We Need A Third Dunbar Legal Opinion

How much is that darn Dunbar audit going to cost us by the time the controversy around it is done?

I have a suggestion. I know that there are copies of it out there. Please oh please, would a person who has a copy, photocopy it, place it in a brown paper envelope and drop it off in my mailbox one dark and stormy night so I can BLOG it! No questions asked.

Is that too much to ask?

My oh my, is Andrew Roman sensitive or did someone make him write that note to the Star to close down discussion because some Toronto lawyer said so. In a rather smarmy tone, he wrote:

• "I am the evil Toronto lawyer (is there any other kind) who gave the Windsor auditor general a memorandum saying that the Municipal Act requires secrecy with respect to all matters that come to his or her knowledge. That secrecy requirement necessarily includes a draft document prepared by a former internal auditor, Mr. Dunbar. It is amazing how much misinformed controversy has arisen since."

Unfortunately for Mr. Roman I have an opinion from an equally evil Toronto lawyer giving a different and conflicting opinion:

Wait a minute, that opinion is by the same A. Roman who now is taking a completely opposite point of view. That opinion was made in Augusst, 2008 AFTER the Auditor General office was set up. That took place in July, 2008.

Mr. Roman is a smart fellow. He knew the law when he gave that opinion. What changed? Which opinion is right? Which one should be believed? I for one prefer the "release" opinion.

I am afraid that Councillors Marra and Halberstadt who are on the Audit Committee and are Councillors as well must demand that the City obtain an opinion from another evil lawyer telling us which one of Mr. Roman's opinions is correct.

A small point. Mr. Roman is incorrect when he says

• "The Windsor Star does not release drafts of journalists' stories."

Actually they do. It's called the online Windsor Star! As Monica Wolfson Blogged back in October, 2007

• "So, please remember, the stories you see online are sometimes our first version of a story. They may contain unintentional errors, which we try to correct quickly. Or they may be a full story. But you won't know the real story unless you read the newspaper."

So if he is wrong on that, is Mr. Roman wrong on other issues?

The new lawyer retained should consider the following:

1) WHAT'S THE MATTER

Mr. Roman makes a big deal about "matters"

• "What I said in my memorandum was that the Municipal Act, 2001, Section 223.22 (1) states:
  
  "(1) The Auditor General and every person acting under the instructions of the Auditor General shall preserve secrecy with respect to all matters that come to his or her knowledge in the course of his or her duties under this Part."
  
  "All matters" means what it says, and is not limited to confidential documents."

Unfortunately the Privacy Commission in a recent decision takes a different view of what "matters" means:

• “Matters”
  
  In Black’s Law Dictionary, 8th ed., by Bryan A. Garner (St. Paul, Minn.: West, 2004), “matter” is defined as follows:
  
  1. A subject under consideration, esp. involving a dispute or litigation; …
  
  2. Something that is to be tried or proved; an allegation forming the basis of a claim or defense…. (p. 999)
  
  The following entries from the definition in the Oxford Concise Dictionary, 6th ed., by J.B. Sykes
  
  (Oxford University Press, 1976) may also be helpful in understanding its meaning:
  
  3. (Logic) Particular content of proposition, distinguished from its form.
  
  4. Material for thought or expression” subject of a book speech, etc. …
  
  7. Affair, thing to be done or considered, esp. of a specified kind….
  
  From these definitions, I conclude that “matters” appears to include a reference to person’s knowledge of the fact that a particular issue or complaint is under consideration by the Auditor General, and/or the particulars of that complaint, and to ancillary information derived solely in that context. It is a more specific term than “information.” In my view, it does not include information that came to a person’s attention during the course of their everyday work, whether or not that information was later provided to the Auditor General. "

2) DOCUMENTS ARE NOT MATTERS

If documents were matters, there would be no need for these sections of the Act:

• 223.20 (2) The Auditor General is entitled to have free access to all books, accounts, financial records, electronic data processing records, reports, files and all other papers, things or property belonging to or used by the municipality, the local board, the municipally-controlled corporation or the grant recipient, as the case may be, that the Auditor General believes to be necessary to perform his or her duties under this Part.
  
  223.22 (3) A person required to preserve secrecy under subsection (1) shall not disclose any information or document disclosed to the Auditor General under section 223.20 that is subject to solicitor-client privilege, litigation privilege or settlement privilege unless the person has the consent of each holder of the privilege. 2006, c. 32, Sched. A, s. 98.

Presumably other documents can be disclosed.

3) WHAT'S IN A NAME

Mr. Roman states:

• "There is widespread public confusion between the role of the external auditors, who do a normal audit of the books and records, and the internal auditor general..."

Ummm, who is talking about external auditors? There are
1) external auditors
2) internal auditors and
3) Auditor General

He goes on to say

• "On that interpretation of the law, if tomorrow the city hired a person with the title auditor general, then, suddenly, everything would become secret. However, if this person resigned two weeks later, suddenly everything would no longer be secret. Or, if they gave the person the tile "chief auditor" rather than "auditor general" the secrecy requirement would never come into force. The legislative requirement of secrecy applies because of the function of the entire internal audit office; it cannot depend upon whether someone has the title "auditor general."

I think he is mixing up concepts. The roles of Auditor General and internal auditor are different.

Unfortunately for him the Act does make a distinction. A municipality does NOT have to appoint an Auditor Gerneral but must appoint a municipal auditor

• Auditor General
  
  223.19 (1) Without limiting sections 9, 10 and 11, those sections authorize the municipality to appoint an Auditor General who reports to council and is responsible for assisting the council in holding itself and its administrators accountable for the quality of stewardship over public funds and for achievement of value for money in municipal operations. 2006, c. 32, Sched. A, s. 98.
  
  Exceptions
  
  (2) Despite subsection (1), the responsibilities of the Auditor General shall not include the matters described in clauses 296 (1) (a) and (b) for which the municipal auditor is responsible.
  
  
• Auditor
  
  296. (1) A municipality shall appoint an auditor licensed under the Public Accounting Act, 2004 who is responsible for,
  
  (a) annually auditing the accounts and transactions of the municipality and its local boards and expressing an opinion on the financial statements of these bodies based on the audit; and
  
  (b) performing duties required by the municipality or local board.

4) THE HORSE HAS LEFT THE BARN ALREADY

He did not discuss this issue in the Star or in his opinion. Why not? In my opinion, it is fatal to his latest view.

Mr. Roman is trying to do exactly what he said cannot be done:

• "On that interpretation of the law, if tomorrow the city hired a person with the title auditor general, then, suddenly, everything would become secret. However, if this person resigned two weeks later, suddenly everything would no longer be secret."

He is trying now to make secret something that is already in the public domain merely because an Auditor General office has been set up. The City tried something similar with an MFP forensic forensic audit document that went public and lost in the Court of Appeal when the City tried to say it could not be used by the other side.

It has already been seen by non-Audit Committee people before there was an Auditor General's office and was supposed to have been released to the public. The Star reported:

• CAO John Skorobohacz was first given a draft of the audit report in December 2006 and committee members have had it in their hands for a year
  
• There were several new revelations around the delayed audit Monday, most notably that Mayor Eddie Francis has seen several portions of Dunbar's report. He said it was necessary to review much of the audit to determine whether it should be discussed by council this past spring following an outside legal opinion on its contents.
  
  Several senior members of city administration have seen the full Dunbar report, while others have only seen parts pertinent to their roles, said Helga Reidel, the city's general manager of corporate services.

5) WHEN "NO" MEANS "YES" FOR A RELEASE

The Privacy Commission's view of non-Auditor General documents in the hands of a Mayor or a Senior Manager as an example:

• 4. Where the record containing the requested information is in the possession of a person who is not a member of the Auditor General’s own staff, but is a City staff member or official whose records are otherwise subject to the Act, did information about the investigation, complaint or proceedings being conducted by the Auditor General come to the person’s knowledge in the course of his or her duties under Part V of the COTA?
  
  If the answer to any of questions 2, 3 or 4 is “no,” then the record or portion to which that negative answer pertains is not subject to the confidentiality provision at section 181(1) of the COTA, and is therefore subject to the Act."

In closing, my evil BLOGMeister's advice to Mr. Roman and the Audit Committee would be to take a collective deep breath and await the Opinion of yet another lawyer who will determine which of Mr. Roman's two conflicting opinions are correct.

If I am right, then we will finally get to see the Dunbar audit until the next issue arises to keep it secret! In advance, I would suggest that some good redacting would solve that issue.