A municipal integrity commissioner has opened an investigation into allegations Carleton Place Mayor Louis Antonakos secretly recorded and disclosed information from confidential council sessions during the town’s 2014 election campaign, the Citizen has learned.
The allegations were detailed in an official complaint filed Feb. 23 against the mayor by local developer Volundur (Wally) Thorbjornsson, who worked with then-councillor Antonakos on the campaign.
The mayor, in a public statement to council last month, dismissed the complaint as a “publicity stunt… by a disgruntled developer,” and expressed confidence integrity commissioner Robert Swayze would likewise dismiss the complaint. The mayor has not responded to the Citizen’s multiple requests for comment on this and other municipal matters.
IN-DEPTH: How one chocolate shop sparked a firestorm of small-town politics in Carleton Place
Swayze has opened a new investigation into the complaint lodged by Thorbjornsson, according to sources who say they have in-person interviews scheduled this month with the integrity commissioner.
The sources said they will share information on allegations Antonakos gave confidential council information to influential business owners and property developers in 2014 as “bartering chips,” according to Thorbjornsson’s allegation, in trade for election support.
The Citizen has spoken with one prominent resident who claimed to have attended some of those campaign meetings, and who verified details of Thorbjornsson’s complaint on condition of anonymity.
Swayze would not confirm the status of any investigation in an interview with the Citizen, and has cited confidentiality in declining all prior requests for comment on his ruling over a recent town controversy.
Swayze filed a report in January on separate unrelated complaints against the mayor and town councillor Doug Black alleging they contravened the council code of conduct – the complaints were filed by fellow councillors in that investigation, which cost Carleton Place taxpayers an estimated $20,000.
The integrity commissioner summarily dismissed each complaint and no sanctions were imposed against either the councillor or the mayor, but Swayze included a stern warning in his ruling about a “toxic relationship” between Antonakos and Coun. Black.
Deputy mayor Jerry Flynn said the findings of that report only scratched the surface of the divisions between the mayor and the rest of council.
Councillors unanimously appointed Flynn as council spokesman in March – with the mayor abstaining from the vote after stating, “It is my job and my job alone, to speak on behalf of council” – during a motion urging a resolution to the mayor’s silence in the face of the controversy, and the unanswered questions from the press over Swayze’s ruling.
Council, which had been debating the frequency of its closed meetings, also recently passed a motion banning the use of cellphones in its in-camera sessions.
The allegations in Thorbjornsson’s complaint, if proven to be accurate, may constitute violations of provincial statutes that govern Ontario municipalities, according to experts in municipal law and government ethics, as well as breaches of council’s own code of conduct, and may contravene the widely cited Supreme Court R. v. Hinchey anti-corruption ruling.
But even in the event the integrity commissioner were to recommend sanctions, the discretion rests with council whether to impose any penalty.
In comments made in an interview with the Citizen, Swayze defended the role of an integrity commissioner, generally, saying the position provides a valuable and cost-effective service to communities.
However fellow integrity commissioner John Mascarin, who currently serves the role for five other municipalities, acknowledged it can be a “toothless” position.
Mascarin, recognized as an expert in municipal law with Aird & Berlis LLP and as adjunct professor at Osgoode Hall Law School, said new legislation under Bill 68 – which has received second reading and entered committee at Queen’s Park April 3 – would expand some of the integrity commissioner’s powers, though the bill’s amendments primarily deal with advisory capabilities.
“It is a bit of a toothless role because you can only recommend certain penalties,” said Mascarin. “One is a reprimand, which is not defined, but would be some sort of censure or a slap on the wrist. The second is the suspension of pay up to 90 days.
“Those are the only two penalties that can be imposed and those aren’t proposed to change under Bill 68.”
Duff Conacher, an internationally recognized expert on democratic reform and government accountability as co-founder of Democracy Watch, and formerly a visiting professor of political studies at the University of Ottawa, believes the turmoil around Carleton Place council could form a case study in the potential for small town political problems.
Conacher told the Citizen the issues surrounding Antonakos and council underscore the problematic role of integrity commissioners in enforcing municipal violations, and highlight the need for legislative reform in Ontario, where small-town part-time politicians must strike a difficult balance of serving their communities “where everyone has a stake in the game.”
Along with the allegations contained in the initial integrity commissioner complaint, and the allegations made in Thorbjornsson’s complaint, numerous prominent community sources have come forward to speak out against Mayor Antonakos with allegations ranging from intimidation to voting on a matter on which he allegedly had a conflict of interest.
Antonakos, who served two terms on council before being elected mayor by a 262-vote margin in 2014, is a property manager and landowner with several properties in town.
His family name may be familiar in Ottawa as the owner of Barrymore’s Music Hall.
In a 25-minute statement to council on March 7, Antonakos dismissed Thorbjornsson’s complaint and said negative media coverage was “flawed” or “fabricated,” calling the controversy the product of “the deputy mayor, two reporters and a disgruntled developer.”
Antonakos has not provided answers in response to the Citizen’s requests for comment to a recent Citizen report, which detailed the fallout of the failed establishment of a chocolate shop. Instead, he responded that any further discussions and communications should be handled by his legal representatives. However, he did not respond to the Citizen’s follow-up request for the contact information of the mayor’s legal representatives.
The chocolate shop turned into an unlikely wedge issue in town in the summer of 2015, when council voted 5-2 against a zoning application, which effectively killed the sale of an old church hall to Manitoulin Chocolate Works, which had been scouting Carleton Place for their family-run shop.
Past mayor Paul Dulmage, and others, accused the mayor of voting against the sale in conflict of interest, after Antonakos courted the same chocolatier as potential tenants for one of his own properties in another failed deal two years earlier. Then-councillor Antonakos declared a pecuniary (financial) interest and abstained from that 2013 vote.
Conacher told the Citizen in an interview that many part-time politicians can happily co-exist with their “day job” – most of the six Carleton Place councillors, for instance, are retirees – and the government ethics watchdog acknowledged most municipalities can’t afford to employ full-time councillors.
But, Conacher said, speaking generally, that some towns can end up “paying a cost because of the rampant conflicts of interest that occur in small cities and towns between those councillors’ private interests and what’s in the public interest.”
Conacher also expressed his concern over the integrity commissioner’s ability to enforce any alleged violation.
“One of the problems is allowing … the council to select its own integrity commissioner. That’s just a bad idea,” said Conacher. “Complaints should go to the provincial commissioner, and the provincial commissioner obviously has independence from the town and the council. It’s just a better idea.”
“Ethics standards don’t change based on where you are in the province of Ontario, so there should be one code, so it doesn’t allow (individual councils) to draft (their) own code,” Conacher said.
Swayze, who serves as integrity commissioner for nearly 20 communities, including Carleton Place, defended the powers he already possesses in the role, and said it would be “a mistake” to create any new entity, or upload responsibilities to a provincial body, because of the sheer volume of cases and the need for adequate expertise in municipal affairs.
“They’ve already extended the jurisdiction of the Ombudsman to include municipalities, and I support that. There are some things integrity commissioners can’t do, which the Ombudsman can. … You have to let local issues be dealt with by local people, and it’s a mistake to try to control municipalities by the province, particularly since they’re paying a premium on their municipal tax bill. Politics in a municipality is vastly different from the politics of the province,” said Swayze in an interview with the Citizen.
Since the integrity commissioner has no power over staff, said Swayze, the integrity commissioner has the support of staff when investigating a municipality.
“The legislation is very broad in terms of the amount of information we can acquire from municipality staff, and they’re always cooperative because they’re not threatened. … If you start putting the province in as an authority, or even the Ombudsman, you don’t have that kind of relationship. It’s a good relationship, and in every case, you get to the bottom of these issues, you can do a useful investigation, and you can take as much as three months’ salary away from these people, so it’s an excellent facility for all municipalities,” said Swayze, who called the entity an “empowering” force for councils.
But Conacher also questioned the true independent nature of an integrity commissioner “when the council members choose them.”
“The integrity commissioner is on retainer … so if he makes a ruling councillors don’t like, they can fire him, which has happened in other municipalities when the council didn’t like the ruling. … And that’s a flaw, it tends to lead to rulings that are just not strong enough.”
“And if that standard of independence isn’t met, I don’t think you have an independent watchdog. It’s reasonable to say that person has at least the appearance of a conflict of interest, because their financial interest in keeping their job means they could have an interest in letting councillors off the hook,” said Conacher.
Swayze countered the “political impact” of a negative ruling, along with the forfeit of three-months salary, which he called “a substantial hit,” is enough of a consequence for the scale of violations he typically investigates.
“If a municipality fires an integrity commissioner, there is a political impact on each of them for doing that. And even if the Council doesn’t take the recommendation to remove salary, all of the integrity commissioners’ reports are public and it certainly has an impact… It’s enough for an integrity commissioner to recommend suspension of salary, because if that’s public, it’s a very negative comment about the councillor,” Swayze said.
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Mascarin, who in addition to serving as an integrity commissioner, advises municipalities on the procedures and best practices for hiring one, said he can understand the concern.
That’s why he regularly advises town councils to either appoint or dismiss any integrity commissioner by a two-thirds vote, and said his colleagues have also recommended a single-term appointment, a concept Conacher supports.
“The council gets to choose the integrity commissioner, so unless the integrity commissioner is appointed by another entity, then I suppose there will always be that allegation that an integrity commissioner who wants to retain the appointment and the ability to charge for those services, could tend to try to curry favour with the council and perhaps be lenient with them or look the other way,” said Mascarin. “I completely understand the appearance of a bias or conflict there.”
Swayze’s initial report, which was quietly made public without discussion at a Valentine’s Day council session, appears to identify breaches of council’s code of conduct, but as Conacher noted there were no sanctions issued.
And if Swayze, or any other entity had recommended sanctions, there’s no guarantee they will be enforced, as council holds the final say on levying any form of penalty.
“That’s another huge flaw,” said Conacher. “Politicians should never be judging other politicians. By definition that’s a kangaroo court. It would make decisions based on politics and not on the evidence and the law.”
“And so the integrity commissioner – which should be provincial, not local and not chosen by members of the council – if that commissioner, if they are judging whether someone is right or wrong, then they should also be able to judge what the penalty should be as well,” Conacher said.
Council members like deputy mayor Jerry Flynn have also questioned the cost-effectiveness of the recent investigation into Antonakos and Coun. Black.
Swayze told the Citizen the entity is, overall, “extremely cost-saving, because some of the complaints I receive take a five-minute email to deal with and they’re dismissed – there’s a lot of crazy complaints out there. I think it’s very effective and cost-conscious and performs a service without being off the charts in terms of cost.”
Mascarin said one of the most impactful reforms of Bill 68 will afford integrity commissioners a broader scope for an advisory role.
“One of the big changes is(integrity commissioners) can advise and inquire into municipal conflict of interest. If (a council member) has to go out and get a separate legal opinion from their own lawyer every time there’s an allegation of a conflict, that can get very expensive,” said Mascarin in an interview with the Citizen.
“Now the integrity commissioner can go in and advise at an added cost to the municipality, but the province wants to ensure the municipality is getting the right advice. But if they don’t get the legal opinion and run afoul, then it becomes a bigger problem – for themselves and for the municipality.
“It will add costs to municipality bottom line,” said Mascarin, who noted a councillor could now ask for a ruling on a conflict of interest case “at no cost to the council member, but the municipality is going to have to foot the bill.”
“As an integrity commissioner,” said Mascarin, “I kind of welcome that work.”
WHAT DO THE EXPERTS SAY?
Canadian ethics watchdog Duff Conacher, co-founder of Democracy Watch and a former University of Ottawa political studies professor, and municipal law expert John Mascarin, who currently serves as integrity commissioner for five Ontario communities, have examined the controversy in Carleton Place, and offered opinions on several provincial and municipal statutes that may or may not have been breached, according to allegations reported by the Citizen.
Antonakos has declined media requests for interviews.
Conacher said the alleged breaches of provincial acts that govern municipal conflict of interest rules, election etiquette, privacy protection, and Council’s own code of conduct constitute a serious municipal matter.
Allegation: Then-councillor Antonakos declared a pecuniary interest on a 2013 development proposal involving Manitoulin Chocolate Works, and abstained from the vote when Council denied the deal. Two years later, Mayor Antonakos voted against the chocolatier’s proposal to develop another property and publicly denied a conflict.
Conacher: “The Municipal Conflict of Interest Act states you cannot to have a direct or indirect pecuniary (financial) interest. You have to disclose pecuniary interest before any matter is considered, and ‘not take part in the discussion or the vote upon any question in respect of the matter.’ So in this case, the fact (Manitoulin Chocolate Works) didn’t rent from (Antonakos) and then tried for the second location that council had to approve – if that was shut down, then it’s enough of a possibility that it would have pushed them back to renting from him. That qualifies as an indirect financial interest.”
Mascarin: “I wouldn’t have seen that as being a pecuniary interest. (Antonakos) probably made the determination that he did have a financial interest (in 2013) because he was going to sell the property, so he clearly had the opportunity to profit from that, but the second time he didn’t have a contractual relationship with them, so I don’t see any contravention of the Municipal Conflict of Interest Act. There is potential financial interest, but I still don’t see it. It’s speculative at best.”
Allegation: In a complaint to the Integrity Commissioner and Ontario Ombudsman filed on Feb. 23, local developer Volundur Thorbjornsson alleges then-councillor Antonakos secretly recorded in-camera council sessions and disclosed confidential information to allies. The integrity commissioner has not publicly addressed the complaint, and Antonakos has dismissed it as a “publicity stunt” by a “disgruntled developer.”
Conacher: “You can be found guilty of both disclosing confidential information from a closed meeting (under the Municipal Act), and also as a violation of MFIPPA if any personal information is disclosed.”
Mascarin: “I’m not sure it violates Municipal Act, (but) recording that and disseminating or distributing that recording would have been a clear violation of the procedural bylaw and also a code of conduct violation. It’s plainly evident that it could possibly be a violation.”
Allegation: According to Thorbjornsson’s complaint, Antonakos allegedly used confidential council information as leverage for election support from influential developers.
Conacher: “The Municipal Elections Act states you cannot ‘Offer, give, lend, or promise or agree to give or lend any valuable consideration in connection with the exercise or non-exercise of an electors’ vote.’ And ‘consideration’ is not defined. It’s phrased that broadly so it’s not limited to giving money, or property or services. It can be anything they would consider to be of value. And they don’t even have to deliver on that promise – even just an offer or promise, you cross the line a violate that section, and for obvious reasons.”
Mascarin: “ That sounds egregiously bad. Leave aside that you’re supposed to act truthfully, honestly and with integrity under the code of conduct – to me that almost seems to enter into the realm of … municipal corruption.”
Both experts said the allegations, if true, would be in violation of council’s own code of conduct, which dictates etiquette and conduct rules, but also contains its own confidentiality provisions, as well as sanctions and enforcement policy.
Conacher said some alleged breaches could also be contrary to the decision in R. v. Hinchey,a landmark 1996 Supreme Court of Canada anti-corruption ruling.
In that ruling, Justice Claire L’Heureux-Dubé stated governments achieve “actual integrity… when its employees remain free of any type of corruption. On the other hand, it is not necessary for a corrupt practice to take place in order for the appearance of integrity to be harmed.”
According to Conacher, “The Supreme Court said in order maintain our democracy, the appearance of integrity has to be maintained. And so they interpret these provisions quite broadly and strongly because of the importance of maintaining that standard of the appearance of integrity.”
CHANGES TO LAW OF THE LAND
Ontario’s Bill 68 would amend the Municipal Act to strengthen municipal codes of conduct and make integrity commissioners mandatory for municipalities. The bill, which has passed a second reading at Queen’s Park, would enable integrity commissioners to advise council members on an array of topics, and would give the integrity commissioner broader authority to investigate complaints against councillors, and the ability to initiate their own investigations without receiving an official complaint.
According to Conrad Spezowka, spokesman for Minister of Municipal Affairs Bill Mauro, the proposed legislation ensures every municipality has a code of conduct and would provide access to an integrity commissioner “(to) promote a more consistent level of accountability across our local governments.”
“The proposed changes aim to make the rules clearer, more effective and responsive to local needs. By providing access to an integrity commissioner who will provide advice to members of council and information to the public, the changes may help prevent complaints and court proceedings.”
A ‘TOOTHLESS’ ROLE?