PERTH COUNTY – Following an eight-month investigation period, Daria Peregoudova, a litigator with Aird & Berlis LLP, who acts as the integrity commissioner for the County of Perth, was on hand on Sept. 2 to present the findings regarding two complaints against Coun. Todd Kasenberg for allegedly contravening the Code of Conduct for members of council of the Corporation of the County of Perth.
Peregoudova told council Kasenberg had already had opportunities to respond to the factual findings directly, however, he had not had an opportunity to respond to the recommendations in the report.
No councillors commented on the report from the integrity commissioner. Kasenberg was allowed an opportunity to speak to the recommendations.
“As you see I have a presentation slot allocated in this agenda and I would prefer to use that opportunity to make some comments about the process,” he said.
“So your report to council is what you really what to discuss?” Warden Jim Aitcheson asked.
Kasenberg said he thought it was appropriate to pick up the themes from his response to the report under the agenda item that has been listed for that purpose.
Aitcheson asked Peregoudova if they could hear the presentation early.
“That would be my suggestion, your worship, only because some questions may arise to us as the integrity commissioner stemming from any comments that Coun. Kasenberg would like to make,” she said.
Aitcheson let Kasenberg read his prepared presentation.
“I have been through a process about which I have a significant concern,” he said. “It is, of course, inevitable that when a quasi-judicial process is established there are attempts to imagine how that process will adequately support the intentions of supporting both justice and fairness and outcomes.”
From what Kasenberg could discern he is the first councillor in Perth County to have experienced a formal allegation that he violated the Council Code of Conduct.
“That is my perspective as a participant in a process that was… frustrating, surprising and anxiety-laden,” said Kasenberg. “That I had to rely on the assurances of the integrity commissioner about various parts of the process was worrisome. That the document trail available through county sources was confusing and difficult to access was further worrisome.”
He maintained he acted in good faith and in accord with parliamentary procedure to introduce a motion that needed a voice and deserved at least discussion in his opinion. “I acted in accord with… my principles and deep belief that all residents and all visitors to Perth County have inherent worth and dignity… I am glad we did ultimately make progress on this important issue of recognizing diversity and fighting racism.”
He emphasized the fact that he was subjected to an eight-month-long integrity investigation and reporting process.
“It took less time to consult with interested parties, draft the text of a charter, review said text and deliver a report with a charter which was adopted, than this investigation took,” he said. “I am stating the obvious – a repeat of this prolonged process with procedures and practices not easily accessible by the one being investigated could happen to any of us and future councillors… I suggest that we have changes to be pursued in the onboarding of councillors, on the text of our code and the process (and) provisions of the code. I am, frankly, reluctant to invite this council to strike a committee since this is where all of my integrity commissioner interactions started. Yet we somehow need to improve this code to allow for greater transparency.”
Two formal complaints were filed with the integrity commissioner on Dec. 3 and Dec. 8, alleging that Kasenberg contravened the Code of Conduct as a result of his actions and public statements related to the motion to establish an inclusivity and anti-racism charter and a related committee on Nov. 19, and in turning off his video camera for a Dec. 3 ceremony to swear in Warden Aitcheson, which was alleged to have been disrespectful.
The first complaint referred to a quote from Kasenberg shared on the Listowel Banner’s Facebook page on Nov. 27, where he stated: “I believe that through the disinterest shown by the county council to this motion, we risk sending messages that are contrary to who we are – namely, good hospitable people (that) are progressive and opportunity-creating for all those of goodwill. I find myself wondering how those of minority communities are feeling at the neglect of this motion. This could send unintended signals.”
Also included in the complaint was a Facebook comment made by Kasenberg on Nov. 27 stating: “I am pretty disheartened. The focus was on creating a committee to support council. A petition could draw attention. Perhaps we could bring together a group from across the County to do the work without County Council endorsement and then bring that work forward, it would create more pressure. I have pondered whether the next step is to bring forward a draft charter or statement – that would escalate the matter.”
Also, a quote in a Banner article dated Dec. 15, saying: “There seems to be this argument that I wasn’t a real collaboration-oriented guy in this – that I could have talked to all my councillors and whipped up support and learned what their objectives are... They would have all said that it wasn’t going to be a committee, they didn’t want another committee. The point I’d like to make in response to that is it’s not all that encouraging that councillors have group-based discussions before an issue arises at the council table in terms of ethics and the Municipal Act.”
When reviewing the available evidence, the integrity commissioner concluded that on Nov. 19, Kasenberg made a short address to council concerning diversity and inclusion in the county and ultimately made a motion to establish a committee to explore and identify relevant actions that represent Perth County’s commitment to a tolerant, respectful community and to create an Inclusivity and Anti-Racism Charter.
As evident in the video and the minutes of the council meeting, the motion failed to receive a seconder.
Following the failed motion, there was significant media and public attention to the issue, which was mostly critical of council’s apparent refusal to support Kasenberg’s motion and the implications of the refusal for the county.
No evidence supported the allegation that Kasenberg used the influence of his office or the status of his position in a manner giving rise to a conflict of interest, or his private advantage.
This was especially so in light of Section 5.10 of the Code, which states, “For greater clarity, this code does not prohibit members from properly using their influence on behalf of constituents.”
Concerning Section 7.1, there was no evidence of discrimination or harassment on the part of Kasenberg concerning the motion.
While one of the complainants cited adverse impacts as a result of the stress caused by the situation giving rise to the complaints, in particular, a very critical letter they received in backlash to the failed motion, the integrity commissioner concluded that this was not a direct or foreseeable result of Kasenberg’s actions which would give rise to a finding of discrimination or harassment.
The integrity commissioner conducted a preliminary investigation into the Warden’s Ceremony.
In his response, Kasenberg indicated that turning off his camera during the Warden’s Ceremony was in no way meant to be disrespectful, and entirely related to connectivity issues that he has experienced from time to time.
In reviewing the video footage of the Warden’s Ceremony, the integrity commissioner observed that another councillor also appeared to have had his camera off for the ceremony, and another could be observed looking at his mobile phone.
The integrity commissioner did find a minor contravention of Sections 5.5 and 5.7 of the Code concerning one portion of the first complaint and dismissed the rest.
In their review of the complaints, it is the word “disinterest” in the quote which was published on the Banner Facebook page that appears to have struck a particular chord, since it no doubt reflects poorly on council to have been described as “disinterested” in the issues giving rise to the motion.
In his response, Kasenberg indicated that the statement was not meant to be inflammatory and that readers were able to discern their conclusions.
The integrity commissioner agreed that he could have used a more neutral word than “disinterest” to describe council’s response to the motion. However, taken together with the remainder of the lengthy and detailed article where the quote appeared, it was agreed there was sufficient context that does not automatically lead to the conclusion that the statement was solely aimed at disparaging council.
While the word “disinterest” carries connotation and therefore a more neutral word could have been chosen by Kasenberg, the integrity commissioner’s report did note that by definition, it is synonymous with neutrality, detachment and even impartiality.
The Integrity Commissioner also agreed with a point raised in Kasenberg’s second response where he indicated that commenting on “disinterest” does not rise to the level of “disparagement,” which includes libel, slander and defamation.
The integrity commissioner did not see evidence to support a contravention of Section 5.4, which requires a councillor to serve and be seen to serve the interests of the county’s constituents and the county conscientiously and diligently, and approach decision-making with an open mind.
The complainants argued that not supporting and criticizing the decision is, by extension, a failure to support the county. In his response, Kasenberg indicated that his comment to the media intended to advise all constituents that he stood for a matter which was important to so many of them, and remind the community that despite what to him seemed like a poor choice by council, that the county is made up of good, hospitable people.
The integrity commissioner agreed with Kasenberg, especially in light of the finishing thought of the Facebook quote, which states that the failure to support the motion could “send unintended signals.”
The complainants also allege that Kasenberg’s Facebook comment on Nov. 27 violated Sections 5.2, 5.4 and 5.5 of the Code.
He indicated that he was responding to a question posed to him by another Facebook user, namely, “Todd Kasenberg how do we support a change? A petition?”
Kasenberg submitted that merely expressing emotion is not in breach of the Code or of any of his duties.
Lastly, he said he was serving the best interests of constituents when he responded to a request for information, reflecting an open mind and solution-oriented possibilities, and that in responding to a citizen-initiated call for action, he in no way named his colleagues or impacted his dealings with them.
The integrity commissioner agreed with Kasenberg, especially in light of Section 5.10, which makes it clear that the Code contemplates members of council using their influence on behalf of constituents.
The only complaint against Kasenberg which was not dismissed deals with the portion of an interview quoted in a Banner article on Dec. 15, which was a breach of Sections 5.4, 5.5 and 5.7 of the Code.
The complainants allege that the quote was not supportive of council or the decision made by council and that it is unfounded and untruthful to suggest a violation of ethical principles and the Municipal Act, 2001, by members of council.
Kasenberg submitted that his comment was in response to the Warden’s statement to the Listowel Banner on Dec. 3, which mirrored statements of councillors Wilhelm, Herlick and Kellum made to the Banner on Dec. 10, and all of which suggested that the explanation for the refusal to second the councillor’s motion was a lack of desire for a new committee. Given their similarity, he indicated that it was likely that prior discussion had taken place and that he was merely suggesting a possible explanation for this rare outcome.
The integrity commissioner’s finding indicated that Kasenberg contravened Sections 5.5 and 5.7, because his statement that councillors were engaging in group-based discussions in breach of ethical obligations and statutory requirements before an issue arose, was not based in fact, but speculation, and could undermine public confidence in council as a whole but the contraventions of the Code were deemed to be relatively minor.
They found no evidence to support that Kasenberg did not serve his constituents or the county diligently or with an open mind.
“Clearly, as evidenced by the fact that council saw over 55 letters from constituents and a petition with approximately 1,000 signatures by its meeting of Dec. 3, resulting in two urgent motions, and with the recent adoption of the county’s Diversity, Equity and Anti-racism Charter on June 17, 2021, it is clear that the councillor was representing the will of many constituents in the county and using his influence consistently with Section 5.10 of the Code,” stated the report.
Although a reprimand or a suspension of pay for a period up to 90 days could have been recommended by the integrity commissioner, they did not find either penalty to be warranted.
In his response, Kasenberg indicated he was prepared to publicly retract the comment about prior group-based discussions by council in the absence of evidence, given that elected officials must do their best to support their opinions with facts.
Kasenberg’s written response to the integrity commissioner addressed issues he encountered during the eight-month-long process since the complaints were made.
“To my knowledge, I am the first Councillor of the County of Perth to be the subject of an Integrity Commissioner investigation since the 2016 bylaw enacting the Council Code of Conduct,” he wrote in his response to the integrity commissioner. “My surprise on receipt of a formal notification of complaints arose because there was no advisement, as a new Councillor (elected in 2018 for the first time to public office), that such a code existed. On receipt, I returned to a binder I was provided by the former CAO of the County of Perth that supported my onboarding as a member of the Council of the County of Perth – and having not altered that binder, found no copy of the Council Code of Conduct.”
He had difficulty sourcing the Code of Conduct at perthcounty.ca and had to resort to using the website search feature to find it. It only appears embedded in the minutes of the council meeting of May 5, 2016.
“For something that intends to support the proper conduct of Councillors, it sure is difficult to access,” Kasenberg wrote in his response. “Further, I point to the fact that it was only in the aftermath of the complaints filed with the Integrity Commissioner against me that council then received training on the Council Code of Conduct and the role of the Integrity Commissioner.”
He made an error in assuming this bylaw was still in force and that it outlined the rules of procedure to be used by Perth County’s appointed integrity commissioner.
“Among the rules at that time adopted by the Council of the County of Perth was an intention that from filing by the complainant to submission of a report, a total of 60 days was allocated,” wrote Kasenberg. “The wish of that Council was for a 60-day turnaround. I assumed through the entirety of the process that this bylaw was in force and governed the actions of the Integrity Commissioner.”
It turns out that the time limit was no longer enforced.
His first notification of complaints against him that had been accepted for review by the integrity commissioner was received on Jan. 6.
An elaboration was received on Jan. 15, with a deadline for a response from Kasenberg to the complaints of Feb. 1.
“I received a notice about a summary dismissal pertaining to the matter of insult to the ceremony of installation of the Warden on Feb. 24,” he wrote. “This confirmed to me that this complaint was being worked on and that the timeline of 60 days seemed to be within expectation. Imagine my surprise when on July 7, I received correspondence asking me to clarify parts of my earlier response and to address a code section that was omitted, in error, in the original expression of the complaints against me. On that occasion, I reacted as most would – pointing out that the 60-day window had passed, and that I deemed the matter closed based on County of Perth bylaw conditions found in bylaw 3533-2016.”
This received a prompt rebuke from Aird & Berlis, who responded twice, the second occasion providing him with a copy of a bylaw from 2017 that called for a proposal process to secure an integrity commissioner and revoked bylaw 3533-2016.
“I had no idea that the enabling bylaw was revoked,” Kasenberg wrote. “I was not given any of the documentation about the Council Code of Conduct, nor the revocation of the enabling bylaw, on assuming office or as a courtesy by the Integrity Commissioner at complaint instigation, and the search of the Perth County website did not yield, under Code of Conduct, an easy find of the revocation bylaw (3620-2017) for my information.”
The presentation of that bylaw came with assurances that there wasn’t a timeline in the contract between the County of Perth and Aird & Berlis related to their reporting obligations and that therefore, this matter was still active.
“I am convinced that there was wisdom in the choice of the council… to apply a 60-day deadline from complaint intake to reporting,” he wrote. “It appears, however, that in revoking the original bylaw, which included reasonable definitions about the role of Integrity Commissioner and service standards… council’s earlier-approved process was discarded.”
For those reasons, Kasenberg sought a copy of the contract to determine the accuracy of the claim made by Aird & Berlis that there is no reporting timeline. He was denied access to this contract, for reasons that it included proprietary information, by the Corporation of the County of Perth.
“I was advised that it was my prerogative to attempt to secure the document through a Freedom of Information Request,” he wrote. “I duly filed and paid my fee. And I was again denied access to the contract since it is exempted from even redacted disclosure under solicitor-client privilege.
“I have, quite honestly, been through a battle to preserve my integrity through what seems a vaguely-defined process for investigation and reporting that does not appear to reflect the original will of Council,” Kasenberg continued in his response to the integrity commissioner. “Staff in the day were charged with a process of procuring and engaging an integrity commissioner, but choices were made somewhere through the process that has effectively hidden the rules of procedure and service standards behind an impenetrable privacy wall. As a result, I still cannot vouch that I have received reasonable and due process, although I highly object to the duration of the process that has unfolded, believing it to be unreasonably long.”
To this point, Kasenberg indicated that Aird & Berlis LLP positioned that the pandemic has elevated workload and that because the county had no service standard, their work on this file didn’t require them to hit a deadline.
“I will position that the Integrity Commissioner for the County of Perth is expected to provide a reasonable level of service,” he wrote. “If COVID-19 generating much business for the firm is an explanation for the lengthy delay, please consider that governance in the time of COVID-19 has also created a substantially more intensive level of work, but that County Council and the staff of the Corporation of the County of Perth still managed to hit service targets for the vast majority of our services.”
Kasenberg stated that moving forward, no other councillor should have to be subjected to the lengthy delays shown in a Council Code of Conduct matter and suggested council needs to review the current circumstances and intent for its process and service standards related to Council Code of Conduct.
“I remain a dedicated public servant,” he wrote. “That I was made (an) experimental subject in what I now view as a flawed and opaque process (for reasons outlined) hasn’t impressed me.”
During the meeting, Kasenberg did speak to the allegation he had made in the Banner.
“I have hung fairly consistently on the notion of bringing facts and evidence to our public decision making and discourse,” he said. “I would be the last person privy to information that would have supported my allegation in the media that the silence of my peers at that meeting of council seemed an odd coincidence, and so I fully retract that statement and its intent.”
Colin Burrowes, Local Journalism Initiative Reporter, Listowel Banner