Pembroke mayor's law firm colleague is paid to represent the city. Some residents say that's not OK

A Pembroke, Ont., homeowner says a road plowing dispute with the citysnowballed into what she calls a "threatening" letter from the law firm where both the city solicitor and mayor work a situationshe 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'slaw firm colleagueRobert 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."

Gervaisdid not return multiple calls and emailsfrom 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 Pembrokein 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 Decemberafter having what she describedas 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 saidthat led her to serve the city a trespass notice.

WATCH | Security footage of verbal altercation by driveway:

Altercation between Pembroke homeowner and city employee over snow blowing caught on camera

2 years ago

Duration 0:38

Security camera footage shows an altercation between Arianna Nolet and a city employee, after which Nolet said she served the city a trespass notice. (Submitted by Arianna Nolet)

Nolet saidshe 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 bySheppard.

The letter refers to Nolet's conversation with Gervais, and accusesNoletof breakinga city bylaw by pushing snow onto the street. It also notesthe CAOinformed Sheppardabout 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'scredentials, and theirfull names are printed at the bottom.

Nolet saidshe felt "very threatened" and was shocked when she realized thatthe mayor'slongtime law firm colleague was sending her theletter on behalf of the city.

"I'm just besidemyself 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 appearson the letter was enough for her to make theconnection.

"I 100 per centfeel 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 Valleyfor 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'sonly resident questioningwhetherthe mayor's relationship with Sheppard and the legal firm creates the possibility of abuseof power.

"For me it reeks of conflict of interest," said residentPolaHallquist, who contacted CBC Newsabout 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 notedGervais's attempt to purchase surplus city land nearhis homefor $1,000, which was presented before council earlier this month.

Local residents recentlytook to social mediaexpressing disbelief, some saying it "screams of conflict of interest" and that taxpayers "should be sick to their stomach." Several commenterscalled on Gervais to resign.

Councillors ultimately voted to postpone the matter, askingstaff to return with a landappraisal.

• Watch councillors debate the sale at March 7 meeting

Hallquist saidshe wants accountability, andaccusedGervaisof"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 hisintent to purchase city land. Nor could Flemingconfirm whether any investigation is underway,citing the Municipal Act, which requires that any suchinvestigationremains 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 oftheir family, friends, staff orbusiness colleagues. Nor shouldelected officials make decisions or attempt to exert their influence in a way thatbenefits themselves or their business colleagues.

Ontario'sMunicipal Conflict of Interest Actalso aims to hold elected officials to a standard of good conduct and integrity.

According to a commonly referenced OntarioDivisional Court ruling in a 1979 conflict of interest case,the act's purposeis to prohibit those officials from deciding onmatters in which they have a personal financialinterest.

No man can serve two masters.- 1979 court ruling on conflict of interest case

The court ruled that theact applies to "all situations in which the member has, or is deemed to have, any direct or indirect financial interest," regardless of their motive orwhether they actedin 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 area 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,Gervaistwice declared a pecuniaryinterest regardinghis offer to purchase the city land adjacent to his property,on March 7 this year andSept. 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 therebut an employee, the city's CAODavid 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 thesituation in Pembroke "may very well giverise" 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:

Perceived conflict of interest can damage public trust, lawyer says

2 years ago

Duration 0:53

John Mascarin, a lawyer with Aird & Berlis and the integrity commissioner for dozens of Ontario municipalities said if the public perceives a conflict between an elected official's public and private interests, it raises questions about whether the person is acting appropriately or not.

Mascarin saidit's possible for the mayor toreorganize his personaland business affairs in a way thatdoesn'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 ofconflict 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

Mascarinnoted that the judge presiding over a2020 inquiry into the partial sale ofthe municipal utility services corporation in Collingwood, Ont., recommendedthe 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 differentfirm.

"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 withthe municipality's integrity commissioner or directly with the Ontario Superior Court, Mascarin explained.

Elected officials found in breach of Pembroke's code of conductcan have their pay suspended, while those found in breach of the act can be removed from office and barred from running for re-electionfor 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 hislaw firmsince March 14. Nor did Sheppard respond to multiple requests from CBC.

Pembroke's CAOtold CBC in an email that the city already uses "several lawyers" to performvarious functions.

CBChas asked to see the contract between the City of Pembroke andSheppard, 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.