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Burnaby won’t say how many settlement agreements it has reached with former employees
The City of Burnaby is refusing to disclose how many settlement agreements it has signed with former employees over the years, shielded by a 2017 court ruling that one freedom of information expert says is a serious infringement on transparency.
Burnaby Beacon filed a freedom of information request seeking a report on the number of settlement agreements the city had signed each year between 2012 and November 2021.
The request came after the city declined to provide details from the settlement agreements between the city and several members of senior management of the IT department.
A series of high-ranking departures
In summer 2020, seven senior IT staff, including chief information officer Shari Wallace, parted ways with the city without explanation from city management.
At the time, city communications staffer Marie Ishikawa said the city does “not share employment and personnel information outside the organization,” but said four positions were terminated as the city was “undergoing a departmental reorganization.”
Wallace, whose LinkedIn profile notes seven-and-a-half years of work with the City of Burnaby, following nearly 13 years at the City of Vancouver, was unable to comment on the matter, bound by the terms of her departure.
Wallace’s profile now lists her as the chief information officer at the TRIUMF particle accelerator at UBC.
The city didn’t say at the time which four positions had been terminated, and an organization chart from that time showed vacancies in Wallace’s position, as well as two directly reporting to the CIO and four second-level subordinate positions.
Bachar Khawajah, the only remaining senior IT staffer after the departures of Wallace and others, was ultimately promoted in September 2020 to the IT chief position.
The IT overhaul was not the only example of sudden, unexplained departures from the city’s senior staff in 2020. In March of that year, former fire chief Joe Robertson, who had been on mental health leave for almost a year, parted ways with the city.
Robertson revealed in a lawsuit, reported on by Burnaby Now, but which has since been sealed by the courts, that he had suffered from a mental break down and twice attempted suicide after a “lengthy period of harassment and bullying” by the city’s current fire chief and Burnaby’s firefighters’ union president.
The allegations have not been publicly proven in court.
Severance vs settlement agreements
FOI requests seeking termination agreements in all of the above cases were rejected by the city, which cited settlement privilege.
Severance agreements are FOI-able, and until recently, settlement agreements—at least, some information from them—were as well.
As a result, the city has been able to shroud how much it paid out in settlement agreements to various high-ranking officials.
And in a recent response to an FOI request, the city similarly declined to provide information on how many settlement agreements it has reached with former employees or how much money has been paid out.
Instead, the city sent information, much of which is publicly available in the annual statements of financial information (SOFI), on severance agreements. The city, again, cited settlement privilege in its decision to deny access to this data.
(Burnaby Beacon is challenging this decision from the city with the Office of the Information and Privacy Commissioner of BC.)
The city’s website has SOFI reports from 2016 to 2020 available on its website and provided severance information from 2012 to 2015.
According to the reports, the city signed a relatively consistent number of severance agreements until last year:
Put another way, the city signed six severance agreements in the period between 2012 and 2016, another six between 2017 and 2019, and another six in 2020 alone.
That doesn’t include settlements
As Burnaby Now reported in June last year, Wallace and her deputy directors, John Cooke and Jacek Kaim, who left the city only halfway through 2020, still made a combined $426,082 that year, indicating some level of payout made to the three.
And Robertson had only worked until March of that year and still was paid $194,060 in 2020, similarly suggesting a payout from the city.
But missing from the Now’s reporting was that Wallace, Cooke, Kaim, and Robertson’s payouts would not have been included in the ballooning number of severance agreements signed in 2020.
According to an email statement from the Ministry of Municipal Affairs, the SOFI report “should only include the severance agreements made between the employer and an employee for which payment commenced during the fiscal year being reported.”
“The definition of severance agreement does not include settlement agreements,” the ministry added.
The ministry declined to define settlement agreements, particularly with respect to how it differs from severance agreements.
And the difference isn’t entirely clear, either—the definitions of the two seem to have significant overlap.
Employment lawyer Simon Kent, with Kent Employment Law, said typically severance is considered to be part of a settlement agreement.
However, he said severance is typically about the amount of money paid out to a former staff member. A settlement agreement would, then, resolve any disputes between the employee and the employer.
Those disputes could include allegations of bullying and harassment, or they could be as minor as disagreements over details in the employment contract, Kent said.
“It’d be impossible to know why it went to a settlement agreement,” he said.
A troubling turn of events
Regardless, Vincent Gogolek, the former executive director of the BC Freedom of Information and Privacy Association, said the lack of transparency around settlement agreements is troubling. (Disclosure: The reporter of this story is a paid member of FIPA.)
Gogolek spoke last week at the special committee to review the Freedom of Information and Protection of Privacy Act (FIPPA), and one of his main points was around a recent change to settlement agreement disclosures.
“Other than the three paragraphs quoted above, the court offered no analysis and there is no evidence that the court took into account the many factors relevant to statutory interpretation.”
Photo: Dustin Godfrey / Burnaby Beacon
Settlement agreements—or, at least, some details within them—weren’t always barred from public scrutiny.
“Settlement privilege is a branch of common law legal privilege. It is related to litigation privilege. Its purpose is to encourage parties to litigation to settle rather than pursuing resolution of their dispute at trial,” reads written submissions to the legislative committee by Gogolek.
“In a nutshell, it works by preventing offers to settle from being used in court if the matter goes ahead.”
Settlement privilege has no mention in FIPPA, and the Office of the Information and Privacy Commissioner (OIPC) had taken the approach that its absence means settlement information is open to FOI requests.
That meant the public could effectively call up a public body and ask for the amount paid out in a settlement agreement, and the public body would comply. The terms of the agreement, however, were still protected as being part of legal advice.
But just over five years ago, in February 2017, a BC Supreme Court decision changed that, overriding “years and years” of decisions—going as far back as the 1990s—by OIPC, Gogolek told Burnaby Beacon in an interview.
“And then it became open season for public bodies to refuse to release this kind of information,” Gogolek said, calling the case of Burnaby refusing to disclose information about settlement agreements it has reached “yet another” example.
“The problem is that [with] these things, the scope keeps getting expanded.”
The Richmond case
It was a case involving the City of Richmond, in which the OIPC had ordered the city to create and release a “record of the total aggregate legal fees and settlement amounts regarding claims by two other individuals against the city.”
In her ruling, Justice Victoria Gray determined that, contrary to the OIPC’s interpretation, the absence of any mention of settlement privilege meant that the act did not override that particular privilege.
“[This] means public bodies can use settlement privilege to deny access, and they have been quick to jump on this new way to frustrate requesters,” Gogolek wrote in his submissions to the committee.
The Richmond decision was not appealed, and the OIPC has since been bound by it, according to Gogolek’s submission, which cites a 2019 decision around a WorkSafeBC employee and a 2020 decision regarding the Ministry of the Attorney General.
“The OIPC has been compelled to follow it on a number of occasions, although the decisions reasoning (or lack of same) has been criticized in other jurisdictions,” Gogolek wrote, referencing a decision by Newfoundland and Labrador’s information and privacy commissioner, Donovan Molloy.
Molloy was asked by the Town of Paradise to take into consideration the Richmond decision in a dispute over an access to information request. But Molloy found Gray’s reasoning to be lacking.
“Other than the three paragraphs quoted above, the court offered no analysis and there is no evidence that the court took into account the many factors relevant to statutory interpretation,” wrote Molloy.
“For example, the court offered no analysis or consideration of the purpose of the statute.”
The public interest
The issue, Gogolek said, is that while there’s a public interest in “not hamstringing or undermining our public bodies in actual legal proceedings,” there’s also a public interest for the public to know how much it cost for a public body to dismiss an employee.
“This is one of the things that we, as citizens, … [ask] the quite reasonable question: so how much are we spending on these things in relation to other cities? And if the numbers are, ‘Wow, that’s a lot’ compared to Surrey or New West or Saanich, whoever, whatever your comparables are, well that raises issues of public policy and accountability for public funds,” Gogolek said.
“I just hope that the committee will close the loophole that the judge opened up. We don’t know what the BC Court of Appeal would have done with the decision because it wasn’t appealed. … But the fact is: this is the law, now. And this is binding.”
Asked whether he’s hopeful the committee will close that loophole, Gogolek noted the committee did seem “quite interested in the question.”
“We’ll have to see what other witnesses have to say and what they ultimately come up with,” he said. “But of course, ultimately, it’s in the hands of the government.”