COLEMAN: Helping Terry Whitehead’s Lawyer with a Municipal Act 101 – TPR Hamilton | Hamilton's Civic Affairs News Site

November 10, 2021
Ward 14 City Councillor Terry Whitehead hired a real estate lawyer to write and send a legal letter calling for Council to “end the prosecution of Councillor Whitehead here and now.”
The three-page letter is a master class in why you shouldn’t just hire a lawyer just because they are a lawyer, much as one does not hire a podiatrist to conduct your brain surgery.
Sure, the podiatrist is a medical doctor, but you may wish you stubbed your toe after they’re done with your brain.
Real estate lawyer Jack Restivo is neither a municipal law nor constitutional law expert, but that does not stop him from trying to Lionel Hutz his way through Terry Whitehead’s case.
Briefly, after years of harassing and bullying staff, Terry’s favourite Integrity Commissioners have turned on him and said he cannot be threatening to fire staff, badgering people in public meetings, spreading malicious lies about people, and carrying on like an intellectually under-weight insecure tyrant.
For his years of gross misbehaviour, Hamilton’s Integrity Commissioners recommend a minimal slap on the wrist penalty of suspending his pay for 30 days, that he be prohibited from harassing staff and only allowed to speak to the City Manager or General Managers.
Terry is outraged, the kind of rage he experiences whenever someone with a Ph.D. shares their expertise at Council.
So, Terry went off and found a lawyer, much like a petulant little child angry at a school teacher for taking away their Game Boy during class.
Enter Lionel, I mean Jack Restivo.
Preventing Terry from harassing staff is “to say the least, absolutely shocking” his lawyer writes.
“It represents a direct attack on the democratic right of free speech accorded to every person in a democratic society. Where is the legal authority empowering a City Council to abrogate the right of free speech and dictate with whom an individual may or may not communicate?”
Let’s first begin with our terminology.
Freedom of Speech is American terminology lifted from the First Amendment in the United States Bill of Rights.
We have Freedom of Expression in Canada, Section 2(b) of the Charter of Rights and Freedoms.
Any lawyer who practices even the slightest amount of constitutional or administrative law knows this important difference.
Terry’s lawyer continues that by not allowing Terry to harass staff members, the municipality “seeks to ‘gag’ the Councillor and prevent him from discharging his duties and obligations to those who have elected him.”
He writes this is the “imposition” of a “Gag/Restraining Order” and that only the Superior Court can take the action city council proposes.
Lawyer Jack is not done, “This penalty is unacceptable in our democratic society. It is unenforceable, repugnant and cannot stand.”
Okay, lawyer Jack, why don’t I exercise my “right to free speech” by walking into your office whenever I want to read the Municipal Act to you in my loudest voice?
Arguably, I’d be helping lawyer Jack, but I suspect lawyer Jack would call building security and have me removed from his workplace.
I am sure lawyer Jack Restivo is a perfectly competent lawyer to assist you with the legal paperwork when you sell or buy a house.
He likely can quote chapter and verse from the Land Titles Act, the Land Registration Reform Act, and all relevant laws in his area of specialization.
Based on his letter’s legal arguments, lawyer Jack does not even know the Municipal Act exists.
In the Simpsons, Lionel Hutz relies heavily upon the Blue-Haired Lawyer to know a bit of what is happening in the courtroom.
Hamilton’s Integrity Commissioners are our Blue-Haired Lawyer, focused on pleasing their client and failing to show their competence to please Mr. Burns.
Principles Integrity owners Janice Atwood-Petkovski and Jeffery Abrams never mention the Municipal Act once in their report against Whitehead.
(Every other Ontario Municipal Integrity Commissioner uses proper legal writing, and they explain how the Municipal Act governs a case.)
Lawyer Jack wildly argues Council does not have the authority to suspend Terry Whitehead’s pay “Council may wish to consider whether, at law, it has the authority to impose suspension of payment for any time whatsoever, as such suspension is not a ‘fine’ which Council has the authority to levy, but rather, is essentially an award of damages exceeding the authority of Municipal Councils. Generally, only a Court of Law is allowed to award damages.”
Section 223.4 of the Municipal Act states, “The municipality may impose either of the following penalties on a member of council … suspension of the remuneration paid to the member … for a period of up to 90 days.”
In the early days of Lionel Hutz’s fictional legal career, there was no Internet. Today, even Lionel Hutz cannot be excused for failing to conduct a Google search.
Jack Restivo’s law office is at 4 Hughson Street South in Downtown Hamilton, yet his legal argument may lead you to believe he has never passed City Hall in his life.
In an attempt at a nitpicking novel legal argument, Lawyer Jack tries to argue the City of Hamilton’s Human Resources Department has no legal standing to file the harassment complaint against Whitehead on behalf of the staff of the City of Hamilton.
There is an argument to be made that because the City’s Integrity Commissioner bylaw states complaints must come from “a request by City Council, a Member of Council, a City employee, a City resident, or a person who has business, institutional or other premises in the City” that the Corporation of the City of Hamilton cannot institutionally file a complaint.
In similar cases of harassment of staff by elected officials in other municipalities, the complaint is from the City’s Chief Administrative Officer or a human resources manager.
In the complaint against Whitehead, the complainant is “The City of Hamilton Human Resources Department.”
Lawyer Jack just could not leave his argument at a sober conclusion, but he had to go all Terry Whitehead.
Lawyer Jack absurdly argues the Human Resources Department is “ambiguous and non-identifiable.”
He is truly the lawyer for Terry, continuing, “One is left to wonder exactly what it is that this entity represents. Does it represent the Manager or Managers? Does it represent each and every member of that Department? Was a vote taken with regard to lodging the complaint as an entity and did 100% of members of the Department agree with advancing the unqualified complaint?”
The Substantive and Real Issue of Bias and Conflict-of-Interest of Janice Atwood-Petkovski
Integrity Commissioner Janice Atwood-Petkovski retired as City of Hamilton Solicitor in February 2017.
She and Abrams formed their Integrity Commissioner firm shortly afterwards and were awarded a non-competitive contract to be Council’s ICs in July 2018 with three non-competitive extensions [2,3,4] before being made Council’s permanent ICs in March 2020.
During their first four contract periods, Atwood-Petkovski and Abrams closed all complaints without any public investigative report nor sanctions against Councillors who threatened people on numerous occasions.
Terry Whitehead was among the councillors allowed to get away with harassing and threatening people.
As a member of the Council Governance Committee, which oversees the Integrity Commissioner, Whitehead supported Atwood-Petkovski being in the role. He voted in favour of the contracts.
After Atwood-Petkovski and Abrams were signed to a six-year contract as Council’s ICs, Whitehead took to Twitter, threatening to send them after citizens.
Now that the Integrity Commissioners are showing symptoms of integrity, Whitehead is concerned about the appearance of conflict regarding Atwood-Petkovski’s relationships with City of Hamilton councillors and staff.
“it is our position that the investigation itself is replete with conflict of interest to the extent that the investigation is irrevocably tainted. The investigation involved extensive interviews conducted by an Integrity Commissioner who is a former employee of the City of Hamilton and constitutes a clear and transparent conflict of interest. As noted in the Reply, the past associations of that Integrity Commissioner with Staff and presumably Members of the Human Resources Department render her participation suspect with the inevitable innuendo of inherent bias.”
What’s that saying about the arsonist complaining about their house burning down?