Watchdog says city staff may have violated public service code over Scarborough subway advice

Ombudsman should investigate whether staff was serving the public interest, Democracy Watch co-founder says.

TheStar.com
Oct. 24, 2016
By Jennifer Pagliaro

An independent public watchdog says city staff who contributed to and distributed information in the midst of a key Scarborough subway debate may have violated the city’s public service bylaw.

A Star analysis earlier found that a briefing note produced by the TTC was used by the mayor and allied councillors to kill any return of a light-rail plan in Scarborough and that staff discredited the LRT while advancing a one-stop subway now estimated to cost more than $3.2 billion.

“It says act with integrity,” Democracy Watch’s Duff Conacher said of the values set out in the bylaw, which are not clearly defined in the municipal code itself.

Spokespeople for the TTC and the city rejected Conacher’s characterization, repeating that staff provided their best professional advice.

The ombudsman does not have the ability to discipline staff, only to respond to and report on complaints. If an investigation is initiated, the ombudsman can report to council with recommendations.

It’s not clear who is responsible for enforcing the bylaw, but Conacher, who co-founded the advocacy group, said any investigation should be handled by the city’s ombudsman, who hears public complaints, not by city managers.

Failing to comply with the city’s bylaw, which came into effect in December 2015, means a staff member could be “subject to disciplinary action up to and including dismissal.”

The ombudsman does not have the ability to discipline staff, only to respond to and report on complaints.

“These are incredibly serious allegations that, on the face of it, appear to attack staff’s integrity and professionalism,” TTC spokesperson Brad Ross wrote in an email. “We refute such characterizations strongly. Staff stand by the process, the briefing note and the answers provided to city council.”

TTC CEO Andy Byford has said they were not directed to produce the briefing note, which was initially sent directly to the mayor’s office, the office of Councillor Josh Colle, who is also chair of the TTC, and city manager Peter Wallace. But on the floor of council in July, Byford said they were “asked to provide” an estimate of increased costs for an LRT based on delays he later admitted were not necessary.

The numbers and assumptions in the briefing note were used by city staff on the floor of council in warning of the risks of returning to an LRT option.

The city’s public service bylaw says council should receive “frank, professional, timely and comprehensive advice on how its objectives can be achieved in ways which are legal, consistent with policies and in the public’s interest.”

When TTC spokesperson Brad Ross sent the briefing note, he wrote: “Caveats around numbers and assumptions can’t be emphasized enough.”

“But then they weren’t emphasized,” Conacher said. “They were actually ignored ... by various staff statements throughout the rest of the process.”

Part of maintaining political neutrality means ensuring “that business-related information is provided equally to all members of council” according to the public service bylaw.

“In my opinion, the staff that circulated ... the brief to certain members of council and not all and staff that ignored the inaccuracies in the brief when presenting to council and answering councillor questions, all violated this bylaw,” Conacher said.

Councillor Josh Matlow, who challenged the briefing note ahead of council - publishing a nearly 2,000-word open letter ahead of the meeting - and again on the council floor, said what happened leading up to the vote has left lingering questions.

“Can city council and Toronto residents rely on the senior public servants to provide advice that is independent and evidence-based?” he asked. “While the vast majority of the public service do this on a daily basis, it’s come to light that there are some who did not.”

Speaking to reporters on Monday morning, Mayor John Tory said it was not for him to question information provided by staff.

“As far as I’m concerned that information came from the TTC. I should have the right to rely on that and so should other people in the public realm,” Tory said.

City manager Peter Wallace, who heads the city’s public service, was asked to comment, and city spokesperson Wynna Brown responded in an email: “Analysis has been conducted under tight timelines. At all times staff provide their best professional advice to members of council. Staff have emphasized that there are limitations of the advice and information, particularly with respect to detailed costings and analysis.”

Councillor Shelley Carroll, who sits on the TTC board, said city hall has been under the “Webster Effect” since 2012 - after Mayor Rob Ford and his allies orchestrated the firing of former TTC chief general manger Gary Webster when he recommended continuing with plans for LRT over Ford’s push for subways.

“It has a huge impact on the public service,” Carroll said. “A senior public servant was let go for giving impartial and best-practice advice.”

Tony Dean, a professor at the University of Toronto’s School of Public Policy and Governance, who was formerly head of the province’s civil service, said he didn’t think the recent Scarborough subway debate showed politicization of staff.

“My observation is that the city’s staff are professional and non-partisan from the top down,” he said, adding there is much more transparency at the municipal level than at other levels of government. “This requires staff to exercise considerable judgment, diplomacy and political acuity - as well as honesty - and I think these skills and attributes are in evidence every day at city hall.”