An integrity commissioner is recommending a city councillor’s pay be suspended for at least a month after determining he violated the city’s code of conduct.
In a report in Monday’s council agenda, Principles Integrity, the city’s integrity commissioner, recommends council suspend Ward 3 Coun. Jay Fallis’s pay for 30 to 45 days.
The recommendation stems from a complaint lodged June 3 by Mayor Steve Clarke, who alleged Fallis disclosed confidential information regarding the city’s waterfront redevelopment project prior to closed-session council meetings held May 12 and 19.
The integrity commissioner found Fallis’s concerns were, in part, related to “a grossly mistaken miscalculation of the scoring matrix by (Fallis) and his solicitor.”
During a meeting in which council was discussing a confidential report about the development, Fallis expressed an interest in the city obtaining external legal advice.
“He did not accept the advice provided by staff. It is apparent he sought to counter that advice with his own legal expert,” the report states.
“The balance of council was satisfied with staff advice, and saw no need to seek additional legal advice.”
Fallis then retained legal counsel May 17 at his own expense and provided the lawyer with the confidential responses from a request for proposals (RFP), screenshots of an email exchange he had with the city solicitor, a confidential report to council dated May 12 and the RFP document.
Two days later, Fallis requested a meeting with Principles Integrity. During the meeting on Zoom, he “indicated that he had concerns about legal advice council had received in closed session; that it went to a core issue of the RFP; that he had asked council to obtain outside legal advice on the point (council chose not to do so); and that he had concerns about his own personal liability as a result.
“The respondent indicated that he had reached out to a ‘seasoned lawyer’ to seek advice with respect to his own liability.”
Fallis wanted to know if he was allowed to seek outside counsel and whether his further involvement in discussions about the matter would constitute a conflict of interest.
Principles Integrity indicated there was no “ethical concern” with Fallis seeking his outside legal advice, but also stated his worry about his own personal liability was unwarranted.
“We immediately advised, however, that providing confidential council documents to outside legal counsel was a concern and could result in a complaint being filed with us under the code of conduct,” the report states.
During a closed-session meeting May 19, Fallis acknowledged he had retained legal counsel and that he provided confidential information to his lawyer. That led to questions being raised about whether he had breached the code of conduct, and Fallis then left the meeting out of an “abundance of caution.”
That evening, after the meeting, Fallis emailed his lawyer a report on that day’s closed-session meeting, including “a summary of the confidential discussions.”
“The mayor then asked if I had received legal advice. I acknowledged I had. He then suggested I now had a conflict of interest and needed to leave. Upon him raising the issue, and out of an abundance of caution, I declared a conflict,” Fallis wrote to his lawyer.
“The CAO was also extremely upset that I disclosed confidential documents and has said I may be censured. In my absence, the counsel (GC and CAO in open session) voted 7-0 to proceed to negotiations without legal advice.”
He asked his lawyer to provide his thoughts on the matter.
“As discussed, regarding your disclosure of confidential documents that the CAO was upset about, I don’t know what your council’s procedures and protocols are regarding the propriety of that move and I relied on your assurance that it was wholly within your right to do so,” the lawyer responded. “In any event, the documents disclosed to me will remain with me alone.”
In one of the exchanges with his lawyer regarding council’s reaction to learning he had shared confidential information, the report notes, Fallis “cavalierly states that ‘With perfect hindsight, I would do it again without hesitation.’”
“As was revealed during the conduct of the investigation, the respondent proceeded to do just that — disclose confidential documents for a second time, to another lawyer he retained on June 15, 2021,” the report states.
“He has demonstrated a zealousness in his belief that staff advice was unreliable or incorrect and held an arrogant disregard for his obligation to maintain confidentiality as a member of council.”
The integrity commissioner also weighed in on whether Fallis breached the code “by unduly criticizing and undermining staff.”
“Though the respondent’s disparagement of the staff member was not the grounds of a specific complaint, we were advised of a concern that the respondent regularly discounted the advice of staff,” the report states. “That tendency, while not ethically improper, does create challenges for the effective governance of the municipality.”
The integrity commissioner backed up the recommendation for a suspension of pay by noting “Disclosure of confidential information is the kind of transgression that attracts a significant monetary sanction because the act fundamentally undermines the trust required for councils to function properly and for the public to maintain respect for council’s adherence to ethical standards.”
Fallis sent an email to OrilliaMatters, but declined to comment further.
He noted he spent more than $12,000 of his own money on legal costs, including three lawyers.
“At all times, I acted in the best interest of my constituents. I find it hard to understand that my seeking privileged legal advice respecting a matter important to the people of Orillia was wrong,” he wrote. “I remain absolutely confident that my actions were honest, just, and conscientious," he noted in the email.
"As a democracy, our institution only works with accountability. When the public can hold us accountable for the decisions we make. Our city code of conduct requires it,” he continued. “Our institutions fail if we are not forthright, open, respectful, and transparent. Accordingly, as a councillor, I make a point of being respectful to city staff in absolutely every situation. To suggest otherwise is utterly without basis.”
Based on the legal advice he received, Fallis said, “I steadfastly believe the citizens of Orillia would whole-heartedly support my actions.”
In his email, he suggests Orillians be the ones to judge his actions in this matter.
“Allow constituents to reach their own decision regarding the ethics of me having sought legal advice. Allow them to vote me out of my role if they deem it appropriate,” he said.
Mayor Steve Clarke was not immediately available to comment.
The integrity commissioner’s report will be up for discussion at Monday’s council meeting.
