North Cowichan councillor Kate Marsh will have to apologize to council and take a pay cut for breaching the municipality’s standards of conduct.
Council made the decision at its meeting on June 1 after hearing from Marsh’s lawyer who defended the councillor and asked that the penalties that were recommended in the third-person investigative report on the issue be deferred.
Mayor Al Siebring made the complaint against Marsh after a committee of the whole meeting on Sept. 7, 2021 in which the Bell McKinnon Local Area Plan was being discussed.
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In the meeting, an email from the lead referrals coordinator at Cowichan Tribes was discussed giving an opinion on how the First Nation would like to see development progress in that area, but Siebring questioned whether the staff member could speak on behalf of the First Nation.
After the meeting, Marsh sent an email to council members in which she stated that she has “never felt so ashamed and embarrassed at the cavalier attitude towards an email that begins with [the First Nation] prefers etc, and is from the [director of the First Nation’s lands and self governance]”.
“So sad that the email was singled out as insignificant, and only from one person, basically calling all those named in the email liars,” Marsh said in her email.
Siebring also complained that Marsh made disparaging remarks against him in a call to the First Nation’s lead referrals coordinator in the days after the meeting, but that claim couldn’t be substantiated during the investigation, which was conducted by Victoria lawyer Sharon Cartmill-Lane.
At the council meeting on June 1, Jennifer Millbank, a lawyer from Ramsay Lampoon Rhodes who represented Marsh, said Marsh has made numerous efforts to resolve the issue in a principled manner, and one that is consistent with her values.
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She said Marsh’s values include an authentic desire to promote reconciliation with First Nations, and this includes accepting that a First Nation is capable of voicing its views in the manner of its choosing.
“Councillor Marsh sought the ability to speak with Mayor Siebring shortly after she was notified he had filed a complaint on or about Sept 17/18,” Millbank said.
“She was denied this opportunity, yet she believes this could and ought to have been the end of the matter. By way of background, Councillor Marsh felt a strong reaction upon hearing Mayor Siebring speculate that the email from the referrals coordinator, sent on behalf of the director of lands and self governance, did not actually represent the views of the First Nation. She found this offensive and wrote a strongly worded email to all of council, save one, including herself.”
Millbank added that the email was sent at approximately 12:30 a.m. after a long six-hour meeting and no one is at their best in the small hours of the morning.
She said Marsh regrets sending the email and has attempted on numerous occasions to be given leave to apologize for the manner in which the email was written, which she sincerely and wholeheartedly acknowledges was intemperate.
Millbank said Marsh apologized to Siebring seven months ago, before the investigation was initiated, but it was rejected.
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“Ultimately, it was returned to her with modifications, including one statement that, in good conscious, Marsh could not accept,” she said.
“The change required Coun. Marsh to accept that the email from the referrals coordinator on behalf of the director of lands and governance did not reflect the view of the First Nation. Coun. Marsh won’t do this. The First Nation can communicate with other agencies in any manner it pleases.”
Milbank said Marsh stood on principle, which ultimately lead to the path of an investigation, when all of this could have gone away if only she had thrown her principles out the door and said something substantive that she didn’t believe.
“Is this truly the point of your code of conduct?,” she asked council.
“If it is, the whole process has run seriously amok.”
With Seibring and Marsh not at the table as they were the subjects of the issue, and with Coun. Christopher Justice absent during the discussion, council voted 3-1, with Coun. Rob Douglas voting against, for the recommendations in Cartmill-Lane’s report to be implemented.
The recommendations include that Marsh provide a letter of apology in relation to the email she sent to council members after the COW meeting, that Marsh share the letter of apology with council, that she undertakes to not communicate in a disrespectful and inflammatory manner with Siebring or other members of council, and that she attend a coaching session on respectful communication.
Although it was not recommended in the report, the municipality’s standard of conduct policy states that any council member who has been found by a third party investigator to have breached the standards will face a pay cut of 10 per cent for 12 months.
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Coun. Rosalie Sawrie said she and members of staff agree that some improvements and clarifications in the standards of conduct policy should be made, but it’s a fact that there was a breach in the current standards so she believes the recommended penalties are warranted.
She also said much had already transpired between Siebring and Marsh before the email.
“It’s awful that we’ve gotten to this point in this matter, but it was the straw that broke the camel’s back for the complainant,” Sawrie said.
“While there are many positive attributes with Coun. Marsh, I have witnessed a pattern of behaviour around this complaint… We should be accountable for our actions and both parties agreed on who would do the investigation and agreed to this process.”
Douglas said most would agree that Marsh’s offence is a relatively trivial matter and that the more serious allegation, that Marsh called a First Nation’s staff person and made disrespectful comments about Siebring, was not substantiated.
He said he sees the second part of the charges regarding the email as more minor.
“From my perspective, the intent of the email was misinterpreted and I’d say, at worst, it was ambiguous and I think it’s very difficult to draw any conclusions with the way the email was interpreted,” Douglas said.
“I have to question if something of this nature really justifies all the time, effort and resources that went into this long and drawn out investigative process. I think we really need to reexamine this process that we set up under the standards of conduct policy four years ago.”
Coun. Tek Manhas said the issue was investigated by an independent third party who found that the standards of conduct was violated.
“I think any decision we make today has to take into consideration that we are dealing with the current code of conduct and we can always change the code in the future,” he said.
“But with this situation, we’re dealing with the current code.”
Coun. Debra Toporowski said the issue isn’t taken lightly and she’s thankful that a third party investigated it.
“This is the process, but I can see some amendments to the policy to make it work better,” she said.
Siebring acknowledged that some see his complaint as trivial, but it has to be looked at in its full context.
He said the first part of the complaint in which he stated that Marsh had made disparaging comments about to him to a staff member of another organization, couldn’t be substantiated because of the two people who could have collaborated his complaint, one said the conversation was so long ago that they couldn’t remember exactly what was said and the other declined to comment.
Siebring said the investigator decided to separate the two charges.
“What other avenues are there?’ he asked.
“Coun. Sawrie alluded to it with her ‘straw that broke the camel’s back’ comment. There’s some history here and, while we’ve all tried to do better, this had to be brought to bear at some point. I’m not happy that this whole thing had to happen, but it will send a message that we need to be more respectful at the table. I get that Coun. Marsh sent the email at 12:30 a.m., but we were taught when we were first elected that any email you write could end up on the front page of the local paper.”
robert.barron@cowichanvalleycitizen.com
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