Former Fort Frances Councillor David Kircher has filed to to take the Town of Fort Frances and the municipality’s Integrity Commissioner David G. Boghosian to court, with a Notice of Application for Judicial Review.
Kircher’s legal team filed a 17-page notice to the Ontario Superior Court of Justice in Thunder Bay, outlining what he feels was a biased and flawed investigation into alleged code of conduct violations.
He is seeking to have the the Integrity Commissioner’s decision and recommendations in his report to council quashed, along with council’s decision to accept the recommendations. He is also seeking to be reimbursed for the costs of filing the application.
Town council passed a resolution on February 13 to request an Integrity Commission investigation into Kircher, following an in-camera discussion on the matter. Kircher had recused himself from that discussion; he felt it should be debated in open session, and commented that he was given insufficient notice to defend himself.
Boghosian presented his report to council on May 13. Within it, he made multiple accusations of wrongdoing against Kircher, including the improper use of official e-mail. Boghosian alleged that Kircher had sent council e-mails to his personal business e-mail account, had discussed in-camera items over e-mail, and had discussed items which should be debated publicly, through private group e-mails to council members. Boghosian also alleged that Kircher had ignored the chain of command, by requesting actions from staff without the consent of council. The report also implied a strained relationship between council members.
Boghosian’s recommendation was for a 55-day suspension in pay, a formal reprimand, a request for a public apology to Counc John McTaggart and the appointment of a workplace facilitator to mend relations on council. He noted it was the strongest reprimand he had recommended as Integrity Commissioner.
Kircher exited the meeting, stating his intention to resign the following day. After his departure, council voted unanimously to approve the sanctions.
Kircher did follow through with his resignation; Kaleb Firth has since been appointed in his place.
In the weeks following his resignation, Kircher made a number of attempts to have documentation surrounding the investigation, including his submission to Boghosian, and the minutes of the February 13 in-camera meeting, released from confidentiality. According to Kircher, he is unable to defend himself adequately, because of the confidentiality of that information. He was unsuccessful in those attempts.
On June 7, he filed his legal challenge. In it, he outlined what he felt was a flawed and unfair process, and unreasonable sanctions.
The application alleges that Boghosian did not conduct a direct interview with Kircher, despite appearing to have interviewed Coun. John McTaggart, Acting CAO Travis Rob and the town clerk. Instead of an interview, the “Integrity Commissioner emailed Councillor Kircher summaries of the emails he had reviewed with specific questions,” said the report. Kircher provided those answers on April 15. On April 20, Boghosian sent Kircher four additional questions. However, two days later, before Kircher had provided any answers, council passed a resolution to acknowledging that the Integrity Commissioner had concluded his investigation, and would be presenting his report on the May 13 council meeting. Kircher answered the supplementary questions on May 1, and the final report was dated May 3.
Kircher also alleges that the Town did not provide e-mails to the Integrity Commissioner that would show other councillors engaging in similar e-mail usage that only he was reprimanded for.
Kircher’s court filing states that the commissioner’s decision was “unreasonable”, because it “failed to account for key evidence. For example, based on perfunctory summaries of complex email threads, the Integrity Commissioner drew conclusions that were untenable in the factual circumstances and/or misinterpreted them.” The application also accused the Integrity Commissioner of relying on “piecemeal evidence” and not taking historical context into account.
The court application also alleges that the process was unfair, including allegations that the Integrity Commissioner “failed to provide Councillor Kircher with notice of the unsubstantiated allegations made against him by the interviewees, and denied him an opportunity to respond directly to those allegations. The Integrity Commissioner accepted the untested and unchallenged allegations made against Councillor Kircher.”
The court filing states that the sanctions against Kircher were unreasonable, and resulted from “an unfair process.”
Town Clerk Gabrielle Lecuyer declined to comment at this time on the application.
“Since the matter is currently before the courts, we are unable to comment at this time. However, we will be pleased to share our written argument once it has been filed,” she said.
