Ex-city manager says statements not defamatory

Saint Johns former city manager, who took the stand Thursday at the defamation trial of ex-city councillor John Ferguson, testified he couldn't identify any statements made by Ferguson that were directly defamatory toward the pension board.

Under cross-examination by Fergusons lawyer, Rod Gillis, Terry Totten, who was also a member of Saint Johns pension board for 15 years, admitted Ferguson made many untrue claims in his presentation, and may have defamed individual board members.

ButTotten acknowledged repeatedly that Fergusons statements do not defame the board.

"I would agree with your assertions," Totten said under questioning by Gillis.

Gillis pointed out that the suit was brought by the board as a whole, not individual members.

"Are you planning to amend your claim?" Gillis asked pointedly.

Totten said he was not.

"Well, I've gone through everything and there is nothing defamatory," said Gillis.

Totten also said that property taxes would have to go up 40 to 50 per cent to pay for the current deficit, which he acknowledged had increased by four to five times since 2004.

Earlier in the day, Totten continued his testimony regarding the citys mishandling of its pension fund.

He testified that Ferguson prepared an erroneous presentation for city council in July 2006. Totten said that Ferguson got the facts wrong, made unsubstantiated allegations and provided a weak analysis.

"It was coffee shop talk," said Totten, adding that the presentation made serious allegations without providing proof.

Testimony

"He's ruining reputations, out for votes. [That] was my view," Totten said of Ferguson under the board lawyers questioning.

He saidthat his efforts to convince council to take action on the deficit were hampered by Fergusons attacks.

"Any suggestion I made came under suspicion," Totten said.

He said that a toxic environment resulted at City Hall, with the former mayor, Shirley McAlary, talking to the media about public perceptions of criminal wrongdoing on the part of the pension board.

Totten said the public had by then begun questioning whether pension board members had been stealing or embezzling.

At that point, Totten testified, staff issued a report detailing 21 inaccuracies in Fergusons presentation.

Totten said he told council that if it believed Fergusons claims it should order an investigation, and that Ferguson countered by saying that staff was trying to bury its misdeeds in material he didnt have time to sort through.

"It was disheartening," Totten said, adding that Ferguson was unwilling to consider facts contrary to his own accusations.

Totten told the court that the pension board hired a law firm to force an apology from Ferguson as a last resort in 2007.

Controversial trip

Totten also testified about a controversial trip he and his wife, who was tourism manager for the city, had planned to Florida, where he would represent the city at a cruise ship conference, in 2007.

As tourism manager, she would have ordinarily gone on the business trip, but she was on sick leave.

Tottensaid they had planned for his wife, who was ill at the time, to attend a clinic in Boston on their way home.

Totten said an unnamed city councillor leaked the story to the New Brunswick Telegraph-Journal, and that he viewed the episode as an unsavoury attempt to get at him through his wife and her illness.

Totten also said that the city finally attempted to address the pension crisis later in 2007, by increasing employee contributions two per cent and reassessing pensioners, but that Ferguson opposed the moves.

"I can't for the life of me understand why anyone would object to that," Totten said.

By the end of 2007 the pension plan had a $106-million solvency deficit, he testified.

Totten also recalled the 2008 municipal election, in which Ferguson ran for mayor promising to fix the pension plan deficit and cut taxes, finishing a strong second to Ivan Court.

"If I had of believed that I would have voted for him," Totten said.

But as a result of the election, he said, the pension deficit was again left unaddressed.

Tottens testimony was emotional at times.

"For years I couldn't get to sleep at night worrying about the pension deficit," he said.

"There wasn't a time during that three years when I would go out and it wouldn't come up. If I bought a new suit or a new car someone would ask if that came out of pension money."

Cross Examination

Under cross examination Totten said that he had never favoured including disability in a pension plan, that he was not aware of any other municipality in the province that included it.

When asked if he had moved a motion to increase the cap on the pension plan from $40,000 to $45,000, Totten said the increase was needed toretain senior staff like fire and police chiefs.

He admitted there were difficulties on the board, but denied that it was dysfunctional. "There were issues that were difficult, no question," he said.

History

Totten resigned as city manager amid controversy in 2009. He was a member of the pension board for 15 year before resigning his position in 2008.

He has been fingered by Ferguson'slegal team as one of those most responsible for the pension funds huge deficit, which isnow estimated to be $193 million.

On Wednesday Totten told his side of the story,about how city council refused to deal with the deficit despite his warnings for six consecutive years, from 2003 to 2008.

The city budget was in surplus in 2000, but fell into deficit by 2003. Totten testified Wednesday that the benefits were too rich for the plans income.