HomeMy WebLinkAboutLGL-007-13 ClaringtOR LEGAL REPORT
LEGAL DEPARTMENT
Meeting: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE
Date: September 9, 2013 Resolution#: `°' y-law#:
6 10W d <le--!3
Report#: LGL-007-13 File#: A09.GE and L2030-01-09
Subject: CODE OF CONDUCT— INVESTIGATION AND ENFORCEMENT
RECOMMENDATION:
It is respectfully recommended that the General Purpose and Administration Committee
recommend to Council the following:
1. THAT Report LGL-007-13 be received for information.
Submitted by: Reviewed bye
Andrew C. Allison, B. Comm., LL.B. Franklin Wu, MAOM
Municipal Solicitor Chief Administrative Officer
CORPORATION OF THE MUNICIPALITY OF CLARINGTON
40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L1C 3A6 T 905-623-3379
REPORT NO.: LGL-007-13 PAGE 2
1.0 BACKGROUND
1.1 At its meeting on June 17, 2013, Council passed the following resolution (#C-
225-13):
THAT a review of the code of conduct be undertaken to address
issues of investigation and enforcement of the code.
1.2 The Municipal Act, 2001 does not obligate municipalities to establish a code of
conduct, but it does empower them. This was done in response to concerns
expressed to the Province that what was appropriate for some municipalities may
not be appropriate for all municipalities. The Province therefore chose to leave it
to the discretion of each municipality to determine whether it was appropriate to
regulate the conduct of its members and how the conduct should be regulated. In
November 2009 (By-law 2009-163), Clarington Council adopted a Code of
Conduct for its members (the "Code"). A copy of the Code is attached to this
Report (Attachment No. 1).
1.3 All of the background reports that provided the basis for Council's decision to
adopt the Code were referred to in Report CAO-005-13 dated May 6, 2013.
2.0 DISCUSSION
2.1 The Code has the following provision (section 3):
Enforcement
The onus of compliance of (sic) 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.
2.2 Enforcement of the Code is therefore achieved in two ways - self regulation and
through other provincial and federal legislation that regulates the conduct of
council members. The "various statutes pertaining to the roles, responsibilities,
actions and behaviours governing members of council" could include the
following:
(a) Municipal Conflict of Interest Act;
(b) Criminal Code;
(c) Municipal Elections Act;
(d) Municipal Freedom of Information and Protection of Privacy Act;
(e) Ontario Human Rights Code; and
REPORT NO.: LGL-007-13 PAGE 3
(f) Occupational Health and Safety Act.
2.3 There are no provisions in the Code respecting investigations into alleged
contraventions. Given the position adopted by Council respecting enforcement,
there was no need for any investigation provisions.
2.4 To the extent that any municipal code of conduct attempts to prohibit matters that
could be contraventions under federal or provincial legislation, it will be
unenforceable (see section 223.8 of the Municipal Act, 2001). Therefore several
parts of Clarington's Code are, or could be, unenforceable (as Code
contraventions) for the following reasons:
(a) Section 2a) - "breach the public trust or misappropriate public funds and/or
resources."
These are criminal matters under sections 122 and 123 of the Criminal
Code.
(b) Sections 2c) and 2d) — "benefit from the use of information relating to the
affairs of the corporation" and "benefit from the use of information acquired
during the course of official duties which is generally not available to the
public."
Depending on the specific "information" and the specific "benefit" derived
(i.e. financial), these are matters that could be contraventions of the
Municipal Conflict of Interest Act, the Criminal Code, or the Municipal
Freedom of Information and Protection of Privacy Act.
(c) Section 2e) - "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."
These are matters that could be contraventions of the Municipal Conflict of
Interest Act.
(d) Sections 2g) and 2h) — "bid on the sale of goods except those disposed by
public auction" and "use Municipal buying power for personal gain or
benefit".
Depending on what has been alleged, these matters could be
contraventions of Municipal Conflict of Interest Act.
2.5 As a stand-alone document, the Code therefore has very little that can be
enforced. This does not mean that alleged contraventions of the Code cannot be
investigated or enforced. It simply means that for those matters that could be
contraventions of an existing provincial or federal or provincial statute, the
investigation and enforcement provisions of the applicable statute will govern.
REPORT NO.: LGL-007-13 PAGE 4
2.6 The few prohibitions in the Code that are enforceable have no specified
sanctions.
2.7 If Council wishes to move beyond self-regulation and reliance upon other
provincial or federal legislation, several things must be considered including the
following:
(a) What specific conduct should be prohibited?
The regulated conduct must be conduct that is properly included in a
municipal code. Attached to this Report (Attachment 2) is a copy of the
"Model Form of Code of Conduct For Members of Council" prepared in
July 2011 for the Municipal Integrity Commissioners Association of
Ontario. It contains several examples of the types of conduct that can be
regulated through a municipal code of conduct established under the
authority of subsection 223.2(1) of the Municipal Act, 2001.
(b) How should the Code be enforced? If it is to be enforced by an Integrity
Commissioner, what investigative powers should the Commissioner have?
Should he or she have additional responsibilities? How should complaints
be processed?
Few municipalities have appointed an Integrity Commissioner. On the City
of Brampton's website, it is stated that "[t]here are 445 municipalities in
Ontario and fewer than 10 have an established Code of Conduct and an
Integrity Commissioner". According to the Province's Office of the Conflict
of Interest Commissioner, 28 municipalities have appointed an Integrity
Commissioner. Those municipalities that have appointed an Integrity
Commissioner will typically also have passed a by-law that sets out the
powers and duties that have been assigned to the Commissioner by the
municipality and a complaint protocol that will describe the process to be
followed when someone alleges that there has been a contravention of the
code. An example of a complaint protocol (from Toronto) is attached to
this Report (Attachment 3).
(c) What sanctions should be imposed if there has been a violation of the
Code?
A municipal code of conduct cannot provide that a member who
contravenes it is guilty of an offence (subsection 223.2(2) of the Municipal
Act, 2001).
Subsection 223.3(5) states that a municipality may impose either of the
following penalties on a member of council or of a local board if an
Integrity Commissioner reports to the municipality that, in his or her
opinion, the member has contravened the code of conduct:
1. A reprimand.
REPORT NO.: LGL-007-13 PAGE 5
2. Suspension of the remuneration paid to the member in
respect of his or her services as a member of council or of
the local board, as the case may be, for a period of up to 90
days.
The "Model Form of Code of Conduct For Members of Council"
(Attachment 2) contains examples of other types of sanctions that have
been included in some municipal codes of conduct. The Divisional Court
in Magder v. Ford, 2013 ONSC 263 upheld the ability of municipalities to
provide "remedial measures" in municipal codes of conduct provided they
do not amount to "penalties".
2.8 Staff will require further direction if there is a desire to amend Council's position
respecting what conduct is to be regulated and how the Code is to be enforced.
3.0 CONCURRENCE
3.1 The Municipal Clerk concurs with the recommendation in this Report.
CONFORMITY WITH STRATEGIC PLAN — Not applicable.
Attachment 1: Code of Conduct— Members of Council (November 2009)
Attachment 2: Model Form of Code of Conduct For Members of Council
Attachment 3: Toronto's Code of Conduct Complaint Protocol
ATTACHMENT NO. 1 TO
REPORT LGL-007-13
Y , k
Schedule A to By41aw 2009--1,(3
Code of Conduct— Members of Council
!, Purpose
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 work 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.
ATTACHMENT NO. 2 TO
REPORT LGL-007-13
Ontario Municipal Act
MODEL FORM OF CODE OF CONDUCT
FOR MEMBERS OF COUNCIL
L PRINCIPLES UPON WHICH THIS CODE IS BASED
Improving the quality of municipal administration and governance can best be achieved by
encouraging high standards of conduct on the part of all municipal officials.In particular,the
public is entitled to expect the highest standards of conduct from the members that it elects
to local government. In turn, adherence to these standards will protect and maintain the
municipality's reputation and integrity.
Key statements of principle that underline this Code of Conduct are as follows:
Members of Council must serve and be seen to serve their constituents in a consci-
entious and diligent manner;
• Members of Council must be committed to performing their functions with integrity,
avoiding the improper use of the influence of their office,and conflicts of interest,
both apparent and real;
• Members of Council are expected to perform their duties in office and arrange their
private affairs, in a manner that promotes public confidence and will bear close
public scrutiny;
• Members of Council must recognize and act upon the principle that democracy is
best achieved when the operation of government is made as transparent and ac-
countable to members of the public as possible;and
• Members of Council shall seek to serve the public interest by upholding both the
letter and spirit of the laws of Parliament and the Ontario Legislature,as well as the
laws and policies adopted by the municipal council.
II. APPLICATIONN OF THIS CODE
This Code of Conduct applies to every member of the Council.
III. DEFINITIONS
In this Code of Conduct:
"child"means a child born within or outside marriage and includes an adopted child and a
person whom a member has demonstrated a settled intention to treat as a child of his or her
family;
"Council"means the Council of the[name of the municipality to be inserted here];
"information"includes a record or document;
"member"means a member of the Council, unless the context otherwise requires; "parent"
means a person who has demonstrated a settled intention to treat a child as a part of his or
her family whether or not that person is the natural parent of the child;
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Code of Conduct for Members of Council
"person"includes a corporation,partnership,association and any other entity,as the context
allows;and
"spouse"means a person to whom a person is married or with whom the person is living in
a conjugal relationship outside marriage.
IV. COMPLIANCE WITH DECLARATION OF OFFICE
Every member shall act in accordance with his or her declaration of office.
V. ADHERENCE TO COUNCIL POLICIES AND PROCEDURES
Every member of Council shall observe and comply with every provision of this Code of
Conduct, as well as all other policies and procedures adopted or established by Council
affecting the Councillor,acting in his or her capacity as a member of Council.
VI, CONDUCT AT MEETINGS
Every member shall conduct himself or herself properly and in a civil manner at Council,
committee and other meetings,and in accordance with the provisions of the Procedure By-
law,this Code of Conduct,and other applicable law.
0
VII. CONDUCT RESPECTING OTHERS
Every member of Council has the duty and responsibility to treat members of the public,one
another and staff appropriately and without abuse, bullying or intimidation, and to ensure
that the municipal work environment is free from discrimination and harassment.
A member shall not use indecent,abusive or insulting words or expressions toward any other
member,any member of staff or any member of the public.
A member shall not speak in a manner that is discriminatory to any individual,based on that
person's race,ancestry,place of origin,creed,gender,sexual orientation,age,colour,marital
status,or disability.
VIII. CONDUCT RESPECTING STAFF
Under the direction of the senior municipal administration, and in accordance with the
decisions of Council, municipal staff are required to serve the municipal corporation as a
4 whole„ Every member shall be respectful of the role of staff to provide advice based on
political neutrality and objectivity and without undue influence from any member or faction
of the Council. Accordingly, no member shall maliciously or falsely injure or impugn the
professional or ethical reputation of any member of staff,Every member shall show respect
A for staff,and for their professional capacities and responsibilities,
No member shall compel any member of staff to engage in partisan political activities, or
subject any member of staff to threat or discrimination for refusing to engage in any such
activity. No member shall use or attempt to further his or her authority or influence by
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Ontario Municipal Act
intimidating,threatening,coercing,commanding or influencing improperly any staff member
or interfering with that person's duties,including the duty to disclose improper activity. —
IX. GIFTS AND BENEFITS —
For the purposes of this Code,a gift or benefit provided,with the member's knowledge,to a
member's spouse,child or parent,or to his or her staff,that is connected directly or indirectly j
to the performance of the member's duties,is deemed to be a gift or benefit to that member.
No member shall accept a fee,advance,gift or personal benefit that is connected directly or
indirectly with the performance of his or her duties of office,unless permitted under one or
more of the exceptions listed below.
Each of the following is recognized as an exception:
(a) compensation authorized by law; _ I
(b) a gift or benefit of the kind that normally accompanies the responsibilities of office
and is received as an incident of protocol or social obligation;
(c) a political contribution otherwise authorized and reported as required by law,in the
case of a member running for office;
(d) services provided without compensation by a person volunteering his or her time;
(e) a suitable memento of a function honouring the member; _
(f) food,lodging,transportation or entertainment lawfully provided by any Provincial,
regional or local government or board or political subdivisions of any of them,by G
the Federal government,a foreign government,or by those organizing a conference,
seminar or event where the member is speaking or attending in an official capacity;
(g) food and beverages consumed at a banquet,reception or similar event,if: —
(i) attendance by the member is for a legitimate municipal purpose; —
(ii) the person extending the invitation, or a representative of the organization
holding the event,is in attendance;and
(iii) the value is reasonable; !
(h) communications to the office of a member,including subscriptions to newspapers _
and periodicals; and
(i) a sponsorship or donation for a community event organized or run by a member,or
a third party on behalf of a member,subject to the limitations set outin any applicable _
municipal policy.
Except for exception(c)(political contributions allowable by law), these exceptions do not
apply where a gift or benefit is provided by a lobbyist or a lobbyist's client or employer.In
this provision,a lobbyist is an individual,organization or business who or that:
(a) lobbies,or causes the lobbying of,any public office holder of the municipality,the
municipal council or corporation,or a local board;
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Code of Conduct for Members of Council
(b) the member knows is attempting or intending to lobby the member or any of the
public persons or bodies listed in paragraph(a);or
(c) is maintaining an active lobbyist registration with the municipality,whether or not
with respect to any specific or current subject-matter.
In the case of any of the recognized exceptions(b),(e),(f),(h)and(i),if the value of the gift
or benefit exceeds$300.00, or if the total value of gifts or benefits received from any one
source during the course of a calendar year exceeds$300.00, the member shall file, within
30 days of receipt of the gift or benefit,or of reaching the annual limit,a disclosure statement
with the municipality[or with its Integrity Commissioner].
The disclosure statement must set out:
1 the nature of every gift or benefit received;
2 its source and date of receipt;
3 the circumstances under which it was given and received;
4 its estimated value;
5 what the recipient intends to do with any gift;and
6 whether any gift will at some point be provided to the municipality.
Every disclosure statement filed under this Code shall be made a public record.
Upon receiving a disclosure statement, the Integrity Commissioner, or other responsible
municipal official,shall examine it to ascertain whether the receipt of the gift or benefit might,
in his or her opinion,constitute a contravention of this Code or create a conflict between a
private interest and the public duty or responsibilities of the member. In the event that the
Integrity Commissioner makes such a determination,he or she shall call upon the member to
justify receipt of the gift or benefit.
Should the Integrity Commissioner or other municipal official determine that receipt of any
gift or benefit was inappropriate,he or she may direct the member to return the gift,reimburse
the donor for the value of any gift or benefit already consumed,forfeit the gift or remit the
value of any gift or benefit already consumed,to the municipality.
Except in the case of exceptions(a),(c),(f)and(i),no member shall accept a gift or benefit
worth in excess of$500.00,or gifts or benefits from one source during a calendar year which
together are worth in excess of$500.00.
X. CONFIDENTIAL INFORMATION
In this Code, "confidential information" includes any information in the possession of, or
received in confidence by,the municipality that the municipality is prohibited from disclosing,
or has decided to refuse to disclose, under the Municipal Freedom of Information.and
Protection of Privacy Act,or any other law. "Confidential information"also includes infor-
mation of a corporate,commercial,scientific or technical nature received in confidence from
third parties;personal information; information that is subject to solicitor-client privilege;
information that concerns any confidential matters pertaining to personnel,labour relations,
litigation, property acquisition, the security of the property of the municipality or a local
board; and any other information lawfully determined by the Council to be confidential,or
required to remain or be kept confidential by legislation or order.
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Ontario Municipal Act
No member shall disclose,release or publish by any means to any person or to the public any
confidential information acquired by virtue of his or her office, in any form, except when
required or authorized by Council or otherwise by law to do so.
No member shall use confidential information for personal or private gain or benefit,or for '
the personal or private gain or benefit of any other person or body.
A matter, the substance of a matter, and information pertaining to a matter, that has been
debated or discussed at a meeting closed to the public,shall be maintained as confidential, '
unless authorized by the Council or legislation to be released,generally or subject to condi-
tions,and such are complied with.No information pertaining to such a matter,the manner in
which it was dealt with at the meeting, or any part or description of the debate, shall be
disclosed unless authorized by the Council or otherwise by law. I
A member may disclose the content of any matter referred to in the preceding paragraph or
the subject-matter of deliberations,at an in camera meeting,only after the Council or com-
mittee lawfully and knowingly discusses the information at a meeting that is open to the
public or releases the information to the public.
Without limiting the generality of the foregoing,no member shall,without lawful authority,
disclose,or make personal use of,any of the following types of confidential information: P�
• _information concerning litigation,negotiation or personnel matters,
• information the publication of which may infringe on the rights of any person(e.g.
source of a complaint where the identity of a complainant is given in confidence);
• price schedules in any contract,tender or proposal document while such remains a
confidential document; 7
• iriformation deemed to be"personal information"under the Municipal Freedom of __J _
Information and Protection of Privacy Act;and
• any other information or statistical data required by law not to be released.
No member of Council shall obtain access, or attempt to gain access, to confidential infor-
mation in the custody of the municipality except to the extent that such access is necessary
for the performance of his or her duties and such access is not prohibited by Council or
otherwise by law,
XI. USE OF CITY PROPERTY,SERVICES AND OTHER RESOURCES
No member of Council shall use,or permit the use of,municipal land,facilities,equipment,
supplies, services, staff or other resource, including any municipally-owned information,
website, Council transportation delivery service or funds allocated for member of Council
expenses,for any purpose or activity other than the lawful business of the municipal corpo-
ration,No member shall seek or acquire any personal financial gain from the use or sale of
confidential information, or of any municipally-owned intellectual property including any
invention,creative writing or drawing,computer program,technical innovation,or any other
information or item capable of being patented or copyrighted, of which property remains
exclusively that of the municipality. T'
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Code of Conduct for Members of Council
XII. CONDUCT OF ELECTION CAMPAIGN
Every member shall comply with all applicable requirements of the Municipal Elections Act,
1996.No member shall use confidential information,facilities,equipment,supplies,services
or other resources of the municipality,including any Councillor newsletter or website linked
through the municipality's website,for any election campaign or campaign-related activity,
No member shall undertake campaign-related activities on City property during regular staff
working hours unless authorized by the municipality.No member shall use the services of
any person for election-related purposes during hours in which that person receives any
compensation from the municipality.
XIII. NO L IPROPER USE OF INFLUENCE
No member of Council shall use the influence of his or her office for any purpose other than
for the lawful exercise of his or her official duties and for municipal purposes.
No member of Council shall use his or her office or position to influence or attempt to
influence the decision of any other person,for the member's private advantage or that of the
member's parent,child,spouse,staff member,friend or associate,business or otherwise.No
member shall attempt to secure preferential treatment beyond activities in which members
normally engage on behalf of their constituents as part of their official duties. No member
shall hold out the prospect or promise of future advantage through the member's supposed
influence within Council,in return for any action or inaction.
For the purposes of this provision,"private advantage"does not include a matter:
(a) that is of general application;
(b) that affects a member of Council,his or her parents/children or spouse,staff mem-
bers,friends or associates,business or otherwise,as one of a broad class of persons;
or
(c) that concerns the remuneration or benefits of a member of Council.
This provision does not prevent a member of Council from requesting that Council grant a
lawful exemption from a policy.
XIS'. NON-COibII'LIANCE WITH THIS CODE OF CONDUCT—SANCTIONS
A member found by Council to have contravened any provision of this Code,is subject to
one or more of the following consequences imposed by Council,as referred to in the following
two paragraphs:
The Municipal Act,2001 authorizes the Council,where it has received a report by its Integrity
Commissioner that,in his or her opinion,there has been a violation of the Code of Conduct,
to impose upon the offending member of Council:
1 ' a reprimand;
2 suspension of the remuneration paid to the member in respect of his or her services
as a member of Council or a local board,as the case may be, for a period of up to
90 days.
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Ontario Municipal Act
The Integrity Commissioner may also recommend that Council or a local board take one or
more of the following actions:
1 removal from membership on a committee or local board;
2 removal as chair of a committee or local board;
3 repayment or reimbursement of monies received;
4 return of property or reimbursement of its value;
5 request an apology to Council,the complainant,or both;or
6 any other or additional action deemed by Council to be appropriate, and which is
within its power to take.
XV. I PTO REPRISAL OR OBSTRUCTION IN TEE APPLICATION OR ENFORCE-
MENT OF THIS CODE
Every member of Council must respect the integrity of the Code of Conduct and inquiries
and investigations conducted under it,and shall co-operate in every way possible in securing
compliance with its application and enforcement.Any reprisal or threat of reprisal against a
complainant or any other person for providing relevant information to the Integrity Commis-
sioner or any other person is prohibited. It is also a violation of the Code of Conduct to
obstruct the Integrity Commissioner,or any other municipal official involved in applying or
furthering the objectives or requirements of this Code,in the carrying out of such responsi-
bilities,or pursuing any such objective.
XVI. S'T'A'T'UTES REGULATING THE CONDUCT OF COUNCILLORS
In addition to this Code of Conduct,the following Ontario legislation also governs the conduct
of members of Council:
• the illfunicipal Act, 2001,as amended;
• the Municipal Conflict of Interest Act;
• the Municipal Elections Act, 1996;and
the Municipal Freedom of Information and Protection of Privacy Act.
The Criminal Code of Canada also governs the conduct of members of Council.
A member may become disqualified and lose his or her seat by operation of law,including
being convicted of an offence under the Criminal Code of Canada or being found to have
failed to comply with the Municipal Conflict of Interest Act, whether or not the conduct in
question involves contravention of this Code of Conduct.
In the case of any inconsistency between this Code and a Federal or Provincial statute or
regulation,the statute or regulation shall prevail.
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ATTACHMENT NO. 3 TO
REPORT LGL-007-13
TOR0190
CODE OF CONDUCT COMPLAINT PROTOCOL
FOR
MEMBERS OF COUNCIL
AUTHORITY:
Historic
(1) Clause No.4 of Report No.2 of the Policy and Finance Committee, March 1, 2 and
3, 2004 as amended by:
(a) Clause No.I of Report No.3 of the Policy and Finance Committee, held on
April 25, 26 and 27, 2006; Item CC2.5 as adopted and amended by
Council at its meeting held on February 5, 6, 7 and 8, 2007; Item CC11.8
as adopted by Council at its meeting held on July 16, 17, 18 and 19, 2007;
and
(b) Notice of Motion M148, as adopted by Council at its meeting held on
October 22 and 23, 2007.
(2) This Complaint Protocol for Members of Local Boards (Restricted Definition),
Including Adjudicative Boards, was amended and adopted by City Council on
July 15, 16 and 17, 2008 (2008 EX22.6, as amended by Council), as amended by.
(a) Item EX40.2, as adopted by Council at its meeting held on February 22
and 23, 2010.
Current
(3) This Code of Conduct Complaint Protocol for Members of Council, was amended and
adopted by City Council on October 2,3 and 4,2012:
Item CC26.4 as adopted by Council to reflect amendments to the Public Inquiries Act,
2009, S.O. 2009, c. 33, Sch. 6 and to reflect Council Amendments to the Constituency
Services and Office Budget Policy (formerly the "Councillor Expense Policy") made on
July 11, 12 and 13,2012(Item EX21.9).
PART A: INFORMAL COMPLAINT PROCEDURE
Individuals [for example, City employees, members of the public, members of Council or
local boards (restricted definition)], or organizations [including local boards (restricted
definition)] who have identified or witnessed behaviour or an activity by a member of
Council that they believe is in contravention of the Code of Conduct for Members of
I
Council (the "Code of Conduct") may wish to address the prohibited behaviour or
activity themselves as follows:
(1) advise the member that the behaviour or activity contravenes the Code of
Conduct;
(2) encourage the member to stop the prohibited behaviour or activity;
(3) keep a written record of the incidents including dates, times, locations, other
persons present, and any other relevant information;
(4) tell someone else (for example, a senior staff member or an officer of the
organization) about your concerns, your comments to the member and the
response of the member;
(5) if applicable, confirm to the member your satisfaction with the response of
the member; or, if applicable, advise the member of your dissatisfaction with
the response; and
(6) consider the need to pursue the matter in accordance with the formal
complaint procedure outlined in Part B, or in accordance with another
applicable judicial or quasi-judicial process or complaint procedure.
Individuals and organizations are encouraged to initially pursue this informal complaint
procedure as a means of stopping and remedying a behaviour or activity that is prohibited
by the Code of Conduct. With the consent of the complaining individual or organization
and the member, the Integrity Commissioner may be part of any informal process.
However, it is not a precondition or a prerequisite that those complaining pursue the
informal complaint procedure before pursuing the Formal Complaint Procedure in Part B.
Municipal pre-election period limitation
If an informal complaint is brought to the attention of the Integrity Commissioner during
the pre-election period described in subsection 1(6) of Part B, the Integrity Commissioner
may only participate in the informal process after the pre-election period has ended.
PART B: FORMAL COMPLAINT PROCEDURE: Integrity Commissioner
Statutory Authority:
Under section 160 of the City of Toronto Act, 2006, City Council ("Council"), a member
of council or a member of the public may request the Integrity Commissioner to conduct
an inquiry about whether a member of council or of a local board (restricted definition)
has contravened the Code of Conduct for Members of Council and Local Boards
(Restricted Definition) (the "Code of Conduct').
Requests for Inquiries s.1
Complaint 1. (1) A request for an investigation of a complaint that a
member has contravened the Code of Conduct (the
"complaint") shall be in writing.
2
(2) All complaints shall be signed by an identifiable
individual (which includes the authorized signing officer
of an organization).
(3) A complaint shall set out reasonable and probable
grounds for the allegation that the member has
contravened the Code of Conduct and include a
supporting affidavit that sets out the evidence in support
of the complaint.
For example, the complaint and supporting affidavit
should include the name of the alleged violator, the
provision allegedly contravened, facts constituting the
alleged contravention, the names and contact information
of witnesses, and contact information for the complainant
during normal business hours.
(4) Staff of the City Clerk's division, who are commissioners
for taking affidavits, are authorized to take the supporting
affidavit.
(5) Despite subsection (3), the Integrity Commissioner may
waive the requirement for an affidavit when the request
for an inquiry is from Council or a local board (restricted
definition).
Municipal (6) In a municipal election year, a code of conduct
Pre-election Period complaint respecting a member who is seeking re-
Limitation election may not be filed with the City Clerk during the
period starting on Civic Monday (August 1 in 2010) and
ending when a new City Council is deemed organized
under section 185 of the City of Toronto Act 2006.
jNote:Deemed organization
185. A new city council is deemed to be organized after a
regular election or after a by-election under section 211
when the declarations of office under section 186 have been
made by a sufficient number of members to form a
quorum.]
Initial Classification by Integrity Commissioner s. 2
File with Clerk 2. (1) The request shall be filed with the City Clerk who shall
forward the matter to the Integrity Commissioner for
initial classification to determine if the matter is, on its
face, a complaint with respect to non-compliance with
the Code of Conduct and not covered by other legislation
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or other Council policies as described in subsection(3).
Deferral (2) If the complaint does not include a supporting affidavit,
the Integrity Commissioner may defer the classification
until an affidavit is received.
No Jurisdiction (3) If the complaint, including any supporting affidavit, is
not, on its face, a complaint with respect to non-
compliance with the Code of Conduct or the complaint is
covered by other legislation or a complaint procedure
under another Council policy, the Integrity
Commissioner shall instruct the City Clerk to advise the
complainant in writing as follows:
(a) if the complaint on its face is an allegation of a
criminal nature consistent with the Criminal Code
of Canada, the complainant shall be advised that if
the complainant wishes to pursue any such
allegation, the complainant must pursue it with the
appropriate police force;
(b) if the complaint on its face is with respect to non-
compliance with the Municipal Conflict of Interest
Act, the complainant shall be advised to review the
matter with the complainant's own legal counsel;
(c) if the complaint on its face is with respect to non-
compliance with the Municipal Freedom of
Information and Protection of Privacy Act, the
complainant shall be advised that the matter will be
referred for review to the City's Director of the
Corporate Access and Privacy office;
(d) if the complaint on its face is with respect to non-
compliance with a more specific Council policy
with a separate complaint procedure, the
complainant shall be advised that the matter will be
processed under that procedure; and
(e) in other cases, the complainant shall be advised that
the matter, or part of the matter, is not within the
jurisdiction of the Integrity Commissioner to
process, with any additional reasons and referrals as
the Integrity Commissioner considers appropriate.
Reports (4) The Integrity Commissioner may report to Council that a
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specific complaint is not within the jurisdiction of the
Integrity Commissioner.
(5) The Integrity Commissioner shall report annually to
Council on complaints not within the jurisdiction of the
Integrity Commissioner, but shall not disclose
information that could identify a person concerned.
Integrity Commissioner Investigation ss.3—9
Refusal to Conduct 3. (1) If the Integrity Commissioner is of the opinion that the
Investigation referral of a matter to him or her is frivolous, vexatious or
not made in good faith, or that there are no grounds or
insufficient grounds for an investigation, the Integrity
Commissioner shall not conduct an investigation, or,
where that becomes apparent in the course of an
investigation,terminate the investigation.
(2) Other than in exceptional circumstances, the Integrity
Commissioner will not report to Council on any
complaint described in subsection (1) except as part of an
annual or other periodic report.
Investigation & 4. (1) If a complaint has been classified as being within the
Settlement Integrity Commissioner's jurisdiction and not rejected
under section 3, the Commissioner shall investigate and
may attempt to settle the complaint.
Public Inquiries Act (2) Under subsection 160(2) of the City of Toronto Act, 2006,
the Integrity Commissioner may elect to investigate a
complaint by exercise of the powers of a commission
under sections 33 and 34 of the Public Inquiries Act.
(3) When the Public Inquiries Act applies to an investigation
of a complaint, the Integrity Commissioner shall comply
with the procedures specified in that Act and this
Complaint Protocol, but, if there is a conflict between a
provision of the Complaint Protocol and a provision of
the Public Inquiries Act, the provision of the Public
Inquiries Act prevails.
5. (1) The Integrity Commissioner will proceed as follows,
except where otherwise required by the Public Inquiries
Act:
(a) serve the complaint and supporting material upon
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the member whose conduct is in question with a
request that a written response to the allegation by
way of affidavit or otherwise be filed within ten
days; and
(b) serve a copy of the response provided upon the
complainant with a request for a written reply
within ten days.
Access (2) If necessary, after reviewing the written materials, the
Integrity Commissioner may speak to anyone relevant to
the complaint, access and examine any of the information
described in subsections 160(3) and (4) of the City of
Toronto Act, 2006, and may enter any City work location
relevant to the complaint for the purposes of investigation
and settlement.
Opportunity to (3) The Integrity Commissioner shall not issue a report
Comment finding a violation of the Code of Conduct on the part of
any member unless the member has had reasonable notice
of the basis for the proposed finding and any
recommended sanction and an opportunity either in
person or in writing to comment on the proposed finding
and any recommended sanction.
Interim Reports (4) The Integrity Commissioner may make interim reports to
Council where necessary and as required to address any
instances of interference, obstruction or retaliation
encountered during the investigation.
Final Report 6. (1) The Integrity Commissioner shall report to the
complainant and the member generally no later than 90
days after the making of the complaint.
(2) Where the complaint is sustained in whole or in part, the
Integrity Commissioner shall also report to Council
outlining the findings, the terms of any settlement, or
recommended corrective action.
(3) Where the complaint is dismissed, other than in
exceptional circumstances, the Integrity Commissioner
shall not report to Council except as part of an annual or
other periodic report.
Lawful (4) Any recommended corrective action must be permitted in
Recommendations law and shall be designed to ensure that the inappropriate
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behaviour or activity does not continue.
Member not 7. If the Integrity Commissioner determines that there has
Blameworthy been no contravention of the Code of Conduct or that a
contravention occurred although the member took all
reasonable measures to prevent it, or that a contravention
occurred that was trivial or committed through
inadvertence or an error of judgement made in good faith,
the Integrity Commissioner shall so state in the report
and shall recommend that no penalty be imposed.
Copies 8. The City Clerk shall give a copy of the report to the
complainant and the member whose conduct is
concerned.
Report to Council 9. The City Clerk shall process the report for the next
meeting of Council
Council Review; Costs ss. 10— 12
Duty of Council 10.(1) Council shall consider and respond to the report within 90
days after the day the report is laid before it.
(2) In responding to the report, Council may vary a
recommendation that it impose a penalty, subject to
subsection 160(5) of the City of Toronto Act, 2006, but
shall not refer the recommendation other than back to the
Integrity Commissioner.
Payment of Costs 11.(1) Subject to this section and Council's policy on office
expense budget use, claims for reimbursement by a
member of Council for costs under this section shall be
processed under the Indemnification Policy for Members
of Council.
(2) A complainant and a member who are parties to a
complaint under this procedure shall each be reimbursed
for actual and reasonable legal and related expenses up to
a maximum of:
(a) $5,000; or
(b) $20,000, if the Integrity Commissioner has elected
to investigate the complaint by exercise of the
powers of a commission under Parts I and 11 of the
Public Inquiries Act.
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(3) In the case of an application under the Judicial Review
Procedure Act for judicial review of actions taken on a
complaint against a member of council by the Integrity
Commissioner, Council :
(a) where a member made the judicial review
application, the member is eligible for
reimbursement of legal costs, including additional
legal costs in a successful application, that are not
covered by the costs awarded by the court, up to a
maximum of$20,000.
(b) a member may apply for reimbursement of the legal
costs of intervention in a judicial review application
where the member's interests are at stake, up to a
maximum of$20,000.
(4) Council may consider the reimbursement of costs above
the limit in subsections (2) and (3) on a case by case
basis.
(5) Costs may be provided in advance in an investigation,-if
the Integrity Commissioner is of the opinion that the use
of a lawyer by one or more of the parties would facilitate
the carrying out of the investigation, and subsections (6)
and (7) do not apply to the advance costs paid under this
subsection.
(6) Costs shall only be reimbursed under this section to the
complainant, if the Integrity Commissioner concludes that
the complaint is not frivolous, vexatious or made in bad
faith and the Integrity Commissioner's conclusion is not
overturned on judicial review.
(7) Costs shall only be reimbursed under this section to the
member:
(a) if the Integrity Commissioner concludes that there
has been no contravention of the Code of Conduct
by the member or that the member is not
blameworthy as described in section 7, and the
Integrity Commissioner's conclusion is not
overturned on judicial review; or
(b) where Council receives the Integrity
Commissioner's report on a violation and
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determines that it should not take any action.
(8)Any award of costs under subsection (7) shall be
contingent on a report from the City Solicitor in
consultation with the Integrity Commissioner.
Confidentiality 12.(1) A complaint will be processed in compliance with the
confidentiality requirements in sections 161 and 162 of
the City of Toronto Act, 2006, which are summarized in
the following subsections.
(2) The Integrity Commissioner and every person acting
under her or his instructions shall preserve secrecy with
respect to all matters that come to his or her knowledge in
the course of any investigation except as required by law
in a criminal proceeding or in accordance with the
provisions of Part V of the City of Toronto Act, 2006
(3) All reports from the Integrity Commissioner to Council
will be made available to the public.
(4) Any references by the Integrity Commissioner in an
annual or other periodic report to a complaint or an
investigation shall not disclose confidential information
that could identify a person concerned.
(5) The Integrity Commissioner in a report to Council on
whether a member has violated the Code of Conduct shall
only disclose such matters as in the Integrity
Commissioner's opinion are necessary for the purposes of
the report.
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