconvenience. After all he is a scholar in Municipal Law and teaches at Osgoode Hall! He had written chapter after chapter on municipal matters, specifically on the OMB and land development regulations, in addition to being a practicing lawyer in the field who has appeared on television and other media to comment on all manners of the subject.

It is important to note here that Integrity Commissioners have no set rules or procedures to follow. The Municipal Act only provides the description of their authority and nothing else. Plumbers, journalists, lawyers – they all have codes of professional ethics. Even politicians do; after all if the politician breaches his or her code they face off with the Integrity Commissioner. Yet the Integrity Commissioner has no codes or procedural rules at all. If there was an association for these watchdogs it probably would have as a motto, 'Come as you are, Do as you please'.

Chair Alan Caslin unloaded the heavy burden of some six or seven complaints that he could not handle upon the broad shoulders of this certified expert. This expert cleared two councillors and dismissed the complaints as smoke and mirrors, while stepping away from a third against Alan Caslin himself. The remaining three found the expert with rolled sleeves and dug in. All three were against Niagara's favourite son, Regional Councillor Andy Petrowski. On May 18th 2017 John Mascarin rode into a public meeting of Regional Council to present his report. These words uttered by John Mascarin of Aird & Berlis are of great importance; they were on record and cannot be denied.

Not long after the May 18th public meeting two mayors, Jim Diodati of Niagara Falls and Frank Campion of Welland, found themselves revealed on Facebook hurling out the Nazi salute. This thoughtful gesture was performed during a Niagara Peninsula Conservation Authority Board Meeting, of which both are board members. For two mayors to do something like this was mind boggling. Yet this incident together with Mascarin's May public appearance became the motivation for an exercise.

Each case had a clear and specific reason on its own to require an investigation. The first centred around two mayors: Jim Diodati of Niagara Falls and Frank Campion of Welland. These two public servants decided that a Nazi salute was somehow a thing of jest. Thinking it was a joke they hurled their arms out during an official meeting of the Board of the Niagara Peninsula Conservation Authority. A second request was in relation to City of St. Catharines council member David Haywood and an incident revolving around his conduct on social media.

In the case of the two mayors the reasoning was simple: as both mayors are sitting members of Regional Council, both would be under the jurisdiction of the Regional Code of Conduct. As it turned out that was an error in thinking and John Mascarin responded on July 12th 2017. It was a four page report to simply say at the end, “Based on the foregoing, the Request has not been filed in the proper forum. My jurisdiction does not extend to the NPCA, which is a separate corporate body with its own code of conduct. Accordingly, I suggest that you may seek to modify your Request and submit it to the appropriate oversight officer at the NPCA for consideration.” Modification was indeed conducted and the request forwarded onto the Chair of the NPCA, Sandy Annunziata.

Now the second investigation request had a different outcome, the exercise provided tangible results. This case revolved around Merritton Ward, City of St. Catharines Councillor David Haywood and an exchange with him on Facebook. At the May 18th Regional Council meeting John Mascarin had a great deal to say on a number of issues, one being the whole social media thing. This is a good time to note that of the three complaints John Mascarin chose to investigate, two centred on Councillor Petrowski's outings in the world of social media.

On May 18th John Mascarin stood before a public meeting of Regional Council and said a number of things. He was there in what appeared to be a role of educator or an expert, as he made a point of how he had helped dysfunctional councils. He also stood there with a price tag dangling out from the edge of his sleeve. Aside from the cost it is important to ascertain just how much does a lawyer believe in the words he utters, more so when that lawyer parades as an Integrity Commissioner. Does he fit the description of the title of Integrity as described in the opening paragraph?

John Mascarin said, “The whole purpose of social media is to impose your views, if you're tweeting onto other people.” If this is true it is a very narrow minded view of social media. Just prior to this statement Mascarin had this to say: “I looked at the word impose and thought it meant foist, inflict, press, urge all these sorts of synonyms, the fact that someone tweets something, you're distributing, you're making communication. To me that's putting it out there, that's imposing, you are sending it out in the Twittersphere, you're imposing, you're propagating your view, that's the whole purpose of social media.”

As stated the motivation behind the exercise was to test John Mascarin himself and his rhetoric used to justify his position and his actions. The investigation request brought to his attention was about a Facebook exchange with a City of St. Catharines Merritton Ward Councillor David Haywood, accompanied by four photographs. Remember according to John Mascarin the whole purpose of social media, Facebook being a big chunk of it, is “to impose, to foist, to inflict, to press, to urge.”

St. Catharines once bragged it was the Garden City, today it is full of weeds. Look at the garden city at the intersection of Glendale Ave., and Almond St., in Merritton. Weeds reach up to 4 feet and more in height, their seeds are blown into yards throughout the neighbourhood. Dogwood insanely planted obscures the intersection to a point that the crosswalk is dangerous to use and traffic entering Glendale from Almond always at a risk of collision. Mayor Walter Sendzik could not give a damn, and the Merritton Ward Councillors Haywood and Stevens nowhere to be seen. Yet try and let this happen in your own front yard and see what the city will do.”

This post did not tag anyone. The mayor's name was clear and in full, the two councillors just mentioned by last name the way it is done in general conversation, not intended to be specific or personal. A short time after the original post Councillor David Haywood came with this first comment, sounding annoyed with the post. Haywood said: “the first I have heard of this Alexander. Nowhere to be seen??? Try calling me or emailing me I can tell you I haven't heard from you so please try using the same energy to pick up the phone as you used to complain. We share the same passion for the local environment but I cannot read minds.”

Young Councillor David Haywood seemed to take a Facebook post very personally which was not aimed directly at him. Maybe the whole 'Facebook Friend' is taken to mean something more by Haywood. His first comment was ignored, there were other people who had made comments, but Haywood's little stomp was also ignored. Haywood then came back again, and said “I will have the areas looked at. We represent you Merritton residents. We are your voice. To expect us to just know things or to say for us to 'look' around doesn't help anyone. It is condescending to state it in that fashion. Counterproductive.”

Wow, Councillor David Haywood, the voice of the residents seemed a little more annoyed. Was it because he was ignored by the original poster? This time he got his response. “I thoroughly enjoy a public servant with a soft skin. First of all for several years I have spoken to the supervisors who used to come and look at this garden with no result. This 'garden' has been like this since the early days of Spring. Shame is on the public servant who is too busy shifting responsibility on a member of the public. You Councillor Haywood want examples of the actions of councillors representing Merritton. I suggest you think twice before you as a newbie open that Pandora's Box. You have city crews pass weekly I guess that is not a problem for you either. Do not start something you can't finish. If you really care than DO something about it if not do the usual and blame someone else.”

Now Merritton Ward, St. Catharines Councillor David Haywood lost his cool completely. He turned a general post on social media into something personal. That post was never made to be personal, nor was it aimed at Councillor David Haywood specifically. He decided to prod twice and when a response was provided only after his second prodding he lost his composure. Yet it is important to listen to Haywood's words in the opening, and when you do it gives an indication that he intended this to be personal from the beginning. Haywood's third comment read: “Nothing about soft skin. Just tired of you automatically taking the position as a foe to your representative in the Merritton Ward. How immature to tar the new representative based on how you feel past reps have acted. Sorry I am more rational than you and mature than you. I am not an armchair quarterback like yourself. I have emailed staff concerning this. As for starting something I cannot finish, bring it on!!! You will not scare or bully me. Looking forward to see what you can do – wonder what I will look in your cartoon.”

After posting his first comment he came back again when no response was given, why? Integrity Commissioner John Mascarin clearly expressed his interpretation of social media. He said, “the whole purpose of social media is to impose your views” and with the word impose he explained that he thought it meant to “foist, inflict, press and urge.”

An investigation request was prepared and filed against St. Catharines Councillor David Haywood. All documentation was prepared, copies of screen captures together with a signed Affidavit and handed to the City Clerk who as per the City's Complaints Process provides it to the Integrity Commissioner.

A great deal was said at the May Regional Council meeting by John Mascarin. He provided his interpretations on the whole purpose of social media. At one time he admitted that he was not very good with social media and didn't really understand it nor use it much. Mascarin was asked by Regional Councillor Burroughs how he treated complainants: “In each case I have written what I call a short ruling and I do attempt to explain why I did not proceed to a full investigation... I do communicate with the complainant um... in some cases the complainant will say I don't agree with you but I respect that you have given me some indication.”

City Clerk Bonnie Nistico-Dunk for the City of St. Catharines sent a letter via email dated August 9th 2017. She stated that “Mr. Mascarin felt that your allegations appear to contravene the following part of the Code,” then she quoted the pertinent section of the code. Nistico-Dunk then continued with, “Mr. Mascarin states that “the complaint, viewed objectively, does not set out reasonable and probable ground to support the allegation that the Councillor engaged in discredible conduct in contravention of the Code. It is my determination that the Complaint is frivolous and vexatious and that no investigation is warranted.” And yet, each of the three investigations that John Mascarin completed related to one regional councillor, two of which centred on social media. He chose to investigate a tweet by the councillor where he referred to the Mayor of Pelham David Augustyn as “plastic face.”

So a request for investigation relating to two mayors and a Nazi salute resulted in a four page response directly from John Mascarin to simply say 'no I can't'. An investigation request against City Councillor David Haywood brought a censored or selective report from City Clerk Bonnie Nistico-Dunk. So much for communicating with the complainant.

An email was sent to John Mascarin requesting clarification regarding his report and an explanation. Serious questions were asked relating to the short quote Bonnie Nistico-Dunk provided in her letter. Mascarin responded on August 14th 2017 several hours later and his response proved clearly he did not like to be asked uncomfortable questions. He may say one thing in public but what he really does appears to be very different.

Not one question was answered by John Mascarin, he simply said that he provided his report to the City Clerk as per the Complaint Protocol. He did attach a copy of his report and made one statement that was alarming, he said “I have briefly discussed this matter with the City Clerk and attach here to my complete formal response.” What did the Integrity Commissioner discuss with the City Clerk? Was the discussion prior to Mascarin providing his formal response? The City Clerk has no jurisdiction nor authority to discuss anything in relation to any complaint, all that Nistico-Dunk could do is receive the complaint and forward it on. The issue of who John Mascarin speaks with came up during the May Regional Council meeting. At the time he first admitted to speaking to people then back-tracked and claimed he had not.

Reading the report the number of questions ballooned, so many that no quarterback, armchair or not, could catch them all. City Clerk Bonnie Nistico-Dunk stated in her August 9th letter that “Mr. Mascarin felt...” yet Mascarin at no time refers to feelings in his report. Nistico-Dunk then took two sentences, combined them into one paragraph, and left out the core of Mascarin's report, why?

In his 'Assessment & Analysis' Mascarin quotes only selective words out of the complaint. Usually lawyers play this trick to intentionally misdirect meaning. Taking quotes that are limited and out of the proper context of the sentence is intentional, but what did the Integrity Commissioner intend here? Mascarin finished with this: “The complaint uses the word “attack” or variations of the term no less than six (6) times.” Was this simply a keen eye or was Mascarin acting like the Councillor's defense lawyer rather than impartial judge and jury he proclaims to be?

Paragraph two is the real gem and defense lawyer Mascarin truly shines. He says, “Admittedly, the Councillor uses a somewhat sarcastic tone in responding to the complainant...” It would seem that clear and literally black and white evidence in the original complaint was a waste of time on this IC. The Councillor did not respond, he initiated the conversation with intent. When no response was provided by the complainant to his first post then he came on again.

The very best from Mascarin is this, and no one on the courtroom drama series The Good Wife could do better: “the specific words used in the Councillor's remarks must be viewed in context to the posting made by the complainant which appear to be clearly intended to bait and prod the Councillor.” Here it is, lawyer Mascarin to Judge Mascarin, 'Your honour the councillor shot the guy but it was not the councillor's fault, he happened to be standing there'. As insane as this analogy sounds it does not come close to IC John Mascarin's.

So Mascarin claims that the original post baited and prodded poor young Councillor David Haywood. How? Haywood chose to come onto the conversation, when ignored he came again. He got a response which basically said to leave well enough alone. Councillor Haywood did not like that and said, “Just tired of you...,” and then went onto a verbal attack. As an elected member of government Haywood does not have the luxury of claiming he lost his temper, but at least in this case he had a good defense lawyer.

Just when one would think it is enough and the winning words had been spoken Mascarin continues, “I have taken into account that the facts giving rise to the Complaint occurred more than two years ago”, claiming that the complaint was filed on June 27th 2017. John Mascarin of Aird & Berlis lied! No publisher says anything like this easily in print, but IC John Mascarin lied in his final report. The original posting on Facebook was on July 12th 2015 and the complaint filed on June 20th 2017. Maybe Mascarin needs all his fingers and toes to calculate this?

Two years had not yet passed and the facts glaringly prove that Mascarin lied? Why? He said “In making my ruling I have taken into account...” It seems that the IC took into account a lie of his own making to make his decision. How much of his report is based on real facts rather than convenient interpretations?

An email was sent to John Mascarin and many questions were asked, in particular why did he lie. His response on August 17th 2017 truly shows how John Mascarin epitomizes the title 'Integrity'. This is the same individual who stood before regional council and the public throwing out his empty words. In his response he said, “My ruling speaks for itself. You may disagree with certain points or with the entire ruling but I am not prepared to respond further.”

Integrity Commissioner and lawyer John Mascarin of Aird & Berlis lied, then said that he took into account that lie in the making of his ruling. When asked to explain his lie John Mascarin said that he was “not prepared to respond further.” Maybe this is his way of taking the Fifth, even if it doesn't exist in this country.

John Mascarin has proven that the concept of Integrity Commissioners without a definitive code of conduct and set procedural guidelines are only a farce. These ICs are only tools for governments to either defame the reputation of a complainant or to attack an unpopular councillor. If one of those commissioners is caught lying and he or she simply refuses to explain themselves then what trust can be placed in them? Mascarin and his law firm Aird & Berlis pocketed public money for this, how is it possible for him to refuse to answer questions?

Still the insanity doesn't end here. Since Mascarin refused to explain anything, including his lie, some questions were sent to City Clerk Bonnie Nistico-Dunk on August 21st. It was asked of her if the report by Mascarin was provided to Council, whether Councillor Haywood was provided a copy of the Mascarin report and/or the request for investigation, and if anyone else had access to the report.

Nistico-Dunk responded the same day stating that “there is no report to go to Council on the matter.” She said “Councillor Haywood was advised of the complaint and was provided with a copy of the ruling,” and that she was not aware of anyone else who had been provided with a copy of the Mascarin ruling. On August 22nd one more question was sent. The question was simple; asking Nistico-Dunk who provided the Councillor with a copy of the ruling. On August 29th this response was received from the City Clerk: “Your original complaint was not provided to Councillor Haywood. The response was not forwarded to him from this office.”

Now the plot thickens and some confusion arises. First the City Clerk says that the Councillor “was advised of the complaint” but later that the “original complaint was not provided.” Nistico-Dunk also said that he was “provided with a copy of the ruling” and then later “the response was not forwarded to him from this office.” An email of August 30th was sent to attempt to find some clarity. The response was far from the expected.

John Mascarin on September 1st sent an email beginning with “I have been made aware that you have been corresponding with the Clerk regarding your recent complainant.” On August 17th the same John Mascarin ended his email when asked why he had lied in his ruling with, “I am not prepared to respond further.” Yet here he was holding City Clerk's Nistico-Dunk's hand and responding to questions asked of her! Maybe a resident of any city or town would expect that their communications with a senior city employee would have a little confidentiality. A 'Confidentiality Notice' appears at the bottom of every email from the City, including those of Nistico-Dunk's. In this case public servant Bonnie Nistico-Dunk went running to Integrity Commissioner John Mascarin to respond on her behalf!

The Municipal Act under Section 223.3(1) clearly outlines the role of any Integrity Commissioner. It states that “an Integrity Commissioner who reports to council and who is responsible for performing in an independent manner the functions assigned by the municipality with respect to:

a) the application of the code of conduct for members of council
b) the application of any rules, procedures and policies of the municipality governing the ethical behaviour of members of council

St. Catharines Complaints Protocol describes the Integrity Commissioner and his/her responsibilities on page 8. Nowhere in either of these two documents does it say the IC is the personal assistant of a public servant.

Mascarin says, “I understand that you are seeking clarification of certain questions that you have asked the Clerk,” and then provides four bullet replies or answers. He was asked to provide some clarification on why he lied in his report and how did he take into account making his ruling a lie of his own making. On that he refused to provide clarification.

Bullet number one from Mascarin states that “The council member was advised by the Clerk that a complaint had been filed against him and that he could make inquiries with me regarding it. The Clerk advised me that it has been the historical practice at the City for a council member to be made aware of any complaint filed against him or her.” Why didn't Nistico-Dunk say this from the beginning? Instead she played with semantics, evasion and omission. Nowhere in the Complaints Protocol does it inform the complainant that the complaint once filed is relayed to the councilor. Is it possible to believe anything Nistico-Dunk might say on this matter?

Bullets two and three are even more exiting. Number two states: “The council member introduced himself to me while I was at City Hall and asked me to verify that a complaint had been made against him.” Then number three: “The council member also asked if he could be kept apprised of the matter and I advised him that I would either be in contact to make inquiries of him or he would be notified of any disposition respecting the complaint.”

On May 18th John Mascarin was questioned by a Regional Councillor as to who he spoke with during any process of an investigation. At first Mascarin admitted to speaking with members of the public and then did an about turn and denied the fact. In this matter on August 14th Mascarin says, “I have briefly discussed the matter with the City Clerk.” On September 1st he says, “The council member introduced himself to me...”, and then “I advised him.”

Still the best was bullet number 4: “My ruling was provided to the Clerk in accordance with the Complaint Procedure and I advised her I would forward a copy of the ruling to the council member to discharge my undertaking to notify him.” Lawyer's language, don't you just love it. Words like “discharge” and “undertaking” sound almost official and correct somehow.

On August 14th, explaining why he did not provide a copy of his report to the complainant, Mascarin stated “My advisement to the City Clerk was provided in accordance with Section 4(4) of the City's Complaint Protocol in Part 3 of the Code.” From the City's Complaint Protocol page 11 heading 4, Refusal to Conduct Investigation, (4) “The Integrity Commissioner will inform the Clerk when an investigation is terminated or not advanced for reason cited above. The Clerk in turn will notify the complainant of this decision.”

Any possible procedural fairness has been destroyed by the City Clerk Bonnie Nistico-Dunk and Integrity Commissioner John Mascarin. It is impossible to understand how or why an IC would respond to a communication sent to a public servant. The Clerk is not a member of City Council nor has she got anything to do with the Code of Conduct. Mascarin refused to deal with the issue of the two mayors and their Nazi salute simply because they were part of a board with its own code. What code is Nistico-Dunk a part of?

As an Integrity Commissioner, John Mascarin made a public 'undertaking' on May 18th. He said that he always provides his reasoning on a matter and answers questions from any complainant. Mascarin was asked why he lied in his report – he refused to answer. He was asked to clarify points in his report, he refused to answer. He breached the City's Complaint Protocol by making a promise to a Councillor he had no right to.

What really happened here? It was a simple exercise questioning the stupid actions of a City Councillor on social media. This Integrity Commissioner had already set his own precedent on the issue. The result has been a mountain of unanswered questions. A City Clerk who intentionally evaded answering questions. This same Clerk carried out actions which put the 'integrity' of the complaints process in jeopardy. At the same time the IC lied in his final report and refused to clarify why he lied, making his report invalid. Taking things further, the IC admitted to breaching the City's Complaints Protocol and took on the part of a secretary to a public servant.

This notion of an Integrity Commissioner acting as a personal secretary for a City Clerk is both alarming and dangerous. Everything about an IC sits on the balance of complete and total independence and impartiality. The actions of Integrity Commissioner John Mascarin and City of St. Catharines City Clerk, Ms. Nistico-Dunk raise questions which must be answered.

This last communication from 'Integrity' Commissioner John Mascarin leaves a mountain of questions. City Clerk Bonnie Nistico-Dunk through her actions has raised issues surrounding
the Complaint Protocol in St. Catharines to a new level. Meanwhile Mayor Walter Sendzik sits on his hands and brags how his city has the best code of conduct and complaint protocol in the province.

All of this on the taxpayer's dollar, and maybe Regional Councillor Gale's comment on May 18th describes the whole process well, that it is a farce. This one has not ended yet, watch for more to come on Mayorgate.