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HomeMy WebLinkAboutCAO-007-09in~~~ REPORT CHIEF ADMINISTRATIVE OFFICER Meeting: GENERAL PURPOSE AND ADMI ISTRATION COMMITTEE -~'-~s~l ut ~N ~ ~ ~~ s~9-a q Date: Monday, October 19, 2009 ~ C ~ ~~ y pQ Report #: CAO-007-09 File: By-law #: Subject: CODE OF CONDUCT FOR COUNCIL MEMBERS Recommendation It is respectfully recommended that the General Purpose and Administration Committee recommend to Council the following: THAT Report CAO-007-09 be received; That Council provides direction with respect to either, a) Take no further action on this subject matter and receive this report for information; or b) Direct the CAO to draft a Code of Conduct for Council Members for Council's consideration and approval. Submitted by~ ' --" '~ -"~-' ~-+'v Franklin Wu M.A.O.M Chief Administrative Officer CORPORATION OF THE MUNICIPALITY OF CLARINGTON 40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L1C 3A6 T (905)623-3379 F (905)623-5717 REPORT NO.: CAO-007-09 PAGE 2 1. BACKGROUND At its meeting held on March 23, 2009, Council directed the CAO to research and review existing Codes of Ethics, Code of Conduct and Council Charter that various municipalities have adopted and to report and recommend to Council on those findings, on or before Sept.14, 2009. The CAO has been overloaded with several major projects this year in addition to assuming the role of Director of Operations. As a result, it was impossible to meet the September deadline date. Be it as it may, the CAO has now completed research and analysis of the subject matter and is pleased to submit this report for Council consideration. 2. WHY A CODE OF CONDUCT? Municipal Council Members hold positions of privilege. As a result, they are held to the highest standard of behavior and integrity and are expected to discharge their duties in a manner consistent with the principle of upholding the public trust: In the absence of policies or guidelines, one cannot assume each and every member of council have the same understanding of that standard of behavior and integrity. Hence, most municipal governments have adopted or approved some forms of Code of Conduct, Codes of Ethics, or Council Charter in order to provide policies or guidelines to assist Council Members. 3. WHAT'S OUR CURRENT PRACTICE The Municipality of Clarington has a Code of Ethics approved by Council back in December 10, 2001. It has since been revised to clarify several areas of ambiguity as well as the addition of several conduct guidelines. This Code is primarily an employee Code and as such most provisions do not apply to Members of Council. However, embedded in the policies are several provisions that specifically apply to Council Members. They are: - Not breach the public trust or misappropriate public funds and or resources - Not use municipal property, equipment, supplies or services of consequence for activities not associated with the discharg of official duties REPORT NO.: CAO-007-09 PAGE 3 Not benefit from the use of information relating to the affairs of the municipality Not sell goods or services to the Municipality's or have a direct or indirect interest in a company or own a company that sells goods or services to the municipality - Not conduct their work activities in a manner which may cause personal injury to themselves or others or damage to equipment or property of the Municipality - Not bid on the sale of goods except those disposed by Public Auction - Not use municipal buying power for personal gain or benefit 4. CODE OF CONDUCT IN DURHAM MUNICIPALITIES In the course of our review of the practices in other municipalities, we have reviewed Codes of Conduct in several municipalities including all Durham Municipalities. With the exception of the Town of Whitby, every municipality in Durham Region has some forms of Code of Conduct for Council Members. Attachment 1 is a summary of the nature and character of these documents. While there are variations among these codes, there are also significant amount of similarity such as the content component of the codes. It is worthy to note that none of the Codes contain any meaningful compliance or enforcement provisions. There are probably several reasons why these codes shy away from this issue. This will be elaborated later on in this report. 5. WHAT'S IN A CODE OF CONDUCT Many have viewed and used Code of Conduct and Code of Ethics as being interchangeable. The truth is that these are two separate matters. Conduct is "the manner in which a person behaves", Ethics is "the moral principles governing or influencing conduct"(Oxford). Strictly speaking, a Code of Conduct should only contain the behavior issues and not venture into the area of ethics. Be it as it may, most municipal Codes of Conducts cover both behavior and ethical matters. Therefore for the purpose of discussion in this report, we would consider ethical matters falling within the realm of a Code of Conduct. a) On the matter of conduct, the following elements are commonly found in most municipal Code of Conduct. REPORT NO.: CAO-007-09 Council/Staff Relationship PAGE 4 - Not to influence the decision making process as it relates to hiring practice, award of contracts or settlement of claims through personal contact or interaction with the parties administering or directly involved in such process - Refrain from any conduct which may deter, interfere or unduly influence employees in the performance of such duties and obligations Confidential Information - Refrain from releasing, making public, or in any way divulging confidential information, personal information or any aspect of the deliberations in a closed meeting to anyone, unless expressly authorized by Council or required by law. - Not to release information subject to solicitor/client privilege - Not to misuse confidential information that may result in personal benefit or other individuals related to him/her Gifts, Commission, etc. - Not to solicit, accept, offeror agree to accept a commission, reward, gift, advantage or benefit of any kind, personally or through a family member or friend which is connected with the performance of his/her official duties - Reject and/or return any gifts or benefits with an explanation of why such cannot be accepted Interpersonal Behavior - Treat every person, including other Council Members, staff and public with dignity and respect - Not discriminate or engage in harassment activities b) From the ethical perspective, some Codes will provide guidelines to assist members to determine what is ethical and what is not. From our research, we found the "Smell Test" guidelines in the City of Edmonton Code are probably the REPORT NO.: CAO-007-09 PAGE 5 most simple and straight forward. A "Smell Test" could include asking yourself the following questions: - Will the act result in personal gain or benefit? - Could an outside person, colleague or the media perceive this action as unethical? Will I owe someone something as a result of this action? Was this gift/action intended to influence my decision? - Would I hesitate to take this action or to allow anyone to take this action in my own company? 6. CODE COMPLIANCE AND ENFORCEMENT Most municipal Code of Conduct for Council Members contains little or no provision with respect to compliance or enforcement. We suspect this could be the result of one or more of the following factors: a) Except for the City of Toronto, providing a Code of Conduct for Council Members is not obligatory under the Municipal Act. Due to this permissive nature of the legislation, any code made by a municipality will be difficult to enforce unless the breach is in violation of other relevant legislations such as the Conflict of Interest Act, Freedom of Information and Protection of Privacy Act etc. Further, Section 223.2(2) of the Municipal Act states "A bylaw cannot provide that a member who contravenes a Code of Conduct is guilty of an offence." This essentially negates any reason for imposing penalty. Notwithstanding, afew municipalities have included penalty provisions in their codes such as loss of remuneration, prohibition from attending closed meetings etc. However, the enforcement of these penalties are generally left silent in the Code. b) Regardless of whether or not it makes sense to provide for reprimand or penalty in a code, the real question has to be: Who will determine if a Member of Council has breached the code? This function cannot be delegated to the CAO or any staff member due to their employer/employee relationship. The Municipal Act does permit a municipality to appoint an independent Integrity Commissioner. Few municipalities have taken up this option. We suspect the cost of setting up an Integrity Commissioner Office for the very few cases it will deal with simply REPORT NO.: CAO-007-09 PAGE 6 made such a proposition untenable from a financial perspective. In its first year of operation, it was reported that the City of Toronto has expended approximately $160,000, primarily in staffing cost. Cost of establishing an Integrity Commissioner Office should be less in smaller municipalities but could still be a formidable amount and challenge a small municipality budget. It should be noted that the issue of Integrity Commission was dealt with by Council through its approval of the recommendations as contained in Report CLD-042-07 where Council resolved "not to proceed with the appointment of an Integrity Commissioner ,Ombudsman or Auditor General, at this time." c) Notwithstanding the foregoing limitation in enforcement of a Code of Conduct, in circumstances where the alleged breach of a Code of Conduct is in violation of pertinent legislations such as the Conflict of Interest Act, Criminal Code, etc. the remedy can be in the form of legal action against the council member. Provision for such action would go beyond the scope of a Code of Conduct. In cases where the breach of the code involves significant breach of public trust or gross misconduct, Council may pass a resolution pursuant to Section 274(1) of the Municipal Act, requesting a judicial investigation into the member's conduct. 7. CONCLUSION In view of the foregoing discussion pertaining to the limitation in enforcement, most municipal Codes of Conduct would leave this matter silent and default the enforcement to self compliance and public scrutiny through coverage of the particular issue by the media. This is probably the best scenario one can expect to get some value out of a Code of Conduct that some may consider "not worth the paper written on". In the consideration whether or not Clarington should have a stand alone Code of Conduct for Council Members, we pose the following questions for council consideration: a) Would Council consider the current policies embedded in the employee Code of Conduct as inadequate? b) Would Council consider a new stand alone Code of Conduct for Council Members would improve the public trust and confidence? c) Given the enforcement issue may be problematic; would Council accept a Code of Conduct that would rely on self compliance as an enforcement tool? ATTACHMENT 1 TO REPORT CAO-007-09 MUNICIPALITIES DOCUMENT MAIN COMPONENT ENFORCEMENT PROVISION Clarington Policies embedded in • Municipal Assets/ Resources Silent Corporate Policy • Insider Information Oshawa Council Charter • Council/Staff relationship Self adherence • General Conduct Guidelines Scugog Code of Conduct By-law • Gift/Personal gain Hume Rights Code for • Confidentiality Harassment • Municipal Resources • Harassment Brock Code of Conduct By-law • Confidentiality Mayor & Clerk as • Gifts investigators • Procurement • Conflict of Interest Ajax Cade of Conduct By-law • Confidentiality Applicable Statutes • Conflict of Interest • Gifts/Personal gain • Council/Staff relationship • Municipal Assets/Resources Pickering Code of Conduct • Conflict of Interest None Specific • Municipal Resources • Personallnterests • Confidentiality • Registration of Gifts Uxbridge Code of Conduct • Gifts/Benefits Specific Policies and • Confidentiality Procedures for Whitby Code of Conduct for Staff Only