Mayor and councillor in legal battle over allegations of code of ethics violations

Ward 3 Coun. Evert Botha is facing a lawsuit on top of a code of ethics reprimand for allegedly ‘embarassing’ the mayor by lodging a pair of code of ethics complaints that were dismissed by a tribunal

Ward 3 Coun. Evert Botha -- Herald file photo.

Ward 3 Coun. Evert Botha has been sanctioned by council in a dispute between himself and the mayor. Now, he could also be facing legal repercussions.

Mayor Greg Dionne has sued Botha for $50,000. The lawsuit, as well as an ethics complaint launched by Dionne against Botha, was filed on Dec. 10, 2018.

Botha is accused of bringing a pair of code of ethics complaints forward that were malicious and designed to embarrass the mayor. Both of Botha’s code of conduct complaints were dismissed by a tribunal of councillors. None of the allegations have been tested in court.

Dionne’s accusation that Botha breached the code of ethics was addressed at Monday’s city council meeting. The decision to reprimand Botha passed 5-2. Botha was banned from serving as deputy mayor or on any city boards for the remainder of his term. He was also barred from speaking at public events on behalf of the city.

The dispute dates back to April 27, 2017, when Botha launched his first of two ethics complaints against Dionne, alleging that the mayor breached confidentiality in conversations with the media.

In April of 2017, Botha and his employer, Embee Diamonds, were engaged in a legal dispute with the city over unpaid property taxes.

According to Dionne’s ethics complaint, Botha accused the mayor of breaching confidentiality when he tipped off media to a court hearing and discussed other confidential developments in the case with news reporters.

The tribunal of councillors who ruled on Botha’s code of ethics complaint disagreed. The majority determined that the information was part of the public record due to the councillor participating in a court application that included a sworn affidavit with his name on it.

The tribunal’s decision is referenced in Dionne’s lawsuit.

Then, on Oct. 30, 2018, Botha complained that the mayor breached the code of ethics by neglecting to disclose a conflict of interest.

According to Dionne’s statement of claim, an in-camera executive committee meeting on Oct. 29 included a discussion about an agreement with Husky where the oil company would contribute $1 million over three years to the construction of three projects. One of the projects was a city-owned, two-sided digital billboard to be located at the E.A. Rawlinson Centre.

According to Dionne’s statement of claim, the land purchase referred to the Imperial Oil Property on the northeast corner, which has been leased by Dionne for a number of years. Dionne asserts that the recommendations made no reference to the Imperial Oil Property, nor did the motion passed by the executive committee.

Botha alleged that Dionne breached the code of ethics by failing to disclose his interest in the  Imperial Oil property and by sitting in on the in-camera meeting.

The majority of the tribunal of councillors disagreed, determining Botha’s complaint was based on “a misstatement of the matters that were being  considered.”

According to Dionne’s ethics complaint, the tribunal said Botha’s complaint was  based on an “erroneous and strained misrepresentation of actual facts that were clearly discernable in public records.”

Botha’s lawyer argued that the councillor had a point that was worth discussing. The tribunal “firmly” rejected that position.

In his statement of claim, Dionne asserts that Botha’s allegations of ethics breaches “proved to be frivolous, vexatious and scandalous, did not disclose any reasonable claim and were otherwise an abuse of process …. used to harass or embarrass.”

Dionne claimed to have suffered injury to his reputation as a result of Botha “maliciously abusing” the hearing process twice “for an ulterior motive,” and “blackening” Dionne’s reputation with council and staff.

Dionne says that in both cases, Botha acted out of malice, and without facts or reasonable cause.

Botha denies Dionne’s claims. In his statement of defence, Botha said his ethics complaints were “a real attempt to keep the elected officials of the City of Prince Albert open and transparent. “ He denied acting out of malice or with the intention of embarrassing the mayor.

 Botha alleged that it is Dionne’s actions that were motivated “in spite and malice,” even to the extent of breaching confidential proceedings “to further achieve his person (sic) aims,” an assertion Dionne denies.

Botha said that in all of his complaints, full details were provided to the city.

He also argued that according to the Cities Act, actions of council members carrying out their duties are covered by statutory immunity and can’t be used in a lawsuit.

In response, Dionne said that while he does not know what Botha’s motivation ways, he  suffered “ a sense of injury, humiliation, indignity, degradation and shame” as a consequence and that “warrants compensation.”

Dionne denied Botha’s allegation that he breached confidential proceedings and rejected Botha’s claim that he acted in good faith. Statutory immunity only applies if someone acts in good faith.

None of the accusations have been tested in court.

When reached by phone, Botha declined to comment, instead referring the Herald to his lawyer, Gordon Kirkby.

Kirkby had strong words for Dionne and the rest of council following Botha’s reprimand.

“It’s crazy. It’s excessive,” he said, calling the whole thing “the most ridiculous, foolish use of council’s time” he’s seen in a long time.

Kirkby said that even if there were breaches, which he denies occurred, they wouldn’t warrant “major interference of the democratic rights of Mr. Botha, the people who elected him and all the citizens of Prince Albert who will not be able to hear him at public events. You’re in opposition and you’re silenced.”

Kirkby said he and Botha will be examining council’s decision and determining whether to challenge it in court.

As for the lawsuit, Kirkby said he believes it has no basis in law or chance to succeed.

“It is simply, in my view, an effort to cow Coun. Botha into silence … to punish Mr. Botha or to simply dismiss any legitimate claims he may press forward.”

Kirkby said that Dionne’s case lacks evidence, and vowed he and his client would fight to the end.

 “We will and have been vigorously defending this lawsuit. It is complete and utter nonsense and we will be carrying it through to its conclusion.”

When reached by phone, Dionne said he was waiting to hear back from his lawyer before commenting on the lawsuit, the code of ethics complaint or any of Kirkby’s assertions.

He did, though, provide a brief statement.

“Kirkby is partly right,” he said. “I am trying to silence (Botha). I am trying to silence all of his false accusations. You can’t make false accusations and get away with it. I am trying to silence these false accusations because I have better things to focus my time and energy on — trying to move the city forward.”

This is the second time Botha has been reprimanded for breaching the city’s Code of Ethics.

Last May, Botha was removed from all city boards and committees and banned from speaking on behalf of the city for one year after council found him in breach of the code of ethics for a pair of comments criticizing the choice of music at Raider games.