HomeMy WebLinkAboutCOR-19-025 - Integrity Commissioner Advice under the Municipal Conflict of Interest Act and Code of Conduct Housekeeping AmendmentsREPORT TO: Finance and Corporate Services Committee
DATE OF MEETING:June 10,2019
SUBMITTED BY: Christine Tarling, Director, Legislated Services / City Clerk, 519-741-
2200, ext. 7809
PREPARED BY:Jeff Bunn, Manager, Council/Committee Services / Deputy City Clerk,
519-741-2200, ext. 7278
WARD (S) INVOLVED:All
DATE OF REPORT:May 21, 2019
REPORT NO.: COR-19-025
SUBJECT: Integrity Commissioner Advice under the Municipal Conflict of Interest
ActandCode of ConductHousekeeping Amendments
___________________________________________________________________________
RECOMMENDATION:
That ADR Chambers, Toronto Ontario, be retained to provide the provisional functions
(1-5) as outlined in Corporate Services report COR-19-025at their quoted hourly rate; and,
That costs incurred to access the additional provisional functions of the Integrity
Commissioner, if any, be tracked for a one year period from 2019 to 2020 to inform a
recommendation for an appropriate budget, if required, as part of the 2021 budget
process; and further,
That the CouncilPolicy GOV-COU-005, Code of Conductfor Members of Council, Local
Boards and Advisory Committees, be amended to reflect the proposed changes as
outlined in COR-19-025.
BACKGROUND:
Subsection 223.2 (1) of the Municipal Act, 2001, (“the Act”) provides that a municipality shall
establish codes of conduct for members of the Councilof the municipality and of its local boards.
Subsection 223.3 of the Act authorizes the municipality to appoint an Integrity Commissioner
who shall perform various functions under the Act as authorized by the municipality.
*** This information is available in accessible formats upon request. ***
Please call 519-741-2345 or TTY 1-866-969-9994for assistance.
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In 2008, Counciladopted a Code of Conduct (“the Code”) for members of Counciland local
boards, and in 2009, appointed itsfirst Integrity Commissioner(IC)to provide independent
investigative services in response to complaints against members of Councilwhere there is a
perceived contravention of the Code.
In 2016, Counciljoined the Cities ofWaterloo and Cambridge in a joint Request for Proposal
(RFP) for Integrity Commissioner Services and awarded the IC appointment to ADR Chambers,
for a term of three (3) years with the option to renew for two (2) additional years with the same
terms and pricing. At that time, Council, through the budget process, declined the following
“optional services” to be provided by ADR Chambers:
Option #1 – Formal Advice: including written advicefrom the Integrity Commissioner to
members of Councilwith respect to ethical behaviour under the Code or any other
policy/procedure; and,
Option #2 – Consultation: including informal oral advice to members of Councilthat could
not be relied upon in the event of a complaint relating to the Code.
In 2017, the Ontario government passed Bill 68, Modernizing Ontario’s Municipal Legislation
Act, 2017, which amended the Municipal Act, 2001 (the Act),to provide additional scope to the
role and powers of the local IC.
Effective March 1, 2019, Bill 68 authorizes the ICto perform a number of additional functions
(outlined in detail below) assigned by the municipality. Also in 2019, the City exercised the option
to renew for two (2) additional years with the same terms and pricing with ADR Chambers for
the provision of Code of Conductinvestigation and educational services and have confirmed
with ADR Chambers that it is willing and able to provide the Additional Functions as outlined in
this report.
REPORT:
Requests for Advice from the Integrity Commissioner
It is important for members of councilsto understand their obligations under theirmunicipality’s
Code of Conduct,the MCIA, and other rules or policiesof the municipality in order to effectively
represent their constituents. Members are personally liablefor their own compliance with the
MCIAand may be removed from office if they are found by a court to be in breach of their
obligations under the Act.
The City Clerk, staff in the Legislated Services Division, and the City Solicitor are not permitted
to provide members with advice relating to the Code or the MCIA; thus, in the past members
have had to seek their own independent legal advice at their own expense.
In 2017, the Ontario government passed Bill 68, Modernizing Ontario’s Municipal Legislation
Act, 2017, which amended the Municipal Act, 2001(the Act),to provide additional scope to the
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role and powers of the local IC.Effective March 1, 2019, Bill 68 authorizes the ICto perform any
of the following functions assigned by the municipality relating to:
AdditionalRequests from members of Counciland local boards for advice respecting their
Function#1 obligations under the Code of Conduct;
Requests from members of Counciland local boards for advice respecting their
Additionalobligations under a procedure, rule or policy of the municipalityor the local
Function #2 board, as the case may be, governing the ethical behaviour of members;
AdditionalRequests from members of Counciland local boards for advice respecting their
Function #3 obligations under the Municipal Conflict of Interest Act(MCIA);
AdditionalThe provision of educational informationto members of Council, members of
Function#4local boards, the municipality and the public about the municipality’s code of
conduct for members of Counciland members of local boards and about the
Municipal Conflict of Interest Act.
Additional
Function #5The ability to launch its own proceedings to a judge against a member with
respect to sections 5, 5.1 and 5.2 of the Municipal Conflict of Interest Act.
While Sections223.3(1.1/1.2) of the Act specifically statethe City shall appoint a Commissioner
to conduct theabove-notedlegislated functions, there is no requirement that the appointed IC
for advice be the same Commissioner who will conductCode of Conductcomplaint
investigations.In cases where the IC is a sole practitioner, there could be a conflict of interest if
the IC were to perform both functions. The City’s IC is a multi-practitioner firm which has the
ability to assign different Commissioners for providing advice and conducting investigations.
Staff hasconfirmed with ADR Chambers that internal controls are in placetoensure a Code of
Conduct investigation is not conducted by the same Commissioner who has provided advice to
that council member.
In terms of covering the costs associated with the Provisional Functions, the Actdoes not specify
who, whether the City or individual members of Council, is responsible.By virtue of appointing
an IC, it could be argued thatthe City has fulfilled its statutory obligation of providing access to
aCommissionerand as a result is not required to provide funding for access to the services.
Without City-funding,however, each member of council would be responsible for covering their
own costs associated with contacting the ICfor advice either under the Code of Conduct or the
MCIA, which could be perceived as a barrier to access.
In trying to determine the best recommendation to make to Council regarding funding, staff
performeda scan oflocal municipalities in theRegion of Waterloo that permit access to an IC
for members of Council to seek advice as well as their respective funding model(s). Save and
except for the Region of Waterloo, no other municipality has allocated a specific budget amount
for IC advice. Without an upper budget limit, there could be concerns of overuse. However, it is
While concerns of overuse may exist, ultimately it is up to the individual member’s discretion to
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use the services as they deem appropriate.Staff believes a financial cap imposed by the City
could jeopardize the intent of the legislation by creating a barrier to accessing the services of the
IC. Therefore, staff recommends that Council not set a financial limit for each member of council
until a reasonable period of time has elapsed to allow staff to monitor how frequently IC services
are accessed. If Council decides the City should fund the costs associated with accessing IC
advice, staff recommends annual reporting that will disclose the total expenditurerelated to the
IC.
Further, should Council approve the recommendations in this report, staff will prepare guidelines
and a process for members of council to ensure clarity and cost effectiveness. Given the
question of funding is not explicit within the legislation, staffalsorecommends thateach newly-
elected Council makes that decision at the beginning of their term. To that end, staff anticipates
bringingforward a report at the beginning of each new term of Council.
With respect to Additional Function #4, staff recommends aninformation session held at the
beginning of each term of councilwhere the public and members of council may learn about the
municipality’s Code of Conduct and the Municipal Conflict of Interest Act.Information about the
Code is already available on the City’s website and the City Clerk also provides information to
citizens upon request.
Housekeeping Amendments to the Code of Conduct
Since changes are required to the Code in support of recent changes to the Act, there is an
opportunity to make additional housekeeping amendments to the Code. As well the recent 2018
municipal electionhighlightednecessary amendments to the Codeto clarify use of City
resources during election periods. The recommendedamendments below support the City’s
commitment toaccountability and transparency, andprovide members of Council, staff and the
public with a clearer understanding of the rulesgoverning the use of City-funded resources as
well as thecomplaint processas prescribed bythe Code and Municipal Conflict of Interest Act.
Below is a table of the proposed housekeeping amendmentsfor Council’s approval:
Code HeadingProposed AdditionsItalicizedExplanation
1Use of City No member shall use for personal The objective of this
Property, purposes any City property, amendmentis not to limit or
Services and equipment, services, supplies or impedeCouncil members’
Other services of consequence other than rightful duty to connect with
Resourcesfor purposes connected with the their constituents regarding
discharge of City duties or City business. Rather the
associated community activities of objective is intended to avoid
which City Council has been the improper use of the
advised. No member shall use influence of their office. By
information gained in the execution including election-specific
of his or her duties that is not use of City-funded resources
available to the general public for in the Code, there will be
any purpose other than his or her greater clarity formembers of
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official duties. No member shall Council, staff and electors,
obtain financial gain from the use of and will support public
City developed intellectual property,
confidence inincumbent
computer programs, technological candidates.
innovations or other patentable
items, while an elected official or
thereafter. All such property remains
the exclusive property of the City of
Kitchener. “No members shalluse
city property, services or other city-
funded / city-sponsored / city-
supported resources(e.g.,
councillor columns, social media
accounts) for the purposes of
election campaigning, as outlined in
the Elections – Use of Corporate
Resources for Political Campaign
PurposesThis does not include the
use of personal social
media/networking accounts
egistered publicly in the member’s
name.”
2Complaint The complaint protocol shall not This amendment is a result of
Protocolretroactively apply to any alleged legislated changesand is
transgressions occurring prior to the necessary to provide
date on which the Code of Conduct additional clarity surrounding
was formally adopted by Council. the process for IC complaints
during an electioncampaign
“In accordance with Section period.
223.4.1(3) of the Municipal Act,
2001, no application for an inquiry
under this section shall be made to
the Commissioner during the period
of time starting on nomination day
for a regular election, as set out in
section 31 ofthe Municipal Act,
1996, and ending on voting day in a
regular election, as set out in section
5 of that Act.
In accordance with Section 223.4.1
(4) of the Municipal Act, an
application may only be made within
six weeks after the applicant
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became aware of the alleged
contravention.
In accordance with Section 223.4.1
(5) of the Municipal Act, despite
subsection (4), an application may
be made more than six weeks after
the applicant became aware of the
alleged contravention if both of the
following are satisfied:
1. The applicant became aware of
the alleged contravention within the
period of time starting six weeks
before nomination day for a regular
election, as set out in section 31 of
the Municipal Elections Act, 1996,
and ending on voting day in a
regular election, as set out in section
5 of that Act.
2. The applicant applies to the
Commissioner under subsection (2)
within six weeks after the day after
voting day in a regular election, as
set out in section 5 of the Municipal
Elections Act, 1996.
3Confidential Paragraph 2 –Particular care This amendment is a result of
Informationshould be exercised in ensuring the legislated changes and
confidentiality ofthe following types updatesthe list of confidential
of information: information shared with
members of Council in an in-
Information supplied in
camera meeting as outlined in
confidence to the municipality by
subsection 239.2 of the Act.
another level of government;
Third-party information supplied
in confidence to the municipality
(e.g., a trade secret or scientific,
technical, commercial, financial or
labour relations information);
Information (e.g., a trade secret or
scientific, technical, commercial,
or financial information) that
belongs to the municipality and
has monetary value; or,
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A position, plan, procedure,
criteria or instruction to be applied
to negotiations.
A request by a member of Councilor
4*Requests for This amendment is
Adviceof a local board for advice from the necessary asCouncil must
Commissioner shall be made in authorize the Additionall
writing.
functionsto be performed by
the City’s IC. The process for
If the Commissioner provides advice
requesting and receiving
to a member of Councilor of a local advice in writing is a statutory
board the advice shall be in writing.
requirement and cannot be
amended by Council.
If the commissioner provides
Similarly, the protection of
educational information to the confidentiality of educational
public, the Commissioner may information to members of
summarize advice he or she has public is also a statutory
provided but shall not disclose
requirement that cannot be
confidential information that could amended.
identify a person concerned.
*New heading (if required)
ALIGNMENT WITH CITY OF KITCHENER STRATEGIC PLAN:
The recommendation of this report supports the achievement of the city’s strategic vision through
the delivery of core service.
FINANCIAL IMPLICATIONS:
The budget for the Office of Mayor and Council (OMC) currently contains $2000.00 for the
retained services of the ICforCode of Conductcomplaint investigations. The hourly rate for
ADRChambers’ services is $250.00,which equates to only 8 hours of serviceper year. While
the level of use of the ICfor adviceby members of Councilis unknown, there is likely not
sufficient funding available for each member of Councilto access the Additional functions.
Furthermore, assigning a funding limit to advice given by the IC may be perceived as removing
the right of access once the limit has been exceeded.
Any cost incurred to access the provisional functions, if any, in 2019 and 2020 will be charged
to the Office of the Mayor and Council, with any over expenditure being covered by the tax
stabilization reserve fund. While staff expects costs to be nominal, it is premature to set a budget
for the provisional functions until we have a clear understanding of Council’s access orusage of
the services.
COMMUNITY ENGAGEMENT:
INFORM – This report has been posted to the City’s website with the agenda in advance of the
Council/ committee meeting.
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CONSULT – Staff conducteda municipal scan of the municipalities within the Region of
Waterloo.
PREVIOUS CONSIDERATION OF THIS MATTER:
June 15, 2015: FCS-15-078– Integrity Commissioner
June 13, 2016: FCS-16-092– Appointment of Integrity Commissioner
October 3, 2016: FCS-16-150 – Integrity Commissioner– Optional Services Follow-up
ACKNOWLEDGED BY: Victoria Raab, General Manager, Corporate Services Department
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Appendix A – Municipal Scan
MunicipalityIC AdditionalFunctionsBudget Allocated to IC Advice
Region of WaterlooMCIA advice via Currently under review. $5,000
independent legal counselper Council member per year
for legal advice related to
municipal conflict of interests
City of CambridgeReviewing provisional NA.
functions; report in spring
2019
City of WaterlooNo additional functionsNo budget amount.
Township of North DumfriesNo additionalfunctionsNo budget amount.
Township of WellesleyUnable to confirm at the time NA.
of writing this report.
Township of WilmotMCIA advice via Integrity No budget amount.
Commissioner
Township of WoolwichMCIA advice via Integrity Will monitor the cost through
Commissioner2019 and set a budget for 2020.
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