Public will be able to take city council behavior complaints to an Integrity Commissioner once the Code of Conduct has been passed.

By Pepper Parr

May 19, 2015

BURLINGTON, ON

After numerous meetings the city finally has a draft of a Code of conduct that will have close to the force of law and which if seriously violated could result in the suspension of a member of |Council.

The most contentious issue during the discussions is whether or not a member of council can involves themselves in issues outside their wards. Ward 2 Councilor Marianne Meed Ward has taken the position that she is responsible for ward 2 issues but can involve herself in matters that are city wide and has done so in the past.

Ward 1 Councilor Rick Craven feels that ward 1 is his turf and no one should intrude on his territory. Councilor Dennison felt that as a courtesy a council member should at last inform fellow members of Council when they are involving themselves in an issue in a ward that is not their own.

The document is not what you would call an easy read. The Gazette will publish the version of the Code of Conduct that gets passed by Council on the 25th.

The portion of the draft code was revised at the Standing Committee with the removal of the part that had to do with how and when a council member can involve themselves in matters outside their ward.  That section read:

General Integrity

• Members of Council are committed to performing their functions with integrity, accountability and transparency.
• Members of Council are responsible for complying with all applicable legislation, by-laws and policies pertaining to their position as an elected official.
• Members of Council recognize that the public has a right to open government and transparent decision-making.
• Members of Council shall at all times serve and be seen to serve the interests of the municipality in a conscientious and diligent manner and shall approach decision-making with an open mind.
• Members of Council shall avoid the improper use of the influence of their office.
• Members of Council shall not attempt to influence or interfere with, either directly or indirectly, financially, politically or otherwise employees, officers or other persons performing duties under the Provincial Offences Act.
• Where a member of Council is involved in an issue outside the Member’s own ward, the member will inform the ward Councillor of such involvement.

Deleting it from the code passed on a 4-3 vote.

In 2006 the Municipal Act was amended to provide municipalities with enhanced accountability powers including the ability to establish a Code of Conduct and appoint an Integrity Commissioner to administer the Code of Conduct.

Burlington’s city council began work on a Code in December 2013 as part of their governance review. Currently, there is a Code of Practice that was adopted in 1996. The Code of Conduct would replace this policy.

Any failure to comply with the code of conduct can have serious and significant consequences. “Members of Council shall adhere to the provisions of the Code of Conduct. The Municipal Act, 2001 authorizes Council, where it has received a report by its Integrity Commissioner that, in his or her opinion, there has been a violation of the Code of Conduct, may impose either of the following penalties:

• A reprimand;
• Suspension of the remuneration paid to the member in respect of his or her services as a member of Council or a local board, as the case may be, for a period of up to 90 days.”

It would be tough to get re-elected were a council member to be suspended for any period of time.

There have been four workshops held with Council to draft the code that was presented.

At the January workshop, Council received an update from the City Solicitor on Bill 8: Public Sector and MPP Accountability and Transparency Act, 2014. Bill 8 significantly expands the role of the provincially-appointed Ombudsman in the affairs of municipalities. This includes oversight over the investigations conducted in accordance with the Code of Conduct.

In some cases, municipalities may forgo the appointment of an Integrity Commissioner and leave the oversight to the Ombudsman. It is staff’s view that despite the oversight from the provincial Ombudsman, it would still be prudent to hire an Integrity Commissioner at the local level. At this point the regulations on Bill 8 have not been released. Those regulations will likely include details on procedures for investigation and any related costs to the municipality.

Following approval of the Code of Conduct, staff will retain an Integrity Commissioner on a fee for service basis. The plan is to share an Integrity Commissioner on a fee for service basis with the Town of Milton. The Town of Oakville already has an Integrity Commissioner in place. The expectation is that the cost will come in at about $20,000 a year – which of course depends on how many complaints get sent to the Commissioner and how well our Council members behave.

One section of the Code of Conduct spells out very clearly that:
Members of Council shall not:

• Maliciously, falsely or otherwise inappropriately injure the professional or ethical reputation, or the prospects or practice of staff;
• Compel staff to engage in partisan political activities or be subjected to threats or discrimination
for refusing to engage in such activities; or
• Use, or attempt to use, their authority or influence for the purpose of intimidating, threatening, coercing, commanding or influencing any staff member with the intent of interfering in staff’s duties.

That requirement has not always been fully met in the past.

Free tickets to events have been a problem in the past – the rules were never very clear. They will be clear when the Code of Conduct is passed by city council.

“Members of Council are expected to represent the public and the interests of the municipality and to do so with both impartiality and objectivity. The acceptance of a gift, benefit or hospitality can imply favouritism, bias or influence on the part of the Member. At times, the acceptance of a gift, benefit or hospitality occurs as part of the social protocol or community events linked to the duties of an elected official and their role in representing the municipality.

“Members of Council shall not accept gifts that would appear to be in gratitude for influence or to induce influence. For these purposes, a gift, benefit or hospitality provided with the Member’s knowledge to a family member or to a Member’s staff, that is connected directly or indirectly to the performance of the Member’s duties is deemed to be a gift to that Member.

Members of Council are not precluded from accepting:

(a) compensation authorized by law;
(b) such gifts or benefits that normally accompany the responsibilities of office and are received as an incident of protocol or social obligation;
(c) a political contribution under the Municipal Elections Act;
(d) a memento of a function honouring the member;
(e) where a member is speaking or attending an event in an official capacity, the food, lodging, transportation and entertainment provided by provincial, regional and local governments or political subdivisions of them, by the federal government or by a foreign government within a foreign country, or by a conference, seminar or event organizer;

(f) food and beverages consumed at banquets, receptions or similar events, if:

1. attendance serves a legitimate business purpose;
2. the person extending the invitation or a representative of the organization is in attendance; and
3. the value is reasonable and the invitations infrequent;

(g) communication to the offices of a member, including subscriptions to newspapers and periodicals;
(h) gifts of a nominal value (e.g. baseball cap, t-shirt, flash drive, book, etc).

In the case of exceptions claimed under categories b, d, e, f, g, h where the value of the gift or benefit exceeds $25, or if the total value received from any one source during the course of a calendar year exceeds $25, the Members shall within 30 days of receipt of the gift or reaching the annual limit, list the gift or benefit on a Councilor Information Statement in the prescribed form and file it with the City Clerk. This information will be posted on the website with Councilors expenses.

Members are permitted to receive up to two tickets to a dinner or a fundraising event, as long as the Member is attending only one such event as a gift from the same individual or corporation within any calendar year.

Fundraising, Community Events and Donations are also clarified in the code.

This Code recognizes that as community leaders, Members of Council may lend their support to and encourage, community donations to registered charitable organizations and not for profit groups. Monies raised through fundraising efforts shall go directly to the groups or volunteers and chapters acting as local organizers of the group. This Code recognizes the important work of Members of Council in supporting charitable causes and the need for transparency in Members involvement.

This Code sets the following additional guiding principles for Members of Council

(a) Members of Council should not directly or indirectly manage or control any monies received relating to a charitable, not for profit or community-based organization’s fundraising in their capacity as a member of Council.
(b) A Member of Council or a third party acting on behalf of the Member shall not solicit nor accept support in any form from an individual, group or corporation with a pending matter, such as but not limited to, a planning or demolition application, partnership agreement, tender or Request for Proposals before Burlington City Council.
(c) With reference to Member-Organized Community Events, Members of Council must keep a record of the names of all donors and the value of their donation that supplements the event and file it with the City Clerk.
(d) Donation cheques shall not be made out to a Member of Council. Nothing included herein affects the entitlement of a Member of Council to:
• Use their office expense budget to run or support community events subject to the terms of the Councilor Expense Policy.
• Urge constituents, businesses and other groups to support community events and advance the needs of a charitable organization;
• Play an advisory or membership role in any organization that holds community events.

Once passed the Code gives the public a process to complain. Complaint of a Violation of this Code

Any individual that has reasonable grounds to believe that a Member has breached this Code, may file a complaint with the City Clerk.

The Integrity Commissioner shall be responsible for investigating such complaints and if the parties are in agreement, the complaint may be resolved by way of mediation.

If either party does not participate in the mediation process, if the complaint is not resolved through this process, or the matter is not appropriate for referral to mediation, the Integrity Commissioner shall assume responsibility for investigating the complaint in accordance with the procedures established by Council.

In the case of a complaint of discrimination or harassment, the complainant may file a complaint directly to the Human Resources Department under the City of Burlington Respect in the Workplace Policy. The complainant will also be advised of his or her right to advance an application to the Ontario Human Rights Tribunal.

The procedure for filing a complaint includes an informal or a formal complaint

The formal procedure is as follows:

Any individual who has identified or witnessed behaviour or activity by a member that appears to be in contravention of the Code may address their concerns through the formal complaint process set out below.

1. All formal complaints must be made using the Complaints Form prepared by the City Clerk and/or Integrity Commissioner and shall be dated and signed by the Complainant.
2. The complaint must include an explanation as to why the issue raised may be a contravention of the Code and any evidence in support of the allegation must be included with the Complaints Form.
3. Any witnesses in support of the allegation must be identified on the Complaint Form.
4. The Complaint Form must include the name of the member alleged to have breached the Code, the section of the Code allegedly contravened, the date, time and location of the alleged contravention and any other information as required on the Complaint Form.
5. The complaint shall be filed with the Clerk who shall confirm that the required information is complete. The Clerk will forward the complaint form to the Integrity Commissioner who will determine whether the matter is, on its face, a complaint with respect to non-compliance with the Code and not covered by other legislation or policies.
6. The Integrity Commissioner may request additional information from the complainant.

The existence of an Integrity Commissioner gives the public some recourse to behavior they feel is wrong or unbecoming a member of a city council. However the authors of the code were aware of the possibility that someone might want to exploit the process in an election year. They covered off that possibility.

The Integrity Commissioner shall not make any report to Council or any other person after the last Council meeting in June in any year in which a regular municipal election is to be held. Any reports would proceed to the first Council meeting after the Inaugural meeting of the new Council.

Any guesses as to how long it will take for someone in the city to file a complaint with the Integrity Commissioner and who the complaint will be against?

The Gazette will publish the code of Conduct in its entirety once it has been passed by Council.