Loading...
HomeMy WebLinkAbout1979-0021.Hallborg.79-06-07ONTARIO CROWN Et.fP‘O”EES GRIEVANCE ;;ET;bEMENT 2:/79 Eetween: Eefore: 180 DUNDAS STREET WEST. TORONTO. ONT/w,O. MSO IZB-SUITE 2100 TELEPHONE: 416/5WO688 I11 THE NATTiR CF AN AREITRATION L!n.der The CROWN EF?PLC'KES COLLECTIVE SARGAINiNG ACT Before THE GRIEVANCE SETTLEMENT BOARD Mr. Leonard E. Hallborg Grl ever and The Crown in Right of Ontario Ministry of Revenue Employer Mr. J.F.W. Weatherill Vice-Chairman tit-. A. Fortier Member Mr. R. Cocnrane iJe:nbcr For the Grievor: Hr. C.G. Fi.liai.'e Cameron, Qrewin 3rd Scott Suite 402 131 University Avenue Toronto, Ontario For the Emoloq'er: -- Mr. G.A. Stoodley, Q.C. Director, Legal Services 3ranch Ministry of Revenue lgth Floor, 77 Qloor St. West Toronto, Ontario Hearinq: March 20, 22, 23 and April 13, i970. Suite 2100 130 Dundas St. To Jn ok Ontariiest r' t . -2- The grievor, who joined the Ministry of Revenue in 1970 (having previously worked as an assessor in certain municipalities), and whose classification was Assessor 3 (he was known as a Neighbourhood Assessor), was dismissed from employment in the Public Service, effective December 1, 1978, by letter dated November 29, 1978 from the Deputy Minister of Revenue. The issue in this case is whether the grievor was dismissed for just cause. In his letter of discharge the Deputy Minister referred to sections 11 and 16 of The Ptilic,service Act, and to section 33 of Regulation 749 under that Act. In section 16 of The Public Service Act it iS provided that a contravention of (inter alia) section 11 "shall be deemed to be -- sufficient cause for dismissal" , and an analogous provision appears in section 33 (4) of the Regulations. The issue of just cause, therefore, is to be determined having regard to those provisions. In our view, however, the same result would be reached in any event, on general con- siderations,'in, the circumstances of this case. There is no dispute with respect to the facts, although there is one as to their significance. The grievor, a respected and valued employee, worked as a neighborhood assessor in West Lincoln, a muni- cipality in the Niagara Assessment Region of the Ministry. The grievor himself lives in the City of Port Colborne, which is also a municipality within the Niagara Assessment Region. In September, 1978, the grievor decided that he would run for a seat as an alderman in Port Colborne, in the municipal election to be held on November 13 of that year. On September 11, 1978, the grievor wrote to the Regional Assess- ment Commissioner, Mr. Wilkes, notifying him of his intention to run, -3- advising him of the amount of remuneration involved, and of the assurance he had received to the effect that meetings were usually held in the evening, and stating his intention of declaring himself unable to discuss any matters relating to assessment at council meetings. Shortly thereafter, two other Assessors wrote similar letters to the Regional Assessment Commissioner, advising him of their intention to seek public office in municipalities within the Region, although not in the municipalities where their assessment work was done. These letters were, quite properly, passed on to the Deputy Minister of Revenue. On October 12, 1978, the Deputy Minister wrote to the grievor (and to the others) advising of his opinion that should the grievor be elected as an alderman in Port Colborne a conflict of interest would exist between his position as an alderman and his position as a Property Assessor, and that there would be a substantial possibility that his duties as an alderman would interfere with his duties as a Property Assessor. He drew the grievor's attention to the provision of section 16 Of The Public Service Act. The grievor was in fact elected as an alderman in Port Colborne, his term beginning on December 1, 1978, although it would appear that he was sworn in shortly after that. On November 29 (the results of the election being known) the Deputy Minister again wrote to the grievor (with whom he had had a discussion on November 23), informing him that, in the circumstances which have been described, cause for dismissal existed under section 16 of ?he Public Service Act and that the grievor was dismissed from employment effective December 1. The other two employees had not been successful in their bids for election and no further steps were taken with respect to them. -4- In determining whether or not, on becoming a member of municipal council within the Assessment Region in which he worked, the grievor entered a situation of conflict of interest, we must examine the nature of the grievor's work and responsibility as an assessor and as a member of municipal council, and the relationships between the two areas. In 1970, the Province took over the work of assessment which had formerly been the work of the municipalities. There are now a number of Assessment Regions, and in many cases an Assessment Region includes a number of municipalities. That is the case with the Niagara Assess- ment Region. A Neighbourhood Assessor will work on property assessment and evaluation within one or more municipalities in his Region. While his day-to-day work may involve only one particular neighbourhood and perhaps only one municipality, he nevertheless has access to the files for all property within his region. Not only has he access to all files, but he is encouraged to make use of the files covering property in other municipalities in the region than those of immediate concern, and in some cases he must do so in order to arrive at proper evaluations of the property involved. There is, as there should be, discussion and exchange of information between assessors whose overall goal is the assessment of similar types of property on a uniform and fair basis. The Regional Assessment Offices provide, for the municipalities they serve, assessments of property which are relied on as the basis of the municipal property tax; they conduct enumerations for the purposes of grants by the Province to municipalities and for voters' lists; they generate equalization factors used to ensure equitable apportionment of funds as between municipalities; they conduct evaluations and appraisals - 5 - of property for certain special provincial purposes such as Wintario grants, expropriation and the like; they make initial determinations of the rate of business tax payable by business enterprises, and of exemptions to which there may be entitlement; where a request is made under the appro- priate legislation (no such request has yet been made by Port Colborne), they generate equalization factors within a municipality so that all properties within a class may be effectively valued at the same level. The original information necessary to accomplish all these tasks is provided by the assessor. It is true that his work is subject to review and to "quality control" on a spot-check basis. It is nevertheless the case that the system rests on the accurate, skillful and objective work of the Neighbourhood Assessor. It is obviously skilled work, and we think it is not accurate to describe it as merely mechanical. It involves the exercise of judgment based on experience, knowledge and training. In the course of his work, the Neighbourhood Assessor becomes privy to a great deal of information intimately related to the conduct of muni- cipal affairs, but which is confidential and may not be divulged to others who might have an active interest in it: not to a businessman's competi- tors, of course, but not to by-law enforcement agencies, either, any more than to the police. The information gathered by any Assessor is, as we have noted, available to all. It is information which involves directly the vital interests of a municipality, involving as it does not only the source of its revenues, but also the application of many of its ordinances. As well, an Assessor has access to - and, by the nature of his work, is generally aware of - information which involves the relationship of one municipality to another. He could, through the misuse of this information, favour or adversely affect the interests of one municipality as against another. -6- There can be no doubt that by reason of his work and position as an Assessor in the Niagara Region - even though not working in the same municipality - the grievor has special knowledge and access to special knowledge of matters inextricably interwoven with the fabric of muni- cipal finances and politics. His own undertaking to "declare a conflict of interest" and not take part in council proceedings involving assess- ment matters indicates the grievor's own recognition of this fact. It is the employer's view, however, that there is a constant and unavoidable conflict of interest in the mere fact of the grievor's being a member of the council while he is at the same time working as an Assessor within that Assessment Region. It is not necessary for us to expand here on what we take to be the obvious role of a member of a municipal council. It must be empha- sized, however, that this role may include, at times, the defence of the interests of one constituent against those of another; the defence of the interests of his ward against those of another; the defence of the intereStS of his municipality as against those of another or as against those of the Province. He might also, as a member of council, feel impelled to take a position against the interests of some individual citizen. In each of these situations he might well have special knowledge or access to special knowledge, by reason of his position as an Assessor, which would give him an advantage. Not all of these situations, it should be added, would necessarily involve debate in the council chamber from which he would be seen to withdraw. I There is, as the employer acknowledges and as we are convinced, no question of the grievor's personal honesty and integrity. There is no suggestion that the grievor would take advantage of his special knowledge for his own benefit or even for the benefit of his constitutents or his municipality. It is nevertheless the case that the proper interests of -7- 1 counsellor an Assessor conflict with the proper interests of a municipa in the same Region. Not only is the same person undertaking to "serve two masters" whose interests are not the same and are sometimes opposed, but he may be seen, and reasonably so, as being in a position where it is open to him to take advantage.in one position (even if not for his own benefit) of the special knowledge he has gained in the other. The constituent, ward, municipality or province on the other side of some matter in which the council member with special knowledge is involved, might well feel, whatever the real case may be, that the situation is an unfair one. There is, in fact, a conflict of interest. The situation in the instant case is of course very different from those which were dealt with by the Public Service Staff Relations Board in the ticKendry (x6-2-674) Atkins (166-2-889) or Garrett (166-2-3040) cases. In those cases the grievors either accepted benefits from those whose cases they were to deal with, traded on knowledge or position, or entered into transactions with the employer for their own benefit. There was what some of the witnesses for the grievor referred to as an "actual conflict of interest" in those cases in the sense that the employee con- cerned had behaved wrongly and had in fact taken improper advantage of his position. That is, a conflict of interest had occurred, and the employee had promoted his own interests over those of his employer. There is, of course, nothing like that here, but there is an “actual” conflict of interests nevertheless, in that the grievor has - honestly and from the best of motives - taken on obligations which are, in part, contradictory, and which involve interests which will, at times, be in conflict, and be seen to be in conflict. -8- The conflict of interest in this case is a significant and substan- tialone, and arises out of the very nature of the two obligations which the grievor has undertaken. It is not the sort of "interest", arising out of some particular matter or transaction, to which The Municipal Con- flict of Interest Act, 1972, applies, and which can be dealt with by declaration and abstention. It involves rather a fundamental divergence of obligations. The rights of Crown employees to participate in political activities are governed by !rhe Public Service Act and the Regulations thereunder. A candidate in provincial or federal elections must take a leave of absence to campaign, and on being elected must resign his position as a Crown employee. Crown employees may, however, (with certain exceptions noted in the Act or Regulations, and which do not cover the grievor) be candi- dates for municipal office and if elected may serve in such office, provided, as is set out in section 11 of the Act: a) the candidacy, service or activity does not interfere with the performance of his duties as a Crown employee; b) the candidacy, service or activity does not conflict with the interests of the Crown; and c) the candidacy, service or activity is not in affiliation with or sponsored by a provincial or federal political party. R.S.O. 1970, c 386, s.11. In the instant case, while there is no evidence touching on condition (c), and while we do not consider that condition (al applies in any very substantial way, it is our view that there is, for the reasons we have given, a conflict with the interests of the Crown, SO that condition (b) is not met, and the grievor is not entitled to serve in the municipal office in question. His serving in such office constituted -9- a violation of Section 11 and must, under set tion 16, be deemed to be sufficient cause for dismissal. There was adduced, on behalf of the grievor, considerable evidence as to other cases in which Crown employees have been elected to and serve in Municipal office and yet remain in employment. In many of these cases we are not convinced that there is in fact any significant conflict of interest. There are some - we think particularly of the case of a Manager in the Niagara Assessment Region who is said to sit as a member of the Niagara Peninsula Conservation Authority - where (although we make no determination of the matter), a conflict of interest does appear. That such cases may have escaped notice or consideration, however, does not absolve others from meeting the requirements Of.ThePublic Service Act. In any event, it is clear to us that there has been no attempt to - discriminate unjustly against the grievor himself. The requirements of the law are, we think, clear, and they must be met in the circumstances of this case. It should be repeated that in reaching the conclusion which we do, we do not reflect at all adversely on the grievor's honesty or integrity. It is simply that, within a given Assessment Region, the positions of municipal council member and Neighbourhood Assessor are not ones which can properly be held by the same person at the same time, as they neces- sarily involve that person in conflicting allegiances: In the normal course we would, having regard to section 16 of ?he - public Service ACt. feel constrained to dismiss the grievance, without more. - 10 - At the conclusion of his argument, however, counsel for the employer advised us that he was instructed by the Ministry to inform the Board that in the event we decided (as we do); that the Ministry's decision was correct, the Ministry consented willingly to any finding or deter- mination that would convert the grievor's discharge to a suspension, provided that the grievor either a) accept a transfer to an adjoining Region (such a position now being open) or b) resign his municipal office. In our view, such a determination is appropriate in the circum- stances of the case, where there has been nothing blameworthy, in the usual sense, in the grievor's conduct. It is therefore our award that the dismissal of the grievor be set aside and treated as a suspension, and that the grievor be reinstated upon either a) his acceptance of a transfer to a position in the same classification in an adjoining Region or b) his resignation from his municipal office; provided that such acceptance of transfer or such resignation be communicated.to the employer within fifteen days of the issue of this award; otherwise the grievance shall be dismissed. DATED AT TORONTO, this 7thday of June, 1979. f lee-Chairman "Andre Fortier" - 11 - With respect I am unable to agree with the majority award. The evidence revealed that the decision to terminate Mr. Hallborg's employment was made by Mr. T.M. Russell, the Deputy Minister of Revenue. That decision was communicated to Mr. Hallborg by letter dated November 29, 1978. The reason for the dismissal, as recorded at page 2 of that letter, was: In view of Sections 11 and 16 of the Public Service Act and Sections 33 of RegulatiOn 749 under that Act, the advice given to you in my letter of October 12th lest, and your decision to seek and hold muni- cipal office in the assessment region in which you work and to continue to work in your present position with the Property Assessment Division of khe Ministry of Revenue, I hew with considerable regret concluded that, cause for your dismissal exists under Section 16 of the Public Service Act. Mr. Russell elaborated on these reasons at the hearing. In my view the most significant aspect of his evidence was that, in reviewing Mr. Hallborg's case, he was concerned with the need to develop a rule or opinion that would serve,for assessors in general. That rule, he testi- fied, would apply to assessors running for municipal office in the region where they were employed. Mr. Russell stated that he was concerned with the general case, he was not concerned with tha particular facts of the Port Colborne situation, but the Ontario situation. On cross-examination he agreed with the grievor's counsel that what he had done per se was to declare that any tax assessor who runs for municipal office would place himself in a conflict of interest situation and there would be cause for immediate dismissal. He wasn't sure if this would be the case if the assessor was elected outside his region. Section 11 of the Public service Act establishes a standard by which Crown employees who wish to seek and hold municipal office are considered for continued employment in the Public Service. A Crown employee - 12 - can seek and hold political office if: (a) the candidacy, service or activity does not interfere with the performance of his duties a* a crown employee; (b) the candidacy, service or activity does not conflict with the interests of the Crown; and (cl the candidacy, service or activity is not in affiliation with or sponsored by a provincial or federal political party. R.S.O. 1979, c 386, s.11. Section 11 addresses itself to the individual employee seeking municipal office, not classes of employees. In my view it was enacted to allow as many public servants as possible to seek and hold municipal office. The legislators must have intended that each individual's candidacy would be looked at on an individual basis and measured against the prohibitions expressed in that Section. At the same time, it recog- nized that there may be persons who, because of the nature or sensitivity of their employment, could not seek or hold municipal office. Mr. Russell failed to properly exercise his discretionary powers when he failed to genuinely address himself to the matter before him, i.e. whether Mr. Hallborg, by running for municipal office, would infringe upon the prohibitions described at Section 11. In that regard I would refer the parties to Judicial Review of Administrative Action, 3rd Edition, SA de Smith, at page 252, where the principles governing the exercise of discretionary powers are discussed at some length. Principles Governing the Exercise of Discretionary Powers The relevant principles formulated by the courts may be broadly summarised as follows. The authority in which d discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, a discretion must be exercised only by the authorit&' to'which it is committed. !rbat authority must - 13 - genuinely address itself to the matter before it: it must not act under the dictation of another body or disable itself from exercising a discretion in each individual case. In the purported exercise of its discretion it must not do w&t it has been forbidden to do, nor must it do what it has not been authorized to do. It must act in good faith, must have regard to all relevant considerations and must not be swayed by irrelevant considera.tions, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, end must not act arbitrarily or capriciously. 1 would suggest that Mr. Russell did not genuinely address himself to the matter before him and by looking at a general rule to apply to all assessors he disabled himself from exercising a discretion in each individual case. The affect of what he has done is to regulate a new group of exclusions something which only the Commission is empowered to do by Section 11 of the Public Service Act. At page 259 the learned author discusses the case where the competent authority is empowered to take such action or to impose such conditions as it thinks fit in relation to a matter directly impinging on individual interests. At page 260 he notes: ,The authority must also genuinely address itself to the application before it, consider it on its individual merits, and not promote a purpose alien to the spirit of the Act. At page 274 the learned author notes: A tribunal entrusted with a discretion must not, by the adoption of a fixed rule of policy, disable itself from exercising its discretion in individual cases. At paqe 275: 'Again, a factor that may properly be taken into account~in exercising a discretion may become an unlawful fetter upon discretion if it is elevated to the status of a general rule that results in the pursuit of consistency at the expense of the nerits of individual cases. - 14 - For these reasons then I would have found that there was not suf- ficient cause for Mr. Hallborg's dismissal and order his reinstatement without loss of pay or benefits. Mr..Russell also testified that before reaching his decision he consulted with, or informed, a number of people. However the persons called by the Employer in support of their position were not the same people Mr. Russel spoke with before coming to a decision. The result of this is the Board heard evidence from persons who were not involved in the decision-making process. Therefore I would question the relevance of their evidence. The thrust of the evidence for the Employer appeared to be that Mr. Hallborg would have an unfair advantage over the other council- lors because of his vast experience as a tax assessor. While his integrity was not in question there was a.fear that either by his action or inaction he would somehow influence the conduct of council. The Employer and the majority of this Board feel that the Municipal Conflict of Interest Act, 1972, would not be a sufficient solution to the problem. I can't agree. In my view there are sufficient safeguards in the Public Service Act, The Tax Assessment Act and the Municipal Conflict of Interest Act to deter an honest tax assessor from misconducting himself. What the Employer appears to be attempting to do is to discourage Crown employees who work in ministries that are linked with municipal governments and who, through their employment, have gained a specialized knowledge of a particular aspect of this relationship, from entering municipal politics. This may, in some cases, depending on the level and nature of the position, create a conflict of interest situation. However Mr. Hallborg, as a tax assessor, is far removed from the major decision- making process that may create a conflict that I can foresee. -.15 - As the majority award has noted at page 9: 'here is, as the Employer acknowledges and as we are convinced, no question of the qrievor's personal honesty and integrity. There is no suqqes- tion that the qrievor would take advantage of his special knowledge for his own benefit or even for the benefit of his constituents or his municipality. While it might very well be the case that Mr. Hallborg is in a position where it is open to him to take advantage in one position of the special knowledge he has gained in the other, that gain (if that is the proper term) would be tempered by the fact that he is only one of many councillors who must eventually make a decision. The gain then would be that he is better equipped for the debate on issues involving his specialized knowledge. He could not obtain for the muni- cipality or his constituents any more than the law would allow. He may, through his specialized knowledge, be able to impart some of that knowledge to his colleagues to allow them to utilize the law to its fullest advantage but I see nothing wrong with that situation. I am therefore driven to the conclusion (even though Mr. Russell was not concerned with the particular facts of the Port Colborne situation) that the Employer has failed to establish that Mr. Hallborg's election to municipal office would create a conflict of interest situation that would warrant his dismissal. R. A. Cochrane