Integrity commissioner finds Napanee councillor broke Code of Conduct, should be reprimanded

Town of Greater Napanee councillor Michael Schenk broke the rules of conduct for members of Council and should be reprimanded, according to a report by the Town’s integrity commissioner released Tuesday, Jul. 18, 2023 and expected to be presented to Town Council at its meeting on Tuesday, Jul. 25, 2023.

The report stated that the integrity commissioner for the Town had received a formal complaint on May 24, 2023, stemming from Schenk’s behaviour at the previous night’s council meeting. The complaint alleged that Schenk contravened sections 5.4 and 5.5 of The Corporation of the Town of Greater Napanee Code of Conduct for Members of Council and Local Boards (Code) when he publicly implied that a Greater Napanee employee, a senior member of Town staff, was the cause of “toxicity” in the relationship between Town administration and downtown merchants. The complaint further alleges that later in the meeting, Schenk stated that the “Town Employee,” who was present at the meeting, was sleeping. 

As Kingstonist previously reported, at the Tuesday, May 23, 2023 council meeting, which can still be viewed on YouTube, at minute 1:51:20 Schenk made a statement suggesting that there is animosity between downtown business people and Brandt Zatterberg, the Town’s General Manager of Community and Corporate Services.

Schenk asked, “My question is to John [Pinsent, Chief Administrative Officer]. You just chuckled that uh — it’s not a toxic environment anymore down there? [Because]… when you chuckled there to Brandt, I was just wondering if… there was still any animosity? [Because] remember, there was animosity between Brandt and the downtown and the way it was working? That isn’t there anymore?” 

Councillor Angela Hicks answered, “No. It’s fine.” 

Schenk replied, “Oh, OK, then, that’s good.” 

Pinsent interjected, “If I may, I wouldn’t frame it as toxic between… and mentioning any specific persons in this room…there were just some misunderstandings in terms of who managed the work.”

“All right. OK. As long as that’s good, then not a problem,” finished Schenk. 

The complaint also alleges that at least one person sitting close to Schenk heard him ridicule the Town employee when he was absent when asked to answer a council member’s question. The complaint alleges that “this conduct is in addition to previous incidents where Schenk said the Town Employee was sleeping and another in which Schenk made a ‘shooting in the head’ gesture as the Town employee was speaking about the disposition of a community hall.”

Schenk did not turn on his microphone when he made the comment about the Town employee sleeping at the very end of the meeting on May 23, 2023, and it cannot be heard in the audiovisual recording; however, it is addressed in Schenk’s response. Similarly, the audio-visual recording of the meeting does not pick up the alleged ridiculing of the “Town employee”. 

Schenk’s submitted response to the integrity commissioner stated that his comment regarding the “toxic environment” was in reference to a Thursday, Feb. 2, 2023 article in a local newspaper regarding Council’s review of the Greater Napanee Business Improvement Area. In this article, the Town’s Chief Administrative Officer (CAO) is quoted as saying that “…quite frankly the relationship between [Town] staff and business owners is not good. For what it’s worth: it’s toxic.”

Schenk then noted in his response, “[The CAO] assured me that the issues that he previously had referenced as toxic was [sic] not an issue and I accepted that without qualification. I had no intention of implying that [the Town employee] was the problem (as it was quite possible it was certain merchants were the issue and not him at all), but clearly, I needed to know if the issue surrounding the relationship between staff and the merchants was going to be continuing given the label used by our CAO at the previous meeting.” 

With respect to the sleeping comment, Schenk stated that at that meeting, “heat in [C]ouncil chambers was intense. I requested that the installation of ceiling fans be considered as I felt that it was so hot that those conditions led to [the Town employee] falling asleep as he appeared to be sleeping from my point of view.”

Schenk’s response continued, “My concern was that conditions in the chamber were not appropriate for the comfort of all as it is quite possible that at the end of a long meeting in hot conditions people may nod off. I was approached by a member of the audience after the meeting who had wanted to take a picture of [the Town employee] sleeping and I stated that was inappropriate and the issue was in fact the room. I meant no disrespect to [the Town employee] if he succumbed to the heat and [I] wanted conditions to be better so this would be less likely to happen to him or anyone else.” 

Schenk noted that he has no recollection of any comments made regarding the Town employee being absent when a question arose from another councillor. 

With respect to the “shooting gesture,” Schenk noted, “my emotional reaction was that would be political suicide for me as the representative of the people from my own area of the municipality to go this way. This was not to suggest anything would happen to anyone except me.”

FINDINGS

In her report, the commissioner assessed whether Schenk’s conduct violated the Town’s Code of Conduct and/or its Council Staff Relations Policy.

The commissioner found there was no reason for Schenk to single out the Town employee when forming his question, other than to cast that person in a negative light.

Schenk had asserted that the sleeping comment was made out of concern for the employee’s well-being. However, the employee responded, “I was not sleeping in Chambers during the Council meeting and to suggest otherwise is offensive. I have never fallen asleep in Chambers or in my office. If such a witness exists then the name of that person should be brought forward. I sit next to senior Town staff in Chambers. They can attest that the statement that I was sleeping in Chambers is false.”

The employee went on, “Councillor Schenk originally told the CAO he was joking when the councillor was told the comment was inappropriate. Now the story is they have witnesses saying that I was sleeping. This is a serious accusation which I refute. The temperature in the room is a red herring. In fact, I prefer warmer temperatures than most of my colleagues and am often seen in the office with a sweater on when others are wearing short sleeves.” 

The commissioner found that Schenk’s comment, that the Town employee was sleeping, could reasonably be interpreted as a criticism of that person, and that if Schenk was truly concerned about the Town employee’s well-being, he should have expressed this privately, rather than publicly speculating that the employee was sleeping. 

Furthermore, the public manner in which the comment was delivered suggested that Schenk intended to undermine the employee’s professionalism or to mock him in front of Council, his colleagues, and the public, according to the commissioner.

Schenk’s question regarding a toxic environment downtown and his comment alleging the employee was sleeping could reasonably be interpreted as criticisms of the employee. Schenk thus contravened section 5.4 of the Code. 

In the commissioner’s view, Schenk’s question and comment sought to undermine the employee: “This conduct was not respectful, professional or courteous (key principles outlined in the Council Staff Relations Policy). As such, we also find Schenk contravened section 4.1(b) and section 5.3 of the Code.”

The integrity commissioner, citing the findings in another case, stated, “The relative power imbalance between staff, who do not have a voice at Council, and elected Members, who do, mean[s] that their respective roles and responsibilities must be acknowledged and respected…  [r]espectful treatment of staff is a legislative expectation for inclusion in this accountability framework.”

Although the “shooting gesture” could be viewed as a form of intimidation or threat to the employee, the commissioner concluded, “based on Schenk’s response, that this action was not intended as an attempt to intimidate, threaten or influence [a] staff member from carrying out that person’s duties…,” nor did Schenck “invite or pressure any member of staff to engage in partisan political activities or be subjected to discrimination or reprisal for refusing to engage in such activities.” 

In summary, the report said, Schenk’s question at the meeting regarding a toxic environment, as well as his allegation that the employee was sleeping, “can be viewed by a reasonable, objective person as an attempt to embarrass or undermine the ‘Town Employee’ in a public forum. In our opinion, by targeting the ‘Town Employee’ and calling into question his professionalism, the Member failed to comply with sections 4.1(b), 5.3 and 5.4 of the Code.”

Section 4.1 b states that councillors should “conduct themselves with integrity, courtesy and respectability at all meetings of the Council or any committee and in accordance with the Town’s Procedure By-law or other applicable procedural rules and policies.” Section 5.3 states, “A Member shall comply with the Town’s Council and Staff Relations Policy.” Section 5.4 states, “A Member shall not publicly criticize staff. Should a Member have any issue with respect to any staff member, such issue shall be referred to the CAO who will direct the matter to the particular staff member’s appropriate superior.”

RECOMMENDATIONS 

According to the commissioner, when a Council member has been found to have contravened the Code, Council has the authority to impose a reprimand and/or a suspension of the member’s remuneration for up to ninety (90) days. The commissioner stated that it would be appropriate for Council to reprimand Schenk for his conduct at the meeting as it relates to the employee, but that Schenk “has not previously contravened the Code and we do not believe that a monetary penalty is required as a general or specific deterrent.”

The commissioner also noted that pursuant to the Town’s Procedure Bylaw 208-58, it is the role of the presiding member to ensure proper decorum is maintained at meetings; this includes addressing any mistreatment of staff by members.

According to the report, a draft copy of this report was provided to Schenk on July 11, 2023, with an opportunity for him to make final submissions on the findings contained therein. But the integrity commissioner received no final submissions from Schenk. 

The report concluded that Schenk had contravened sections 4.1(b), 5.3 and 5.4 of the Code and should be formally reprimanded. 

Aird & Berlis LLP, a Toronto law firm, was re-appointed as Integrity Commissioner for the Town pursuant to subsection 223.3(1) of the Municipal Act, 2001 on October 27, 2020, by Council Resolution 542/20. Laura Dean, a Partner at Aird & Berlis LLP, prepared the report.  

This is a developing story with more to come.