Questions About Stat Pay Suit

After having read the Windsor Star article (the article) that reported Berthiaume is suing the town for stat pay, some questions came to mind so I’m looking forward to the trial with the hope that answers will be provided.

Are taxpayers on the hook for the lawsuit?

Under the Legal Indemnification section of his agreement, s. 15 (b) states:

“Upon retirement the Board shall continue to provide legal indemnification in all matters presently before the courts or future matters arising as a result of Chief Tim Berthiaume’s responsibilities of the Amherstburg Police Service. These matters being directly associated to his position as the Chief of Police of the Amherstburg Police Service.”

Was Berthiaume eligible for stat pay?

His agreement with the Amherstburg Police Services Board, signed on April 15, 2014 by John Sutton, Wayne Hurst, Frank Cleminson, and Pauline Gemmell, effective until June 30, 2019 states:

Statutory Holidays
12.2
The Chief shall be allowed to work a statutory holiday and take another day off in lieu subject to the approval of the Board.”

Was it necessary for him to work stat holidays? And, if he did work them, why didn’t he just take a day off in lieu as required by the Agreement?

Did Berthiaume work any stat days during his 6-month paid hiatus in a defunct position?

The Amherstburg Police was abolished on December 31, 2018 and the Windsor Police contract became effective January 1, 2019. According to the article, Berthiaume advised he would not transition until after the expiry of his existing contract effective the end of June 2019.

Why would the Board agree that Berthiaume would “take another day off in lieu” while former Board members support his claim that he is owed money in lieu?

The Agreement states:

“Employment, 2.2, “The Parties agree that the salary and working conditions of this agreement shall be reviewed on an annual basis as per the provisions of the Police Services Act. In accordance with section 115(2) and 31)1)(d) of the Act it is the Board’s duty to annually determine the remuneration and working conditions taking the Chief’s submissions into account. This provision may be waived if remuneration and working conditions, by agreement of both parties, are agreed to for a period of more than one year.”

When Windsor Police was awarded the contract, did the Board review Berthiaume’s Agreement knowing the Amherstburg Police would cease to exist on December 31, 2018?

The article referred to former Board member Rozankovic who said a contract is a contract and the board was committed to paying Berthiaume until his expired at the end of June.

Was the Agreement in conflict with the Police Services Act?

Section 16 (a) of the Agreement states, “Any term or provision of this Agreement that is in conflict with the Police Services Act or any successor act or regulations thereunder is void and of no effect.”

The Police Services Act Reduction or abolition of police force

40 (1) A board may terminate the employment of a member of the police force for the purpose of abolishing the police force or reducing its size if the Commission consents and if the abolition or reduction does not contravene this Act.

Criteria for Commission’s consent

(2) The Commission shall consent to the termination of the employment of a member of the police force under subsection (1) only if,

(a)  the member and the board have made an agreement dealing with severance pay or agreed to submit the matter to arbitration; or

(b)  the Commission has made an order under subsection (3).

Order imposing arbitration

(3) If the member and the board do not make an agreement dealing with severance pay and do not agree to submit the matter to arbitration, the Commission, if it is of the opinion that it would be appropriate to permit the abolition of the police force or the reduction of its size, may order the member and the board to submit the matter to arbitration and may give any necessary directions in that connection.

What did OCPC decide?

In its last paragraph of the decision, OCPC consented to the abolition of the APS under section 40 of the PSA subject to the following conditions:

    1. Amherstburg must deliver to the Commission a signed copy of the contract with the City of Windsor which substantially implements the Proposal.
    2. The receipt by the Commission of written confirmation from the APSB that an agreement as to severance pay has been made with any member of the APS whose employment is terminated as a result of the abolition. Failing such an agreement, the APSB must provide written confirmation to the Commission that an agreement has been made with such members that any severance pay dispute will be referred to arbitration. If no such agreements are made within 90 days of today’s date the Commission will order that all remaining severance pay disputes will be referred to arbitration.

Was the matter mediated?

Section 3.1 of the agreement states, “In the event that the Chief and the Board are unable to agree to salary and benefit terms in subsequent years of this contract, either party shall have the right to refer the matter to a mediator selected jointly by the Chief and the Board. Should an agreement not be reached through the mediation process, either party may refer the matter to an independent arbitrator selected jointly by the Chief and the Board. Each party will bear their own costs of mediation and arbitration with the costs of the mediator and/or arbitrator being shared 25% for the Chief and 75% for the Board.

Why was Berthiaume’s contract not ended as a result of the abolition on December 31, 2018 pursuant to PSA s.40? 

No Answers Equals No Transparency Or Accountability

Commentary by Linda Saxon

On February 27, 2018, I requested CAO John Miceli answer three questions for me to post to theburgwatch.

  1. Were any Ministry of Community Safety and Correctional Services Police Service Advisors involved in the police costing process?
  2. Would you provide me with a copy of Berthiaume’s Completed Form as requested by the OPP?
  3. Would you confirm whether or not Council’s two motions to obtain an OPP costing were rescinded?

On March 1, I emailed Miceli, cc council, that if he was unavailable to respond to my media questions, if he would please forward them to someone who can.

Eight minutes later, Miceli responded:

“All of the questions that you are asking are in relation to an OPP costing process. As you may or may not know the Town did not request an OPP costing instead the Town developed an RFP dictating the minimum level of service requested from proponents. Council approved this method of procurement of services and the OPP was invited to participate in the process. The OPP elected not to respond to the Town’s RFP. All of this was disclosed in public reports. With that being the case I do not believe I can offer you any further information.”

Unsure that there had been any investigation into obtaining the requested documentation, I emailed Miceli back:

“If you review my questions, the first involves Ministry Advisors, as mentioned in the OACP Guidebook you relied on and i’m merely asking if any were involved in the police costing process, in other words, the costing process the town undertook.

i conclude from your response that Berthiaume never did complete the form for the OPP; did he complete an equivalent form for Windsor?

The third question, if you refer to it again, relates to council’s two motions to obtain an OPP costing and whether or not they were rescinded; council’s motions are not part of the OPP costing process, as you well know. “

Amherstburg Police Patrol Zones Changed After Amalgamation

Commentary by Linda Saxon

Following amalgamation, the Ontario Civilian Commission on Police Services’ decision regarding the ‘new’ policing proposal was, “From the standpoint of staffing, deployment and supervision, the proposal overall appears sound, and if the proposal is implemented as presented, it should allow for adequate and effective policing in the Town of Amherstburg.”

Three patrol zones were proposed with 24 hour a day policing and a maximum strength per 12 hour shift of six officers: 3 in Zone 1, 1 in each of Zones 2 and 3. Another officer would support all three zones as may be required.

The minimum strength per 12 hour shift was to be one officer per zone with a minimum strength of four officers until 4:00 a.m.

By 2010, as noted on page 8 of the Amherstburg Police Service Annual Report, “The Town is divided into 2 patrol zones ensuring that all areas receive an ongoing police presence.”

In a December 9, 2011 commentary, Amherstburg Police Chief Berthiaume Tight-lipped About Deployment, I asked, how will we know if we’re getting the service that was proposed if there is no accountability?

The question is just as relevant today; the only way to determine the best policing option for our community is to undertake a full comparison and obtain an OPP costing. Council’s decision should not be a subjective one based on speculation or fears, but an objective one based on facts and figures.

Five of the seven essex county municipalities are policed by the OPP as are 324 of the 444 Ontario municipalities; what have we got to lose?

Amherstburg Police Chief Berthiaume Tight-lipped About Deployment

Commentary by Linda Saxon

it’s time for budget deliberations and wish lists and i was curious about some of the costs associated with the amherstburg police service. in a december 5, 2011 letter from chief tim berthiaume, legal fees, as of december 5, 2011, were $18768.57 for 2011. in a december 9, 2011 letter from chief tim berthiaume, he stated, “the amherstburg police service does not ‘breakdown’ legal expenses.” he further stated that, “as of december 5, the amherstburg police service has spent $23,589.85 on consultants.”

in response to my request for the number of days in 2011 where less than four officers were on patrol, berthiaume stated,”i will not be providing you with this information for the following reason. the release of this information could reasonably be expected to make their work more dangerous in many situations endangering the life or physical safetly of our law enforcement officers.”

where is the logic to a claim of endangerment in the present/future tense when the year has passed?

the ontario civilian commission on police services considered the amalgamation proposal to abolish the amherstburg and anderdon police services and stated, in its decision, “From the standpoint of staffing, deployment and supervision, the proposal overall appears sound, and if the proposal is implemented as presented, it should allow for adequate and effective policing in the Town of Amherstburg.”

one of the proposals for consideration in the application was:

“Patrol Zones:

The Town will be divided into three patrol zones by using the former boundaries of the old Town of Amherstburg, Township of Anderdon and Township of Malden. Accordingly, the new three patrol zones are as follows:

Each zone will be patrolled 24 hours a day. The maximum strength per 12 hour shift will be six officers:

Zone 1: Amherstburg
Zone 2: Anderdon and
Zone 3: Malden

Each zone will be patrolled 24 hours a day. The maximum strength per 12 hour shift will be six officers:

Zone 1: 3 officers;
Zone 2: 1 officer and
Zone 3: 1 officer

Another officer will support all three zones as may be required.

The minimum strength per 12 hour shift will be one officer per zone. However, it should be noted a four officer minimum strength will be in place until 4:00 a.m. (12 hour night shift). On the night shifts, there will be a minimum of four officers (two officers will cover zone 1, one officer in each of zone 2 and zone 3). After 4:00 a.m., there will be one officer in zone 1 supplying additional coverage to all other zones if required.”

NOTE: i noted the map in the community room with two patrol zones; also, the Amherstburg Police Service 2010 Annual Report states, “The Town is divided into 2 patrol zones ensuring that all areas receive an ongoing police presence.” The Patrol Zone map can be viewed on page 8 of the report.

The proposal also outlines a community business plan with three broad initiatives; number 1 was, “establish a police service – with an overall strategy, targets and accountability.”

how will we know if we’re getting the service that was proposed, if there is no accountability?