Steve Kent's privacy breached by Mount Pearl's handling of Facebook messages, judge rules
City can’t use content of online chats as justification for dismissing 2 councillors
The City of Mount Pearl breached the privacy of Steve Kent by reading his Facebook Messenger chats while Kent was suspended from his job as top civil servant, a Newfoundland and Labrador Supreme Court judge has ruled.
"I find that Mr. Kent has privacy rights in the disputed messages," Justice Alexander MacDonald wrote in a decision released Thursday morning.
"I find that the city infringed those rights."
MacDonald made the decision as part of court actions filed by two former councillors, Andrea Power and Andrew Ledwell, to get reinstated to their seats.
Power and Ledwell were dismissed from Mount Pearl council in June 2020 for failing to disclose a conflict of interest.
They were accused of having discussions with Kent about a workplace harassment investigation involving him. Kent had been placed on paid leave by the city in the fall of 2019.
Kent intervened in the ongoing court matters involving the two former councillors, contending that Facebook Messenger chats between himself, Power and Ledwell should be excluded from the record.
MacDonald agreed.
"The city intentionally intruded on Mr. Kent's private affairs by reading the disputed messages," he wrote in his decision.
"Furthermore, I find that this intrusion would be highly offensive to a reasonable person."
Mount Pearl had defended its actions by saying that Kent left his city-owned iPad unlocked and his Facebook Messenger account logged in so that chat messages popped up on screen and were available without any need for a password.
IT department staff saw a banner notification on the tablet that appeared to be a message between Kent and one or both councillors relating to the harassment investigation. So city officials began to monitor the iPad for more such messages.
Those online chats played a key role in the departures of Ledwell, Power and Kent.
Kent quit his job as chief administrative officer in June 2020 before council could vote to fire him.
In an emailed statement to CBC News, Kent said he is "genuinely relieved" by the outcome, but remains "deeply disappointed" at the city for wasting tax dollars through the legal process.
"Mount Pearl is my home. I will continue to serve as an active volunteer and community leader. There's no bitterness here, just relief that this chapter is over and that I'm vindicated," Kent wrote.
In a separate legal action, Kent has sued the city for constructive dismissal and breach of privacy. Mount Pearl has filed a countersuit.
"Since what the city did was wrong — ethically and legally — I hope we can finally settle all outstanding matters," Kent wrote in his statement. "It's time to move forward."
Mount Pearl officials declined an interview request, saying in an email that the judge's decision is under review by legal counsel.
"The city maintains our position that the exchange of confidential information related to a workplace investigation is unethical," the city said in a statement provided on the condition that it not be attributed to anyone.
"We will determine next steps taking into consideration the details of the judgment, and balancing the impact on our employees, and taxpayers."
What happens next?
As part of their ongoing court action, Power and Ledwell want to quash council's decision to dismiss them back in 2020.
They were also subsequently barred from running in the fall 2021 municipal election that saw new councillors voted into office — an issue highlighted by the judge.
"The parties must consider whether they seek to replace these new councillors and whether I have the power to do so," MacDonald wrote.
Even if coming back is an option, Ledwell said Thursday, he's not sure he wants to return.
"If you asked me today, if I'm being honest, I would say no, I would not be looking to return to council," Ledwell said.
"But this whole situation has brought up a lot of questions and emotions.… I never say never."
Ledwell said he's happy with the ruling but not surprised by it. He added that the elimination of this evidence will likely have an impact on what happens going forward.
"I've always been about fair process, and that's what I'm looking to have corrected in this particular situation," he said.
"I don't think justice was done in a fair and unbiased way, and that's what I'm looking to have corrected."
Ledwell said there is nothing he would have done differently, and questioned the lack of sanctions for other councillors he said were in contact with Kent during the process.
Power did not respond to an emailed request for comment, but addressed the decision in a public Facebook post.
"It's been a long two years. And it's been difficult," she wrote.
"Thank you to everyone who has reached out with support and kindness. It truly has helped. More than you could ever know. Hopefully this is the beginning of finally getting some closure."
In March 2021, CBC News reported on the contents of the Facebook Messenger chats in question.
Mount Pearl had released a partially redacted version of the conversations to someone through access-to-information laws.
Those records were forwarded anonymously to CBC News.
In court filings related to the ongoing Power and Ledwell applications, city officials cited that CBC report in calling Kent's behaviour "egregious."
The judge called that irrelevant.
"I must base my analysis of a breach of privacy rights on the nature of the communications and not the content," MacDonald wrote in his decision.
"The city's argument is a variation of the argument that the ends justify the means."
The city also said excluding the messages would undermine its case.
MacDonald called that irrelevant too.
"The city must accept the consequences of its own actions," he noted.