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HomeMy WebLinkAboutCRPS-06-159 - Appointment - Municipal Election Compliance Audit CommitteeJ ~- Corporate Services Report To: Mayor C. Zehr and Members of Council Date of Meeting: October 30, 2006 Submitted By: R. Gosse- Director of Legislated Services/City Clerk Prepared By: R. Gosse- Ward(s) Involved: n/a Date of Report: October 26, 2006 Report No.: CRPS 06-159 Subject: APPOINTMENT TO THE MUNICIPAL ELECTION COMPLIANCE AUDIT COMMITTEE -2006 RECOMMENDATION: That Messrs. Mel Linington, Robert Pritchard and Len Neil be appointed as the members of the 2006 Municipal Elections Compliance Audit Committee (the Committee} as authorized under Section 81 (3.1 } of the Municipal Elections Act, as amended, for a term ending November 30, 2008; and, That the Compliance Audit Committee be delegated the powers and functions under subsections 81 (3}, (4}, (7}, (10} and (11 } of the Municipal Elections Act; and further, That an exemption be granted to Council Policy I-63 (Appointment to Boards and Committees} to allow Mr. Pritchard to sit on the committee notwithstanding he does not meet the eligibility requirement of either living, working or owning property in the City of Kitchener. BACKGROUND: The Municipal Elections Act allows Council the option of establishing a Committee to consider any application for a compliance audit. Such an application may be made by any elector who believes on reasonable grounds that a candidate in a municipal election has contravened a provision of the Act relating to election campaign finances. Council may also delegate all or part of its powers and functions to the Committee. In 2003, Council established such a Committee but, due to the fact that no applications were made, the Committee never convened. REPORT: Section 81 of the Municipal Elections Act (excerpt attached} deals with applications made by an elector, believing on reasonable grounds that a candidate has contravened a provision of the Act relating to election campaign finances. An application would be submitted to the Clerk and the Council would be required to consider the application. If granted, Council would have to conduct an audit and take any necessary steps including possible legal proceedings. Alternatively, Council may appoint a committee to deal with any application on their behalf and the Committee may be delegated certain powers and functions of Council. Appointing a Committee would remove Council from a difficult situation should the candidate in question be one of the newly elected members of Council. The recommended delegation of powers and functions deal with the following: • 81 (3} -Receiving an application and determining whether to grant or reject it • 81 (4} - Appointing a licensed auditor to conduct an audit of the candidate's election campaign finances • 81 (7} -Receiving the auditor's report • 81 (10} -Deciding whether or not to commence legal proceedings against the candidate • 81 (11 } -Deciding whether or not to recover the auditor's costs from the applicant should the report find there was no apparent contravention. In 2003 an advertisement was place in The Record for candidates interested in sitting as a member of the Committee resulting in only one application being received. In order to have at least 3 members, the City Clerk made some informal inquiries and found that Mr. R. Pritchard and Mr. J. Wallace, former employees of the City of Kitchener would be willing to sit as members of the Committee. Those three members were contacted this year and asked if they would be willing to be appointed once again. Mr. Linington and Mr. Pritchard offered to sit again but there was no response from Mr. Wallace. Inquiries were made and Mr. Len Neil, retired Assistant City Clerk, has indicated he would be willing to sit on the Committee. The three candidates are all qualified in various fields which would be of benefit to the Committee. Mr. Linington is a retired Certified General Accountant and Fraud Examiner, Mr. Pritchard and Mr. Neil held the positions of City Clerk and Assistant City Clerk, respectively. Mr. Pritchard resides in the City of Waterloo and therefore does not meet the eligibility requirements of Council Policy I-63. The policy states that members appointed to a board or committee must either reside, work or own property in the City of Kitchener. In order to make these appointments, an exemption to the policy will be required. R. Gosse - Director of Legislated Services/City Clerk Municipal Elections Act Compliance audit 81. (1) An elector who is entitled. to vote in an election and. believes on reasonable grounds that a candidate has contravened. a provision of this Act relating to election campaign finances may apply for a compliance audit of the candidate's election campaign finances. 199(, c. ~2, Sched.., s. K1 (1). Kequireinents (2) The application shall. be made to the clerk of the municipality or the secretary of the local board. for which the candidate was nominated. for office, within 90 days after the later of the filing date, the candidate's last supplementary filing date, if any, or the end of the candidate's extension for filing granted. under subsection KO ((), if any; it shall be in writing and shall set out the reasons for the elector's belief. 199(, c. ~2, Sched.., s. K1 (2); 20()2, c. 17, Sched. D, s. 32 (1). Decision (3) Within 30 days after receiving the application, the council or local board, as the case may be, shall consider the application and decide whether it should be granted or rejected. 1996, c. 32, Sched., s. 81 (3). Delegation to coimnittee (3.1) A council or local board may, before voting day in an election, establish a committee and. dele~,atc its powers and functions under subsection (3) alone or under subsections (3), (4), (~), (10) and (11) with re~pcc~ lu applications received. under subsection (2) and. the council or local board, as the case may be, shall. pay all cos[. in relation to the operation and activities of the committee. 20()2, c. 17, Sched.. D, s. ~2 (2). Powers and limitations (3.2) A committee established. under subsection (3.1), (a) shall. exercise the powers and duties delegated. to ii under that subsection with respect to all. applications received. under subsection (2) in relation to the election for which ii is established; and. (b) shall. not include employees or officers of the municipality or local board, as the case may be, or members of the council or local board, as Chc ~ ~~~~ may be. 2002, c. 17, Sched. D, s. 32 (2). Appeal (3.3) The decision of the council or local board. under subsection (3) and of a committee under subsection (3) pursuant to a delegation under subsection (3.1) may be appealed. to the Ontario Court of Justice within 15 days after the decision is made and. the court may make any decision the council, local board or committee could. have made. 2002, c. 17, Sched. D, s. 32 (2). Appointment of auditor (4) If ii is decided. to grant the application under subsection (3), the appropriate council or local board shall, by resolution, appoint an auditor to conduct a compliance audit of the candidate's election campaign finances. 20()2, c. 17, Sched. D, s. 32 (3). Licensed auditor (5) Only an auditor who is licensed under the Public Accounting Act, 2004 may be appointed under subsection (4). 1996, c. 32, Sched., s. 81 (5); 2004, c. 8, s. 46. Duty of auditor (() An auditor appointed. under subsection (4) shall. promptly conduct an audii of the candidate's election campaign finances to determine whether he or she has complied. with the provisions of this Act relating to election campaign finances and. prepare a report outlining any apparent contravention by the candidate. 199(, c. ~2, Sched.., s. 81 (6). Who receives report (~) The auditor shall submit the report to, (a) the candidate; (b) the council or local board; (c) the clerk with whom the candidate filed his or her nomination; and (d) the applicant. 1996, c. 32, Sched., s. 81 (~). Powers of auditor (K) For the purpose of the audit, the auditor, (a) is entitled. to have access, at all. reasonable hours, to all. relevant books, papers, documents or things of the candidate and of the municipality or local board; and. (b) has the powers of a commission under Part II of the Public bull+ir°ies Act, which Part applies to the audit as if it were an inquiry under that Act. 1996, c. 32, Sched., s. 81 (8). Costs (9) The municipality or local board shall. pay the auditor's costs of performing the audit. 199(, c. 32, Sched., s. 81 (9). Consideration of report, legal proceeding (10) The council or local board shall consider the report within 30 days after receiving it and. may commence a legal. proceeding against the candidate for any apparent contravention of a provision of this Act relating to election campaign finances. 1996, c. 32, Sched., s. 81 (10). Kecoverp (11) If the report indicates that there was no apparent contravention and. the council or local board finds that there were no reasonable grounds for the application, the council or local board. is entitled. to recover the auditor's costs f`rosn the applicant. 1996, c. 32, Sched., s. $1 (11). fimnunity (12) No action or other proceeding for damages shall be instituted. against an auditor appointed. under this section for any act done in good. faith in the execution or intended. execution of the audit or for any alleged. neglect or default in its execution in good faith. 199(, c. ~2, Sched., s. K1 (12).