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Council blasts Fallis for code breach, suspends his pay

'If this were any other company or position … you would probably be terminated on the spot,' councillor says; Fallis claims his actions were meant to 'protect the city'
2021-10-04 city council IC report
City council members and officials with Principles Integrity are shown during Monday's council meeting.

Coun. Jay Fallis’s colleagues have voted unanimously to suspend his pay for 45 days after he violated the city’s code of conduct.

In a discussion that lasted more than an hour during Monday’s council meeting, the Ward 3 councillor was repeatedly chastised for sharing confidential information about the city’s waterfront redevelopment project.

The city’s integrity commissioner, Principles Integrity, conducted an investigation after Mayor Steve Clarke filed a complaint upon learning Fallis had shared private documents and details with a lawyer he had retained at his own cost.

In its report to council, Principles Integrity noted Fallis’s concerns that led him to seek external legal advice was partly due to “a grossly mistaken miscalculation of the scoring matrix by (Fallis) and his solicitor” as it related to the waterfront development.

Fallis had also cited concerns about his personal liability, which were “not substantiated,” Janice Atwood-Petkovski, co-operator of Principles Integrity, told council Monday.

Fallis had defended his sharing of confidential information, stating it was safe in the hands of his lawyer due to solicitor-client privilege.

During Monday’s meeting, Fallis stated a number of times he was being “punished” for seeking legal advice.

That wasn’t the case, according to Principles Integrity, which found the issue was his sharing of confidential details with anyone — a decision he made on his own, not with the blessing of council, which had decided against retaining further outside legal counsel.

“Only council can determine that confidential documents can be shared,” Atwood-Petkovski said.

Fallis was the first member of council to address the report Monday.

“I remain absolutely confident that my actions were honest, just and conscientious,” he said.

“I will not apologize for doing what is right.”

He argued the city’s code of conduct “may not be in line with the Charter (of Rights and Freedoms).”

“The Charter arguments are certainly interesting arguments and Councillor Fallis will appreciate that we’ve responded to those arguments in writing to his lawyer,” Janice Atwood-Petkovski said.

Council members have an ethical obligation that is “spelled out very clearly from the moment a candidate takes office,” she said.

“One certainly could seek legal advice but not provide confidential documents and information in that pursuit.”

Council members agreed.

Coun. Mason Ainsworth referenced a section of the report in which Fallis wrote to his lawyer, “With perfect hindsight, I would do it again without hesitation.” He asked Fallis if indeed he would breach the code in a similar way in the future.

“I think this is an extremely unusual situation and I could never foresee this ever happening again, and that’s how I’ll leave it,” Fallis responded.

Coun. David Campbell shared his disappointment regarding Fallis’s actions.

“The part that has kept me laying awake at night is trying to understand what he was thinking when he chose to breach the code,” he said.

“The only conclusion that I could come to — and this is very difficult to accept — is that Jay didn’t understand a vital section of the report when it was presented to us.”

When staff explained it, Fallis refused to accept it, Campbell added.

“There was no interpretation. It was math.”

Campbell also took offence to Fallis’s public statement issued in response to the integrity commissioner’s report, calling it a “campaign to defend his actions.”

“Turning this situation into Jay somehow being the honest person at this table, fighting the good fight at city hall, is ridiculous,” he said.

Campbell asked Fallis why, when people were commenting on his posts on social media and questioning council’s integrity, he didn’t defend his colleagues.

“I honestly believe the council is doing their utmost to serve the constituents of Orillia,” Fallis responded.

“If that’s the case, Jay,” Campbell continued, “I’ve tried so hard to understand your actions. I know that you’re a really nice guy … I just can’t comprehend why you couldn’t understand what was being discussed and you felt it was necessary to take that elsewhere.”

Coun. Ted Emond pointed out the seriousness of the code breach and the “potential consequence” the city could have faced, saying releasing confidential information about the development around 70 Front St. N. “opened the door for those proponents to take legal action against our city,” though that has not happened.

“Regardless of whether that potential consequence has occurred or not, the fact of the matter is that we breached what was in fact a contract that the city had between the city and the proponents that were participating in that process,” Emond said. “Part of that agreement was that the information that was released would remain confidential.”

Fallis again suggested the information was secure because of solicitor-client privilege.

“I did this to protect the city,” he said.

Emond said it is “exceptionally clear that the divulging of confidential information is not allowed under the governance rules.”

“You’ve breached the very oath of office that you took when you joined this council.”

Clarke said he “felt an absolute obligation” to ask the integrity commissioner to investigate.

“I would have felt negligent in my duty as chair and as mayor if I had not reached out to our integrity commissioners,” he said.

He also refuted Fallis’s assertion that the councillor retaining outside legal counsel was the reason for the investigation.

“This isn’t about you seeking legal advice … This is about you divulging confidential information. Period,” he said.

Like Campbell, Clarke took issue with Fallis’s public statement, in which he said he had been acting on his “ethical obligations as a city councillor.”

“I can assure everyone that I have seen no reason in the last number of years that indicates to me that any other member of council acts any other way than in an ethical fashion,” Clarke said.

Ainsworth said Fallis was “misleading the public” by suggesting in his statement he was being targeted for seeking legal advice.

Fallis doubled down.

“What we are getting at here is the code is not in line with the Charter. Period,” he said.

“All I did was get legal advice on this issue, and it’s confidential.”

“The issue is not that you sought legal advice,” Clarke repeated. “It’s that you disclosed sensitive, confidential information.”

Ainsworth said Fallis’s statement that he would act the same way again was “very concerning.”

“The reality is that is not your information to share. That’s council’s information and council makes the direction for these things,” he said.

“There is a huge potential liability for the citizens of Orillia, for the taxpayer, and that is a major problem.”

Ainsworth said he liked Fallis. He pointed out his Ward 3 colleague was at his wedding. He said he wasn’t going to comment on the integrity commissioner’s report, but that changed when he saw Fallis’s public statement.

“I just hope that those actions don’t continue in the future,” he said.

Ainsworth referred to a 45-day suspension of pay as “a slap on the wrist.”

“If this were any other company or position … you would probably be terminated on the spot and walked off the premises,” he said.

“I don’t think you still understand that you did something wrong, and that’s really concerning to me.”

Emond felt the same way, which is why he moved a motion to suspend Fallis’s pay for 45 days — the maximum recommended by Principles Integrity.

“Councillor Fallis, even tonight, does not apologize,” he said, adding if Fallis had acknowledged he was in the wrong, a more lenient penalty might have been proposed.

While Coun. Pat Hehn supported the motion, she expressed concern about the wording in the integrity commissioner’s report.

“We all know what Jay did and we disagree with what Jay did, but some of the wording in the report, to me, seems biased,” she said, referring to comments that stated Fallis had “grossly mistaken calculations” and acted “cavalierly.”

Such reports are supposed to be “balanced and without emotion,” she said.

“I thought that was a little bit unprofessional.”

Jeffrey Abrams, Principles Integrity co-operator, disagreed.

“None of the language was gratuitous and we reject any notion that we were biased,” he said.

“What is at risk here was a cardinal rule, and the report speaks to you as the persons who are charged with assessing sanctions.”

The wording Hehn found offensive was based on information gleaned during the investigation, he said.

“We’re not making it up.”

The motion to suspend Fallis’s pay passed in an 8-0 vote. Fallis did not participate in the vote.

Nathan Taylor

About the Author: Nathan Taylor

Nathan Taylor is an experienced multimedia journalist and editor who covers Orillia and other parts of Simcoe County.
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