Proposed indemnification bylaw a starting point, input welcome, Georgina mayor says

YorkRegion.com
July 23, 2015
By Heidi Riedner

Georgina’s mayor reiterated this week that a proposed indemnification bylaw tabled at last week’s council meeting was only a starting point for discussion and public input is welcome.

“Nothing’s been passed,” said Mayor Margaret Quirk Tuesday regarding a staff report outlining a potential policy not only setting up an internal review process regarding legal claims filed against public officials, but allowing them to initiate defamation suits using the public purse to do it.

“We want the public to be engaged in this issue. If we didn’t, we wouldn’t have had the discussions we did in open session like we did,” Quirk said, adding she hopes people read the report, draft bylaw and Q&A on the town website and provide their input.

“We need the public to make comment, but informed public comment, not based on what someone else tells you. Find out,” Quirk said, adding social media is great, but the swift reaction it often entails isn’t necessarily an informed one.

“This is a huge issue and it’s complicated. I think we are trying to be very open, transparent and accountable and saying this is something that we are looking at.”

Twenty-three of 25 municipalities used for comparison for Georgina’s draft bylaw have indemnification policies, which town clerk John Espinosa described as “common practice” for municipalities to cover gaps in coverage under general liability insurance policies and collective agreements.

Such gaps could include covering any former or current council member, manager, staff, committee or board member charged under certain acts or administrative tribunals.

That said, none of the 23 policies surveyed include a defamation component.

And that is a major bone of contention for some citizens, who described the proposed bylaw as public enemy No. 1 to democracy and free speech.

Lawyer Mark Donald said Georgina’s proposed bylaw as written would be “open to legal challenge” and is “outdated, misguided and against Canadian law”, which already has avenues to address defamation.

Defamation claims against public officials are mostly covered under the town’s liability insurance, but it does not cover the costs when public officials initiate claims against a third party for either libel (printed material) or slander (spoken word).

The complicated issue of defining, and defending, what is fair public comment and what is deemed harmful or damaging to the reputation of the town and its public officials is one of the reasons council asked staff to further review the matter and separate the indemnification and defamation portions of the draft bylaw.

“In the past, without a defined policy, you didn’t know what the process was to make a determination for defamation or if there was a need or a desire or valid reason to go ahead with a defamation lawsuit because it was all behind closed doors,” Quirk said. “At least this way, if something were to be reviewed, you would at least know the process had been gone through. Right now there is no process.”

“A defined policy actually allows for greater transparency because you would know how a decision was reached,” added Espinosa.

However, if someone were to ask her opinion today, Quirk would say she’s still learning all the variables and trying to sort out all the viable options, but that the issue warrants a discussion without even taking into consideration an almost entirely separate area dealing with social media.

An issue raised by Ward 1 Councillor Naomi Davison last week, alluding to some of the “awful and atrocious” things some people say via social media.

But Quirk also added the municipality was treading new ground.

“At this point, I don’t know if we want to be the second municipality in Ontario to have something like this,” referring to the City of Toronto as being the only entity to have a defamation policy - a policy with extensive checks and balances involving identified procedural steps, an integrity commissioner, executive review committee, external review and internal resolution process, to name a few.

That is why further information was requested from staff to address issues raised by councillors last week regarding matters such as reimbursement limits, council and not the CAO as gatekeeper to the process, whether Georgina needs a formalized policy or should deal with it on a case-by-case basis, and how other municipalities address the issue without a policy in place, Quirk added.

“I didn’t think the bylaw as it was drafted was going to sail through and that was going to be the final word on it,” Espinosa said. “I expected there was going to be scrutiny of it and that was exactly what happened. My goal was just to get a framework started, so if council wanted to entertain this and look at it as a viable option, we had somewhere to start.”

Quirk said while she understands some people’s reservations over anything resembling treading defamation waters again - referring to the very public outcry over a defamation lawsuit on the public dime against a former town director of leisure services that was subsequently dropped - she added the process of review being undertaken now is a worthwhile exercise.

“This is about trying to get a procedure in place instead of trying to develop it at the time an issue may come up,” she said. “And if this doesn’t pass as a policy, that’s fine. We’ll have done the research and that is an important thing for us to do as a corporation to assist our staff and board and committee members with this type of issue.”