Sault City Councillor Censured for Speaking Truth to Power?
The Stephan Kinach Controversy Explained
Sault Ste. Marie City Council meetings are pretty boring.
An angry mob will occasionally pack the Council Chambers, but for the most part, consequential decisions are discussed well in advance and Councillors have few disagreements with one another.
The March 18 Council meeting was different.
Council discussed a report to Council from the Chief Administrative Officer (CAO), Tom Vair, that examined and explained the City’s reliance on external consulting firms.
When it was Councillor Stephan Kinach’s turn to speak, his voice trembled.
Image Credit: City of Sault Ste. Marie
He said he was “disappointed and upset” in response to the report.
He continued: “The people told Council to rein in spending. Council told staff to reflect on the use of consultants and instead of using this as a chance for reflection on past spending and hiring, CAO Vair, you just rubber stamped and defended all this spending and hiring with this report.”
Here’s the kicker: “This report discards us and our constituents we represent. This completely ignores the whole democratic process because this report is evidence that staff is working against Council and Saultites.”
The comments didn’t go over so well.
Mayor Shoemaker began by characterizing Kinach’s comments as “beyond the pale.”
He contended that the previously approved resolution (the thing that led to CAO Vair’s report to Council) didn’t specifically direct City staff to make consulting fees a budget line item, but that a future motion to that effect could be proposed.
He also said that two things implied by Kinach were “untrue.”
According to Mayor Shoemaker, the report did precisely what it was supposed to do, and City staff are working in the best interests of the community.
Mayor Shoemaker also gave a shout out to the City’s “great team of dedicated employees” and suggested that Councillor Kinach figure out a way to work constructively with them rather than unleashing a “tongue lashing.”
Next, Councillor Lisa Vezeau-Allen took issue with the “accusatory tone” of Councillor Kinach’s comments.
And finally, Councillor Kinach was “out of line,” according to Councillor Angela Caputo.
None of the other Council members spoke, and all but Councillor Kinach voted to receive the report as information and leave it at that.
The controversy didn’t end there.
Mayor Shoemaker, CAO Vair, and Councillor Kinach discussed the meeting afterwards, and the hurt feelings of City staff were conveyed.
Kinach then asked the City’s Integrity Commissioner, Antoinette Blunt, for advice.
For reference, Council members are bound by a Code of Conduct and an Integrity Commissioner can accept public complaints, investigate, and potentially levy sanctions if merited.
Council members can also ask for advice from the Integrity Commissioner, who then offers non-binding recommendations based on applicable law and policy.
Commissioner Blunt did some preliminary research and concluded that Councillor Kinach broke the Code of Conduct and ought to apologize.
Her report is contained in the agenda for the Council meeting on Monday, April 8.
Now Councillor Kinach needs to decide what to do.
He can accept the Integrity Commissioner’s recommendation and apologize.
Or he can ignore the recommendation and dare someone to file a formal complaint (if they haven’t already) or Council to formally censure him.
Either way, the controversy raises some serious issues.
Unsurprisingly, the local coverage to date omits the most important details.
First, the numbers reported by CAO Vair are potentially misleading.
The report to Council included this in the section focused on external legal consultants:
The Legal department utilizes consultants to provide expert legal advice related to certain domains of law or unique situations that are encountered by the corporation. Outside legal counsel for the period 2019 – 2022, totaled $130,099. Amounts vary with legal requirements and range from $12,887 in 2020 to $48,879 in 2022. Integrity Commissioner services are also contracted out and over the period 2019- 2022 amounted to $14,238.01.
In a previous post, I provided some numbers from the City that summarized the legal contracts that the Mayor’s law firm (Wishart) received between 2018 and 2022.
Keep in mind that these expenditures could be for consulting in the conventional sense of doing research and offering recommendations, or for preparing paperwork for City projects.
These numbers might not be all the City’s external legal contracts either.
The previous CAO couldn’t estimate the total share of external legal contracts flowing to Wishart.
Here are those numbers again:
2018: $479,917
2019: $224,550
2020: $114,931
2021: $161,518
2022: $103,749
Total 2018-2022: $1,084,665
Interestingly, the report from CAO Vair didn’t include a detailed breakdown for any of the City’s consulting expenses.
If it did, taxpayers would be able to see precisely where these millions upon millions of dollars are flowing, which is the heart of the issue.
Second, Mayor Shoemaker isn’t necessarily a disinterested observer in this debate.
His law firm is a consistent legal vendor of City, based on the numbers above.
In fact, there’s a decent chance that the legal consulting fees referenced in CAO Vair’s report included the Mayor’s law firm.
Put differently, it’s possible that Mayor Shoemaker has a financial stake in the City being reliant on external legal vendors (if his firm continues to get contracts).
Third, there are good reasons to doubt the legal competence of the City’s Integrity Commissioner.
To refresh your memory, when Shoemaker was a Councillor and planning his route to the Mayor’s office, he asked Integrity Commissioner Blunt for advice of his own.
He wanted to know how his partner status at Wishart Law would affect his potential conflict of interest position when voting on items at Council that involve the firm somehow.
To provide some guidance on the Municipal Conflict of Interest Act, Blunt deferred to another lawyer (both of whom you might describe as a consultant…), who provided a report that was included in a Council agenda from January of 2022.
This was done because Blunt isn’t a lawyer and allegedly can’t offer such advice.
So, to summarize, when (then) Councillor Shoemaker asks the Integrity Commissioner for advice, the latter gets someone with professional legal training to offer an opinion.
When Councillor Kinach asks the Integrity Commissioner for advice, the latter can offer it relatively quickly, even if it provides no detailed rationale or case law.
The report isn’t even two pages long, doesn’t explicitly reference the section of the Code of Conduct allegedly violated, and has at least one typo.
To further illustrate the cluelessness of local media, the most recent story quotes Mayor Shoemaker speaking about Integrity Commissioners elsewhere in Northern Ontario racking up massive bills footed by taxpayers.
Although you’ll never read this locally, an organization with close ties to Mayor Shoemaker’s law firm is one of the Integrity Commissioners that’ve been highlighted in critical reporting about this precise issue.
In the bigger picture, Council performs both a deliberative and representative function.
It’s supposed to debate municipal policy vigorously, and getting taxpayers good value for dollar is one of its most important functions.
It’s also supposed to give voice to residents who are responsible for electing its members.
Here’s the wrinkle though: should a Council member be censured because they express, in perhaps less than civil terms, what a significant proportion of residents think?
The applicable Code of Conduct has the noble goal of addressing harassment and ensuring a basic minimum of civility and decorum.
But Council members also need freedom of expression, not least because it’s a fundamental freedom in Canada.
Personally, I think Councillor Kinach could have conveyed a legitimate position, informed by countless residents, without accusing City staff of misplaced loyalties.
That said, people in Sault Ste. Marie are not being told the full story.
They should be asking why the Mayor’s law firm has received so much money recently, and if there are other law firms with more expertise and better rates.
Although the rest of City Council won’t be finding the same courage as Kinach anytime soon, they ought to read the room and understand that most of their constituents are struggling financially.
If they don’t, and this controversy continues to unravel, they might be on the wrong side of an issue that helps elects the next Mayor.