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City's disciplinary action not protected: privacy commission

There is nothing in provincial privacy legislation that prevents the city from saying publicly what disciplinary action has been taken in connection with the Sudbury Transit ticket scandal, Northern Life has learned.
Some councillors are supporting a proposal by Mayor Marianne Matichuk to make the office of the auditor general permanent. File photo.

There is nothing in provincial privacy legislation that prevents the city from saying publicly what disciplinary action has been taken in connection with the Sudbury Transit ticket scandal, Northern Life has learned.

Trell Huether, a media relations specialist with Ontario's Information and Privacy Commission, sent Northern Life an email message from Dr. Ann Cavoukian, Information and Privacy Commissioner of Ontario. In it, Cavoukian said the Municipal Freedom of Information and Protection of Privacy Act does not apply to information about employment related matters, “which would include disciplinary measures that have been taken against individual employees.

“As a result, the privacy provisions in MFIPPA do not prevent the city from disclosing this information,” Cavoukian wrote in the email. “However, there may be privacy or confidentiality provisions, in employment agreements, that would restrict disclosure of this type of information.”

The scandal centres on more than $800,000 in missing transit ticket money uncovered by Auditor General Brian Bigger in 2011. Bigger's audit revealed that, among other issues, transit management continued to renew contracts with 1211250 Ontario Inc., which operated the transit kiosk, the transit café and the airport café, despite the fact its debt with the city continued to grow year after year, dating back t 2004.

When the contract was terminated Sept. 4, 2009, the company still owed the city $866,537, although the city has since recovered a portion of that amount and is now owed about $500,000.

On May 14, Greater Sudbury Police Chief Frank Elsner told city councillors that, after a lengthy investigation, the Ontario Provincial Police concluded there was no basis to lay criminal charges.

“Once you get into a business relationship with someone, and they don't pay you back ... and you don't take them to task right at the time that it happens, it's considered that you've extended them credit,” Elsner said.

“As soon as you do that, you've extended them credit and no longer have the opportunity to go before the courts.

“You can still sue them, but as a criminal offence, it no longer applies.”

Quoting from a letter sent to him from the OPP, Elsner said there was evidence of a lack of oversight on the part of the city, but not criminal activity.

“The police investigation has revealed there is evidence of poor business practices and a lack of management oversight.”

CAO Doug Nadorozny, who was the city manager in charge of transit when the scandal emerged, declined an interview request from Northern Life. However, he issued a public apology on behalf of the corporation in 2011.

“The transit kiosk contract administration was a truly regrettable series of events — with regrettable results for our community,” Nadorozny wrote in his 2011 apology. “We deeply apologize for the errors that have been made in the past, and we will keep working on improvements for the future.”

After Elsner's announcement May 14, Greater Sudbury Mayor Marianne Matichuk said “action” had been taken involving staff in connection with the case, but said she couldn't even say whether the action was disciplinary.

“We cannot speak about those things in public,” she said. “I can tell you measures have been taken, action has been taken.”

Kevin Fowke, the city's director of human resources, said he was surprised to hear that the privacy commission didn't have rules against revealing employee disciplinary information.

Regardless, Fowke said an employee's personnel record is a matter between the worker and the employer, and not something the city would ever publicly release.
“I'm a little surprised the Privacy Commission would respond that way, because we've had discussions with them before,” Fowke said May 17.

But he said confidentiality between an employer and employee is a basic element of any relationship, whether it be a public or private corporation.

“I don't know of too many employers, public or private, that would be opening their employee files,” he said. “It wouldn't be a very dignified employment relationship if we allowed that type of information to be bandied about.

“There has to be recognition that if it was your employment being addressed, I don't think you'd want details of how (discipline) was addressed with you shared publicly.”

While there is strong public interest in the case, Fowke said a big part of the city's ability to attract and retain quality employees is relies on staff being able to trust them as an employer.

“We're very, very cautious with that kind of information, for all the right reasons,” he said.

“If someone has a situation addressed with their immediate supervisor, and the details show up in Northern Life the next day, what kind of employer are they really working for?"


Darren MacDonald

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