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HomeMy WebLinkAboutCLD-012-10CIc'1C111~COll REPORT CLERK'S DEPARTMENT Meeting: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE Date: May 3, 2010 Resolution#: CL~-a~3-/0 By-law#: Report#: CLD-012-10 File#: Subject: 2010 Municipal Elections -Compliance Audit Committee RECOMMENDATIONS: It is respectfully recommended that the General Purpose and Administration Committee recommend to Council the following: 1. THAT Report CLD-012-10 be received; 2. THAT the Terms of Reference for the Clarington Municipal Election Compliance Audit Committee, included as Attachment #1 to Report CLD-012-10, be adopted; 3. THAT the Clarington Municipal Election Compliance Audit Committee Rules of Procedure, included as Attachment #2 to Report CLD-012-10, be received for information; 4. THAT the Municipal Clerk be directed to place an ad in the local newspapers and on the Municipal Website, and contact the Institution of Chartered Accountants of Ontario, the Law Society of Upper Canada, Durham Regional Police Services, and UOIT inviting applications for appointment to the Clarington Municipal Election Compliance Audit Committee; and 5. THAT the draft by-law attached to Report CLD-012-10 as Attachment #3 be approved by Council. "`i f Submitted by: Reviewed by: P' tf ar' , CMO ranklin Wu, nicipal Clerk ~ Chief Administrative Officer PLB/cag CORPORATION OF THE MUNICIPALITY OF CLARINGTON 40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L1 C 3A6 T 905-623-3379 REPORT NO.: CLD-012-10 PAGE 2 1.0 BACKGROUND The Municipal Elections Act, 1996, as amended, (the MEA) requires that every municipality appoint a compliance audit committee prior to October 15~, 2010. The mandate of the compliance audit committee is to: a) Consider requests for a compliance audit and determine whether the request should be granted or rejected; b) If the request is granted, appoint an auditor; c) Review the auditor's report and determine whether legal action should be taken; d) May commence a legal proceeding against the candidate for any apparent contravention; and e) If the auditor's report indicates that there were no apparent contraventions and if there appears that there were no reasonable grounds for the application, advise Council. Council would then decide whether or not to recover the auditor's costs from the applicant. 2.0 COMMITTEE STRUCTURE For the 2006 municipal elections, only one municipality in the Region of Durham appointed a compliance audit committee, being the Town of Ajax, and throughout the Province only a few municipalities chose to appoint a committee. While most municipalities chose to appoint committee members with an accounting or auditing background, due to the complexity of the election campaign finance Hales, in structuring its Committee, the Town of Ajax considered the scope of the Committee and the desired skill set necessary to properly execute their duties. In so doing, the Town appointed a former police detective, a former bank manager and a professor of Political Science to their committee. To ensure impartiality, some municipalities require their compliance audit committee applicants to agree in writing that they will not be filing a nomination paper for an office in the municipality for which their appointment will be serving and that they will not be conducting an audit for any nominated candidate for an office in the municipality for which they will be serving. With the amendment to the MEA, 444 municipalities as well as all of the various school boards, and several upper-tier municipalities will now be seeking applicants to appoint to their compliance audit committees. This may result in competition for qualified candidates. The competition will be even greater when one factors in the conflicting interests between appointments to these Committees and the need for accountants and auditors to work on the financial statements for all candidates running for offices across the province. In consideration of the compliance audit committee requirement, staff have discussed committee structure options with Clerks and election staff within Durham Region to explore our options. The Act provides that the compliance audit committee must consist of a minimum of three members to a maximum of seven members. Initially the majority of the Clerks within the Region supported the concept of a "joint" committee, as it would REPORT NO.: CLD-012-10 PAGE 3 provide for consistency. After much consideration, it was concluded, however, that the benefits of the "joint" approach for the southern municipalities in the Region, did not outweigh. the benefits of independent municipal committees. A joint committee would most likely result in logistic challenges in appointments, increased costs, and intensify the challenge of finding impartial applicants. The three northern municipalities, Brock, Uxbridge, and Scugog, however have adopted a "joint" committee approach. It is recommended that the Clarington Municipal Election Audit Compliance Committee, consisting of three members, be established. The recruitment process, selection criteria, Terms of Reference, and compliance audit procedure are outlined below. 3.0 RECRUITMENT OF COMPLIANCE AUDIT COMMITTEE MEMBERS Staff consulted other municipalities who previously appointed compliance audit committees and have concluded that the recruitment process for committee members varies. In all cases, minimum qualifications were defined. Most municipalities posted an advertisement soliciting applications, staff provided Council with all of the applications meeting the minimum qualifications, and Council made the appointments. In other cases, staff sought out suitable candidates and reported to Council with recommendations for appointments. To ensure a fair, open and transparent process, staff recommends that the recruitment process for Clarington's Municipal Election Compliance Audit Committee include an advertisement in the local paper, and on the municipal website detailing the selection criteria. Additionally, staff will contact the Institution of Chartered Accountants of Ontario; the Law Society of Upper Canada; Durham Regional Police Services; and UOIT. It is also recommended, at the close of the application period, that all applications be forwarded to Council for consideration, selection, and appointment. The following selection criteria are recommended: a) Demonstrated knowledge and understanding of municipal election campaign financing rules; b) Proven analytical and decision-making skills; c) Experience working on committees, task forces or similar settings; d) Demonstrated knowledge of quasi-judicial proceedings; e) Availability and willingness to attend meetings; and f) Excellent oral and written communication skills 4.0 REMUNERATION Staff are recommending a retainer fee of $200 for each of the three committee members and a per diem rate of $250 plus mileage for attending meetings. While many municipalities have yet to finalize their committee structure and processes at the time of writing this Report, staff are satisfied that these rates are in line with other municipalities such as the Towns of Ajax, Whitchurch-Stouffville, and City of Toronto, Oakville and London; whose rates vary from $100 to $350. REPORT NO.: CLD-012-10 PAGE 4 Other committees of Council in Clarington who receive pay are the Committee of Adjustment and the Property Standards Committee. Although the remuneration for these committees is significantly lower, staff believe that, given the recommended qualifications to sit as a compliance audit committee member and the rates paid by other municipalities, the recommended remuneration is fair and reasonable. 5.0 TERMS OF REFERENCE The mandate for the compliance audit committee is outlined in section 81 of the MEA. The term of the Committee is the same as the term of office of Council (2010 - 2014). While the last day for compliance audit requests for the December 31, 2010 reporting period is June 23, 2011, a by-election could result in the need for the Clarington Municipal Election Compliance Audit Committee to sit during the term of Council. The Municipal Clerk will act as the main contact between the Clarington Municipal Election Compliance Audit Committee and Council. Staff administrative support to the Committee would be supplied by the Municipal Clerk's Department. A detailed Terms of Reference for Clarington's Municipal Election Compliance Audit Committee is included as Attachment 1 to this Report. 6.0 COMPLIANCE AUDIT PROCESS The MEA requires all candidates to file with the Municipal Clerk a financial statement (on the prescribed form) reflecting the candidate's election campaign finances. Any eligible elector who is entitled to vote in an election may apply for a compliance audit of a candidate's election campaign finances where they believe that a candidate has contravened a provision of the MEA. The application for a compliance audit shall be made to the Municipal Clerk (or the secretary of the local board), it shall be in writing and it shall set out the reasons for the elector's belief that the candidate has contravened the MEA and must be made within 90 days after the latest of: (a) the statutory filing date for the candidate's financial statement; (b) the candidate's supplementary filing date, if any; (c) the filing date for the final financial statement under section 79.1; or (d) the end of the candidate's extension for filing granted under subsection 80(4); if any. The Municipal Clerk shall forward the application to the committee within 10 days of receipt and provide a copy to the council or local board. The Committee must consider the application and make a decision within 30 days after receiving the application from the Municipal Clerk as to whether it should be granted or rejected. REPORT NO.: CLD-012-10 PAGE 5 The decision of the Committee 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 Committee could have made. Where the application for a compliance audit has been approved, the Committee shall, by resolution, appoint an auditor to conduct a compliance auditor. Only auditors licensed under the Public Accounting Act, 2004, or other "prescribed persons" may be appointed as auditors. The auditor shall promptly conduct the audit, determine whether the candidate has complied with the provisions of the Act as they relate to election campaign finances, prepare a report outlining any apparent contraventions of the Act, and submit the report to the candidate, Council, Municipal Clerk, and the applicant. Within 10 days of receiving the auditor's report, the Municipal Clerk shall forward the report to the Compliance Audit Committee. The Committee shall consider the auditor's report within 30 days and may: • Commence a legal proceeding against the candidate if the report concludes that the candidate appears to have contravened a provision of the MEA relating to the election campaign finances, and • Make a finding as to whether there were reasonable grounds for the application if the report concludes that the candidate did not appear to have contravened a provision of the MEA relating to election campaign The Act requires the Municipal Clerk to establish administrative practices and procedures for the Committee to carry out their duties. Attachment #2 to this report is a copy of Rules of Procedure for the Compliance Audit Committee as established by the Municipal Clerk based on the recommended Committee Terms of Reference. Should Council amend the draft Terms of Reference attached to this report, the Municipal Clerk will make any necessary/appropriate modifications to the administrative procedures. 7.0 FINANCIAL IMPLICATIONS: The Municipality is responsible for any costs resulting from the review of applications submitted to the Municipal Election Compliance Audit Committee. These costs include: • Committee members' retainer (recommended $200/member) • Committee members' per diem (recommended $250/member) • Committee member mileage (recommended rate as per Municipality's standard rate) • auditor's costs to perform an audit • costs related to the Committee's operations and activities (i.e. copying, postage, etc.) • legal costs related to an appeal to the Ontario Court of Justice with respect to a decision of the Committee REPORT NO.: CLD-012-10 PAGE 6 legal costs to undertake legal action against the candidate for violations of the elections finance provisions of the MEA Note, while the Municipality is responsible for paying the auditor's costs of performing the audit and all costs in relation to the Committee's operation and activities, where the auditor's report indicates that there was no apparent contravention and the committee finds that there were no reasonable grounds for the application, Council is entitled to recover the auditor's costs from the applicant. Initial recruitment and set-up costs are anticipated to be approximately $1000 which would cover the advertising costs and incidentals. These costs would be charged to the 2010 Municipal Election budget. Any costs incurred for a compliance audit during the Term of Council (2010-2014) would be charged to the Municipal Election reserve. These costs are difficult to estimate although, because they depend entirely on the unforeseen volume of applications. 8.0 ATTACHMENTS: Attachment 1 -Committee Terms of Reference Attachment 2 -Rules of Procedure Attachment 3 -Draft By-law Attachment No. 1 to Report CLD-012-10 MUNICIPALITY OF CLARINGTON Compliance Audit Committee Terms of Reference LEGISLATIVE REQUIREMENT Section 81.1 of the Municipal Elections Act, 1996, as amended states: Compliance Audit Committee (1) a council or local board shall, before October 1 of an election year, establish a committee for the purposes of section 81. Composition (2) The committee shall be composed of not fewer than three and not more than seven members and shall not include, a) employees or officers of the municipality or local board; b) members of the council or local board; or c) any persons who are candidates in the election for which the committee is established. Term of Office (3) The term of office of the committee is the same as the term of office of the council or local board that takes office following the next regular election, and the term of office of the members of the committee is the same as the term of the committee to which they have been appointed. Role of clerk or secretary (4) The clerk of the municipality or the secretary of the local board, as the case may be, shall establish administrative practices and procedures for the committee and shall carry out any other duties required under the MEA to implement the committee's decisions. Costs (5) The council or local board, as the case may be, shall pay all costs in relation to the committee's operation and activities. 2.0 MANDATE The powers and functions of the Committee are set out in Section 81 of the Municipal Elections Act, 1996, as follows: 1. Review any applications of a compliance audit of any candidate who ran for election to the Municipality of Clarington Council, if the application was received in accordance with the legislative requirements. Attachment No. 1 to Report CLD-012-10 2. Within 30 days of receipt of an application requesting a compliance audit, the Committee shall consider the compliance audit application and decide whether it should be granted or rejected. 3. If the application is granted, the Committee shall appoint an auditor licensed under the Pubtic Accounting Act, 2004, or other prescribed person, to conduct a compliance audit of the candidate's election campaign finances. 4. The Committee will review the auditor's report within 30 days and may, a. If the report concludes that the candidate appears to have contravened a provision of the Act relating to election campaign finances, commence a legal proceeding against the candidate for the apparent contravention; b. If the report concludes that the candidate does not appear to have contravened a provision of the Act relating to election campaign finances, make a finding as to whether there were reasonable grounds for the application. 3.0 TERM The Committee shall be established before October 1 of an election year. The Term of Office for the Committee is the same as the Term of Office of Council (December 1 of a regular election year to November 30, of the next regular election year). 4.0 COMPOSITION The Committee shall consist of three (3) members appointed by Council. The following persons are not eligible for appointment to the Committee: • Employees or officers of the Municipality of Clarington • Members of Council Any candidates in the election for which the Committee is established Should an appointed Member accept employment with the Municipality or register as a candidate with the Municipality, their appointment will be terminated. All Committee Members must agree in writing that they will not work/volunteer for any candidate, provide advice to, prepare or audit the election financial statements of any candidate for office on the Municipality of Clarington's Council or become a candidate in the 2010 Municipal Elections and any by-elections during Council's term. 2 Attachment No. 1 to Report CLD-012-10 5.0 CHAIR At the first meeting of the Committee, the Municipal Clerk shall call the meeting to order and the first order of business shall be the selection of the Chair. The Committee shall select a Chair from among its membership. 6.0 PROPOSED MEETING SCHEDULE The Committee shall meet as needed with meetings to be scheduled by the Municipal Clerk, in consultation with the Chair, when a compliance audit application is received. 7.0 STAFFING AND FUNDING Staff from the Municipal Clerk's Department shall provide administrative support to the Committee. The Municipality of Clarington shall be responsible for all associated expenses. 8.0 MEETINGS Meetings of the Committee shall be conducted in accordance with the open meeting requirements of the provisions in the Municipal Act, 2001, as amended. The Clarington website will be used to communicate the meeting notices, agendas, and minutes. Committee meetings shall generally be held in the Clarington Municipal Administrative Centre, although meetings may occasionally be held elsewhere in the Municipality of Clarington if deemed necessary or appropriate by the Chair, and at the agreement of the Committee members. Meetings shall generally be held during the regular business hours of the Municipality of Clarington. 9.0 REMUNERATION $200 -Retainer fee (includes compensation for review of any background materials) $250 -Per diem rate, plus mileage 10.0 MEMBERSHIP SELECTION The recruitment process shall include an advertisement in the local paper, and on the municipal website detailing the selection criteria. Additionally, staff will contact the Institution of Chartered Accountants of Ontario, the Law Society of Upper Canada, Durham Regional Police Services, and UOIT. All applicants will be required to complete an application form outlining their qualifications and experience. 3 Attachment No. 1 to Report CLD-012-10 All applications will be forwarded to Council for consideration and appointment. 10.1 Selection Criteria The following criteria will be considered when appointing members: • Demonstrated knowledge and understanding of municipal election campaign financing rules; • Proven analytical and decision-making skills; • Experience working on committees, task forces or similar settings; • Demonstrated knowledge of quasi-judicial proceedings; • Availability and willingness to attend meetings; and • Excellent oral and written communication skills. 11.0 CONFLICT OF INTEREST Members of the Committee must abide by the Municipal Conflict of Interest Act. Members shall not use their status on the Committee for personal or political gain. Committee members shall have regard for the Corporate Policy addressing the use of corporate resources during an election year. 12.0 COMPLETION CRITERIA The mandate of the Clarington Municipal Election Compliance Audit Committee will be considered complete at the end of each four-year term of Council, at which time, a successor committee shall be appointed. 4 Attachment No. 2 to Report CLD-012-10 CLARINGTON Municipal Election Compliance Audit Committee Rules of Procedure ~Id~Lr1:T~1~L`U At its meeting of ~, The Municipality of Clarington passed By-law 2010 ?i thereby establishing the Municipality of Clarington Compliance Audit Committee for the 2010- 2014 Term, consisting of three members in accordance with Sec. 81.1 of the Municipat Elections Act, 1996, as amended. In accordance with Sec. 81.1(4), the Rules of Procedure have been established by the Municipal Clerk of the Municipality of Clarington to ensure that the Clarington Municipal Election Compliance Audit Committee may be able to fulfill its duties and responsibilities in a fair, open and responsible manner. 1. Definitions: As used in this procedure, the following terms shall have the meanings indicated: a. Application - An application accepted by the Municipal Clerk pursuant to s. 81(2) of the Municipat Elections Act, 1996. b. Candidate -The Candidate whose election campaign finances are the subject of an application for a compliance audit. c. Chair -The Compliance Audit Committee Chair selected under s. 5 of this bylaw. d. Committee -Clarington Municipal Election Compliance Audit Committee. e. Council -The Council of the Municipality of Clarington. f. MEA -The Municipat Elections Act, 1996, as amended. g. Secretary -The Municipal Clerk for the Municipality of Clarington. 2. Rules: The rules in this procedure shall be observed in all meetings of the Committee. Attachment No. 2 to Report CLD-012-10 3. Matters not dealt with in the rules of procedures: If these rules do not provide for a matter of procedure that arises during a meeting, the practice shall be determined by the Chair and the Chair may do whatever is necessary and permitted by law to enable the Committee to effectively and completely adjudicate on the matter before it. 4. Meetings: The Committee shall meet at the request of the Secretary. The Secretary shall summon a meeting of the Committee when requested to do so in writing by a majority of the Committee members. Meetings of the Committee shall be held at Municipal Offices or such other location, as the Secretary deems appropriate. Committee meetings shall commence at a time and date to be set by the Secretary, and shall be adjourned on a vote of the Committee. Attendance of all Committee members constitutes a quorum at meetings of the Committee. Meetings of the Committee shall, subject to the exceptions found in the Municipal Act, 2001, as amended, be open to the public. The applicant, the Candidate and, where applicable, the auditor shall be given an opportunity to address the Committee. Addresses to the Committee shall be no more than five minutes in length. 5. Committee Chair: At the first meeting of the Committee, the Municipal Clerk shall call the meeting to order and the first order of business shall be the selection of the Chair. The Committee shall select a Chair from among its membership. If the Chair of the Committee resigns as a member of the Committee or resigns as the Chair of the Committee, the Committee shall appoint another member as Chair for the balance of the term of Council. The Chair is the liaison between the members and the Secretary of the Committee on matters of policy and process. The Chair shall enforce the observance of order and decorum among the Committee members and the public at all meetings. Attachment No. 2 to Report CLD-012-10 6. Delegation by Committee Secretary: The Secretary of the Committee may delegate administrative responsibilities to a Deputy Secretary. 7. Agenda: Before each meeting the Secretary shall provide an agenda to each member of the Committee. The agenda shall include a copy of any written submissions made by the applicant or the Candidate. The first matter of business on each agenda shall be the declaration of any conflict of interest. A copy of the agenda shall also be published on the Municipality of Clarington website. 8. Lack of Quorum: If no quorum is present thirty minutes after the time fixed for a meeting of the Committee, or the resumption of a meeting after an adjournment, or should a quorum at a meeting be lost for a period of thirty consecutive minutes, the Secretary shall record the names of the members present and the meeting shall stand adjourned until the next regular meeting day scheduled by the Secretary. 9. Committee Procedures: a) Order of Business The Order of Business for the Agenda shall be as follows: Meeting Called to Order Disclosure of Pecuniary Interest Adoption of Minutes Matters of Business Opening Statement Delegation -Applicant Delegation -Candidate, Agent, Witness Committee Deliberation Adjournment Where the agenda includes consideration of more than one Application, each application will be dealt with by the Committee in its entirety before consideration of the next Application. 3 Attachment No. 2 to Report CLD-012-10 b) Questions to Delegations The Committee may, through the Committee Chair, ask questions of the applicant, candidate or any other delegation speaking to an Application. c) Rules of Debate (1) Order of Soeaking -When two or more Committee members wish to speak, the Chair shall designate the member who first requested to speak as the member who speaks first. (2) Questions - A Committee member may ask a question only: (a) of a member who has already spoken on the matter under discussion; (b) of the Chair; (c) of an official of the Municipality of Clarington; and (d) of any other person addressing the Committee pursuant to this Bylaw, or (e) for the purpose of obtaining information relating to the matter then under discussion. (3) Voting: a. Every Committee member present at a meeting of the Committee when a question is put shall vote on the question, unless prohibited by statute, in which case the fact of the prohibition shall be recorded in the minutes of the meeting. b. The matter put to a vote shall be in the form of a motion addressing the matter then under consideration. c. In the case of a tie vote, the motion or question shall be deemed to have been lost. 4 Attachment No. 2 to Report CLD-012-10 (4) Motions: a. All motions must be introduced by a mover and seconder before the Chair may put the question or motion on the floor for consideration. If no member seconds the motion, the motion shall not be on the floor for consideration and therefore it shall not be recorded in the minutes. b. Any Committee member may propose a motion on the matter then under consideration which the Clerk shall record in writing. c. After a motion is properly moved and seconded, it shall be deemed to be in the possession of the Committee, but may be withdrawn by the mover at any time before decision. A motion to amend shall relate to the subject matter of the main motion, shall not be received posing a direct negative to the question, and shall be put to vote in reverse order in which the amendments are made. Only a motion to amend an amendment to the original motion shall be allowed and any further amendments must be made to the original motion. 10. Notice: Public notice shall constitute posting the Agenda on the Municipal Website The Secretary shall give notice of a Committee meeting to the Committee by way of email, telephone or in writing by mail, as deemed appropriate. Where an Application will be considered at a meeting, the Secretary shall give reasonable notice in writing, by mail, and by telephone to thb applicant and candidate of the time, place and purpose of a meeting and of the fact that if either party fails to attend. the meeting the Committee may proceed in the party's absence and the party will not be entitled to further notice in relation to the meeting. The written notice shall include the content of the Application. The Candidate may respond to the Application in writing. A written response shall be submitted to the Secretary a minimum of two days prior to the Committee meeting at which the Application will be considered. The Secretary will forward notice of the Committee's decision to the applicant and the Candidate at the mailing address provided to the Secretary as required by this procedure. 11. Committee decisions under MEA: In accordance with s. 81(3) of the MEA, within 30 days of receipt of the Application, the Committee will decide whether to grant or reject the Application. Attachment No. 2 to Report CLD-012-10 If the Committee decides to grant the Application it shall, by resolution, appoint an auditor licensed under the Public Accounting Act, 2004 to conduct a compliance audit of the Candidate's election campaign finances. At the request of the Committee, the Secretary may assist the Committee in locating and contacting available auditors to undertake the audit. In accordance with s: 81(10) of the MEA, within 30 days of receipt of an auditor's report, the Committee will consider the report and may commence a legal proceeding against the candidate for any apparent contravention of a provision of the MEA relating to election campaign finances. 12. Grant Exceptions from Procedures: The Committee may waive any rule of procedure in this procedure, as it considers appropriate, to ensure that the real questions in issue are determined in a just manner. 14. Minutes: The Secretary shall prepare minutes of each meeting of the Committee and shall provide members with a copy of the minutes, as soon as the minutes are available. The Committee members shall each review and sign the minutes, to confirm that the minutes reflect the Committee's actions. 6 Attachment No. 3 to Report CLD-012-10 THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW NO. 2010-xxx Being a By-law to establish a Clarington Municipal Election Compliance Audit Committee for the 2010-2014 Term WHEREAS section 81.1 of the Municipal Elections Act, 1996, as amended, (the Act) requires the Council to establish a Compliance Audit Committee, before October 1, 2010, for the purposes of section 81 of the Act; and WHEREAS the Municipality of Clarington is committed to ensuring a consistent, open and transparent process for receiving and processing compliance audit applications, NOW THEREFORE THE COUNCIL OF THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON HEREBY ENACTS AS FOLLOWS: 1. A Compliance Audit Committee consisting of three (3) members be established as per the Terms of Reference attached to and forming part of this by-law as Attachment 1. 2. The Compliance Audit Committee shall carry out its mandate and duties in accordance with the Rules of Procedure as established by the Municipal Clerk. BY-LAW read a first, second and third time and finally passed this day of May, 2010. Jim Abernethy, Mayor Patti L. Barrie, Municipal Clerk