HomeMy WebLinkAboutFCS-16-150 - Integrity Commissioner Optional Services Follow-up
REPORT TO: Finance and Corporate Services Committee
DATE OF MEETING: October 3, 2016
SUBMITTED BY: Christine Tarling, Director of Legislated Services & City Clerk,
519-741-2200, ext. 7809
PREPARED BY: Christine Tarling, Director of Legislated Services & City Clerk,
519-741-2200, ext. 7809
WARD(S) INVOLVED: All
DATE OF REPORT: September 22, 2016
REPORT NO.: FCS-16-150
SUBJECT: Integrity Commissioner – Optional Services Follow-up
___________________________________________________________________________
RECOMMENDATION:
That ADR Chambers, Toronto, Ontario provides the following Optional Services
as outlined in Finance and Corporate Services report FCS-16-150 at their quoted
hourly rates for a contract term of three (3) years with the option to renew for two
(2) additional years with the same terms and pricing:
1. Education and Training Services;2. ____________________________;
3. ______________________________; and further,
That the budget increase associated with these optional services be included in
the draft 2017 operating budget as a service level increase; and,
That staff report back at a future date with the requisite policy changes to
implement any optional services selected by Council.
BACKGROUND:
Subsection 223.2 of the Municipal Act authorizes a municipality to establish a Code of
Conduct (the Code) for members of council and local boards of the municipality.
Subsection 223.3 authorizes the appointment of an Integrity Commissioner (IC) who
reports to Council and is responsible for performing in an independent manner the
functions assigned with respect to the application of the Code and investigations into an
alleged breach of the Code.
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In the past, Council had expressed an interest in potentially expanding the scope of the
IC’s services to include formal advice, consultation, and education and training. With
that in mind, a joint Request for Proposal (RFP) for the services of an IC was issued by
the Cities of Kitchener and Waterloo on behalf of the Cooperative Purchasing Group of
Waterloo Region (the participating members) in May 2016. The RFP was flexibly
structured to allow the participating members to join the agreement with the IC at a later
date if desired, and to choose the service level needed. Subsequent to the issuance of
the RFP, the City of Cambridge elected to join.
Core Services
The RFP included two (2) sets of services. , which were approved by
Council on June 27, 2016, centred around conducting complaint investigations under
the Code as well as reviewing the Code and making formal recommendations for
Optional Services
revisions and enhancements as needed.were deferred to October
3, 2016 pending more information from staff regarding how those services could
potentially be accessed by Council along with potential guidelines and amendments to
the Code. The Optional Servicesincluded formal advice, consultation, education and
training, and general advice regarding the Municipal Conflict of Interest Act (MCIA).
With respect to the latter, staff previously noted that councillors are personally liable for
their own individual compliance with the MCIA and advice from the IC could only be
informal in order to protect the City from potential liability. As a result of this information,
Council requested staff to investigate the possibility of following the Region of Waterloo
model regarding the MCIA.
The purpose of this report is to provide information as per Council’s direction of June
27, 2016 and to seek Council’s direction relating to the Optional Servicesas previously
outlined in staff report FCS-16-092 as well as formal legal advice regarding the MCIA.
REPORT:
Further to Council’s direction of June 27, 2016, staff contacted the municipalities whose
RFPs were used as the basis for the City’s to find out how services beyond Code of
Conduct investigations were being accessed. As well, Toronto and Ottawa were also
contacted. Unfortunately, no responses were provided by London, Toronto, Ottawa and
the Region of Niagara.
Findings of Municipal Outreach
1. Formal Code of Conduct complaints – Those who wish to lodge a formal complaint
to the IC do so through a formal complaints process typically filed with the Office of
the City Clerk which then forwards the complaint to the IC.
The processes of these other municipalities are consistent with how formal Code of
Conduct complaints are handled here at the City of Kitchener.
2. MCIA legal advice by the IC – The municipalities contacted reported that their ICs do
not provide legal advice concerning the MCIA for the reasons previously reported by
staff in FCS-16-092. If a member of council wishes to seek legal advice, they must
do so in an independent manner.
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ADR Chambers has confirmed they will not provide this service to our members of
Council.
3. MCIA legal advice by independent legal counsel (Region of Waterloo model) – The
Region of Waterloo’s policy is to reimburse members of Regional Council seeking a
legal opinion under the MCIA with the following eligibility requirements:
Legal expenses must pertain to obtaining a legal opinion or incurring legal fees
connected to a Council application by a Councillor to obtain a proactive ruling on
compliance with the MCIA on or after the date their policy took effect;
Is limited to one request per councillor per calendar year;
Not exceed $5,000 in reimbursement in any one instance; and,
Pertain to a matter that is or will be imminently before Regional Council.
4. Protocol for accessing additional Optional Services – What is common amongst the
municipalities contacted is there are no protocols for or limits to accessing the
services of the IC by members of Council regarding obtaining formal advice,
consultation, and education and training. The latter is usually arranged by either the
Office of the Mayor and Council or the Office of the City Clerk, and is usually done
upon the inception of a new council.
With respect to accessing the services of formal advice and consultation, the
municipalities contacted view that the relationship is between the IC and their
Council members. Consequently, requests for service are treated with
confidentiality so the IC is contacted directly with no administrative intermediary
vetting or monitoring the number, nature or appropriateness of the requests. The
municipalities trust their members will exercise good judgement and appropriately
access the IC services keeping in mind their respective budgets.
5. Budget – While each municipality contacted has set a budgeted amount, there are
no limits to accessing the services offered by their IC where Optional Services are
provided. Each municipality has acknowledged the importance of ensuring the
budget does not limit anyone’s ability to lodge a formal Code of Conduct complaint
and to have that complaint properly investigated by the IC. Thus, overages in the
budget are permitted and are reported as negative variances. It is unclear how
those overages are ultimately funded.
Options
Option #1 – Provide for education and training only: Education and training is
estimated to cost less than $2,000 per term and is seen as a valuable means to
enable Council members to self-diagnose potential Code issues. It would be a one-
time fee incurred upon the inception of a new council and can be funded from within
existing budgets. As such, staff recommends that this optional service be selected,
at a minimum.
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Option #2 – Provide for unlimited access to formal advice and consultations: Since it
is difficult to predict when and how often issues might arise, Council may choose not
to set a limit on the consumption of these services along with no monitoring or
vetting by staff in order to ensure the confidentiality of requests. Budgeting for these
services, however, would be problematic due to the unpredictability of consumption.
This option would also provide for education and training.
Option #3 – Provide for access to formal advice and consultations with an upset limit
per Council member: Council could choose to implement an approach whereby
service is accessed subject to an upset dollar amount per Council member. Council
could choose to allow each member of Council to exercise his/her own discretion in
accessing the service with the understanding that there would be an annual limit per
member. While the specific requests for service would not be monitored or vetted by
administrative staff, someone would need to monitor the budget to ensure no
negative year-end variances are incurred. This option would also provide for
education and training.
Option #4 – Combine MCIA legal advice with access to formal advice and
consultations: Facilitating members of Council with access to MCIA advice may
prove to be more beneficial to some members than others. An alternative would be
to create one fund from which members could access either formal MCIA legal
advice (from an independent lawyer of the Council member’s choosing) and/or
Optional Services (from the City’s IC) as their needs might dictate. Staff suggests
that members of Council be afforded their own discretion to access any of those
services providing they stay within their upset limit to help alleviate the possibility of
a year-end negative variance. As with Option #3 specific requests for service would
not be monitored or vetted by administrative staff but someone would need to
monitor the budget to ensure no negative year-end variances are incurred. This
option would also provide for education and training.
Budget
Any increase in service level will require an increase in the budget as there is presently
minimal budget for the Integrity Commissioner. At this point, it is unknown what the
level of consumption will be by members of Council.It is possible some members may
not use any of the services at all while others may consume their allotted amount. If the
Region of Waterloo figure of $5,000 per Council member was to be used, this would
equate to a potential annual cost of $55,000. Assuming that not all Council members
will fully expend their allocation, Council could set a lower budget amount based on the
anticipated rate of consumption (e.g., 25% would equate to $13,750). Staff would
review the consumption of services in the first year of the new vendor relationship and
report back through the 2018 budget process as to the adequacy of the amount.
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.
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FINANCIAL IMPLICATIONS:
The Legislated Services budget contains a $2,000 annual provision for the Integrity
Commissioner which reflects the extremely low level of activity for the IC since 2009.
The hourly rate quoted by ADR Chambers is $250, which equates to only 8 hours of
service. Depending on the extent and number of future Code of Conduct complaints,
there is likely not sufficient funding available for investigations.
Other municipalities which provide Optional Services to their members have added to
their budgets to cover a range of services as outlined in Appendix ‘A’. Any increase in
service levels selected by Council will require an increase in the 2017 operating budget
above and beyond the base level inflationary rate.
COMMUNITY ENGAGEMENT:
INFORM – This report has been posted to the City’s website with the agenda in
advance of the council / committee meeting.
CONSULT – Cambridge, Kitchener and Waterloo consulted with each other regarding
the components of the RFP including the qualifications required of the IC, as well as
other participating members of the Cooperative Purchasing Group of Waterloo Region.
PREVIOUS CONSIDERATION OF THIS MATTER:
FCS-15-078 – Integrity Commissioner
FCS-16-092 – Appointment of Integrity Commissioner
ACKNOWLEDGED BY:
D. Chapman,Deputy CAO, Finance & Corporate Services
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Appendix ‘A’
Service Consumption Comparison for Municipalities
Whose RFPs Were Reviewed
MunicipalityServiceProvidedbyICBudgetedAmountHowConsumed
BarrieInvestigations/reporting$4,000/yr+$5,000Nolimitationtoaccessandhave
Adviceinanelectionyearonlyexceededbudgetwhenthere
Consultationusedmostlyforhasbeenaninvestigation
Education/trainingeducation/trainingReportedasayearendvariance.
BrantfordInvestigations/reporting$5,000/yrAdvice/consultationsnotprovided
Education/trainingHavenotyetexceededbudgetfor
investigations.
CambridgeInvestigations/reporting$2,500/yrProjectedfor2017.
GuelphInvestigations/reporting$12,000/yrOnanasneededbasis.
Advice
Education/training
MarkhamInvestigations/reporting$20,000/yrNoupsetspendinglimitforservices
AdviceincludesretainerCouncilaccessesservicesas
Education/trainingneededandthebudgetwas
exceededin2015by$23,000
Reportedasayearendvariance.
WaterlooInvestigations/reporting$2,500/yrProjectedfor2017.
NoresponsesreceivedfromRegionofNiagara,London,OttawaorToronto
MunicipalityServiceProvidedBudgetedAmountHowConsumed
RegionofMCIAadvicevia$5,000perCouncilWrittenrequesttoCAOEligibility
Waterlooindependentlegalmemberperyearrequirements:
counsel
Legalexpensesrelatingto
proactiverulingoncompliance
withMCIA
Onerequestpercouncillorper
calendaryr
Reimbursementnottoexceed
$5,000perinstance
Pertaintoamatterthatis/willbe
imminentlybeforeRegional
Council.
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