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Cost to fire lawyer: $435K and counting

Those of you who are concerned about wasteful spending by our municipal leaders will be glad to know that Heather Salter is finally off the payroll.

[Originally published Nov. 18, 2013]

Salter hasn’t been employed by the Town of Fort Erie since April 16, 2012 at 4 p.m. when she was fired from her job as the director of legal services and Town solicitor.

The bad news for local taxpayers is they paid not only the tab for 18 months worth of salary and benefits as compensation for the wrongful dismissal but also a $50,000 lump sum payment to settle personal legal claims against at least one and possibly four town councillors.

The full payout for Salter is now estimated at $309,000, based on a new report to council tabled Monday, and the bill keeps growing every time the Town needs legal advice.

. . . continued

The annual cost of wage and benefits for the Town solicitor was $166,000, which multiplies to $249,000 for 18 months. Her salary was approximately $127,000 per year. Added to that is the $50,000 payment plus up to $10,000 to reimburse Salter for her legal and job search and re-training expenses.

As well, the Town has paid $375,000 for outside legal services to cover what would have been her usual duties.

The total comes to $684,000 over the past 18 months. Subtract out what Salter would have been paid if she hadn’t been fired and the net cost is $435,000.

The amount does not include specialized legal services for Ontario Municipal Board appeals, election audits and assessment appeals, which would have been accrued in any case, or the legal fees paid to handle the Salter termination.

(These expenses are about $400,000 since 2010, three-quarters of which have been for the Bay Beach condominium file.)

It is the $50,000 payment council authorized that is at the heart of a conflict of interest legal action against four councillors.

Bob Steckley, John Hill, Paul Collard and Don Lubberts are now embroiled in a suit alleging they acted in their own personal interest to pay $50,000 of Town funds so that Salter would relinquish her claims against them personally.

A judicial finding against them will result in their removal from council and prohibition from holding municipal office in Ontario for seven years.

As well as a settlement for her wrongful dismissal, Salter sought a lump sum payment to relinquish her “claims for general damages, tort damages, bad faith damages, and punitive, aggravated and exemplary damages . . . pursued against both the Town as employer and as against certain individuals in their personal capacity.”

Her lawyer, Michael Bonomi, wrote to the Town’s lawyer in June 2012 and offered a choice — either 18 months salary, benefits and continued enrolment in the pension plan plus $50,000 or 16 months salary and $75,000.

Closed session secrets revealed

Council voted in secret for Option A — the 18/50 deal — on June 26, 2012 in a special meeting held on a Tuesday night when no members of the public or the press would be present. Nearly a month later, the Town issued a press release announcing the end of Salter’s employment.

Some details of the closed meetings that led up to the final vote were revealed in affidavits which form part of the Application Record filed with the Superior Court in Welland in April 2013.

The legal action was initiated by former councillor Tim Whitfield after Mayor Doug Martin provided him information from the closed meetings.

Affidavits were sworn out by Whitfield, Martin, and councillors Stephen Passero and Rick Shular. The bulk of Martin’s statement follows, paraphrased in part for simplicity:

Martin’s affidavit

Steckley, Hill, Collard and Lubberts are collectively called “The Respondents”.

Once they were elected in 2010, it became apparent relatively quickly that the respondents formed a group which on most issues where Council was asked to exercise discretion on matters of some importance voted as one and seldom, if ever, voted independently.

During the course of any discussion in Council about the Molinaro project, it became apparent that the respondents opposed the project. Between the time of being elected and being sworn in, each had undertaken to defeat the project and had actually sworn affidavits for use in an OMB hearing evidencing their objection to the project.

Salter provided legal advice and opinion to the Council on a number of issues regarding the Molinaro project. Her advice and opinion was always predicated on the continuing corporate obligations of the Municipality.

The respondents disagreed with and were critical of Salter’s advice and opinions on an ongoing basis and particularly as it related to the project.

The respondents, individually and collectively in public meetings and in closed sessions, criticized and disagreed with the advice.

Openly questioned professionalism

Further, the respondents openly questioned Salter’s professionalism, competence and integrity and dismissed the quality of her advice on a number of occasions.

At one time, Lubberts suggested Salter had a ‘conflict of interest’ regarding the Molinaro project and another time the respondents insisted that Salter obtain an ‘independent’ third-party legal opinion, implying that Salter was not ‘independent’.

According to Salter, Martin’s statement reads, on a number of occasions, one or more of the respondents had attended at her office in the town hall and criticized her, challenged her professionalism, issued orders to her and made requests for information from her independently and separately from Council.

Lodged harrasment complaint

As a result, Salter lodged a workplace harassment complaint with council. The complaint was in writing and Salter addressed council. In a verbal presentation, she specifically referenced the conduct of the respondents, collectively and individually, and outlined the harassing and abusive conduct of the respondents.

On March 26 council went into closed session wherein the situation concerning Salter was discussed, including the workplace harassment charge. The respondents determined that they would not investigate or deal with the harassment charge as required by the Employment Standards Act and instead determined that they would seek to terminate Salter’s employment.

Martin persuaded council to defer a decision and to obtain an opinion on the cost and consequences.

The three other members of council (Martin, Passero, Shular) felt the termination of Salter’s employment was without legal justification and might expose the Town to a wrongful dismissal suit.

It was also felt there would be significant unhappy consequences for the councillors specifically named in the complaint given that the harassment charges were leveled against them personally.

Termination “retaliation”

The termination could only be perceived as retaliation for the workplace harassment complaint, Martin’s affidavit reads.

A second closed session meeting was held April 10 during which the acting CAO Ron Tripp and human resources manager Tom Mather filed a report. The meeting went into open session and Tripp was instructed to act according to the resolution made in-camera, which was to terminate Salter with some monetary compensation.

Salter acknowledged the termination of her employment but refused the offer of compensation in lieu of notice.

Another in-camera meeting was held May 7 with Standryk (the Town’s lawyer in the termination). Council was advised that Salter had refused the offer of compensation.

She noted that the harassment complaint had not been dealt with, that the individuals named in the complaint had not declared a conflict of interest and suggested each of them consult with their own lawyers.

He respondents asked Standryk if she believed they had a conflict. She refused to advise them and indicated that she was the counsel for the Corporation of the Town and not the individuals.

Respondents “personally liable”

On May 11, the Town received communication from Salter’s lawyer claiming damages for wrongful dismissal and for workplace harassment, specifically referencing the respondents as the perpetrators of the harassment and alleging the respondents, personally, were liable for a number of torts that arose from the harassment and unlawful termination.

Another closed session meeting was held on May 14. Standryk advised that the respondents should each retain his own legal counsel separate from the Town for the purpose of dealing with the tort claims made against them.

Correspondence between Standryk and Bonomi was exchanged. A letter from Bonomi dated June 13 confirmed Salter’s intention to proceed against both the Town as employer and against individuals in their personal capacity.

Another closed meeting was held on June 26 to discuss an offer from Salter’s lawyer to settle. It was agreed that Salter would be paid an amount of money to settle the wrongful dismissal claim as well as $50,000 to settle the tort claims against the respondents.

None of the respondents declared a conflict of interest even though their individual pecuniary well-being was threatened by the tort claims against them.

None declared a conflict of interest during the vote held to approve the settlement, even though $50,000 of the settlement funds were being used to provide them with a monetary or pecuniary benefit in the removal of the claim against them.

Each of them voted in favour of the settlement, essentially approving the payment of taxpayers’ money for their own benefit and the protection of the pecuniary interest.

“Ultimately,” the affidavit reads, “the claim brought by Salter was settled by payment of money to her, including a specific payment of $50,000 in damages for the torts allegedly committed by the respondents.”

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