Thoughts and Opinions On Today's Important Issues

Tuesday, September 29, 2009

Informed Consent

How can anyone possibly write a full-length column about our CAO leaving with all that taxpayer money in his pocket after he resigned, and was not terminated, and not mention Edgar's role in it once?

Just ask Windsor Star columnist Anne Jarvis. She accomplished that task in her Friday Star column. What an effort!

And so far, no thundering Star Editorial either. While Gord, he can write about Museums.

Was this all a game for some other purpose? Would any of this have come out but for Chris Schnurr asking for a copy of the CAO's employment contract?

Unless there is something new to add to all of this to provide justification, and that would beg the question why it was not revealed but kept buried until now, then one has to wonder if we can believe what comes out of City Hall!

Read on to see what I mean.

Simple questions. Was there a signed employment contract with former CAO John Skorobohacz or wasn’t there one? If not, why not and who is to blame? What about Dev Tyagi or other managers? No one has talked much about Dev's contractual relationship with the City. What is it? How can Helga be hired without a contract? Doesn't anyone learn anything?

Does anyone know what is going on, especially Councillors who keep voting one way in camera and then crying about what happened in public when it is too late? The questions are very simple but we do not seem to be getting straight answers.

Have taxpayers been sold a bill of good?

Was there with John

  • a resignation

  • a termination with cause

  • a termination without cause perhaps because of SDR restructuring

  • a threat of litigation because of "constructive dismissal"

  • or what Councillor Halberstadt suggested "But he wasn't going to leave without a payout, Halberstadt told [Anne Jarvis], so rather than allowing a city in shambles to continue to "muddle through" with a reluctant leader, council decided to pay up and move on. Halberstadt said he didn't like it, but he voted for it."

The Councillor's remark sure does not sound like a resignation to me.

How can anyone justify one single penny being paid out based on the information given out to date? Are there secret letters or side-deals? Is relevant information being kept from the public?

Why is everything so damn complicated all the time in this City when the issues are so simple? Why can't anyone speak clearly and give us the straight goods the first time around?

Can someone please explain how these two comments can both be right respecting the former CAO:

Councillor Drew Dilkens

  • “Dilkens said the matter was "sprung on us" without any prior notice at a Sept. 2 in-camera meeting when the mayor introduced Reidel as the new CAO. No other hiring options were put forward.”

Mayor Edgar Francis:

  • “He bristled at any suggestion councillors were caught off guard or lacked information prior to making decisions regarding Skorobohacz and Reidel.

    “Members of city council were well aware these issues were coming and the reality is they had time to prepare to make these decisions,” Francis said.

    Starting at a special session on Sept. 2 he sought their direction and input regarding the CAO position, Francis said.

    “Now you have councillors attempting to characterize this as something that was dropped on them, when they gave direction on this all along,” he said."

They are both right of course. Councillor Dilkens talked about before the meeting. Edgar talked about “starting at” the meeting.

See how things are done. Accurate but narrow. It all depends where one starts doesn’t it to reach a conclusion.

Of course our Mayor is a very clever fellow isn’t he by making the issue what he wants it to be not what it is:

  • “Mayor Eddie Francis said councillors have the power to defer an in-camera issue or request more information if they do not feel comfortable making a decision.

    “It’s a process they are totally in control of,” Francis said.

    If approving the motion by Dilkens makes council feel better about its options, then that’s fine, the mayor said.

    “But it doesn’t do much to add to what’s already there,” Francis said. “Nothing will change. They already control the agenda.”

It's a phony issue of course to distract us, to take the heat off of himself and to point the finger at Council. It is NOT a question of control over the Agenda at all. We know who really controls it don’t we considering that he can call a Special Meetings any time he wants under the Procedural By-law.

The question is what is provided to Councillors at a meeting, or preferably before it, so they can think about an issue in advance and know what questions they need to ask, if any, for clarity so they can make a proper decision in the best interest of the citizens of Windsor.

  • "Currently, councillors are "just given a very, very generic discussion" ahead of time about the subject of closed meetings, according to Coun. Drew Dilkens, who will present a notice of motion next week to amend the city's procedure bylaw.

    "So we often walk into the room and we have absolutely no idea, specifically, what we're talking about," he said. "I think it's only fair, and a matter of good business process, that what we say is that councillors, the people who are going to be making the decisions, ought to know ahead of time, when the meeting is called, explicitly what the topic of discussion is."

I hate to disagree with Councillor Dilkens but I will strongly when he says this:

  • "If it's more detailed than a property matter, tell me what property we're talking about. If it's more detailed than a human resources matter, tell me who we're talking about and what the situation is ahead of time," he said.

    "I don't need a full report, but certainly one or two sentences would give us a good idea to be able to zero in."

That is abolutely wrong! He must absolutely have a full report or we get into the CAO payment mess we are in now.

The issue is not consent either but “informed consent,” a topic that the Mayor should be very familiar with since he went to Law School and we know he is a lawyer. It is generally used in a medical context. One definition I saw was:

  • “Informed consent is a legal term related to educating patients about the benefits, risks, and alternatives of therapeutic treatment.

    The patient's decision to consent to (or refuse) treatment must be informed; that is, the patient must receive information about the nature of the proposed treatment, its expected benefits, the material (common and serious) risks, special risks or material side effects associated with it, alternative courses of action and likely consequences of not having the treatment.”

Knowledge is fundamental so that a proper decision an be made.

Why should anything have to be deferred for heaven’s sake or more information requested. It would mean that John could still be our CAO and Helga waiting to be appointed.

When a matter is presented to Council in public, there is an Administrative Report prepared and delivered in advance that is supposed to be comprehensive and deal with all issues. It provides the background and the proposed solution with a reasoned argument for consideration.

Why can’t that be done by the Mayor as well when it is HIS issue to be discussed, especially if it is in camera? What is he afraid of? Losing control by sharing information? Having something in writing? Losing? Being blamed?

I have no idea what is going on about the former CAO's employment agreement and severance package. If there was an agreement and it said what the Mayor claimed it did, then everything is fine.

However, what if there was no agreement? What if there was no term about a termination package? Why then did Mayor Francis say there was a contract? Why then did Councillor Valentinis say there was one on Face-To-Face the other night? Why did the ex-CAO say:

  • "He said the 10 months of termination pay was a key part of his contract because of the way he saw council treat former CAO Dennis Perlin, who was pushed aside after a couple of controversial years at the helm.

    "I wanted some assurances and protection for myself because I was leaving a full-time CAO position (in Innisfil)," he said."

What do we know so far? There was on Offer of Employment with these specific terms:

From Schnurr's BLOG we also know:

  • "I am attaching the offer of employment for John Skorobohacz, as you requested. Please note that the offer of employment letter is the final document and as such there is no “formal employment agreement” as referred to in the attached documents. If you have any further questions about this matter please do not hesitate to contact me."

The City's Solicitor also told Schnurr:

  • "In City Legal we do not have a signed contract authorizing the payment of a severance for Mr. Skorobohacz's resignation. Matters such as this are generally handled by external legal counsel and I am aware that this was also the case with Mr. Skorobohacz's departure."

In other words, nothing in the Legal Department to justify a payment to the former CAO for a resignation and outside Council handled the "resignation matter." I wonder if it was the same lawyer who was involved in giving advice around the time of the near-riot.

As a former in-house lawyer, I wonder how Mr. Wilkki and his Department feel to be slighted this way. Notice though how well Mr. Wilkki protected himself in case this this file blows up. Well done George!

Perhaps someone is smarter than I or the law has changed but I do not see any binding legal agreement between the parties. Accordingly, there was no contract at all.

Dealing specifically with termination packages, the Offer says:

Perhaps my eyes deceive me but I do not read anything like:

  • "Under his work contract, Francis said Skorobohacz will be paid a severance of 15 months salary, 12.5 months if he finds a new job."

Where was that written in the Offer? The answer was it was not.

As for the "10 months of termination pay," as I read the offer, it only applied if there was a termination, not a resignation. That seemed to be exactly what the CAO wanted as stated in the quote above yet he received money when he resigned which was never part of the deal. How can that be done?

The Council Minutes are clear. John resigned:

  • "a) THAT the resignation of John Skorobohacz from the position of Chief Administrative Officer of The Corporation of the City of Windsor BE ACCEPTED."

Compare that language with that involving Dev Tyagi

  • "c) THAT the employment of D. Tyagi, General Manager of Public Works, be terminated effective immediately."

We also learned from the Council Minutes set out on Schnurr's BLOGsite who spoke at the meeting to give out information:

  • "5. That the verbal report from Mayor Francis respecting personal matters about identifiable individuals BE RECEIVED

Presumably Edgar was the one who gave out information that resulted in this:

  • I don’t like it, paying that kind of money when a guy wants to leave anyway,” said Coun. Alan Halberstadt. “My understanding it was in his contract. It’s unfortunate from a taxpayer point of view."

  • “No, I’m not happy with what he is walking away with,” said Coun. Ken Lewenza Jr. “I was not happy as CAO you are out there doing job interviews the last couple years. When you are in that position, I would expect total loyalty and not focusing on his own intentions in terms of preserving his career.

    “But at the end of the day, council signed a contract. This was positioned to council as if there were no other options.”

I must assume that the Councillors would have talked about the "contract" if they had seen one and not just about an understanding and a positioning. So they must not have seen anything or obvious questions would have needed answering.

Interestingly, who was giving out legal advice? There was supposed to have been a contract drafted but it does not seem that it was done. Was that a consideration in the decision made? Was outside or inside legal advice obtained and was counsel available to answer questions or was it the Mayor only who spoke about the legal issues?

So what do we have?

  • Our Mayor and a Senior Councillor both lawyers and both telling us we have a contract. Yet the City cannot produce one.

  • Our Mayor telling us that money was be paid for a resignation. Yet the employment offer deals with termination only, exactly against which the former CAO wanted to be protected

  • Our Mayor quotes numbers that have no relationship to the Offer

  • Councillors who voted in camera based on positioning and understandings but no facts and yet complain publicly how they voted and then play to the crowds.

We hear one thing. The written words say another. We are told one thing. We read another.

We want to believe. But how can we?

Just think about it. If I am right, there was no justification for paying out any money since, on the information provided to date publicly, there was no contract, no termination, a resignation and no agreed upon amounts.