Did the mayors obstruct the Elsner investigation?

Records obtained by FOI leave little doubt that Mayor Helps and Mayor Desjardins hid allegations of sexual harassment raised against Chief Elsner.

AFTER CLAIMING FOR MONTHS that critical communications between Victoria Mayor Lisa Helps and Esquimalt Mayor Barb Desjardins in late 2015 had been deleted, the Victoria and Esquimalt Police Board released a heavily redacted 442-page response to Focus in late May.

We had requested the communications between the two mayors as they navigated their way through their investigation of allegations against then-Police Chief Frank Elsner.

Our request covered the three months during which their investigation took place—September, October and November, 2015—and one month after that investigation ended. The records released to Focus show Helps and Desjardins were aware by mid-October 2015 that additional allegations made by female employees of VicPD against Elsner—of sexual harassment and bullying—had been found by the mayors’ hired investigator, Vancouver lawyer Patricia Gallivan. Yet these allegations were so well-hidden by the mayors that even after Police Complaint Commissioner Stan Lowe demanded all records related to the investigation, the women’s complaints at first remained unnoticed by OPCC.

The allegations of sexual harassment against Elsner weren’t the most serious misconduct found during the mayors’ investigation. Within 10 days of demanding the records Gallivan created during her investigation, Lowe’s office had used those records to identify two of the three most serious cases of misconduct that would eventually lead Judge Carol Baird Ellan to decide Elsner warranted a lifetime dismissal from policing: misleading a person material to the investigation, and misleading the internal investigator. From the information in Gallivan’s report, Lowe’s office also determined that Elsner had contacted witnesses during the investigation. This later led to a third serious finding of misconduct, that Elsner had attempted to procure a false statement.

Baird Ellan likened Elsner’s conduct during the mayors’ internal investigation to “criminal obstruction of justice.”

Yet by the time the mayors abruptly ended their investigation with a confidential letter of reprimand quietly placed in Elsner’s file, they had apparently made little effort to understand what Gallivan’s report actually contained.

Perhaps recognizing the serious procedural misconduct Gallivan had discovered was beyond the skills normally possessed by municipal politicians. But the allegations of sexual harassment, hidden from Lowe even after his office had demanded the investigation’s records, were a different matter.

One might reasonably expect two female mayors to be especially sensitive to sexual harassment allegations. Why didn’t Helps and Desjardins pursue what Gallivan had found? According to Lowe, by October 20, 2015, “numerous witnesses had made allegations of bullying and harassment” against Elsner. The external investigation, which replaced the mayors’ investigation, considered allegations made by seven women. Yet the mayors have denied they interfered in the investigation or covered up the allegations of harassment against Elsner.

Release of Lowe’s Summary Informational Report on the external investigation was delayed for over two years by Elsner’s efforts in the courts to quash the second investigation. When the report finally appeared—during the 2018 civic election campaign—Helps claimed, without providing any evidence, that Lowe had defamed her. Her claim was amplified by the Times-Colonist, which did little other reporting on the external investigation’s findings. Focus waited until after the election to file an FOI for the mayors’ communications in the hope that the mayors’ own records could confirm either Helps’ or Lowe’s account. So what did we find?

It is unclear from the records provided to Focus when, or from whom, the mayors first heard of the harassment allegations. They show that on October 15, 2015, Desjardins emailed Helps and suggested that new allegations of harassment and bullying would require a second investigation: “I have looked into process for HR complaints and or WCB harassment procedure and process for further understanding of options to bring to the board or for us to decide on. In reality it is again an independent investigator and provision of a report to us. I would like Pat to do this if able and or to engage someone to do this asap if she feels she is ‘tainted’ by her process. I have someone in mind.”

Half an hour later, Helps responded, “I am happy to have Pat do this. I regret that we have to do this at all.”

The records released to Focus only suggest why the mayors changed their minds. Minutes after Desjardins had emailed Helps, she also wrote to the mayors’ legal counsel, Vancouver lawyer Marcia McNeil. McNeil emailed back a few hours later. The contents of McNeil’s communications with the mayors are protected by solicitor-client privilege, so we don’t know exactly what her advice to them was. But we can deduce part of that advice from the mayors’ subsequent response. Desjardins wrote back to McNeil and Helps: “I have an appt with him tomorrow and was going to check in anyway. Thanks for this.” Helps then replied to Desjardins, “Thanks to you both. Barb, happy to check in with you after you meet with the Chief tomorrow...”

The rest of what Helps wrote is redacted, but no matter. McNeil appears to have advised the mayors to seek Elsner’s response to the additional allegations, and Desjardins confirmed she was going to meet with the “Chief” the next day.

We can presume that she met with Elsner, but we don’t know what transpired. In the email record released to Focus, there are no later references made by the mayors to the sexual harassment allegations. Did Desjardins’ idea of a second investigation disappear because Elsner persuaded her that the allegations were untrue? Did Desjardins subsequently persuade Helps that Elsner didn’t do what he was accused of doing? The answers to these questions seem self-evident given what followed.

This turned out to be a critical decision point in the course of the Elsner investigation. Had the mayors carried through on their initial, short-lived agreement to conduct a second investigation, and presuming that Gallivan had then discovered all the claims of sexual harassment that were later found by the external investigation, public acknowledgment of the women’s claims wouldn’t have taken nearly three years. As well, Elsner could have been fired for legal just cause and $1.1 million in eventual costs to Victoria and Esquimalt taxpayers could have been avoided.

This was a serious misjudgment by the two mayors. But the record of what followed shows that once the mayors had dug that hole for themselves, they kept digging.

The record of their communications shows that the mayors tried to maintain control of the course of the investigation—and its outcome—by providing little or no information to both Lowe’s office and the Victoria and Esquimalt Police Board. This is made evident by a letter sent by Police Board member Peter Ryan to Desjardins on October 27, over two weeks after Desjardins and Helps were given advice by McNeil on the additional allegations against Elsner.

In that letter, Ryan, a former police officer, writing on behalf of the board’s governance committee, expressed concern that the Police Board had been “advised of a disciplinary matter involving the Chief Constable in only the vaguest of terms.” (Desjardins testified in a sworn affidavit that the board was told early on that Elsner “could be having a relationship with a woman.”) Ryan then wrote, “The Committee respectfully requests that you promptly provide the Board with copies of any completed ‘Complaint Forms’ giving rise to any internal discipline matters as defined in the Police Act that pertain to our Chief Constable.”

Ryan’s letter, copied to the Office of the Police Complaint Commissioner, led to an intervention by Deputy Commissioner Rollie Woods. In a letter to McNeil, Woods wrote, “One of [Lowe’s] conditions to agree that the matter could be handled [by the mayors] was that the Police Board members be fully informed. If the [mayors] maintain there is no need to inform the full board, [Lowe] is going to revisit his decision.”

As far as Woods and OPCC were aware at that moment, “fully informed” meant telling the Board about the initial allegations against Elsner: that he had engaged in an inappropriate relationship with the wife of a VicPD member and that Elsner had improperly used police social media accounts. But Helps, Desjardins and McNeil had also not informed OPCC (or the Police Board) about the new allegations of sexual harassment and bullying.

Pushed by Woods, Desjardins responded to Ryan’s dense, two-page letter noting: “We do not have details regarding the facts as the investigation has not yet concluded nor has a report been provided to us.”

In fact, the two mayors had more details than they apparently knew what to do with.

Ryan’s letter and OPCC’s intervention created another critical decision point at which the mayors could have reported the additional allegations to OPCC and the Police Board—but didn’t. Their secrecy was at odds with conditions Lowe had insisted on before agreeing to let the mayors conduct an internal investigation. Lowe described the basis under which he had allowed an internal investigation in his 2018 Summary Informational Report: “At the outset of my office’s dealings with the mayors and their legal counsel, there was a clear understanding among all concerned that if, during the course of the investigation, any information came to light about conduct by any police officer that may constitute misconduct, our office was to be informed...”

The first part of that “clear understanding,” the any information aspect, has been disputed by Helps, who has told Focus, “We were authorized to deal only with the issues of whether Elsner had engaged in an inappropriate relationship with the wife of a VicPD member and whether Elsner had improperly used police social media accounts.”

But in Lowe’s Summary Informational Report, he quotes at length a letter from McNeil to Gallivan, written in the early days of the investigation, outlining McNeil’s understanding of the mandate provided by OPCC for the mayors’ internal investigation. The letter was copied to Helps and Desjardins. Lowe used the letter as evidence that the mayors were made aware by McNeil that “your mandate is confined to issues related to any misconduct by Chief Elsner…” (Lowe underlined “any” for emphasis).

The second aspect of Lowe’s agreement to allow an internal investigation, that his office was to be informed about any new allegations of misconduct, has never been addressed by the mayors.

Ryan’s letter, and Wood’s subsequent intervention, should have been the moment the mayors informed the Police Board and the OPCC about the additional allegations. But that moment passed in stoney silence from Desjardins and Helps. It’s difficult not to come to the conclusion that the mayors were intent on keeping personal control of the investigation and its outcome, and if that meant ignoring Lowe’s stipulations, then they were willing to do that.

Just over two weeks later, on November 16, 2015, Gallivan sent her “Preliminary Investigation Report” to the mayors. Gallivan’s full report has never been made public, but the covering letter for that report was released by Lowe’s office in September 2018 and was included in the records released to Focus.

In that letter Gallivan told the mayors, in reference to the harassment and bullying allegations, “I understand that you are now considering how to address those allegations. As previously stated, should you wish to expand our mandate to include an investigation of those matters, in light of my schedule and given the need to deal with these matters expeditiously, I would need to engage the assistance of one of my partners to complete the investigation. I have discussed this matter with my partner Deborah Cushing and she advises that she would be able to set aside a week to conduct the witness interviews.”

After that, aside from emails exchanged to set up a conference call between Helps, Desjardins, McNeil and Gallivan, there is no record in the documents released to Focus that indicates what the mayors did with Gallivan’s offer to investigate the allegations. But we know what happened from Lowe’s 2018 Summary Informational Report.

Before giving you Lowe’s description of what the mayors did with Gallivan’s offer, it’s necessary to understand why and how he obtained records related to the mayors’ investigation. They weren’t proactively turned over to OPCC by the mayors. Following the mayors’ sudden termination of their investigation on December 3, 2015—an action that was hastened by rumours coming back to Desjardins that reporters were on the verge of confirming Elsner was being investigated—Lowe’s office confronted the mayors for having misled media by claiming no investigation was underway. When asked by a Global TV reporter the day after they ended the investigation if Elsner was being investigated, Helps had responded, “No. The Board has full confidence in our chief. He’s the best thing to happen to this town and Esquimalt for a long time.”

Within minutes of the mayors’ misleading statements appearing in TV news reports, Deputy Commissioner Woods made a request to McNeil under the Police Act for “all records and any additional information in its entirety including all memos, notes, emails and any other relevant documents” related to the investigation. McNeil had no choice but to comply.

So Lowe was able to determine—using documents obtained from the mayors’ records—what the mayors had done with Gallivan’s offer to investigate. In his Summary Informational Report he observed, “Despite receiving [Gallivan’s offer], the mayors chose not to expand the investigator’s mandate to include these allegations. On the contrary, the correspondence indicates that they instructed the investigator not to pursue those allegations or consider them in any respect in drafting the investigation report because they were ‘outside the scope of the investigator’s mandate.’”

But that instruction conflicted with McNeil’s earlier description of Gallivan’s mandate as given to the mayors by OPCC: “your mandate is confined to issues related to any misconduct by Chief Elsner…”

Lowe also noted that the copy of Gallivan’s investigation report sent to his office in response to the Police Act-mandated demand for records didn’t include the covering letter, which contained the only written reference to the allegations of sexual harassment and bullying. The implication was that the mayors were trying to hide from his office any evidence that these allegations had even been made. Helps has told Focus that an executive assistant had failed to include the covering letter following OPCC’s demand for records.

One detail that Lowe’s Summary Informational Report did not include was the fact that soon after receiving Gallivan’s report, the mayors shared it with Elsner. They were required by the Police Act to do this. The Police Act also required them to share the report with any “complainant” mentioned in the investigation report. We know that employees of VicPD had made complaints to Gallivan, but the mayors did not provide the report to them. The Police Act also required them to “review the report and the evidence and records referenced in it.” If they had done that carefully, the evidence of the more serious misconduct—outlined above—should have propelled the mayors to OPCC for direction. The mayors were also required by the Police Act to inform OPCC of their “next steps” within 10 days of receiving Gallivan’s report. They also failed to do this. This omission confirms that they were unwilling to involve OPCC, and its expertise at sniffing out police misconduct, before making their disciplinary decision.

After reading the report, Elsner appears to have written to McNeil, who, in response, reported to the mayors and provided them with unknown advice. To that advice Desjardins responded, “I agree thanks!” and Helps chimed in: “Thanks. Me too.” That was on November 27.

Early on December 3, Desjardins emailed Helps: “I think this is going to pop in the next 2 days, [the Police Board] need to be informed. I will clear my calendar for it as necessary, do you have any flexibilty today. so you soon. [sic] I have written the questions we are to ask.”

Prompted by the spectre of reporters asking questions about the investigation, the mayors hastily concluded it, apparently in order to be able to say that Elsner was not being investigated. They met later that day and made their disciplinary decision to put a confidential letter of reprimand on Elsner’s personal file.

They informed Elsner in person on the morning of December 4. Later that day, in response to reporters’ questions, they denied Elsner was being investigated.

Lowe reported that he first heard of the harassment and bullying allegations when they were brought to OPCC’s attention by the Victoria Police Union on December 8, 2015.

Let me summarize the main problems in all of this for the mayors. First, they completely missed, or ignored, the most serious misconduct that was evident in Gallivan’s records—which Judge Baird Ellan later likened to criminal obstruction. Secondly, Desjardins and Helps knew the harassment allegations should be investigated. Instead, they hid them from both the Police Board and OPCC even though informing OPCC of any additional allegations had been a key element of the “clear understanding” for allowing the mayors to do an internal investigation in the first place. Lastly, they misrepresented what had taken place to reporters and the public. The mayors appear to have obstructed the proper course of justice, and their misjudgments cost Victoria taxpayers $1.1 million.

Lowe’s summary was more concise. In his Summary Informational Report, he wrote that the mayors “had predetermined the outcome of the internal discipline process from the outset, and set about navigating a course to allow the former chief to remain in his post.”

In the record released to Focus are emails exchanged between the mayors as news of the Elsner investigation, Lowe’s December 18, 2015 report on the investigation, and his order for an external investigation ripped through the community. The day Lowe’s report was released, Times-Colonist reporter Cindy Harnett emailed Helps a question: “What is your reaction to the commissioner’s report which heavily suggests you and Barb botched the investigation and insinuates that there was a coverup?”

Helps forwarded Harnett’s email to Desjardins and Kathi Springer, a communications specialist who had been hired to help the two mayors weather the political storm they had brewed. Helps asked, “Are they actually serious there was a cover up? This is ludicrous.”

Focus recently posed detailed questions to Mayor Helps. We described to her what the email record for October 15, 2015 showed, namely that she and Mayor Desjardins had initially agreed to a second investigation, and that Desjardins was to meet with Elsner the next day and raise the sexual harassment allegations with him. We asked Helps why she and Desjardins believed Elsner instead of allowing Gallivan to investigate these allegations further and checking the veracity of Elsner’s denial. We also asked her why she had misrepresented, to Focus and to other media, the mandate of the mayors’ investigation. Recall that McNeil had put in writing that the mayors’ mandate included any allegations of misconduct against Elsner.

To those questions Mayor Helps replied, “As previously stated, we decided to finish our original investigation and hand all other allegations to the OPCC for them to investigate. We directed our solicitor to send all the information we had received, including Pat Gallivan’s report, to the OPCC.”

As noted above, it was only through Woods’ Police Act-mandated demand for records that OPCC obtained “all the information” the mayors had received (except Gallivan’s covering letter), and their email communications. We asked Helps if she was aware that OPCC had demanded her records. She did not respond to the question.

Recall that Helps had responded to a reporter’s question about whether an investigation was underway with this statement: “No. The Board has full confidence in our chief. He’s the best thing to happen to this town and Esquimalt for a long time.” If the mayors had an expectation that OPCC would be investigating the sexual harassment and bullying allegations, why did the mayors and the Police Board express “full confidence” in Elsner? Wasn’t that a bit premature? We put that question to the mayor. She did not respond.

Had the Police Board even been informed of the allegations of sexual harassment and bullying against Elsner before it had expressed that “full confidence”? Mayor Helps kept digging and did not respond.

David Broadland has asked the Office of the Information and Privacy Commissioner to examine the Police Board’s redactions of the released record.

The released records can be downloaded here.