Pembroke mayor's law firm colleague is paid to represent the city. Some residents say that's not OK
Relationship between city and firm under fresh scrutiny after snow-plowing dispute
A Pembroke, Ont., homeowner says a road plowing dispute with the city snowballed into what she calls a "threatening" letter from the law firm where both the city solicitor and mayor work — a situation she believes is both a conflict of interest and an "abuse of power."
Arianna Nolet said she was outraged after learning taxpayers are paying Mayor Ron Gervais's law firm colleague Robert Sheppard for legal services, and questions the implications of the city's top elected official continuing to work at the same firm — Sheppard & Gervais — as its solicitor.
"There is a large conflict," said Nolet. "How does the city's interests align with Mayor Gervais's interests, and then [how do] his interests further align with his law firm? It raises a lot of eyebrows."
Gervais did not return multiple calls and emails from CBC asking for an interview or comment on this story. Nor did Sheppard, who's been the city's solicitor for more than 20 years.
The dispute began in December when Nolet contacted the city over what she described as city plows repeatedly "dumping the entire street of snow" on her property, which sits at the end of her street.
Nolet says she moved to Pembroke in 2021 shortly before retiring from military service. She said as a person with a disability, it's difficult for her to clear her driveway multiple times a day.
Nolet told CBC she first spoke with Gervais by phone in December after having what she described as a "very disturbing conversation" with a city operations employee, also over the phone.
Then in January, Nolet said a city employee stopped by her driveway and confronted her about her temporarily blowing snow from her property onto the street in order to get it over a tall snow bank, which led to a verbal altercation. She said that led her to serve the city a trespass notice.
WATCH | Security footage of verbal altercation by driveway:
Nolet said she had her second call with Gervais following that incident. She said the mayor told her he would speak with the city's chief administrative officer (CAO).
In February, Nolet received a letter in the mail from the law firm Sheppard & Gervais.
"I am the solicitor of the City of Pembroke," reads the first line of that letter, signed by Sheppard.
The letter refers to Nolet's conversation with Gervais, and accuses Nolet of breaking a city bylaw by pushing snow onto the street. It also notes the CAO informed Sheppard about Nolet's trespass notice.
"This is to advise that should you engage in conduct that is contrary to the By-law that you risk being prosecuted by the City of Pembroke for such activity," Sheppard wrote.
"I trust you will govern yourself accordingly."
The letterhead includes both Sheppard's and Gervais's credentials, and their full names are printed at the bottom.
Nolet said she felt "very threatened" and was shocked when she realized that the mayor's longtime law firm colleague was sending her the letter on behalf of the city.
"I'm just beside myself as somebody who really loved this area," said Nolet, her eyes welling with tears. "Moving into this community with all of my savings and buying this house seems to be quite a mistake given who we have in power."
CBC pointed out to Nolet that it was Sheppard who had signed the letter, not Gervais. Nolet said she feels the fact that they work together and that the mayor's name appears on the letter was enough for her to make the connection.
"I 100 per cent feel this is an abuse of power," Nolet said. "This doesn't say compassion. This doesn't say leadership."
Solicitor has long history with city
Pembroke council appointed Sheppard as city solicitor in 2002, according to a signed city document.
Before his acclamation in October, Gervais served as the city's deputy mayor. He was first elected to council in 2010 and has continued working at Sheppard & Gervais during his time in office.
The law firm has been hired by various townships in the Ottawa Valley for more than a decade, according to contract documents.
For me, it reeks of conflict of interest.- Pola Hallquist, Pembroke resident
One 2012 agreement with the Town of Deep River describes the firm's "extensive history" of expertise in the municipal sector and touts it as "one of the oldest law firms in the county."
According to the firm's proposal, Gervais was billing $226/hour and Sheppard $288.15/hour for legal services at the time.
Nolet isn't Pembroke's only resident questioning whether the mayor's relationship with Sheppard and the legal firm creates the possibility of abuse of power.
"For me it reeks of conflict of interest," said resident Pola Hallquist, who contacted CBC News about her concerns. "We elect our leaders with the expectation that they're going to work on behalf of the best interests of public, right?"
Hallquist noted Gervais's attempt to purchase surplus city land near his home for $1,000, which was presented before council earlier this month.
Local residents recently took to social media expressing disbelief, some saying it "screams of conflict of interest" and that taxpayers "should be sick to their stomach." Several commenters called on Gervais to resign.
Councillors ultimately voted to postpone the matter, asking staff to return with a land appraisal.
Hallquist said she wants accountability, and accused Gervais of "brazen acts of self-interest" and abuse of power.
Pembroke's integrity commissioner Tony Fleming told CBC he could not disclose whether any complaints have been filed against Gervais — either in relation to his law firm, or his intent to purchase city land. Nor could Fleming confirm whether any investigation is underway, citing the Municipal Act, which requires that any such investigation remains confidential.
What does the conflict of interest act say?
According to Pembroke's code of conduct, council members must "always place the interests of the taxpayers and the Municipality first" over their own or those of their family, friends, staff or business colleagues. Nor should elected officials make decisions or attempt to exert their influence in a way that benefits themselves or their business colleagues.
Ontario's Municipal Conflict of Interest Act also aims to hold elected officials to a standard of good conduct and integrity.
According to a commonly referenced Ontario Divisional Court ruling in a 1979 conflict of interest case, the act's purpose is to prohibit those officials from deciding on matters in which they have a personal financial interest.
No man can serve two masters.- 1979 court ruling on conflict of interest case
The court ruled that the act applies to "all situations in which the member has, or is deemed to have, any direct or indirect financial interest," regardless of their motive or whether they acted in good faith.
"This enactment ... is based on the moral principle, long embodied in our jurisprudence, that no man can serve two masters," the court ruled.
Under the act, conflict of interest relates only to pecuniary (financial) interests. An official has an indirect pecuniary interest if they are a shareholder, director or senior officer with a private company that has a direct financial interest in the matter, or "if they are a partner of a person or is in the employment of a person or body that has a pecuniary interest in the matter."
According to the city, Gervais twice declared a pecuniary interest regarding his offer to purchase the city land adjacent to his property, on March 7 this year and Sept. 6, 2022. There were no declarations regarding the matter with Nolet.
Position with firm immaterial, lawyer says
Despite his law firm's name, Gervais is not a partner there but an employee, the city's CAO David Unrau pointed out in an email to CBC.
John Mascarin, a lawyer with Aird & Berlis and the integrity commissioner for dozens of Ontario municipalities, said the situation in Pembroke "may very well give rise" to an indirect pecuniary interest, and said "it doesn't really matter" whether Gervais is a partner at the firm.
"If his law firm is acting on behalf of the municipality, then he, as a person in the law firm, is deemed to have all knowledge of everything that goes on there," said Mascarin.
"If the mayor's law firm is providing services to the municipality, well, clearly there's a financial interest and ... the mayor is deemed to have that interest ... whether he is a partner in the law firm or whether he's just an employee."
WATCH | Lawyer explains why even a perceived conflict of interest matters:
Mascarin said it's possible for the mayor to reorganize his personal and business affairs in a way that doesn't conflict with his obligations to the public, but he'd have to disclose his pecuniary interest every time it arises, and recuse himself from dealing with those matters.
"The worry always is, will the mayor always be aware of any indirect or deemed interest that may arise from this relationship to the law firm?" Mascarin asked.
However, even the perception of conflict of interest can be problematic, Mascarin said.
"Would the reasonable person look at this and go, 'This seems a little strange here,'" he asked. "It just gives a question as to, should we be trusting this individual?"
It's not just the mayor's responsibility. I think it's also the municipality's responsibility.- John Mascarin, lawyer at Aird Berlis
Mascarin noted that the judge presiding over a 2020 inquiry into the partial sale of the municipal utility services corporation in Collingwood, Ont., recommended the Municipal Conflict of Interest Act be significantly broadened to capture not only financial interests, but to "encompass any real, apparent and potential conflict of interest."
In Pembroke, Mascarin said the safest course of action would be for the city to hire a different firm.
"It's not just the mayor's responsibility. I think it's also the municipality's responsibility," he said.
Residents who believe a member of council has violated conflict of interest rules can file a complaint with the municipality's integrity commissioner or directly with the Ontario Superior Court, Mascarin explained.
Elected officials found in breach of Pembroke's code of conduct can have their pay suspended, while those found in breach of the act can be removed from office and barred from running for re-election for up to seven years.
City responds, mayor silent
Gervais did not respond to multiple emails, phone calls and voice messages left by CBC at his direct line and with his law firm since March 14. Nor did Sheppard respond to multiple requests from CBC.
Pembroke's CAO told CBC in an email that the city already uses "several lawyers" to perform various functions.
CBC has asked to see the contract between the City of Pembroke and Sheppard, but the city has not provided those details.
Unrau said according to its bylaws, the city doesn't have to go through a procurement bidding process to hire lawyers for legal services.
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