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Monday, September 22, 2008

Battershill saga: what happened to the police chief

September 21, 2008
Rob Shaw, Victoria Times Colonist

Just a year ago, Paul Battershill was the highly regarded police chief of the city of Victoria. He had a reputation as a progressive police officer -- Victoria Mayor Alan Lowe called him a "New Age kind of guy."

Then suddenly, on Oct. 11, 2007, he was placed on administrative leave, and on Nov. 6, he was suspended with pay while the RCMP investigated allegations of misconduct against him.

Eleven months later, Battershill resigned, five days before a scheduled disclipinary hearing. His resignation was accepted because the Victoria Police Board had suffered a "loss of confidence" in Battershill, Lowe said.

Until now there has never been a public airing of the allegations against the former chief. But today, for the first time, Times Colonist reporter Rob Shaw reveals the events that set in motion Battershill's downfall. Using sources who were present at the time, he has pieced together the heretofore secret events that led to resignation of the police chief.

The fall of Victoria police chief Paul Battershill started, oddly enough, at a meeting about crime in the city's downtown core. It was Aug. 29, 2007, and Mayor Alan Lowe was facing tough questions from the business community about rising petty crime and whether the police force had the money to continue boosted downtown police patrols.

Business owners told the mayor they loved seeing extra officers walk the beat to tackle the city's chronic street problems. But the mayor and the department warned that those extra bodies had to come from other units, and the budget was stretched thin.

Among those attending that night was businessman Gerald Hartwig, who owns numerous downtown buildings. Hartwig believed there was more money in police coffers than the mayor was suggesting and wondered how much had been spent on a series of severance packages for high-ranking officers in the last few years.

He hired lawyer David Mulroney to file Freedom of Information requests into Battershill's expenses and the costs paid for Battershill to travel to West Vancouver to oversee an investigation into a constable accused of drunk driving. At least six senior employees had been dismissed from Victoria's police force since Battershill became chief, and the FOIs, requested between Sept. 8 and 20, also asked to see the cost of their severance packages.

At first, the FOI requests were unimpeded as they wound their way through the system, Mulroney said. But on Oct. 2, Mulroney received a phone call from Murray Rankin, a Victoria partner in national law firm Heenan Blaikie, which was representing Battershill, to challenge the FOIs. Mulroney said he was surprised, because many of the expenses requested were Heenan Blaikie legal bills. He wrote the company a letter suggesting they were now in a conflict of interest.

But the phrase "conflict of interest" had a second meaning. Although the letter did not explicitly say so, it was widely known that Heenan Blaikie lawyer Marli Rusen was having an affair with Battershill while accepting contract work from him and the Victoria Police Board. Mulroney suggested Heenan Blaikie ask its partners about their relationships with the chief.

In the corridors of police headquarters and in the business community, people had been talking about the chief and Rusen, whom Battershill hired to provide labour advice for the 222 police employees then under his command. More than one officer heard admissions of the affair - and explicit details - from Battershill himself. The affair ran contrary to Battershill's public image. When he arrived in Victoria from the Vancouver Police Department to become chief in 1999, he quickly built a reputation as a progressive thinker, champion of reform and advocate of public transparency. Lowe called him a "New Age kind of guy."

If an officer was under internal investigation, Battershill would most often release the officer's name voluntarily to boost what he said was confidence in the department's accountability. In a 2002 interview, Battershill said: "We've built a relationship based on transparency and not hiding stuff."

Battershill's work also won praise from city hall. In 2005, with his reputation at an all-time high, Battershill was hired by Lowe to be acting city manager. It was the first time in city history that someone managed both the police force and municipal bureaucracy. Battershill even wore a gun on his belt at city hall following a death threat that forced police tactical team members to lock down city hall.

But two years later, Mulroney's letter to Heenan Blaikie set off a flurry of activity that ultimately would cause Battershill's downfall.

On Sunday, Oct. 7, 2007, Hartwig and Lowe met for coffee at a Victoria White Spot restaurant, where Hartwig said he showed Lowe the letter and passed on rumours and worries he'd heard from senior polce officers, many of whom are his friends. Lowe said he was concerned.

The next day, on Thanksgiving, the mayor met with senior officers to hear their concerns first-hand. The mayor asked if the officers would talk to the police board, the civilian body that oversees the police department, and the officers agreed.

The following day, Oct. 9, Hartwig's secretary hand-delivered Lowe a copy of Mulroney's letter in a brown envelope. Hartwig said Lowe had requested a copy and asked him not to tell anyone he had sent it.

Coincidentally, there was a regularly scheduled police board meeting later that day. The timing appeared key - Battershill was away in Halifax at a conference.

At the time, the police board had these seven members:

- Chairman Alan Lowe, Victoria mayor
- Vice-chairman Chris Clement, Esquimalt mayor
- Catherine Holt, a management consultant
- Kathy Mick, a former dental hygienist and vice-president of Dr. Dave Mick Inc.
- Bruce Gibson, a real estate agent at Newport Realty
- Maureen Meikle, former director of communication for the B.C. Pension Corp.
- Ken MacLeod, former assistant deputy minister of B.C. Municipal Affairs.

Ralston Alexander, a local civil lawyer, and Christine Stoneman, a management consultant, would join the board a little more than a month later and land smack in the middle of the controversy.

The police board is automatically chaired by the mayor of Victoria and vice-chaired by the mayor of Esquimalt. Both municipal councils also appoint an additional civilian member, not a politician.

The provincial government fills the other positions. Collectively, the board is supposed to be the department's boss, approving hires and fires, salaries, budgets and departmental priorities. It also hires the chief constable.

Although it had the potential to be explosive, the Oct. 9 board meeting fizzled into nothing. While the board discussed such things as financial reports, two nervous senior officers sat outside the boardroom at police headquarters waiting for Lowe to call them in to answer questions about their chief. It did not happen. Eventually they went home. The meeting ended with board members oblivious to the situation. "I was going to bring it to my board's attention, but I only had four board members there that day," Lowe would explain later. "You need to bring something like this up when everyone is there."

The next day, Mulroney's letter found its way to the media and was, literally, waved in the mayor's face as reporters asked for answers. Lowe was angry at the leak. "I would have preferred to handle it internally," he said. "We wouldn't have had all this media attention and wouldn't have had to put the Victoria Police Department through this."

Lowe summoned the police board members to his office at city hall to brief them. Battershill was piped in by speaker phone from Halifax. The board members told him they'd be meeting with senior officers that night to hear their concerns.

The board then called an emergency meeting at police headquarters and asked all senior inspectors and civilians in the department to attend - around nine or 10 people were present. One by one, the senior employees were led into the board room and questioned by the civilian board.

Some board members had already heard rumblings about what was about to occur.

The rank and file of the department had expressed displeasure toward senior management and Battershill after the suicide of a constable in September, sources said. The officer had killed himself after being informed by senior managers he was to be investigated for alleged misuse of a Taser. The suicide seemed to bring the crisis between Battershill and his senior managers to a head, even more so than the FOI request from Hartwig, sources said.

"It was precipitated by the businessman's letter, but it was on its way anyway, it was coming down the pipe," said a source with first-hand knowledge of the process.

Nonetheless, some board members expressed shock at what they heard in the meeting. Vice-chairman Chris Clement has called it one of the most extraordinary meetings he has ever attended.

In addition to Battershill's affair with Rusen, sources say other allegations heard by the board that night included:

- That Battershill had offered Insp. Cory Bond the job of police chief in the future if she supported his decision to get rid of the department's backup police boat, to save money. She interpreted this as inappropriate. The police board was unaware of the offer.

- That sometime in late 2006 or early 2007 Battershill had placed numbered locks on his office door and limited access to the office, including cleaning staff and his executive assistant. He had also placed a surveillance camera in the ceiling.

- That Battershill kept alcohol in his office, even though he knew the board had approved a policy prohibiting alcohol in the building and was waiting for the policy to receive provincial approval. Earlier that same year, 2007, he disciplined a West Vancouver constable who drank in her station and then drove drunk.

- That some senior officers were dissatisfied and worried that numerous colleagues had been dismissed without cause during Battershill's tenure as chief.

- That some officers were fearful of coming forward because they felt their careers were at risk and feared retribution by Battershill when he discovered who they were.

"It became obvious there was a severe loss of faith by senior management," said a source who was there. "Those men and women who came into the room that night were so severely concerned about the path the police department was taking that they were willing to put their jobs on the line."

Still, some of the senior officers and civilian employees had nothing bad to say when asked about Battershill and were unaware of the allegations by their co-workers. Some officers praised him, while others continue to believe certain allegations were unfounded, leaving a deep divide among working colleagues.

At the time of the meeting, the department had a deputy chief and seven inspectors beneath Battershill. Four of them - then deputy chief Bill Naughton, Insp. Cory Bond, Insp. Darrell McLean and Insp. John Ducker - refused to come back into police headquarters if Battershill remained as chief.

Shortly afterwards, in what would be one of his last public interviews, Battershill told the Times Colonist from Halifax the allegations were "wrong" and "spun" and he would address them when he returned.

The board took the ultimatum from senior staff, and their concerns about their jobs, seriously. Clement said the staff's lack of confidence in Battershill affected the board's confidence in him as well.

"You can't run a police department if your senior management refuses to show up because of their grievances with the chief," another close source said. "You do not have a police department that can function under that leadership.

"You can't ignore four of your most senior officers saying the same thing."

The eight-hour meeting finished after 2 a.m. on Thursday, Oct. 11. "At the end of the meeting that night, everyone agreed Battershill could not come back into the building," said one person in the room. "It was unanimous."

Lowe then e-mailed Battershill to tell him he had been placed on administrative leave, with pay. The chief was barred from the building, and his BlackBerry was blocked. The news spread quickly to the Halifax conference, where Battershill was giving a presentation on effective civilian oversight of police departments.

When Battershill returned to the city days later, Lowe said the two walked along the waterfront to talk. Lowe would not say what about. He said the meeting was in keeping with his role as the board's discipline authority for the chief.

The police board was left with two options - it could do its own investigation and make a decision as Battershill's employer about whether to fire him, or it could send the matter to the Office of the Police Complaint Commissioner for review under the Police Act.

With its own investigation, the board could have set parameters and made its own decision about what to do with the chief. On the other hand, the complaint commissioner could provide a third-party review, and also limit whether the city and police department could be sued for wrongful dismissal.

Sources in the room say the board was divided on its decision, but ultimately chose to have Battershill's conduct investigated by the complaint commissioner.

On Nov. 6, Battershill's administrative leave was changed to suspension with pay as the RCMP began its investigation on behalf of the complaint commissioner. Naughton was promoted to interim chief, a position he has now held for almost a year.

To aid in the investigation, the board summarized approximately 13 points of concern for the complaint commissioner. However, since the Police Act deals with issues of public trust and code-of-professional-conduct regulations - such as deceit, corrupt practices, neglect of duty, discreditable conduct and abuse of authority - the investigators deemed that several of the staff concerns about personnel matters and management style were not applicable. The allegations were narrowed to seven, although the board was not told how or why, sources said.

Six RCMP investigators spent six months and 1,900 hours interviewing 37 people and examining 900 documents.

For months, the public heard nothing about the investigation, about who was interviewed, or even what the investigation was about. All Lowe said publicly was that the allegations against Battershill involved a "personnel matter."

On April 23, 2008, the RCMP submitted its final report, which concluded that only one allegation - the affair with Rusen, to which Battershill had admitted - was substantiated. The Mounties suggested Battershill be suspended. As a result, Lowe began negotiating with Battershill's legal team to schedule a disciplinary hearing, where the chief would be allowed to present his case before Lowe ruled on what kind of discipline, if any, he would impose on Battershill. Different dates came and went without progress, because Battershill requested more information and the lawyers kept negotiating details, Lowe has said.

The rest of the allegations pitted Battershill's word against that of his officers and could not be proven to a civil standard - the legal benchmark used by the Police Act, which is less than the criminal standard of beyond a reasonable doubt.

The complaint commissioner also didn't examine whether Battershill had lost the confidence of his police board - which it seemed he had. According to members, the board viewed the affair as a direct conflict of interest, because Battershill was having a relationship with a person he had contracted, with taxpayer money, to give unbiased advice on sensitive labour issues for his employees, sources said.

Although Rusen denied the affair to Heenan Blaikie, and the RCMP investigation determined neither party profited by the relationship, the board was angered at the poor judgment Battershill showed, sources said. "Either he was having an affair or he wasn't, but the fact he told people he was makes it appear he has a serious conflict even if he's lying," a source said.

All the RCMP's investigative work made for a lengthy final report - but the board was never given a copy to read.

Instead, members received an oral summary from Lowe, a troubling fact for many members. In addition to his close working relationship with Battershill, Lowe had also been interviewed by the RCMP as a witness during its investigation. This prompted the police board to debate numerous times, at in-camera meetings, whether Lowe was in a conflict of interest and whether it was appropriate to get information filtered through him.

Despite the board members' concerns, B.C.'s Police Act didn't allow for an alternative. Under the act, the mayor is always the police board chairman and is the only person who can discipline the chief constable. He doesn't need to get the rest of the board's consent to discipline the chief, nor does he need to share all his information with members. Currently, the Police Act does not explicitly say whether he can delegate the disciplinary job to another person should he feel it necessary, although changes that would allow this are being drafted by the province.

After reading the complaint commissioner's report, Lowe began negotiating with Battershill's legal team, which included high-profile Vancouver lawyer Len Doust. On July 28, Battershill offered to resign, Lowe said.

Board members were not included in the negotiations, sources say, and only received word from Lowe when he had reached a settlement agreement.

Under the deal, Battershill received $15,000 for his legal bills, and both sides signed a non-disclosure clause that forbade them from talking about the issue. The board voted in favour of the deal and Lowe publicly called it a good arrangement for taxpayers.

On Aug. 13, Lowe held a press conference to announce Battershill's resignation, five days before he was to face a scheduled disciplinary hearing.

"The investigation completed by the RCMP did not find that Battershill had committed any criminal acts, had any involvement with any criminal activity, nor did it find any financial impropriety," he told media.

But Lowe's reference to a criminal investigation was a red herring. The next day, Police Complaint Commissioner Dirk Ryneveld told the Times Colonist that the RCMP investigation was never about criminal acts.

A review of Battershill's severance shows Lowe was required to make the carefully worded statement as part of the deal.

Lowe did not mention to the press the one substantiated allegation, the affair. He said the board suffered a "loss of confidence" in Battershill's leadership but would not elaborate on what that was.

Ryneveld's 12-page report, made public on Sept. 4, 2008, outlined the reasons for the decision not to hold a public hearing into the Battershill case and released excerpts of the RCMP investigation. It was this report that confirmed the substantiated allegation of the affair with Rusen and clarified that it wasn't the complaint commissioner's place to examine Battershill's management style or his grievances with staff. Ryneveld's report made passing references to camps, political motives and departmental infighting his agency was not willing to investigate.

But for Victoria and Esquimalt taxpayers seeking answers about the complicated 11-month saga, Ryneveld had nothing. He said he recognized the public's desire for details, but said an "exemplary" RCMP investigation, combined with Battershill's resignation, left "insufficient grounds to conclude that a public hearing is necessary in the public interest."

Ryneveld did address the thorny issue of Lowe's role as Battershill's disciplinary authority, noting that a mayor's dual role as police board chairman can be problematic because a police chief and mayor don't work at arm's length - they have a close relationship because they attend the same functions and talk frequently.

Yet Ryneveld concluded the fault lay with the provisions of the Police Act, and not with the mayor's actions. He said that Lowe's close ties with Battershill, and his RCMP testimony, didn't go outside the normal bounds of a police chief-mayor relationship and that, ultimately, Lowe acted appropriately.

Officially, Ryneveld's report was the end of the Battershill affair. There would be no public hearing, no disciplinary hearing for Battershill, no release of the full RCMP investigation, no official explanation of the allegations.

For their part, neither Battershill nor Rusen has returned numerous requests for comment from the Times Colonist.

The police board is looking for a new chief and have hired a company to help in the search.

Whoever it is will take command of a department that remains, by all accounts, bitterly and deeply divided by the Battershill issue, how it was handled and what allegations, if any, were true.

The new chief will also be subject to annual performance evaluations by the police board thanks to a new policy disclosed this month by the board members.

Lowe, who is not running for office again, has said he hopes to swear in the chief at the November police board meeting, tentatively scheduled for Nov. 11 - four days before a new mayor is voted into office in the municipal election.

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