By Mark Squibb/September 2, 2022
Two weeks ago, Supreme Court judge Justice Alexander MacDonald ruled the City of Mount Pearl breached former CAO Steve Kent’s privacy by reading his Facebook messages in which he allegedly colluded with two City councillors while on paid leave during an external investigation into his workplace conduct.
The City of Mount Pearl will appeal that decision.
“We do respect the court’s decision, but council sat down with our legal team and reviewed it, and we believe that the activity that was reported was very unethical and shouldn’t take place in any workplace, especially with a confidential and private investigation (ongoing]) so we have given notice to the parties that we will be appealing,” said Mayor Dave Aker.
He said the City filed the appeal last Wednesday, and that it is now the court’s responsibility to set a court date.
The Pearl spoke with Aker on Tuesday, and on Wednesday the City issued a press release stating it was appealing the decision.
“We maintain our position that the City was fully justified in seizing and reviewing the messages in question,” read the release. “In this circumstance, Mr. Kent was on administrative leave and under investigation on complaints of workplace harassment, while inappropriately communicating with councillors having public duties regarding the investigation. Accordingly, the City filed a notice with the Court of Appeal of Newfoundland and Labrador, that it will be appealing the decision.”
The City claims Kent left his city-owned iPad unlocked and Facebook Messenger app open, so that messages popped up on the screen and could not be avoided.
The former CAO was placed on a paid leave of absence in October 2020, pending an external investigation into alleged workplace misconduct. Former councillors Andrew Ledwell and Andrea Power were sacked from council in June 2020 for allegedly feeding Kent information on the investigation via Facebook messages. Both Ledwell and Power have filed Supreme Court appeals over their dismissal from council.
In lieu of an interview, Kent sent a statement to The Pearl regarding the City’s decision to appeal.
“The Supreme Court ruling was clear and logical,” said Kent. “And now, while City workers stand on picket lines and citizens are deprived of services, it is terribly disappointing that the City is continuing to spend public money on this without any attempt to resolve or admit mistakes were made.”
Kent decried the City’s use of taxpayer money in the courts, specifically referencing Mayor Dave Aker and councillor Jim Locke, and implored other members of council to “ask questions, to stop this activity, and to end the distraction so you can focus on running the City of Mount Pearl.
“We learned in Kindergarten not to snoop,” said Kent. “The City violated my rights by doing just that. And now, the City, at the beleaguered citizens’ expense, wants to keep this foolishness going.”
Kent resigned from the CAO’s position last June, just ahead of the City’s plan to fire him. He has sued the city for constructive dismissal and breach of privacy. Mount Pearl, in turn, has filed a countersuit.
MacDonald’s decision, should it stand, is likely to impact the outcomes of Ledwell’s and Power’s appeals.
“I can’t speak for Justice MacDonald, but he kind of indicated that in the decision that how you treat the Facebook messages at this point in time will have an impact on the appeal filed by the two former members of council,” said Aker.
That appeal is currently scheduled for November but may change as the City has appealed the privacy breach decision.
As to the external harassment investigation into Kent’s workplace conduct, Aker said the final report is yet to come.
“The final report is not in, but the investigation did proceed,” said Aker. “I’m not at liberty to say (when the report will be published). It’s with the investigator. All I can say is that there will be future reporting on it. But I can’t give you any more details and I really don’t know the exact timeline.”
The ongoing legal battles have entailed considerable costs.
Back in August, 2021, the City claimed that legal fees relating to Kent’s dismissal and the subsequent fallout came in at just over half a million dollars.
The notice of appeal filed by former councilors Andrea Power and Andrew Ledwell to date has cost $54,062; the investigation into former CAO Steve Kent, which remains ongoing, has cost to date $231,372; dismissal of the CAO and councilors, including a wrongful dismissal claim, have cost $162,637; an investigation into remarks by Mayor Dave Aker, precipitated by an allegation made by former councillor Power, which Antle said turned up empty, cost $54,087. Other consultant fees cost $10,522.
The City now says legal fees related to the notice of appeal for Power and Ledwell now total $134,000.
“We are accountable to our taxpayers, and at the end of the day, we are also accountable to our workplace,” said Aker. “And, as an employer, we must be willing to protect the safety and well being of our employees, and some of that is the motivation behind some of the court activity and legal fees that have been spent.”
As to whether Kent, Ledwell, or Power will have an opportunity to sit once again at the Mount Pearl council chamber, should they desire to, Aker said the future is not his to predict.
“I can’t speculate, but factually, the two former members of council are, after two years are up, eligible to run again in a future election,” said Aker. “Mr. Kent resigned at the end of the day, so I don’t think he’s going to return to employment with the City, as we have a new CAO. So, those are the facts, and really, I can’t speculate as to which direction things will go down the road.”
