The City of Nanaimo will take Mayor Bill McKay to court over confidential information it says he disclosed to a former administrative assistant and was used in her claim against the city.
Ten citizens have also filed a court petition against the mayor, calling for judgment on issues tied to passenger ferry company Clipper Navigation and McKay's trip to China, and a declaration he be disqualified from holding office.
The City of Nanaimo filed a notice of civil of claim in the Supreme Court of B.C. Dec. 28 against the mayor, seeking court declarations that the mayor breached his duty to the city, the Community Charter and Freedom of Information and Protection of Privacy Act. The city also wants judgment for its losses and damages, including its payment of settlement money to Marilyn Smith, former administrative assistant in the mayor’s office, as well as its legal fees defending Smith’s claims.
None of the claims in either petition have been proven in court. McKay has 21 days from the date he is served to respond.
“We ended up having to make a pay out to our former employee who had been with us for 42 years, and we believe the pay out was in part caused by misinformation provided to her from the mayor of Nanaimo, providing her with confidential information,” said coun. Gord Fuller. “It’s quite complicated. Everybody loved Marilyn.
“It came as a huge surprise to me when she resigned and then I find out that she resigned in part due to e-mails she received from the mayor of Nanaimo confidentially.”
John Van Horne, the city’s director of human resources, said the mayor has not been served with the city's documents and there’s not a lot he can tell the News Bulletin. He did say Smith’s matter is settled as far as the city is concerned, but would not provide the total settlement amount.
“With that now filed in court we’ll need to let the detail come out in the court documents,” he said.
City council announced it had agreed to take legal action against the mayor in November after making a formal statement with allegations stemming from an investigation of the mayor. Among claims council made was a former employee said McKay provided him or her with confidential and privileged information as part of a settlement of a constructive dismissal and human rights claim against the city and chief administrative officer, to which McKay responded he has “no knowledge of that claim.”
Fuller confirmed today this action was approved a month ago.
The court documents filed by the city show Smith went on medical leave after receiving new direction about her duties in April 2016. According to the documents, a confidential e-mail was sent out that same month from the chief administrative officer to mayor and council providing confidential and personal information regarding human resources issues in relation to Smith and several requests were made to council asking they refrain from talking to Smith because of anticipated litigation.
The city claims that the mayor engaged in “several communications” with Smith which resulted in the mayor hindering city staff in the performance of their human resources duties, the mayor assisting Smith in bringing a claim against the city “and/or” the mayor providing her with confidential information, including the e-mail, without council authorization and without following process required under FOIPPA.
Smith declined to comment.
McKay said he has not been served, so he does not have the details and he learned about it via social media.
“Remember what we’re dealing with right now are allegations, so I look forward to this proceeding to court and until such time as it does, I can't offer much more in the way of comment other than the fact that I will vigorously defend myself,” he said
Who pays for the mayor’s legal costs is in question, according to McKay, who will look for the city to pay under its indemnification bylaw.
Van Horne said the mayor can ask council to have his expenses covered and council can make a determination of that under its bylaw.
In separate court action, 10 Nanaimo citizens filed a court petition on Dec. 22 against McKay looking for judgment on issues previously raised in allegations from council last November, including dealings with Clipper Navigation and the mayor’s trip to China. They are seeking, among other things, determination on McKay being in conflict of interest and as a result, to be declared disqualified to hold office.
“Essentially the only statement that we want to make is we are looking for accountability to the issues that were brought forward by city council,” said Tim McGrath, a petitioner.
The mayor was unaware of the petition and said he has not been served.
To see a copy of the citizens' petition, please click here.