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HomeMy WebLinkAboutCAO-005-13 Addendum Clarington REPORT CHIEF ADMINISTRATIVE OFFICE Meeting: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE Date: June 10, 2013 Resolution #: By-law#: Report#: ADDENDUM TO REPORT File #: CAO-005-13 Subject: INTEGRITY COMMISSIONER RECOMMENDATIONS: It is respectfully recommended that the General Purpose and Administration Committee recommend to Council the following: 1. THAT Addendum to Report CAO-005-13 be received. 16—t Submitted by: 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 ADDENDUM TO REPORT CAO-005-13 PAGE 2 1. BACKGROUND At its meeting held on May 13, 2013, Council approved the following GPA recommendation: "That Report CAO 005-13 regarding an Integrity Commissioner be referred back to staff for more information, as per instructions previously given regarding the feasibility of retaining the services of an Integrity Commissioner including the services of another municipality's Integrity Commissioner, and That the report include the following information: opportunity details pertaining to the Integrity Commissioner, associated cost and fee structure, details of other situations where municipalities are sharing an Integrity Commissioner, and the number of complaints that have been investigated using a municipality's Integrity Commissioner". 2. COMMENTS Staff reviewed the above resolution and would offer our comments in two parts. Part A will specifically address the detailed directions provided in the foregoing resolution. Part B will offer additional comments that are not included in the resolution but are information very much relevant to the subject. 3. PART A 3.1 "the feasibility of retaining the services of an Integrity Commissioner including the services of another municipality's Integrity Commissioner" There is no stipulation nor any details provided in the Municipal Act with respect to the procurement of the services of an Integrity Commissioner (IC). As a result, it is entirely up to Council to select the appropriate method of procurement of such service. Hence, it is feasible to retain the services of an Integrity Commissioner used by another municipality. 3.2 "opportunity details pertaining to the Integrity Commissioner" We assume "opportunity" means the opportunity to use or share ICs used by other nearby municipalities. In most part, the comments in the paragraph above have shed some light on this. It should be noted that in all Durham municipalities, City of Pickering is the only municipality that has an Integrity Commissioner. Outside Durham Region and in the immediate vicinity - Toronto, Port Hope and Markham have Integrity Commissioners. ADDENDUM TO REPORT CAO-005-13 PAGE 3 3.3 " associated cost and fee structure" The Municipal Act does not specify the qualification of an Integrity Commissioner. Theoretically an IC can be anyone Council deems qualified to do the job. However, the practices in other municipalities generally specify an individual with a background in law, and preferably with municipal governance experience. Based on these criteria, the hourly rate of such individual could be $250 to $500 depending on the qualification of the particular individual vying for the position. That said, the number of hours required conducting an investigation, including interviews and report writing, would be extremely difficult to estimate as the nature and complexity of each complaint varies. Municipalities that were contacted are very reluctant to disclose the fee they paid to an IC for complaint investigation citing solicitor/client privilege. The closest comparison staff can draw on is the cost of a harassment complaint investigation in early 2011 which cost approximately $8,000. Should Council decide to proceed with acquiring the services of an Integrity Commissioner, we recommend funds be set aside in the 2014 budget. At a minimum, $25,000 hopefully is sufficient to cover three (3) complaints annually. There are other associated costs not directly related to the Integrity Commissioner. Firstly, there is the one time staff cost involved in reviewing, researching and establishing all the ground works such as RFP etc as related to setting the wheel in motion. There is no monetary value associated with this other than setting aside other priorities to accommodate the additional workload. Secondly, there will be staff cost in the ongoing administration. This responsibility generally lies with the Municipal Clerk in other municipalities and he/she is responsible in receiving and conducting the initial review of the complaint plus handling all the communication and contract administration of the service of the IC. The infrequent nature of IC administration is not likely to generate sufficient volume of work that warrants additional staff resources. Nonetheless, it is an additional responsibility of the Clerk and additional workload to the Department. 3.4 "details of other situation where municipalities are sharing an Integrity Commissioner" We are not aware of any municipality sharing an Integrity Commissioner on the basis of being an employee shared by more than one municipality. However, there may very well be municipalities using the same IC under individual service contract arrangement. We are not aware of any legislated restriction that would prevent an IC to bid on the similar services of another municipality. ADDENDUM TO REPORT CAO-005-13 PAGE 4 3.5 "number of complaints that have been investigated" Hence, the number of complaints received by any municipality in any given year would not be helpful to assist Council to estimate the number of complaints that will be anticipated in Clarington. Complaints are triggered by alleged breaches of Code of Conduct. In a perfect situation where every Council Member gets along and behaves properly, there may not be a single complaint. On the contrary, in a worst case scenario would witness Council Members frequently put themselves in a position that invites complaints. 4. PART B The following information is provided in addition to the information sought by Council in its resolution. This information is relevant to the subject matter. 4.1 Frivolous Complaint The Municipal Act is silent on who can lodge a complaint nor does it provide any definition of complaint. Hence, each municipality would be left on its own device to manage frivolous complaints. One municipality has imposed a complaint fee of$100 as a token deterrent, while others did not address this issue at all. We suspect there is simply no effective and legitimate way to satisfactorily address this potential problem. Nonetheless, we would suggest the Municipality develop proper policy framework to provide for screening of frivolous appeals. Ideally, the Integrity Commissioner should be charged with this responsibility to make that determination providing the cost of management of frivolous complaints can be managed properly. 4.2 Service Procurement Due to the infrequent nature in the use of an Integrity Commissioner, plus the fact that the IC must be a person impartial and independent, the only option available would be to obtain services through contracting to a third party. This method of procurement is not dissimilar to the use of a consultant to undertake specialized and occasional works. In fact, this is the common practice in municipalities that have IC. Once the decision to outsource is made, the municipality can then decide on the method of procurement. There are two available options. The first option is to select an individual that Council is comfortable with and enter into negotiation for a service contract. This method would require Council to waive the Purchasing Bylaw requirement to allow sole source contracting. The second option is to issue an RFP which is an open and competitive process. ADDENDUM TO REPORT CAO-005-13 PAGE 5 4.3 Scope of Works of an Integrity Commissioner The purpose of an Integrity Commissioner is to investigate any alleged violation of the Municipal Code of Conduct that governs the individual conduct of the elected officials. Other municipalities such as the City of Markham have expanded the scope of an IC to include investigation of complaints related to closed door meetings. In closed meeting compliance, Clarington Council has previously appointed the Local Authority Services Ltd. (LAS), a division of AMO, as the investigator to conduct these reviews. Hence, the scope of works of an IC in Clarington will be strictly limited to the investigation related to the Municipal Code of Conduct. Therefore, any complaint against the Council as a whole will not be under the purview of an Integrity Commissioner. 4.4. Matters to be Considered in the RFP If RFP is the chosen method of service procurement Council should determine how the service is to be procured. The following Q & A should provide some insight to assist Council in its deliberation: a) Who should be the Integrity Commissioner? The qualification of an Integrity Commissioner is critically important to the success of the program. As a minimum, the individual should have a background in law but does not need to be a practicing lawyer. Experience and background in municipal government at the senior administrative or political level would be an asset. Additional requirements such as impartiality and independence would find their way in the qualification description. b) How many Integrity Commissioners are needed? There are no regulations as to how many Integrity Commissioners a municipality can appoint. Suffice to say, there should only be one IC assigned to each case. Municipality can choose to create a roster of several Integrity Commissioners and assigned the case to these individuals on a rotating basis, or it can select only one IC and create a specific service contract with that individual. The roster option has the advantage of reliable service while reliance on a single IC may risk delay due to other commitments of the individual. Perhaps a limited roster of 2 to 3 ICs would provide the best option. ADDENDUM TO REPORT CAO-005-13 PAGE 6 c) How do we pay an Integrity Commissioner? The method of payment will need to be specified in the RFP. The first option is "pay as you go". This a straight "fee for service" approach where you pay only for the service provided. For the purpose of cost control, the hourly rate and approximate number of hours required for each case would be confirmed prior to commencement of investigation. The second option is by way of a retainer relationship where the Integrity Commissioner would receive a retainer fee and essential is "on-call'. Hourly rate of work is generally confirmed in conjunction with the amount of retainer fee through a service contract. With minor modifications, either method of payment would work regardless of the number of Integrity Commissioners required. 4.5 The process Should Council opt for the installation of an Integrity Commissioner? It should first decide whether the service of an IC would be acquired through an RFP process. Assuming Council would opt for an RFP process, the matter should then be referred to staff to follow up and to report back at the conclusion of the RFP process. The works that would be entailed leading to the next report would include the following tasks: a) Prepare the RFP document, defining the duties and responsibilities, specifying the qualification and selection process etc. b) Issue the RFP, establish the evaluation criteria, and conduct candidates interviews. c) Negotiate and finalize draft service contract with the candidate who obtained the highest scores. d) Make recommendation to Council for the approval of a contract of service of an Integrity Commissioner, including the approval of item e) below. e) Prepare detailed policies and procedures in the managing of complaints regarding future alleged breach of Code of Conduct. The CAO will coordinate the various tasks which will be assigned to the Purchasing Manager, the Clerk, the Director of Finance, and the Municipal Solicitor. Based on the experience in other municipalities, we estimate it will take approximately 6 to 9 months to complete the tasks identified above. ADDENDUM TO REPORT CAO-005-13 PAGE 7 5. CONCLUSION We believe we have provided as much information as necessary for Council to make an informed decision whether or not to proceed with the installation of an Integrity Commissioner. Council can either. 5.1 Do nothing and that would require Council to receive this report for information; OR 5.2 Proceed with the installation of an Integrity Commissioner. The following suggested resolution may be of assistance. THAT the Municipality of Ciarington deems it necessary to proceed with the installation of an Integrity Commissioner to investigate future complaints of alleged violation of the Code of Conduct for Council Members, and THAT staff be directed to: a) Proceed with an RFP process to either i) select one individual, or ii) create a short roster of Integrity Commissioners; or b) Go with the "fee-for service" method of payment; and c) That staff report back upon the completion of the tasks identified in Paragraph 4.5 of this report. Cladogton REPORT CHIEF ADMINISTRATIVE OFFICE Meeting: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE Date: May 6, 2013 Resolution #: By-law#: Report#: CAO-005-13 File #: Subject, INTEGRITY COMMISSIONER RECOMMENDATIONS: It is respectfully recommended that the General Purpose and Administration Committee recommend to Council the following: 1. THAT Report CAO-005-13 be received for information. Submitted by: Franklin Wu, M.A.O.M, Chief Administrative Officer CORPORATION OF THE MUNICIPALITY OF CLARINGTON 40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO Li C 3A6 T 905-623-3379 REPORT NO.: CAO- 005-13 IMAGE 2 1. BACKGROUND At its meeting held on March 25, Council passed the following resolution: "THAT staff be directed to report on the feasibility of purchasing the services of an Integrity Commissioner on an ad hoc or as needed basis from a municipality that has appointed an Integrity Commissioner, with particular attention being directed towards using Port Hope's Integrity Commissioner, given their proximity to Clarington". 2. RECENT HISTORY OF THE MATTER OF INTEGRITY COMMISSIONER The subject of Integrity Commissioner has received considerable debates and discussions in recent years by both the previous council and the present Council. Staff have been directed, on more than one occasion, to research and provide reports and recommendations for Council in the deliberation of the issue. The following information should provide all the background information needed in the further deliberation of the subject matter. a) December 3, 2007 Council considered Report GILD 042-07 and resolved among other matters, "not proceed with the appointment of an Integrity Commissioner, Ombudsman; or Auditor General, at this time". (copy of Report CLD 042-07 is attached as Attachment#1 to this Report) b) October 26 2009 Council considered Report CAO 007-09 and passed a resolution "That the CAO revise the existing Code of Conduct to develop a stand alone Code of Conduct for members of Council", (copy of Report CAO 007-09 is attached as Attachment#2 to this Report) c) November 23, 2009 Council considered Report CAO-010-09 and approved Bylaw 2009-163 being a bylaw to establish a Code of Conduct for Members of Council, (copy of the Bylaw is attached as Attachment#3 to this Report) d) February 27, 2012 At the GPA meeting, the following motion was introduced but the motion was lost: REPORT NO.: CAO- 005-13 PAGE 3 "That staff be directed to report to Committee by April 2, 2012, on the feasibility of purchasing the services of an integrity Commissioner on an ad hoc or as needed basis from a Municipality which has exercised its jurisdiction under Section 223.3(1) of the Municipal Act, with particular attention directed towards the viability of utilizing Port Hope's Commissioner, given the proximity of the neighboring Municipality to Clarington." 3. COMMENTS Acting on the instruction of Council resolution of March 25, 2013, staff examined the matter of feasibility and would like to offer the following comments. The word "feasibility" could mean different things to different people. To avoid any misunderstanding of how staff interprets this word, we rely on the definition of the word "feasible" as found in Webster dictionary. Feasible means a) capable of being done or carried out; b) capable of being used or dealt with successfully; c) reasonable, likely. The key words in this definition appear to be: "capable", "successfully", and "reasonable". These words are obviously abstract without some context. In the comments that follow, we will apply these words within the context of a municipal government and within the scope of the specific instruction which is to a) examine the feasibility of purchasing the services of an integrity commissioner on an ad hoc or as needed basis from a municipality; and b)with particular attention directed towards using the Port Hope's Integrity Commissioner due to proximity to Clarington. 3.1 PURCHASING SERVICES This approach while appears reasonable, it has obvious limitations because funds have not been set aside in the budget for this purpose. Assuming this can be overcome, significant works are required to prepare for the specific service procurement such as drafting the terms of reference for the purpose of issuing an RFP. In short, purchasing service is feasible subject to the limitation cited above. REPORT NO.: CAO- 005-13 PAGE 4 3.2 ADHOC OR AS NEEDED In our research of the infrequency usage in other municipalities, it would appear the "adhoc or as needed" approach would appear both reasonable and appropriate. 3.3 PARTICULAR ATTENTION OF USING PORT HOPE'S COMMISSIONER In the absence of any details provided by Council on the intent of"particular attention", staff interprets this to mean to look into the feasibility of purchasing the service from the individual who is the current Integrity Commissioner for Port Hope. Based on this assumption, Council should be aware of potential ramification related to this directive. First and foremost, Council would have to waive the Purchasing By-law to allow for a sole source contracting. For the purpose of ensuring openness and integrity of the service procurement process, a closed process of selecting a particular individual as an integrity commissioner could be problematic. Second, we do not have any knowledge about the Port Hope Integrity Commissioner to determine if the individual has a "fit" with what Clarington may need. Hence, it is premature to advise council if acquiring the service of the Port Hope Integrity Commissioner is feasible or otherwise. last and not least, it would appear the rationale for special attention to the Port Hope Integrity Commissioner was based on "proximity to Clarington". We know Port Hope is in proximity to Clarington but we have no knowledge if the Port Hope Integrity Commissioner is located nearby. For the information of Council, the Port Hope Integrity Commissioner was contracted by Port Hope in 2008 through a public open competitive process. 4. CONCLUSION We believe we have addressed the latest Council resolution plus provided all the background reports and resolutions that would assist Council's deliberation of the subject matter. REPORT NO.: CAO- 005-13 PAGE 5 Attachments: Attachment 1 --- Report CLD 042-07 Attachment 2 — Report CAO 007-09 Attachment 3 — By-law 2009-163 ATTACHMENT NO, 1 TO REPORT CAO-005-13 General Purpose and Administration Committee Minutes December 3, 2007 THAT the proposed Procedural By-law included as Attachment No. 1 to Report CLD-041-07 be forwarded to Council for passage; and THAT the local boards be advised of Council's decision. CARRIED ACCOUNTABILITY AND TRANSPARENCY Resolution#GPA-679-07 Moved by Mayor Abernethy, seconded by Councillor Robinson i THAT Report CLD-042-07 be received; THAT the Accountability and Transparency Policy be approved by Council; THAT the Accountability and Transparency Policy and all other supporting Corporate Policies be available for public access through the Municipal Clerk's Department; THAT the Accountability and Transparency Policy and all other supporting Corporate Policies be posted on the Municipality of Clarington Website; and THAT Council not proceed with appointment of an Integrity Commissioner, Ombudsman, or Auditor General, at this time. CARRIED Mayor Abernethy Chaired this portion of the meeting. CQRPQRATE.SERVICS__DPARTMIANT CL200741, STREET LIGHTING IMPROVEMENTS AT VARIOUS LOCATIONS AND MEARNS AVENUE DECONSTRUCTION Resolution#GPA-680.07 Moved by Councillor Trim, seconded by Councillor Robinson THAT Report COD-058-07 be received; THAT Guild Electric Limited, Toronto, Ontario with a total bid in the amount of $85,322.77 (plus GST), being the lowest responsible bidder meeting all terms, conditions and specifications of Tender CL2007-41, be awarded the contract for the Street Lighting Improvements at Various Locations and Mearns Avenue Reconstruction as required by the E=ngineering Department; - 16 . REPORT Ler�dir�g t3ie Wrey CLERK'S DEPARTMENT Meeting: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE Date: December 3 2007 � '� Report#: CLD-042-07 Pile#: By-law#: Subject: ACCOUNTABILITY AND TRANSPARENCY RECOMMENDATIONS: It is respectfully recommended that the General Purpose and Administration Committee recommend to Council the following: 1. THAT Report CLD-04207 be received; 2. THAT the Accountability and Transparency Policy be approved by Council; 3. THAT the Accountability and Transparency Policy and all other supporting Corporate Policies be available for public access through the Municipal Clerk's Department; 4. THAT the Accountability and Transparency Policy and all other supporting Corporate Policies be posted on the Municipality of Clarington Website; and 5. THAT Council not proceed with appointment of an Integrity Commissioner, Ombudsman, or Auditor General, at this time. Submitted by: Daft , arr' , CMO Reviewed by: Franklin Wu, nicipa Clerk Chief Administrative Officer PLB* CORPORATION OF THE MUNICIPALITY OF CL.ARINGTON 40 TEMPERANCE STREET, BOWMANVIL.LE, ONTARIO LIC 3A6 T 905-623-3379 F 905-623-6506 REPORT NO.: CLD-042-07 Page 2 1.0 Background i In March, 2007 Council considered and received for information Report CLD-012-07 which provided summary discussion of the amendments to the Municipal Act, 2001, as amended. Many of the amendments to the Act speak to accountability and transparency principles, This i Report speaks further to Report OLD-012-07 respecting accountability and transparency. Section 270(1), paragraph 5, of the Municipal Act, S.Q. 2001, as amended, requires all municipalities to adopt and maintain policies for"the manner in which the municipality will try to ensure that it is accountable to the public for its actions and that its actions are transparent to the public". To comply with the requirements of the Act, accountability and transparency are understood to mean: a) Accountability includes the principle that the Municipality of Clarington is responsible to its stakeholders for decisions made and policies implemented, as well as its actions or inactions. b) Transparency includes the principle that the Municipality of Clarington actively encourages and fosters stakeholder participation, clarity and openness in the decision making processes. Based on these principles and definitions, the elements of accountability and transparency have been well-established within the Municipality of Clarington through various by-laws and policies adopted by Council. Some matters, such as the Municipal Freedom of Information and Protection of Privacy Act and Municipal Conflict of Interest Act, have been legislated by the Province of Ontario and the requirements of the legislation have been followed for many years. Listed below are examples of how the Municipality of Clarington demonstrates Accountability and Transparency in our standard operating and decision making practices. 2.0 Accountability—Through Practices Examples, to date, of demonstrated accountability practices include: 1) Standard procedure governing duties, responsibilities and meetings of Council and Committee; ii) Access to Council and Committee meeting agendas and minutes; iii) Open meetings; lv) Procedure for Closed meeting compliance investigations; v) Procedures respecting access to municipal records and protection of personal privacy in accordance with the Municipal Freedom of information and Protection of Privacy Act (MFIPPA); vi) Council compliance under the Municipal Conflict of Interest Act; and vii) Regular and standard Financial reporting (audited and unaudited) including Performance Measures. i I REPORT NO.: CLD-04207 _ Page 3 � 3.0 Transparency—Through Policies Examples, to date, of demonstrated transparency include the enforcement of the following Policies: i) Code of Ethics ii) Staff Development ill) Phone and Voicemail iv) Internet and E-mail Usage v) Communication Equipment vi) Use of Personal Vehicles vii) Vehicle Operation—Competent Operator viii) Loaning of Municipal Equipment Policy ix) Political Activities (staff participation therein) x) Public Notification procedures A) Land sale policies xii) Hiring policies All) Procurement policies Attachment 1 to this Report provides a summary of the accountability and transparency elements of the above listed practices and policies, 4.0 Trams area —Through Dole qateqAgLhority Section 23,1 of the Municipal Act, 2001, as amended permits Council to delegate its powers and duties to a person or body subject to specific restrictions, section 23.2 details those restrictions as they relate to legislative and quasi-judicial powers, and section 23.3(1)details the powers that cannot be delegated. The purpose of this enabling provision is to permit Council to focus on more substantive, strategic responsibilities and issues facing the municipality and permit routine powers and duties to be exercised by delegated staff. The Act requires that when delegating a power or duty, Council must ensure the power or duty Is minor in nature and, where applicable, have regard to the number of people affected by the power or duty, the size of the geographic area and the time period affected by the exercise of the power or duty and any other criteria Council may determine to be appropriate. Over the past several years, Council has delegated responsibilities to staff through various by- laws, Attachment 2 to this report is a detailed list of the delegated authorities. Staff is currently conducting a review of the delegated authorities to ensure the accountability of the delegate and the transparency of the delegate's actions and decisions. Additionally, staff is reviewing other minor, routine powers and duties which may better serve the stakeholders if delegated. 5.0 Accountability 1 Transparency Policy The above listen policies and practices indirectly speak to and sustain the accountability and transparency principles, However, the Municipality has not yet implemented a formal REPORT NO.: CLD-042-07 Page 4 "Accountability and Transparency Policy". Attachment 3 to this Report is a recommended Policy that satisfies the requirements under the Municipal Act, 2001, as amended, and requires staff and Council to contemplate these principles in their actions, inactions and in the development and implementation of policies in the future, 6.0 Optional integrity Provisions I Officers In addition to the requirement for the appointment of a meeting investigator and the 1 implementation of an Accountability and Transparency Policy, the Municipal Act, 2009, as 1 amended, also provides for other optional appointments to further promote the principles of 1 accountability and transparency. There are four positions generally referred to as the"integrity officers". They are the integrity Commissioner, Ombudsman, Auditor General and Lobbyist Registrar. All of these Integrity Officers must be independent, impartial and have credible Investigation processes, and be subject to confidentiality. These Officers have wide ranging investigatory powers including: • The right to be provided with information and to have access to documents necessary for investigationslinquiries; Powers to examine a person under oath; 6 Confidentiality of information prevails over the Municipal Freedom of Information and Protection of Privacy Act; and • Integrity Commissioner, Lobbyist Registrar and Auditor General may exercise some powers of a commission under the Public Inquiries Act, Attachment 4 to this Report provides a more detailed description of the purpose of each of the above-mentioned integrity officers. There is no obligation for Council to make any of the above-mentioned appointments and it Is recommended by staff that we not proceed with these appointments at this time, 7,0 Summary and Recommendations Recent amendments to the Municipal Act, 2001, as amended, provide for accountability and transparency to our ratepayers and stakeholders. The Municipality of Clarington is well positioned to meet these objectives through its various administrative and Council enacted policies, through compliance with provincial legislated mandates and through its delegation of powers and duties to staff. To further ensure accountability and transparency, staff recommend that Council adopt and comply with the draft Accountability and Transparency Policy attached to this Report(Attachment 3). Through the adoption of this recommended policy, through the recent appointment of a meeting Investigator, and through Council's consideration of a new Procedural By-law (presented to Committee in Report CLD-041-07), the Municipality of Clarington will be in compliance with all new mandatory requirements imposed by the Municipal Act, 2001, as amended. As for the optional appointments of integrity officers, staff recommend that these appointments not be made at this time, given that we have not received any pressure from the community nor Council respecting a disregard for our existing Code of Bthlrs and other such accountability policies. Interested Parties: Attachment 1 Report CLD-042-07 Detailed Discussion of Existing practices Aecat� tt .11 a) Standard procedure The Procedural Bylaw, which has been adopted by Council, governs governing duties, the proceedings of Council, Its standing committee, special responsibilities and committees and local boards. The by-law addresses such issues as; meetings of Council and Committee i) the calling of meetings, both regular and special meetings ii} notice of such meetings iii) meetings being open to the public, in accordance with the Municipal Act, 2001 iv) rules of debate Note; a new Procedural Bylaw has been presented to Committee E through Report CLD-041-07. b) Access to Council and The Municipal Clerk's Department prepares an agenda for each Committee meeting Council and Committee meeting in advance of the meeting. In agendas and minutes accordance with the Procedural By-law, the agenda is distributed to the members of Council and posted on the Municipality's website at least by the Friday preceding the Monday meeting. In accordance with the Municipal Act, 2001, as amended, the Municipal Clerk, or designate, attends the Council and Committee meetings for the purpose of recording the minutes, without note or comment. These minutes are available to the general public by being posted on the Municipality's website. As well, a hardcopy is available in the Municipal Clerk's Office for public access, the minutes are published In the agenda for the next regular meeting of the Council or Committee. c) Open Meetings In accordance with section 239 of the Act, all meetings of Council and Committee are open to the public, with certain exceptions. These exceptions are: "(a) the security of the property of the municipality or local board; (b) personal matters about an identifiable individual, including municipal or local board employees; (c) a proposed or pending acquisition or disposition of land by the municipality or local board; (d) labour relations or employee negotiations; (e) litigation or potential litigation, including matters before administrative tribunals, affecting the municipality or local board; (f) advice that is subject to solicitor-client privilege, including communications necessary for that purpose; (g) a matter in respect of which a council, board, committee or other body may hold a closed meeting under another Act; Attachment 1 Deport CLD-042•-07 Detailed Discussion of Existing Practices A meeting shall be closed to the public if the subject matter relates to the consideration of a request under the Municipal freedom of Information and Protection of Privacy Act if the council, board, commission or other I body is the head of an institution for the purposes of that Act. 2001; A meeting of a council or local board or of a committee of either of them may be closed to the public if the following conditions are both satisfied: 1. The meeting is held for the purpose of educating or training the members. 2. At the meeting, no member discusses or otherwise deals with any matter in a way that materially advances the business or decision-malting of the council, local board or committee." All meetings of Council and Committee are held In the Council Chambers, unless otherwise determined by Council in accordance with the Municipality's Procedural By-law, The Council Chambers is an accessible venue and seats more than 100 people in the public gallery. Additionally, the meetings of Council are televised by Rogers Cable in accordance with Rogers' filming schedule. Only those portions of the Council/Committee meetings that are permitted to be closed to the public are conducted in the Ante Room, or other such room as determined by Council, in accordance with the Municipality's Procedural By-law. d) Procedure for Closed In accordance with section 239.1 of the Municipal Act, 2001, a person meeting compliance may request an Investigation into whether or not the municipality has Investigations complied with the requirements of section 239, This Investigation will be conducted by an investigator appointed by the municipality or, if the municipality has not appointed an investigator, by the Provincial Ombudsman, The Municipality of Clarington has appointed focal Authority Services Ltd. (LAS) as the investigator to conduct these reviews. A review officer will be appointed by Amberley Gavel (who Is providing this service for LAS). Once a request for an investigation has been received, the Municipal Cleric shall process the request for investigation in accordance with the Department Procedure for Processing Request for Investigation of Closed Meeting Compliance. As copy of this procedure is Included in this report as Attachment 5, Attachment 1 Report CLD-042.07 Detailed Discussion of Existing Practices Ac e) Procedure Respecting The Municipal Freedom of Information and Protection of Privacy Act Access to Municipal (MFIPPA) was enacted in 1991 with the principle that all information Records and under the custody and control of the Municipality would be available r Protection of Personal to the public, where requested with the exception of certain, specific Privacy information. Since the enactment of MFIPPA , the Municipality has been complying with the requirements of the Act, and in April of this year, Council adopted a formal policy which documented the requirements of the Act and specifically identified the responsibilities of members of Council, the Chief Administrative Officer and Department Heads as they relate to collection, use and disclosure of information. f) Council Compliance The Municipal Conflict of Interest Act, R.S.0. 1990,.as amended, Under the Municipal applies to the members of Council. The purpose of the Act is to Conflict of Interest Act ensure that members do not speak or vote on any issue for which they have a direct or indirect pecuniary interest. It shall be the responsibility of each member of Council, not staff, to determine whether they have a direct or indirect pecuniary interest with respect to matters either before Committee/Council and any activities in which they are involved in their day to day municipal business. The Act requires that a member with a direct or indirect pecuniary interest, who is in attendance at a meeting where the matter in which the member has a pecuniary interest must: • Disclose the interest and the general nature of the conflict: Not take part in the discussion or vote on the matter; • Not attempt to influence the vote, before, during, or after the meeting; • Leave the meeting while the matter is being discussed (only if the meeting is in camera); and, o If absent from a meeting where a member's pecuniary interest is considered, disclose the interest at the next meeting attended by that member. The Act states that a member does not have a pecuniary interest in respect of the following, (a) as a user of any public utility service supplied to the member by the municipality or local board in like manner and subject to the like conditions as are applicable in the case of persons who are not members, Attachment I Report CLD-042.07 Detailed Discussion of Existing Practices (b) by reason of the member being entitled to receive on terms common to other persons any service or commodity or any subsidy, loan or other such benefit offered by the municipality or local board; (c) by reason of the member purchasing or owning a debenture of the municipality or local board; (d) by reason of the member having made a deposit with the municipality or local board, the whole or part of which is or may be returnable to the member in like manner as such a deposit is or may be returnable to all other electors; (e) by reason of having an interest in any property affected by a work under the Drainage Act or by a work under a regulation made under Part Xll of the Municipal Act, 2001 or Part IX of the City of Toronto Act, 2005, as the case may be, relating to local improvements; (f) by reason of having an interest in farm lands that are exempted from taxation for certain expenditures under the Assessment Act; (g) by reason of the member being eligible for election or appointment to fill a vacancy, office or position in the council or local board when the council or local board is empowered or required by any general or special Act to fill such vacancy, office or position; (h) by reason only of the member being a director or senior officer of a corporation incorporated for the purpose of carrying on business for and on behalf of the municipality or local board or by reason only of the member being a member of a board, commission, or other body as an appointee of a council or local board; (1) in respect of an allowance for attendance at meetings, or any other allowance, honorarium, remuneration, salary or benefit to which the member may be entitled by reason of being a member or as a member of a volunteer fire brigade, as the case may be; 0) by reason of the member having a pecuniary interest which is an interest in common with electors generally; or Attachment I Report CLD-042-07 Detailed Discussion of Existing Practices (k) by reason only of an interest of the member which is so remote or insignificant in its nature that it cannot reasonably be regarded as likely to influence the member. R.S.O. 9990, c. M.50, s. 492002, c. 97, Sched, F, Table; 2006, c. 32, Sched. C, s. 33 (1). A member of Council who allegedly breaches the Act may be subject to prosecution which could result in the member being disqualified from his/her seat, being disqualified from running for Council for seven (7) years, and the member may be ordered to make restitution. l Actions against members may be brought forward by electors within ' six (6) weeks after the fact of the alleged breach comes to his/her knowledge and not later than six (6) years after the alleged contravention occurred. g) Regular and Standard On an annual basis, the Municipality of Clarington is required to meet Financial Reporting various financial reporting requirements under provincial legislation, Including Performance These reports are prepared by staff and forwarded to Committee and Measures Council for their consideration and endorsement. The purpose of these reports is to formally communicate to the ratepayers of the Municipality and our stakeholders, and in some cases, reports are required to be forwarded to the Ministry of Municipal Affairs and Housing for information. 1) Annually, staff prepares a report recommending an Operating and a Capital Budget for the fiscal year. The budget report details the following: * Overview of proposed budget * Tax rate stabilization a Highlighting any tax policy changes * Staffing requests * Capital budget commentary Current budget impacts * Debt status a Insurance a Reserve and reserve fund contributions a Requests from external agencies (eg. Library Board). * Comments respecting future years' budgets 2) On a quarterly basis, staff report on the Cash Activity of the municipality which includes: * Analysis of Revenue and Expenditures * Continuity of Taxes Receivable * Statistical Information a Investments Outstanding Attachment 1 Report CLD-042.07 Detailed Discussion of Existing Practices 3) The fiscal yearend for the Municipality is December 31sR, Section 296(1) of the Municipal Act, S.O, 2001, c.25 provides that "A municipality shall appoint an auditor licensed under the Public Accounting Act who is responsible for, (a) annually auditing the accounts and transactions of the municipality and Its local boards and expressing an opinion on the financial statements of these bodies based on the audit;" Deloitte &Touche, Toronto, Ontario, were appointed as the Municipality of Clarington's auditors through report COD-001-05 for a five (5) year term to expire January 31, 2010. A copy of the audited financial statements (consolidated statement of Financial Activities and Fund Balance) are made available for public viewing, and a condensed version is posted on the Municipality's website, Additionally, the Ministry of Municipal Affairs and Housing requires an audit letter as well as specialized financial reports entitled Financial Information Returns, The Ministry reviews these and provides Financial Indicator Reviews based on the information submitted and comparable municipalities, 4) In 2001 the province mandated the Municipal Performance Measures Program (MPMP). The provincial objectives of the MPMP are to enhance accountability to taxpayers, increase taxpayer awareness and share best practices between municipalities, The information Is intended to be used as a too[to gauge improvements in service delivery year over year in the following service areas: Local government, Fire, Roads, Stormwater, Parks and Recreation, Libraries, and Land Use Planning. 5) Other annual reports respecting municipal finances include: + Annual Statement for the Development Charges Reserve Funds • Mayor and Councillor's Remuneration and Expenses • Building Permit Fees Insurance Program s Annual Leasing Report Attachment 1 Report CLD-042-07 Detailed Discussion of Existing Practices Ai = ..t'. 4 .5.. a) Code of Ethics The Code of Ethics Policy was adopted by Council in December, 2001. The Purpose of this Policy is to provide a standard of conduct for employees of the Corporation in the carrying out of their work assignments and their relationships with the public, elected officials and each other. The Code of Ethics addresses areas including but not limited to: l • Employees and Council shall not breach the public trust or I misappropriate public funds and/or resources * Prohibiting the use of municipal property, equipment and supplies for personal use * Conditions of participation In decision making process * Solicitation or acceptance of gifts * Non-disclosure of confidential Information obtained through fulfilling their mandate * Acknowledgement of Corporate Purchasing policy • Acknowledgement of Corporate Health and Safety Policy * Limitations on engaging in business outside the workplace which is incompatible or Which may interfere with the discharge of their official duties * Obligation to disclose to the respective Department Head, any conflict of interest penalties for contravention of the Code of Ethics b) Staff Development The Staff Development Polley was adopted by Council in March, Policy 2004_ The Purpose of this Policy Is to provide a system to encourage the self-development of employees by continuing their education, training and professional development. The Policy details conditions respecting training and education funding and reimbursement. c) Phone and Voicemail The Phone and Voicemall Usage policy was approved by the 6- A-©-in-Usage Policy January, 2004, The purpose of this Policy is to establish regulations pertaining to phone and voicemail usage. The Policy addresses limitations for long distance calls and faxes, prohibits the use of cellular phones for personal use, and establishes a standard protocol for voicemall. d) Internet & E-mail The Internet:& E-mail Usage Policy was adopted by Council in Usage Polley December, 2001. The purpose of this Policy is to ensure employees are knowledgeable in their use of the Internet and e-mail and are aware of the situations in which these forms of communications are appropriate and permitted. This Policy establishes the rules for Internet site access, downloading of files and states that any a-mails are legal property of the Municipality, The Policy includes penalties for contravention. Attachment 1 Report CLD-042-07 Detailed Discussion of Existing Practices e) Communication The Communication Equipment Policy was approved by the CAO in Equipment Policy April, 2007. The purposes of this Policy are: 4 to ensure managerial personnel have the appropriate communication equipment when they are away from their normal office working environment, Provision of communication equipment is essential as most managerial staff is required to respond to off hour emergencies, as well as to provide supervision to various services beyond the normal office hour operation. To ensure cost effectiveness in the provision of the necessary communication equipment. This Policy ensures that functionality of the communication equipment matches the staff need, f) Use of Personal -The Use of Personal Vehicles Policy and the Vehicle Operation -- Vehicles Policy and Competent Operator policies were approved by the CAO in Vehicle Operation -- November, 2004 and January, 2005 respectively. The purposes of Competent Operator these Policies are: Policy e To set out the parameters in which a personal vehicle may be used to conduct Municipal business; j To ensure the safe operation of personal vehicles as a means to protect employees, the public, the Municipality, as well as private properties; and • To set-out the protocol for operator competence to ensure the safe operation of Municipal vehicles and equipment as a means to protect employees, the public, the Municipality, as well as private properties. These Policies ensure that every driver must possess a valid driver's licence, have valid insurance and shall notify their immediate supervisor if there are any conditions or limitations placed on their licence or if their driver status changes, These policies include penalties for contravention. g) Loaning of Municipal The Loaning of Municipal Equipment Policy was adopted by the CAO Equipment Policy in October, 2005. The purpose of this Policy is to establish regulations with regards to the loaning of municipal equipment. The Policy prohibits the use of municipal equipment for personal use. Attachment 1 Report CLD-042-07 Detailed Discussion of Existing Practices h} Political Activities The Political Activities Policy was adopted by Council in March, 2005. Policy The purpose of this Policy is to protect the integrity of the public service while allowing employees to exercise their democratic rights if they so choose. This Policy discourages employees from engaging in political activities, and should an employee choose to engage in political activities, this Polley restricts them from doing so in the workplace. As well, this policy limits the conduct of political activities within municipally owned facilities, i} Notification Policy In accordance with Section 259 of the Municipal Act, 2001, By-law 2005-022 was enacted by Council on February 14,.2005, This By- law prescribes the form, manner and times for compliance with the provision notice requirements mandated in the Act. The By-law speaks to notices respecting: passing of by-laws, adoption of the annual operating and capital budgets and any amendments thereof, and any service level improvements, Notices shall be typically included in the newspaper and are posted on the Municipal Website. The Procedural By-law also provides for notification of dates, times and locations of regular and special meetings of Council, GPA, and special committees. j} Sale of Real Property In accordance with Sections 193(2) and (3) of the MunicipalAct, Policy 2001, as amended, By-law 95-22 was enacted by Council on March 6, 1585 and establishes procedures governing the sale of real property by the Municipality. The By-law requires that surplus property must be declared as such by Council in an open meeting and once declared, the Municipal Clerk shall ensure notice of the proposed sale of land is posted in the newspaper. In most cases, the value of the property must be determined by at least one appraisal. Sale of lands may be conducted through a public tender process, sold at fair market value to adjacent property owners, or exchanged and transferred. I k) Hiring Policy The Hiring Practices Policy was adopted by Council in January, 2002, The purposes of this Policy are: To convey the Municipality's continuing practice of non-discriminatory employment; and To create and maintain a standardized means of recruiting employees This Policy ensures compliance with the Human bights Code and speaks to the practice of neither favouring nor discriminating against relatives of an employee or elected official. Attachment I Report CLD-042.07 Detailed Discussion of Existing Practices 1) Purchasing Policy In.accordance with section 270(1) of the Municipal Act, 2009, as 3 amended, By-law 2006-927 was enacted by Council, This Purchasing By-law provides for the purchasing and tendering policies and procedures applying to the purchase of all types of goods and/or services. Every municipal department engages In the procurement of goods and services and to ensure transparency and accountability to our ratepayers and stakeholders, our By-law; + Encourages competition among suppliers • Ensures fairness between bidders + Maximizes savings e Ensures service and product delivery efficiency and z effectiveness z . Ensures quality • Ensures supplier accountability Provides for maximizing government service while minimizing cost • Provides an objective process Fosters openness, accountability and transparency while protecting the municipality's financial interests m) Orientation Policy In addition to the above-referenced Policies, the Orientation Policy, approved by the CAO in January, 2001, was implemented to ensure that all new employees are properly oriented with their new work environment, This Policy includes the requirement that new employees be made aware of and understand their duties and responsibilities under all relevant corporate policies. Attachment 2 Report CLD-042.07 Delegated Duties and Authorities Z21 -A. Municipal Freadom of Information and Protection Municipal By-law 90-193 of Privacy Act Clerk and Resolution For the purposes of the Act, the Head Is the Mayor. GPA#815-90 The powers and duties of the Head have been delegated to the FOI Co-ordinator. However, the Head still remains accountable for the actions taken and decisions made under the Act. 2 Order to Restrain Appeal Hearing Manager, By-law 2005-225 Delegated Council's duty to hold a hearing to Municipal determine whether or not an owner In whole or in Law part from the requirements detailed in an Order to Enforcement Restrain and to render a ruling on such an appeal are delegated, In accordance with section 106 of the MunicipalAct, 2001, as amended. 3 Procurement -law 200-1127 Purchasing By Acquisition of goods and services of value equal to Manager or less than-$60,000, in accordance with the rules set forth in the Purchasing By-law. 4 Site Plan Control Area Director of — By-law 2005-136 Delegation of the approval of site plans in Planning accordance with Section 41 of the Planning Act, with Services and the exception of the authority to define any class or Director of classes of development as mentioned section Engineering -41(13)(a), Services Execute any agreement between the Municipality Municipal and the property owner as may be required as a Clerk and condition of the a roval of the plans and drawings. Mayor 6 Planning Applications –Completeness Director of By-law 2007-131 Determination Planning Delegation of authority to make decisions on whether Services planning applications submitted pursuant to the Planning Act and Conservation Land Statute Amendment Act, 2006, are deemed complete, 6. Taxi Licence Application –Approval with Municipal By-law 2005-205 Criminal Record Clerk Delogation of authority to approve taxi licence application where criminal record is minor or is more than seven (7)years old, 7. Adoption Foos–Approval to Reduce Municipal l a By-law 2007-208 Delegation of authority to reduce the adoption fees Clerk and for animals i n s pecified circumstances. Deputy Clerk T_ Assessment Review Board–Municipal Appeals of By-law 2003-031 D"ation of ajuthority to the Finance Attachment 2 Report CLD-042.07 Delegated Duties and Authorities Director of FinancelTreasurer to appeal ' Assessments to the Assessment Review Board on behalf of the Municipality of Clarington, 9. Minor exceptions to Sign By-law Director of By-law 97-157', as Delegated authority to make minor exceptions Planning amended without amendment to the By-law In situations of extenuating circumstances. These exceptions small be only for the size or height of a sign and shall not exceed 10% of the permissible size or height as prescribed within the By-law. 10. Subdivision/Condominium Approval–authority Director of By-law 2001-072 under Section 51 of the Planning Act, R.S.O. 1990 Planning, or � chapter P. 13 as amended designate Delegated all of the Council's authority under Section 51 of the Planning Act, R.S.O. 1990, chapter P.13 as amended, The authority delegated to the Director extends only to those matters in respect of which Council adopted procedures which direct the Director to make a decision. . 11, Heritage Conservation district Plan –authority Director of By-law 2006-102 under Dart V of the Ontario Heritage Act, R.S.O, Planning, or 1990, chapter 0.18. as amended designate Delegated authority to approve minor applications to grant permits for the alteration of property situated in a heritage conservation district 1-2— Improvement Plan–authority under Director of By-law 2005-123 Part IV–of the Planning Act, R.S.O. 1990, Planning By-law 2005-439 chapter P.13 -Community Improvement, as amended Delegated authority to administer and approve the Grant Program (Building Permit Fee Grant Program, Site Plan Control Fee Grant Program, and Heritage Building Fagade Improvement Grant Program)as contained within the Community Improvement Plan for Bowmanville and Orono. 13. Road Closures Director of By-law 22-32 Delegated authority to review and approve Engineering applications from any person, group or agency wishing to occupy a Municipal Road or Right-of-Way Attachment 2 , Report CLD-042-07 Delegated Duties and Authorities .t' 1 �� !err, R � :.1�...iE1iWQ+ t�r,_,._..'j=" s•y r.vt. .,i k75,�' °Y J,t'iL3 ;N* f t a.•-y .�. � € 6 ff ri;v"i' for any reason which alters the normal use or status of same to apply, and grant approval for a Road Occupancy Permit. 14. Truck traffic routing Director of By-law 91-58, as Delegated authority to issue permits for the Engineering amended movement on highways of heavy vehicles, loads, objects or structures which are In excess of the dimensional limits set out In Section 92, 104a, or the weight Ilmits set out In Part Vil of the Highway Trafflc Act, R.S.O. 1980, 098, as amended. 15. Street Signs Director of By-law 91-58, as Delegated authority to authorized to place or erect Engineering amended and to-maintain such authorized and official signs as are required-to give effect to the provisions of this by- law. f t f Attachment 3 Report CLD-042-07 Letldttrg tloe�vay . DRAFT Administrative and Corporate Policies • }: JSj"' ftm.5� „ ? : ._S E zt c F r a '6- , c i fir Yc J. ft st ?-. y ",,F .,5:}:•' . S<:i,';_iy: sa �''1+'-.+ ` �,k f s`•L a e--. ,..... - 7'• 01 5t 5�'S'; 4f• ..Tt� .:A k [t;7.j. Section. H Date Approved: Category: Operations Last Revised: Subsection; 11129 Approved by: Application: All Employees 1. Purpose: The Municipality of Clarington is committed to ensuring that it is accountable to the public for its actions, through responsible and transparent behaviours and the manner in which the municipality will try to ensure that its actions are transparent to the public. The purpose of this policy is to detail the,guiding principles for Municipal sen4ce delivery with Section 270 of the Municipal Act< 2. Policy: i Guiding Principles This policy is premised on the following two guiding principles: a) Accountability includes the principle that the Municipality of Clarington is responsible to its stakeholders for decisions mado and policies implemented,as well as its actions or inactions. b) Transparency includes the principle that the Municipality of Clarington actively i encourages and fosters stakeholder participation, clarity and openness in the decision making processes. Policy Statement In support of the Municipality of Clarington's Vision, "Your Choice for a Caring and Vibrant Community"and in support of the Municipality's Mission, Page 1 of 2—Affiliated and Others: H29 i • i "To provide essential infrastructwe and quality services to our community stakeholders through leadership,accountability and respect." a the Council of the Municipality acknowledges that it is responsible to provide good ! goverrunent for its stakeholders in an accountable and Eransparent manner by: • I Encouraging public access and participation to ensure that decision making is responsive to the needs of its constituents and receptive to their opinions; i • Delivering high duality services to our citizens; and • Promoting the efficient use of public resources. Accountability,transparency and openness are standards of good government that enhance public trust. They are achieved through the Municipality adopting measures ensuring,to the best of its ability, that all activities and services are undertaken utilizing a process that is open and accessible to its stakeholders. In addition,wherever possible,the Municipality will engage its stakeholders throughout its decision making process which will be open,visible and transparent to the public. 3. Procedures: 3.1 The guiding principles of accountability and transparency will be contemplated by staff and Council in their actions,inactions and in any decision making process. 12 Staff reports to Committee/Council shall,where applicable,state how the recommendations comply with accountability and transparency principles. 3.3 Council shall ensure that policies adopted by Council are consistent with the guiding principles of this Policy. 3.4 The CAO of the Municipality of CIarington shalt ensure that all adminnistrativc Policies of the Municipality of Clarington comply with the guiding principles of this Policy. 3.5 Staff,in executing their duties and responsibilities shall ensure that they are guided by the Guiding principles of tl-is Policy, Where Council has delegated any of its duties and authorities to staff, staff shall ensure that the appropriate Council member(s) is/are regularly informed of any unusual or notable issues in a timely manner. 4.Appendices- None, Page 2 of 2—Affiliated and Others: H29 Attachment 4 CLD-042.07 Integrity Officers Item-,:Gfrt44,. O P 1 Integrity The purpose of the Integrity Commissioner is to investigate and Commissioner report to Council on the conduct of its members and the members of local boards. The intent is to ensure compliance with the Code of Ethics/Conduct and other procedures, rules and policies governing ethical behaviour. 2 Ombudsman The purpose of the Ombudsman is to investigate administrative decisions, recommendations, actions or the lack thereof. The ' position as defined has far reaching investigative and review powers including a review of how the current staff code of ethics is applied or processes related to any current program. Generally, Ombudsmen are appointed when an organization is of a substantial size and when the reporting structures and the accountability framework are not acceptable to the community or Council. The ruling of the Ombudsman is final. 3 Auditor General The purpose of the Auditor General is to assist Council: • in holding Itself and municipal administrators accountable for the quality of stewardship over public funds, and • for achievement of value for money in municipal operators The Auditor General responsibilities do not include the responsibilities of the municl al external auditor. 4 Lobbyist The legislation provides for Implementation of an optional, publicly Registrar and accessible Lobbyist Registry to provide a system of registration of Registry persons who lobby politicians and public officers. In June, 2007 Council passed the following resolution#GPA-463- 07: "THAT Report CAO-01 1-07 be received; THAT the presentation "An Overview of the Lobbyist Registry System"by the CAO be received; THAT Council not proceed with the introduction of a Lobbyist Registry System at this time until such time Members of Council have the opportunity to examine all the pros and cons of implementing such a system and until such time the Municipality acquires best practices knowledge and experience from similar size municipalities; and THAT the Chief Administrative Officer be directed to bring forth the necessary amendments to the existing Code of Ethics to ensure all Members of Council and staff are governed by clear and enforceable policies." Attachment 5 Report CL©-042.07 � clerk's Departmental Procedure x.earii„g the Way Approved by: Procedure Number; L02-001 Approval Date, Title: November 27, 2007 Processing Closed Meeting Revision Date: Compliance Investigations Purpose: The Municipality of Clarington is committed to conducting actions and making decisions in accordance with the Municipality's Accountability and Transparency Policy. This Procedure details the steps in processing a request for Investigation of Compliance for the conduct of a closed meeting of Council/Committee. Procedure: 1 . I Standard Form All requests shall be filed by the investigation requester by completing the Application for Request for Closed Meeting Compliance Investigation, The Request f=orm shall be completed in its entirety and signed by the requester and submitted to the Municipal Clerk's Office, 2. Request Fee There is no fee imposed on the investigation requester for filing a Request for Closed Meeting Compliance Investigation, 3, Assemble Request Package Upon receipt of a complete Application for Request for Closed Meeting Compliance Investigation,the Municipal Clerk shall ensure that a package is assembled including the following records: • The original request for investigation o Certified copies of the procedural by-law, notice of the meeting Page 1 of 2 Title: Departmental Procedure Processing Closed Meeting Compliance Investigations ® Certified copies of the agenda and minutes of the meeting ® Contact list for all members of Council, local board or committee for which the request is made and for all persons present at the meeting Any further information determined relevant by the Municipal Cleric A rile is opened under L02.CO (Claims against the Municipality, Compliance i Investigations) and a copy of the complete package is filed. 4. Forward Package to Investigator The Municipality of Clarington has appointed Local Authority Services Ltd. (LAS) as the Investigator to conduct these reviews. The Municipal Clerk shall prepare a cover letter and forward the package to the LAS Investigator. S. Disposition of Report Findings Upon receipt of the of the Findings Report from the Meeting Investigator, the Municipal Clerk shall prepare a report to GPA advising of the Investigation findings, associated costs and any necessary actions to be taken in accordance with the Meeting Investigator's recommendations (where applicable). If necessary, policies, procedures or the procedural bylaw shall be amended to reflect the Meeting Investigator's recommendations. The Meeting Investigator's Finding Report shall be filed with the original complaint and the copy of the complaint package that was forwarded to the Meeting Investigator. The file is closed. Page 2 of 2 ATTACHMENT NO. 2 TO REPORT CAO-005-93 WIM Ls�►1J�ii the Wny Rc: POR I CHIEF ADMINISTRATIVE OFFICER . Meeting: GENERAL PURPOSE AND ADMIL41STRATION COMMITTEE Date. Monday, October 99, 2009 ,. Report M CAO-007•-09 File: By-law M Subjedt- CODE OF CONDUCT FOR COUNGIL MEMBERS Recommendation it is respectfully recommended that the General Purpose and Administration Committeer recommend to Council the following: 1• THAT Report CAO-007-00 be received; F 2. 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. ti Submitted by. i=ranldin Wu M.A.O.M Chief Administrative Officer CORPORATION OF THE MUNICIPALITY OF CLARINGTON 40 TEMPERANCE STRUET, BOWMANVILLE,ONTARIO L'IC 3A6 T(905)623-3379 F(90 5)823-6797 REPORT NO.. CAO-007.09 PAGE 2 I. 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. i i I REPORT NO.: CAO-007-09 PANE 4 Counoll/Staff Relationship i - 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 i Y REPORT NO.: CAC)-007-09 PAGE 5 I most simple and straight forward. A "Smell Test"could include asking yourself the following questions: i - 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 giftlaction 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 tho legl 100n, any code made by a municipality will bo difficult to enforce unless the breach is in violation of ether 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, a few 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 Corte, 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 r REPORT NCO.: 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? x ATTACHMENT I 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 o Council/Staff relationship Self adherence o General Conduct Guidelines Scugog Code of Conduct BY-law g Gift/Personal gain Hume Rights Code for • Confidentiality Harassment • Municipal Resources • Harassment Brock Code of Conduct By-law • Confidentiality Mayor&Cleric as • Gifts investigators • Procurement • Conflict of Interest Ajax Code of Conduct By-law . Confidentiality Applicable Statutes • Conflict of Interest • Gifts/Personal gain • Council/Staff relationship o Municipal Assets/Resources Pickering Code of Conduct • Conflict of interest Nohe Specific Y • Municipal Resources • Personal Interests • Confidentiality • Registration of Gifts Uxbridge Code of Conduct • Gifts/Benefits Specific Policies and • Confidentiality Procedures for Whitby Code of Conduct for Staff Only ATTACHMENT NO. 3 TO REPORT CAO-005-13 R E 0 ER T a �QRd��g the way CHIEF ADMINISTRATIVE OFFICER Meeting: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE Date; Monday, November 16, 2009e"�'b Report#: CAO-010-09 File: Bylaw#: V / Subject, CODE OF CONDUCT FOR COUNCIL MEMBERS Recommendation It is respectfully recommended that the General Purpose and Administration Committee recommend to Council the following: 1. THAT Report CAO-010-09 be received, 2, THAT the attached Bylaw with respect of Council Member Code of Conduct be approved. Submitted by: Franklin Wu M.A,O,M Chief Administrative Officer CORPORATION OF THE MUNICIPALITY OF CL.ARINGTON 40 TEMPERANCE STREET,BOWMANVILLE, ONTARIO L10 3A6 T(905)623-3379 F(906)623-5717 REPORT NO,. CAO-010-09 PAGE 2 Report 1. At its meeting held on October 25, 2009, Council considered CAO Report 007-09 and resolved to direct the CAO to draft a standalone Code of'Conduct for Council Members. 2. Attached herein is the By-law providing far such a Code. The provisions of the Code are verbatim extractions from the "Employee Code"where reference was made to Members of Council. THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW 2009- Being a by-law to Establish a Code of Conduct for Members of Council WHEREAS section 223.2 of The MuntclpalAct, 2001, as amended, authorizes the municipality to establish a Code of Conduct for members of the council; and WHEREAS the Council of the Municipality of Clarington has determined the need to establish a standalone Code of Conduct for members of council: NOW THEREFORE THE COUNCIL OF THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON HEREBY ENACTS AS FOLLOWS. 1. THAT Schedule A attached hereto is adopted as the Municipality of Clarington's Code of Conduct for members of council; and 2. THAT Schedule A attached hereto forms part of this by-law. By-law read a first, second and third time this.__ day of 2009. Jim Abernethy, Mayor Patti L. Barrie, Municipal Clerk I i I i I k Schedule A to Bylaw 2009-1-0 Code of Conduct-- Members of Council 1. Purpose rpose The Code of Conduct for members of council serves as a guide to members of council in the Individual conduct of their official duties. The Code represents general standards, It does not replace council member's roles, responsibilities, actions and behaviours required by various statutes. 2. Conduct Members of council shall not: a) breach the public trust or misappropriate public funds and/or resources. b) use Municipal property, equipment, supplies or services of consequence for activities not associated with the discharge of official duties. c) Benefit from the use of Information relating to the affairs of the Municipality, d) benefit from the use of information acquired during the course of official duties which is not generally available to the public. e) sell goods or services to the Municipality or have a direct or Indirect Interest In a company or own a company which sells goods or services to the Municipality. f) conduct their worst activities In a manner which may cause personal Injury to themselves or others or damage to equipment or property of the Municipality. g) bid on the sale of goods except those disposed by public auction. h) use Municipal buying power for personal gain or benefit. 3. Enforcement The onus of compliance of the Code is on the individual member of council. In addition, the provisions of various statutes pertaining to the roles, responsibilities, actions and behaviours governing members of council apply to instances of improper conduct.