Kincardine councillor reprimanded second time for breaching Code of Conduct

Kincardine councillor Dave Cuyler will be making a public apology at Monday night’s council meeting, following a report by the integrity commissioner.

In committee-of-the-whole Monday night (Feb. 1), integrity commissioner Harold G. Elston told council he had received three anonymous complaints, regarding comments made by Cuyler at the Sept. 21, 2020, council meeting.

At that meeting, a presentation was made by the tourism co-ordinator about a survey done by the Pandemic Economic Recovery Group, pertaining to the success of the downtown Kincardine street closure during the summer. The recovery group includes municipal staff, as well as representatives of the Kincardine and District Chamber of Commerce and the Business Improvement Area (BIA).

Elston said Cuyler was critical of the findings of the survey and challenged the presenter, saying in open council, “You can put down whatever numbers you want when you’re doing it yourself and there are a few people on your board that I don’t trust.” When asked by councillor Laura Haight whether he was suggesting that people were intentionally misrepresenting the data, Cuyler, answered, “Yes.”

In his report, Elston said the complainants had asked to remain anonymous and he agreed to respect their requests, as their individual identities are not important to establish the facts or to enable Cuyler to defend the allegations, he said. The complainants include members of staff, the chamber and the BIA.

Elston said the complainants allege that, in speaking in such a negative way about the work of the Pandemic Economic Recovery Group, Cuyler had breached sections of the council Code of Conduct dealing with general integrity, discrimination and harassment and conduct respecting staff.

In Cuyler’s response to the integrity commissioner, he said that the question posed by Haight was, "Did he think there were people on that board (Pandemic Economic Recovery Group) who would falsify records or lie?" And he answered, "Yes."

“Never did I say who I thought that was,” responded Cuyler. “It was strictly my opinion. I did not point out anyone in particular or say that it was anyone on staff, and there are people who are not on staff on that board.”

Cuyler responded that he did not care who complained as he has been told by residents that approach him on the street, in stores and phone him, telling him not to change as they are sick and tired of the performance of some members of council who just “rubber stamp” everything and don’t ask for anwers.

Elston said that for Cuyler to insinuate that staff and volunteers from the BIA and the chamber had made up the survey results is an entirely inappropriate statement for a member of council to make.

“Taken together with his statement that there were people on the BIA board who were capable of lying, councillor Cuyler engaged in conduct that breached his duty to uphold the standards of behaviour entrenched in the Code of Conduct,” he said. “His disparaging remarks are clearly offensive and may well have harmed the reputations of everyone associated with the project.”

As for Cuyler’s claim that he was just being honest, Elston said that while it goes without saying that if one is to speak, it should be honestly, at the same time, not all honest beliefs should be pronounced.

“Abusive, hurtful and damaging statements are no less abusive, hurtful or damaging, simply because they represent the speaker’s honest opinion,” he said. “The public statements of elected officials need be honest, but measured, never impulsive and reckless. Councillor Cuyler’s comments were made in the most public of forums, ensuring that they would be heard throughout the community.

“He engaged in a clearly intentional attack on the professional competence and credibility of those involved in the survey gathering and reporting exercise, without any support for his position, seemingly as a way of placating those people he knows who are ‘sick and tired’ of the performance of some members of council. His accusations are all the more condemnable as they seek to impeach the work of those trying to assist the community, in such a dark and difficult time."

Elston said it is important to note that this is the second investigation of Cuyler’s conduct where he has been found to have breached the Code of Confuct provisions protecting staff and/or members of the public.

“I have also been advised that Councillor Cuyler has failed to respect many of the sanctions imposed by council flowing from my last report in January of 2020,” he said. “This attitude reflects poorly on Councillor Cuyler, both in terms of his understanding of his responsibilities under the Code of Conduct and his respect for the decisions of his council colleagues.”

Elston recommended that Cuyler receive a strongly-worded reprimand from council, condemning his disrespectful and disparaging remarks about the work of staff and community volunteers and that his remuneration be suspended for the maximum of 90 days.

Councillor Dorne Fitzsimmons posed a general question, asking if a councillor tried to bait another councillor to see how passionate he became and to elicit a negative response, would that be a reason for a reprimand to the one doing the baiting.

Elston said he has had councillors complaining about other councillors but that is to be expected in the political forum where these discussions take place. It’s different, he said, in the case of councillors and municipal staff.

“Even councillors in a heated debate have to be civilized in their discussions,” he said. “However, baiting is not helpful or appropriate and does breach the Code of Conduct.”

Deputy mayor Randy Roppel brought forward a motion that council accept the findings of the integrity commission, that Cuyler receive a strong reprimand from council, make a public apology to staff and volunteers at the Feb. 8 council meeting, and that his remuneration be suspended for 30 days. If he failed to make an apology, his remuneration would be suspended for 90 days.

Fitzsimmons questioned allowing the anonymous complaints to stand. “What is the criteria you use to determine whether that is okay? I always thought you should be able to confront your accuser.”

“I agree,” said Elston, “generally speaking. I practised criminal law when I first started out, and you should be able to look your accuser in the eye. But these aren’t criminal charges. It’s like whistle-blower regulations; you want people to come forward without fear of reprisal at their job.”

He said it was clear what was said at the council meeting in September, and the complainants did not want to be named. “If I thought there would be prejudice against the councillor, I would have to name the complainants.”

Councillor Bill Stewart said he was surprised when he read Elston’s report and saw the Pandemic Economic Recovery Group listed. “That’s the first time I’ve heard of it. Was anybody from council on that group?”

“It was an informal group with a common interest in addressing the issue of the pandemic in the Kincardine business community,” said chief administrative officer Sharon Chambers.

In a recorded vote, Roppel’s motion was approved; and that was later endorsed by council.

Thursday, Cuyler told the Kincardine Record that he had broken the rules and would abide by the decision of council.