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HomeMy WebLinkAboutCLD-002-10Cl~lllgtOn REPORT Leadiag the Way CLERK'S DEPARTMENT Meeting: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE Date: January 18, 2010 Resolution#: G(~~~o3q'/ ~ Report #: CLD-002-10 File #: By-law #: a4 ! 0 -0/0 USE OF CORPORATE RESOURCES FOR ELECTION PURPOSES POLICY RECOMMENDATIONS: It is respectfully recommended that the General Purpose and Administration Committee recommend to Council the following: 1. THAT Report CLD-002-10 be received; 2. THAT the proposed draft policy regarding the use of corporate resources for election purposes, as contained in Attachment 1 to Report CLD-002-10 be adopted; and 3. THAT the draft by-law, as contained in Attachment 2 to Report CLD-002-10, adopting the Use of Corporate Resources for Election Purposes be approved. Submitted by: PLB*CAG r~Q ` ~ Reviewed by: Franklin Wu, Chief Administrative Officer CORPORATION OF THE MUNICIPALITY OF CLARINGTON 40 TEMPERANCE STREET, BOW MANVILLE, ONTARIO L1 C 3A6 T 905-623-3379 F 905-623-6506 REPORT NO.:CLD-002-10 Page 2 1.0 BACKGROUND 1.1 Section 66(1) of the Municipal Elections Act, 1996 (the Act) states that, "money, goods and services given to and accepted by or on behalf of a person for his or her election campaign are contributions." 1.2 While Section 70(3) of the Municipal Elections Act, 1996, allows a corporation to make a contribution, Section 70(4)(3) clarifies that a municipality shall not make a contribution. 1.3 Corporate Policy H18 -Political Activities prohibits employees from conducting any political activity in the workplace (as defined in that Policy) and was implemented to protect the integrity of the public service while allowing employees to exercise their democratic rights if they so choose. 2.0 ANALYSIS 2.1 As stated above, in Section 1 of this Report, the Act prohibits the Municipality from making campaign contributions, and the corporate Policy prohibits staff from performing "political activities" in the workplace. Where the Act defines a contribution as goods and services, it can be concluded that the use of any corporate resources (eg. facilities, equipment, supplies, services, staff time, email, telephones, etc.) on any campaign activities could constitute a campaign contribution and could be in contravention of the Act. 2.2 Section 94 of the Act sets out fines of up to $25,000 for an individual and up to $50,000 for a corporation or trade union who is found guilty of contravening the Act. 2.3 To ensure that the Municipality of Clarington is not in violation of the campaign contributions, and to ensure it is clear to all election candidates that municipal facilities, equipment, supplies, services staff or other resources shall not be used for campaign-related activities, it is recommended that a policy addressing the use of corporate resources for election purposes is adopted by Council. REPORT NO.:CLD-002-10 2.4 The Association for Municipal Managers, Clerks and Treasurers (AMCTO) Page 3 Municipal Election Project Team is comprised of several knowledgeable and experienced Municipal Clerks and Election staff, as well as representatives from the Ministry of Municipal Affairs and Housing, Ministry of Education, Municipal Property Assessment Corporation, Elections Ontario and Elections Canada. The mandate of the Project Team is to provide updates on legislative changes, training opportunities and on-going feedback and support to Municipal Clerks and Election staff. To assist municipalities in dealing with this sensitive yet significant matter, following the 2003 Municipal Elections, the Project Team developed a draft policy available to all AMCTO members as a tool to assist in responding to inquiries and concerns expressed by the general public, candidates and election officials. This draft policy is available on the AMCTO website. 2.5 Staff have amended the draft policy as established by the Project Team to specifically address the Municipality of Clarington and this policy would apply to all election candidates, including sitting Members of Council. The proposed policy is not intended to prohibit Members of Council from performing their duties as Members or interfere with their representing the interests of our residents. 2.6 The proposed policy is consistent with Clarington's Code of Conduct (for both staff and Members of Council), and Clarington's H18 -Political Activities Policy, and is summarized as follows: • Corporate resources and funding may not be used for any election-related purposes; • Staff may not undertake political activities (as defined in Policy H18) or as they relate to support of a position on any by-law or question being placed on a ballot, in the workplace; • Candidates may not use any municipal or any municipally-provided facilities for any election-related purposes, which includes displaying of any campaign related signs in the window or on the premises, as well as displaying any election-related material in the office; REPORT NO.:CLD-002-10 Page 4 • In any material printed or distributed by the Municipality of Clarington, Members of Council are not permitted to: o Illustrate that an individual (either a Member of Council or any other individual) is a candidate registered in any election; o Identify where they will be running for office; or o Profile or make reference to candidates in any election. • Members of Council are responsible to ensure that the content of any communications material, printed, hosted or distributed by the Municipality of Clarington, is not election-related; • Websites or domain names that are funded by the Municipality may not include any election-related campaign material; • The Municipality of Clarington's voicemail system may not be used to record election-related messages; • The Municipality of Clarington's computer system (hardware, software and network) may not be used to record or distribute election-related messages; • The following may not be printed or distributed on any election materials or included in any election campaign related website: o reference to any of the Municipality of Clarington's email addresses, telephone numbers or facility addresses or municipally-funded facility addresses; or o the Municipality of Clarington's logo, crest, coat of arms, slogan, etc.; Exception: a link to the Municipality's election website is permitted for the purpose of providing information about the election. • Photographs produced for and owned by the Municipality of Clarington may not be used for any election purpose; and • The Municipal Clerk, or designate, shall be responsible for enforcement of this Policy. REPORT NO.:CLD-002-10 Page 5 3.0 RECOMMENDATIONS To ensure that the Municipality of Clarington is not in violation of the campaign contributions, and to clearly communicate the rules governing the use of corporate resources for election purposes, it is recommended that the draft proposed policy contained in this Report as Attachment 1 be forwarded to Council for adoption. Attachments: 1. Proposed draft policy 2. Draft By-law to adopt the proposed draft policy 3. Excerpt from Municipal Elections Acf, 1996, as amended -Election Campaign Finances Interested parties to be advised of Council's decision: All registered candidates for the 2010 Municipal Elections arrnctlluErtr ~ 1 to flEPOAT# cL0-ma~/o PROPOSED DRAFT POLICY USE OF CORPORATE RESOURCES FOR ELECTION PURPOSES 1. Purpose: To clarify that Candidates are required to follow the provisions of the Municipal Elections Act, 1996 and that: • No Candidate shall use the facilities, equipment, supplies, services, staff or other resources of the municipality (including Councillor newsletters and Councillor budgets) for any election campaign or campaign related activities. • No Candidate shall undertake campaign-related activities on Municipal property, except as otherwise provided for in section 2(g) of Policy H18 - Political Activities. No Candidate shall use the services of persons during hours in which those persons receive any compensation from the Municipality of Clarington. 2. Application and Authority: This policy is applicable to all Candidates, including sitting Members of Council. It is necessary to establish guidelines on the appropriate use of corporate resources during an election period to protect the interests of both the Members of Council and the Corporation. The Municipal Elections Act, 1996 (the Act) prohibits a municipality from making a contribution to a candidate. The Act also prohibits a candidate, or someone acting on the candidate's behalf, from accepting a contribution from a person who is not entitled to make a contribution. As a contribution may take the form of money, goods or services, any use by a Member of Council of the Corporation's resources for his or her election campaign would be viewed as a contribution by the Municipality to the Member as a candidate, which is a violation of the Act. 3. Policies /Procedures: a) Corporate resources and funding may not be used for any election-related purposes; b) Staff may not undertake political activities (as defined in Policy H18) or as they relate to support of a position on any by-law or question being placed on a ballot, in the workplace; c) Candidates may not use any municipal or any municipally-provided facilities for any election-related purposes, which includes displaying of any campaign related signs in the window or on the premises, as well as displaying any election-related material in the office; d) In any material printed or distributed by the Municipality of Clarington, Members of Council are not permitted to: i. Illustrate that an individual (either a Member of Council or any other individual) is a candidate registered in any election; ii. Identify where they will be running for office; or iii. Profile or make reference to candidates in any election. e) Members of Council are responsible to ensure that the content of any communications material, printed, hosted or distributed by the Municipality of Clarington, is not election-related; f) Web sites or domain names that are funded by the Municipality may not include any election-related campaign material; g) The Municipality of Clarington's voicemail system may not be used to record election-related messages; h) The Municipality of Clarington's computer system (hardware, software and network) may not be used to record or distribute election-related messages; i) The following may not be printed or distributed on any election materials or included in any election campaign related website: reference to any of the Municipality of Clarington's email addresses, telephone numbers or facility addresses ormunicipally-funded facility addresses; or ii. the Municipality of Clarington's logo, crest, coat of arms, slogan, etc.; Exception: a link to the Municipality's election website is permitted far the purpose of providing information about the election. j) Photographs produced for and owned by the Municipality of Clarington may not be used for any election purpose; and k) The Municipal Clerk, or designate, shall be responsible for enforcement of this Policy. Limitation: Nothing in this Policy shall prohibit Members of Council from performing their duties as sitting Members or interfere with their representing the interests of our residents. Implementation: This policy shall become effective immediately upon adoption by Municipal Council Attachment 2 REPORT NO.:CLD-002-10 THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW NO. Being a By-law to adopt the Use of Corporate Resources for Election Purposes Policy WHEREAS Section 66(1) of the Municipal Elections Act, 1996, as amended, states that, "money, goods and services given to and accepted by or on behalf of a person for his or her election campaign are contributions, and WHEREAS Section 70(4)(3)of the Municipal Elections Act, 1996, as amended, prohibits a municipality from making a contribution to a candidate THE COUNCIL OF THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON HEREBY ENACTS AS FOLLOWS: That a Policy in respect to use of Corporate resources for election purposes; as per the attached Policy Statement, be adopted. Attachment 1, Policy Statement, forms part of this By-law. BY-LAW read a first, second and third time this. day of January 2010. Jim Abernethy, Mayor Patti L. Barrie, Municipal Clerk Attachment 3 REPORT NO.:CLD-002-10 Excerpt Municipal Elections Act, 1996, as amended Election Campaign Finances Contributions 66.(1)For the purposes of this Act, money, goods and services given to and accepted by or on behalf of a person for his or her election campaign are contributions. 1996, c. 32, Sched., s. 66 (1). Additional rules Without restricting the generality of subsection (1), the following rules apply in determining whether an amount is a contribution: 1. The following amounts are contributions: i. an amount charged for admission to afund-raising function, ii. if goods and services are sold at afund-raising function for more than their market value, the difference between the amount paid and market value, iii. if goods and services used in a person's election campaign are purchased for less than their market value, the difference between the amount paid and market value, and iv. any unpaid but guaranteed balance in respect of a loan under section 75. 2. The following amounts are not contributions: i. the value of services provided by voluntary unpaid labour, ii. the value of services provided voluntarily, under the person's direction, by an employee whose compensation from all sources for providing them does not exceed the compensation the employee would normally receive for the period the services are provided, iii. an amount of $10 or less that is donated at afund-raising function, iv. the value of political advertising provided without charge on a broadcasting undertaking as defined in section 2 of the Broadcasting Act (Canada), if, A. it is provided in accordance with that Act and the regulations and guidelines made under it, and B. it is provided equally to all candidates for office on the particular council or local board, v. the amount of a loan under section 75. 1996, c. 32, Sched., s. 66 (2). Valve of goods and services The value of goods and services provided as a contribution is, Attachment 3 REPORT NO.:CLD-002-10 (a) if the contributor is in the business of supplying these goods and services; the lowest amount the contributor charges the general, public in the same market area for similar goods and services provided at or about the same time; (b) if the contributor is not in the business of supplying these goods and services, the lowest amount a business providing similar goods or services charges the general public for them in the same market area at or about the same time. 1996, c. 32, Sched., s. 66 (3). No penalty (~No employer shall impose any penalty on an employee who refuses to provide services voluntarily as described in subparagraph ii of paragraph 2 of subsection (2). 1996, c. 32, Sched., s. 66 (4). Expenses 67. I For the purposes of this Act, costs incurred for goods or services by or on behalf of a person wholly or partly for use in his or her election campaign are expenses. 1996, c. 32, Sched., s. 67 (1). Additional rules Without restricting the generality of subsection (1), the following amounts are expenses: 1. The replacement value of goods retained by the person from any previous election and used in the current election. 2. The value of contributions of goods and services. 3. Audit and accounting fees. 4. Interest on loans under section 75. 5. The cost of holding fund-raising functions. 6. The cost of holding parties and making other expressions of appreciation after the close of voting. 7. Expenses relating to a recount. 8. Expenses relating to proceedings under section 83 (controverted elections). 9. The nomination filing fee referred to in section 33. 1996, c. 32, Sched, s. 67 (2). Same (The expenses described in paragraphs 7 and 8 of subsection (2) include expenses relating to recounts and proceedings under section 83 (controverted elections) from a previous election for an office on the same council or local board, if the expenses were incurred after the person's election campaign period for that office in the previous election ended under subparagraph ii of paragraph 4 or subparagraph ii of paragraph 5 of subsection 68 (1). 1996, c. 32, Sched., s. 67 (3). Attachment 3 REPORT NO.:CLD-002-10 Duties of candidate 69• (1) A candidate shall ensure that, (a) one or more campaign accounts are opened at a financial institution, exclusively for the purposes of the election campaign and in the name of the candidate's election campaign; (b) all contributions of money are deposited into the campaign accounts; (c) all payments for expenses, except for a nomination filing fee, are made from the campaign accounts; (d) contributions of goods or services are valued; (e) receipts are issued for every contribution and obtained for every expense; (f) records are kept of, (i) the receipts issued for every contribution, (ii) the value of every contribution, (iii) whether a contribution is in the form of money, goods or services, and (iv) the contributor's name and address; (g) records are kept of every expense including the receipts obtained for each expense; (h) records are kept of any claim for payment of an expense that the candidate disputes or refuses to pay; (i) records are kept of the gross income from afund-raising function and the gross amount of money received at afund-raising fixnction by donations of $10 or less; (j) records are kept of any loan and its terms under section 75; (j.l) the records described in clauses (f), (g), (h), (i) and (j) are retained by the candidate for the term of office of the members of the council or local board and until their successors are elected and the newly elected council or local board is organized; (k) financial filings are made in accordance with section 78; (1) proper direction is given to the persons who are authorized to incur expenses and accept or solicit contributions on behalf of the candidate; (m) a contribution of money made or received in contravention of this Act is returned to the contributor as soon as possible after the candidate becomes aware of the contravention; (n) a contribution not returned to the contributor under clause (m) is paid to the clerk with whom the candidate's nomination was filed; and (o) an anonymous contribution is paid to the clerk with whom the candidate's nomination was filed. 1996, c. 32, Sched., s. 69 (1); 2002, a 17, Sched. D, s. 26. Attachment 3 REPORT NO.:CLD-002-10 Contributions paid to clerk Contributions paid to the clerk under clause (1) (n) or (o) become the property of the local municipality. 1996, c. 32, Sched., s. 69 (2). Contributions only after nomination 70. 1 A contribution shall not be made to or accepted by or on behalf of a person unless he or she is a candidate. 1996, c. 32, Sched., s. 70 (1). Only during election campaign period A contribution shall not be made to or accepted by or on behalf of a candidate outside his or her election campaign period. 1996, c. 32, Sched., s. 70 (2). Who may contribute Only the following may make contributions: 1. An individual who is normally resident in Ontario. 2. A corporation that carries on business in Ontario. 3. A trade union that holds bargaining rights for employees in Ontario. • 4. Subject to subsection (5), the candidate and his or her spouse. 1996, c. 32, Sched., s. 70 (3); 1999, c. 6, s. 43 (4); 2005, c. 5, s. 46 (4). Same (~ For greater certainty, and without limiting the generality of subsection (3), the following shall not make a contribution: 1. A federal political party registered under the Canada. Elections Act (Canada) or any federal constituency association or registered candidate at a federal election endorsed by that party. 2. A provincial political party, constituency.association, registered candidate or leadership contestant registered under the Election Finances Act. 3. The Crown in right of Canada or Ontario; a municipality or local board. 1996, c. 32, Sched., s. 70 (4); 2002, c. 17, Sched. D, s. 27. Non-resident candidate, spouse If not normally resident in Ontario, a candidate and his or her spouse may make contributions only to the candidate's election campaign. 1996, c. 32, Sched., s. 70 (5); 1999, c. 6, s. 43 (5); 2005, o. 5, s. 46 (5). Who may accept contribution A contribution may be accepted only by a candidate or an individual acting under the candidate's direction. 1996, c. 32, Sched., s. 70 (6). Contributors A contribution may be accepted only from a person or entity that is entitled to make a contribution. 1996, c. 32, Sched., s. 70 (7). Attachment 3 REPORT NO.:CLD-002-10 Cash A contribution of money in cash that exceeds $25 shall not be made to or accepted by or on behalf of a candidate. 1996, c. 32, Sched., s. 70 (8). Election campaign finance offences 92. 1 A corporation or trade union that contravenes any of sections 70 to 76 is guilty of an offence and, on conviction, is liable to a fine of not more than $25,000. 1996, c. 32, Sched., s. 92 (1). Same, individuals An individual who contravenes section 69 or 70 or any of sections 73 to 79 is guilty of an offence and on conviction is liable to a fine of not more than $5,000. 1996, c. 32, Sched., s. 92 (2). Additional penalty If the expenses incurred by or on behalf of a candidate exceed the amount determined for the office under section 76, the candidate is liable to a fine equal to the excess, in addition to the fine set out in subsection (2). 1996, c. 32, Sched., s. 92 (3). Limitation No prosecution for a contravention of any of sections 69 to 79 shall be commenced more than one year after the facts on which it is based first came to the informant's knowledge. 1996, c. 32, Sched., s. 92 (4). Offences by candidate A candidate is guilty of an offence and, on conviction, in addition to any other penalty that maybe imposed under this Act, is subject to the penalties described in subsection 80 (2), if he or she, (a) files a document under section 78or 79.1 that is incorrect or otherwise does not comply with that section; or (b) incurs expenses that exceed what is permitted under section 76. 1996, c. 32, Sched., s. 92 (5); 2002, c. 17, Sched. D, s. 35 (1). Exception However, if the presiding judge finds that the candidate, acting in good faith, committed the offence inadvertently or because of an error in judgment, the penalties described in subsection 80 (2) do not apply. 1996, c. 32, Sched., s. 92 (6); 2002, c. 17, Sched. D, s. 35 (2). General offence 94. A person who contravenes any provision of this Act is guilty of an offence. General penalty, individual .94.1 (1) An individual who is convicted of an offence under this Act is liable to the following penalties in addition to any other penalty provided for in this Act: 1. For any offence, a fine of not more than $25,000: _ For any offence other than a corrupt practice, the penalties described in subsection 80 (2). Attachment 3 REPORT NO.:CLD-002-10 3. For an offence under section 90, imprisonment for a term of not more than six months. 4. For any offence that the presiding judge finds that the individual committed knowingly, imprisonment for a term of not more than six months. Same, corporation or trade union (2) A corporation or trade union that is convicted of an offence under this Act is liable to a fine of not more than $50,000 in addition to any other penalty provided for in this Act. Limitation period 94.2 (1) No prosecution for an offence under this Act in relation to a regular election shall be commenced after December 1 of the fourth year following the year in which the regular election was held. Same (2) No prosecution for an offence under this Act in relation to a by-election shall be commenced after December 1 of the year of the next regular election after the by-election.